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investment-agreement.mustache
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# {{=/* */=}}
This Series Next Preferred Stock Investment Agreement (the ""Agreement"") is dated as of the <Agreement Date>, and is between the <Company>, the <Purchasers>, and the <Key Holders>.
\\ The parties agree as follows:
\ Defined Terms \ Capitalized terms used and not otherwise defined in the <Agreement> have the following meanings.
\ Overview Definitions \
\\ ""Agreement Date"" means [agreement date].
\\ ""Company"" means [corporation name].
\\ ""Governing Law"" means the laws of the [governing law state].
\\ ""Dispute Resolution Jurisdiction"" means the federal or state courts located in [federal forum].
\\ ""State of Incorporation"" means the State of Delaware.
\\ ""Stock Plan"" means [formal reference to the corporation's stock plan].
\ Board Composition Definitions \
\\ ""Common Board Member Count"" means [number of common directors].
\\ ""Mutual Consent Board Member Count"" means [number of mutual directors].
\\ ""Series Next Board Member Count"" means [number of Series Next directors].
\\ ""Common Control Holders"" means the <Key Holders> who are then providing services to the company as employees.
\ Term Sheet Definitions \
\\ ""Major Purchaser Dollar Threshold"" means [major purchaser minimum investment].
\\ ""Purchase Price"" means [original issue price] per share (subject to any discounts applicable where all or a portion of such <Purchase Price> is being paid by cancellation of indebtedness of the <Company> to such <Purchaser>).
\\ ""Total Series Next Investment Amount"" means [total Series Next investment amount].
\\ ""Unallocated Post-Money Option Pool Percent"" means [unallocated option pool percent].
\\ ""Purchaser Counsel Reimbursement Amount"" means [purchaser counsel reimbursement amount].
\ Resulting Cap Table Definitions \
\\ ""Common Shares Issued and Outstanding Pre-Money"" means [number of outstanding common shares].
\\ ""Total Post-Money Shares Reserved for Option Pool"" means [total post-money shares reserved for option pool].
\\ ""Number of Issued And Outstanding Options"" means [number of outstanding option shares].
\\ ""Unallocated Post-Money Option Pool Shares"" means [unallocated post-money option pool shares].
\ Investment \ Subject to the terms and conditions of the <Agreement>, including the terms set forth in {Agreement Terms}:
\\ each <Purchaser> shall purchase at the applicable <Closing> and the <Company> shall sell and issue to each <Purchaser> at such <Closing> that number of shares of <Series Next Preferred Stock> set forth opposite such <Purchaser>'s name on {List of Purchasers}, at a price per share equal to the <Purchase Price> (subject to any applicable discounts when all or a portion of such <Purchase Price> is being paid by cancellation of indebtedness of the <Company> to such <Purchaser>) and
\\ each <Purchaser>, the <Company>, and each <Key Holder> agrees to be bound by the obligations set forth in the <Agreement>, and to grant to the other parties hereto the rights set forth in the <Agreement>.
\ Entire Agreement \ The <Agreement> together with the <Restated Charter> constitute the full and entire understanding and agreement between the parties with respect to the subject matter hereof, and any other written or oral agreement relating to the subject matter hereof existing between the parties is expressly canceled.
\ Agreement Terms \
\ Purchase and Sale of Series Next Preferred Stock \
\ Sale and Issuance of Series Next Preferred Stock \
\\ The <Company> shall adopt and file the <Company>'s restated organizational documents, as applicable (e.g., certificate of incorporation), in substantially the form of {Restated Charter} (as the same may be amended, restated, supplemented or otherwise modified from time to time) (the ""Restated Charter"") with the Secretary of State of the <State of Incorporation> on or before the <Initial Closing>.
\\ Subject to the terms and conditions of the <Agreement>, each investor listed as a "Purchaser" on {List of Purchasers} (each, a ""Purchaser"" and collectively, ""Purchasers"") shall purchase at the applicable <Closing> and the <Company> agrees to sell and issue to each <Purchaser> at such <Closing> that number of shares of <Series Next Preferred Stock> of the <Company> (""Series Next Preferred Stock"") set forth opposite such <Purchaser>'s name on {List of Purchasers}, at a purchase price per share equal to the <Purchase Price>.
\ Closing; Delivery \
\\ The initial purchase and sale of the shares of <Series Next Preferred Stock> hereunder may take place remotely via the exchange of documents and signatures on the <Agreement Date> or any subsequent date on which 1 or more <Purchasers> execute counterpart signature pages to the <Agreement> and deliver the <Purchase Price> to the <Company> (such date, the ""Initial Closing"").
\ Additional Closings \ At any time and from time to time during the 90-day period immediately following the <Initial Closing>, the <Company> may, at 1 or more additional closings (each, an ""Additional Closing"" collectively, ""Additional Closings"" and together with the <Initial Closing>, each, a ""Closing""), without obtaining the signature, consent or permission of any of the <Purchasers> in the <Initial Closing> or any prior <Additional Closing>, offer and sell to other investors (each, a ""New Purchaser"" and collectively, ""New Purchasers""), at a per share purchase price equal to the <Purchase Price>, up to that number of shares of <Series Next Preferred Stock> that is equal to that number of shares of <Series Next Preferred Stock> equal to the quotient of
\\ <Total Series Next Investment Amount> divided by
\\ the <Purchase Price>,
rounded up to the next whole share (the ""Total Shares Authorized for Sale"") less the number of shares of <Series Next Preferred Stock> actually issued and sold by the <Company> at the <Initial Closing> and any prior <Additional Closings>. <New Purchasers> may include persons or entities who are already <Purchasers> under the <Agreement>. The <Company> and each of the <New Purchasers> purchasing shares of <Series Next Preferred Stock> at each <Additional Closing> will execute counterpart signature pages to the <Agreement> and each <New Purchaser> will, upon delivery by such <New Purchaser> and acceptance by the <Company> of such <New Purchaser>'s signature page and delivery of the <Purchase Price> by such <New Purchaser> to the <Company>, become a party to, and bound by, the <Agreement> to the same extent as if such <New Purchaser> had been a <Purchaser> at the <Initial Closing> and each such <New Purchaser> shall be deemed to be a <Purchaser> for all purposes under the <Agreement> as of the date of the applicable <Additional Closing>.
\\ Promptly following each <Closing>, if required by the <Company>'s governing documents, the <Company> shall deliver to each <Purchaser> participating in such <Closing> a certificate representing the shares of <Series Next Preferred Stock> being purchased by such <Purchaser> at such <Closing> against payment of the <Purchase Price> therefor by check payable to the <Company>, by wire transfer to a bank account designated by the <Company>, by cancellation or conversion of indebtedness of the <Company> to <Purchaser> or by any combination of such methods.
\ Representations and Warranties of the Company \ The <Company> hereby represents and warrants to each <Purchaser> that, except as set forth on {Disclosure Schedule} (the ""Disclosure Schedule""), if any, which exceptions shall be deemed to be part of the representations and warranties made hereunder, the following representations are true and complete as of the date of the <Agreement Date>, except as otherwise indicated.
\ Organization, Good Standing, Corporate Power, and Qualification \ The <Company> is a corporation duly organized, validly existing and in good standing under the laws of the <State of Incorporation> and has all corporate power and corporate authority required
\\ to carry on its business as presently conducted and as presently proposed to be conducted and
\\ to execute, deliver and perform its obligations under the <Agreement>. The <Company> is duly qualified to transact business as a foreign corporation and is in good standing under the laws of each jurisdiction in which the failure to so qualify or be in good standing would have a material adverse effect on the business, assets (including intangible assets), liabilities, financial condition, property, or results of operations of the <Company>.
\ Capitalization \
\\ The authorized capital of the <Company> consists, immediately prior to the <Agreement Date> (unless otherwise noted), of the following:
\\ The common stock of the <Company> (the ""Common Stock""), of which that number of shares of <Common Stock> equal to
\\ the <Common Shares Issued and Outstanding Pre-Money> are issued and outstanding as of immediately prior to the <Agreement Date>,
\\ the number of shares of <Common Stock> which are issuable on conversion of shares of the <Series Next Preferred Stock> have been reserved for issuance upon conversion of the <Series Next Preferred Stock> and
\\ the <Total Post-Money Shares Reserved for Option Pool> have been reserved for issuance pursuant to the <Stock Plan>, and of such <Total Post-Money Shares Reserved for Option Pool>, that number of shares of <Common Stock> equal to the <Number of Issued And Outstanding Options> are currently subject to outstanding options and that number of shares of <Common Stock> equal to the <Unallocated Post-Money Option Pool Shares> remain available for future issuance to officers, directors, employees and consultants pursuant to the <Stock Plan>.
The ratio determined by dividing
\\ the <Unallocated Post-Money Option Pool Shares> by
\\ the <Fully-Diluted Share Number> (as defined below)
is equal to the <Unallocated Post-Money Option Pool Percent>.
All of the outstanding shares of <Common Stock> are duly authorized, validly issued, fully paid and nonassessable and were issued in material compliance with all applicable federal and state securities laws. The <Stock Plan> has been duly adopted by the Board of Directors of the <Company> (the ""Board"") and approved by the <Company>'s stockholders. For purposes of the <Agreement>, the term ""Fully-Diluted Share Number"" shall mean that number of shares of the <Company>'s capital stock equal to the sum of
\\ all shares of the <Company>'s capital stock (on an as-converted basis) issued and outstanding, assuming exercise or conversion of all options, warrants and other convertible securities and
\\ all shares of the <Company>'s capital stock reserved and available for future grant under any equity incentive or similar plan.
\\ The shares of the preferred stock of the <Company> (the ""Preferred Stock""), all of which is designated as <Series Next Preferred Stock>, none of which is issued and outstanding immediately prior to the <Agreement Date>.
\\ There are no outstanding preemptive rights, options, warrants, conversion privileges or rights (including but not limited to rights of first refusal or similar rights), orally or in writing, to purchase or acquire any securities from the <Company> including, without limitation, any shares of <Common Stock>, or <Preferred Stock>, or any securities convertible into or exchangeable or exercisable for shares of <Common Stock> or <Preferred Stock>, except for
\\ the conversion privileges of the <Series Next Preferred Stock> pursuant to the terms of the <Restated Charter> and
\\ the securities and rights described in the <Agreement>.
\\ The <Key Holders> set forth in {Key Holder Ownership} (each, a ""Key Holder"" and collectively, ""Key Holders"") hold that number of shares of <Common Stock> set forth opposite each such <Key Holder>'s name in {Key Holder Ownership} (such shares, the ""Key Holders' Shares"") and such <Key Holders' Shares> are subject to vesting and/or the <Company>'s repurchase right on the terms specified in {Key Holder Vesting Schedules} (the ""Key Holders' Vesting Schedules""). Except as specified in {Key Holder Ownership}, the <Key Holders> do not own or have any other rights to any other securities of the <Company>. The <Key Holders' Vesting Schedules> set forth in {Key Holder Ownership} specify for each <Key Holder>
\\ the vesting commencement date for each issuance of shares to or options held by such <Key Holder>,
\\ the number of shares or options held by such <Key Holder> that are currently vested,
\\ the number of shares or options held by such <Key Holder> that remain subject to vesting and/or the <Company>'s repurchase right and
\\ the terms and conditions, if any, under which the <Key Holders' Vesting Schedules> would be accelerated.
Other than the <Key Holders' Shares>, which vest pursuant to the applicable <Key Holders' Vesting Schedules>,
\\ all options granted and <Common Stock> outstanding vest as follows: 25% of the shares vest 1 year following the vesting commencement date, with the remaining 75% vesting in equal installments over the next 3 years and
\\ no stock plan, stock purchase, stock option or other agreement or understanding between the <Company> and any holder of any equity securities or rights to purchase equity securities provides for acceleration or other changes in the vesting provisions or other terms of such agreement or understanding as the result of
\\ termination of employment (whether actual or constructive),
\\ any merger, consolidated sale of stock or assets, change in control or any other transaction(s) by the <Company>, or
\\ the occurrence of any other event or combination of events.
\ Subsidiaries \ The <Company> does not currently own or control, directly or indirectly, any interest in any other corporation, partnership, trust, joint venture, limited liability company, association, or other business entity. The <Company> is not a participant in any joint venture, partnership or similar arrangement.
\ Company Authorization \ All corporate action has been taken, or will be taken prior to the applicable <Closing>, on the part of the <Board> and stockholders that is necessary for the authorization, execution and delivery of the <Agreement> by the <Company> and the performance by the <Company> of the obligations to be performed by the <Company> as of the date hereof under the <Agreement>. The <Agreement>, when executed and delivered by the <Company>, shall constitute the valid and legally binding obligation of the <Company>, enforceable against the <Company> in accordance with its terms except
\\ as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or other laws of general application relating to or affecting the enforcement of creditors' rights generally, or
\\ as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies.
\ Valid Issuance of Shares \ The shares of <Series Next Preferred Stock>, when issued, sold and delivered in accordance with the terms and for the consideration set forth in the <Agreement>, will be duly authorized, validly issued, fully paid and nonassessable and free of restrictions on transfer other than restrictions on transfer under the <Agreement>, applicable state and federal securities laws and liens or encumbrances created by or imposed by a <Purchaser>. Based in part on the accuracy of the representations of the <Purchasers> in {Representations, Warranties, and Covenants of the Purchasers} and subject to filings pursuant to Regulation D of the Securities Act of 1933, as amended (the ""Securities Act""), and applicable state securities laws, the offer, sale and issuance of the shares of <Series Next Preferred Stock> to be issued pursuant to and in conformity with the terms of the <Agreement> and the issuance of the <Common Stock>, if any, to be issued upon conversion thereof for no additional consideration and pursuant to the <Restated Charter>, will be issued in compliance with all applicable federal and state securities laws. The <Common Stock> issuable upon conversion of the shares of <Series Next Preferred Stock> has been duly reserved for issuance, and upon issuance in accordance with the terms of the <Restated Charter>, will be duly authorized, validly issued, fully paid and nonassessable and free of restrictions on transfer other than restrictions on transfer under the <Agreement>, applicable federal and state securities laws and liens or encumbrances created by or imposed by a <Purchaser>. Based in part upon the representations of the <Purchasers> in {Representations, Warranties, and Covenants of the Purchasers}, and subject to filings pursuant to Regulation D of the <Securities Act> and applicable state securities laws, the <Common Stock> issuable upon conversion of the shares of <Series Next Preferred Stock> will be issued in compliance with all applicable federal and state securities laws.
\ Litigation \ There is no pending action, suit, proceeding, arbitration, mediation, complaint, claim, charge or investigation before any court, arbitrator, mediator or governmental body or, to the <Company>'s knowledge, currently threatened in writing
\\ against the <Company> or
\\ against any consultant, officer, director or key employee of the <Company> arising out of his or her consulting, employment or board relationship with the <Company> or that could otherwise materially impact the <Company>.
\ Intellectual Property \ The <Company> owns or possesses sufficient legal rights to all <Intellectual Property> (as defined below) that is necessary to the conduct of the <Company>'s business as now conducted and as presently proposed to be conducted (the ""Company Intellectual Property"") without any violation or infringement (or in the case of third-party patents, patent applications, trademarks, trademark applications, service marks, or service mark applications, without any violation or infringement known to the <Company>) of the rights of others. No product or service marketed or sold (or proposed to be marketed or sold) by the <Company> violates or will violate any license or infringes or will infringe any rights to any patents, patent applications, trademarks, trademark applications, service marks, trade names, copyrights, trade secrets, licenses, domain names, mask works, information and proprietary rights and processes (collectively, ""Intellectual Property"") of any other party, except that with respect to third-party patents, patent applications, trademarks, trademark applications, service marks, or service mark applications the foregoing representation is made to the <Company>'s knowledge only. Other than with respect to commercially available software products under standard end-user object code license agreements, there is no outstanding option, license, agreement, claim, encumbrance or shared ownership interest of any kind relating to the <Company Intellectual Property>, nor is the <Company> bound by or a party to any options, licenses or agreements of any kind with respect to the <Intellectual Property> of any other person. The <Company> has not received any written communications alleging that the <Company> has violated or, by conducting its business, would violate any of the <Intellectual Property> of any other person.
\ Employee and Consultant Matters \ Each current and former 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 made available to the <Purchasers> or delivered to the counsel for the <Purchasers>. No current or former employee or consultant has excluded any work or invention from his or her assignment of inventions. To the <Company>'s knowledge, no such employees or consultants is in violation thereof. To the <Company>'s knowledge, none of its employees is obligated under any judgment, decree, contract, covenant or agreement that would materially interfere with such employee's ability to promote the interest of the <Company> or that would interfere with such employee's ability to promote the interests of the <Company> or that would conflict with the <Company>'s business. To the <Company>'s knowledge, all individuals who have purchased unvested shares of the <Company>'s <Common Stock> have timely filed elections under Section 83(b) of the Internal Revenue Code of 1986, as amended.
\ Compliance with Other Instruments \ The <Company> is not in violation or default
\\ of any provisions of the <Restated Charter> or the <Company>'s bylaws,
\\ of any judgment, order, writ or decree of any court or governmental entity,
\\ under any agreement, instrument, contract, lease, note, indenture, mortgage or purchase order to which it is a party that is required to be listed on the <Disclosure Schedule>, or,
\\ to its knowledge, of any provision of federal or state statute, rule or regulation materially applicable to the <Company>.
The execution, delivery and performance of the <Agreement> and the consummation of the transactions contemplated by the <Agreement> will not result in any such violation or default, or constitute, with or without the passage of time and giving of notice, either
\\ a default under any such judgment, order, writ, decree, agreement, instrument, contract, lease, note, indenture, mortgage or purchase order or
\\ an event which results in the creation of any lien, charge or encumbrance upon any assets of the <Company> or the suspension, revocation, forfeiture, or nonrenewal of any material permit or license applicable to the <Company>.
\ Title to Property and Assets \ The <Company> owns its properties and assets free and clear of all mortgages, deeds of trust, liens, encumbrances and security interests except for statutory liens for the payment of current taxes that are not yet delinquent and liens, encumbrances and security interests which arise in the ordinary course of business and which do not affect material properties and assets of the <Company>. With respect to the property and assets it leases, the <Company> is in material compliance with each such lease.
\ Agreements \ Except for the <Agreement>, there are no agreements, understandings, instruments, contracts or proposed transactions to which the <Company> is a party that involve
\\ obligations (contingent or otherwise) of, or payments to, the <Company> in excess of $50,000,
\\ the license of any <Intellectual Property> to or from the <Company> other than licenses with respect to commercially available software products under standard end-user object code license agreements or standard customer terms of service and privacy policies for Internet sites,
\\ the grant of rights to manufacture, produce, assemble, license, market, or sell its products to any other person, or that limit the <Company>'s exclusive right to develop, manufacture, assemble, distribute, market or sell its products, or
\\ indemnification by the <Company> with respect to infringements of proprietary rights other than standard customer or channel agreements (each, a ""Material Agreement"").
The <Company> is not in material breach of any <Material Agreement>. Each <Material Agreement> is in full force and effect and is enforceable by the <Company> in accordance with its respective terms, except as may be limited by
\\ applicable bankruptcy, insolvency, reorganization or others laws of general application relating to or affecting the enforcement of creditors' rights generally, or
\\ the effect of rules of law governing the availability of equitable remedies.
\ Liabilities \ The <Company> has no liabilities or obligations, contingent or otherwise, in excess of $25,000 individually or $100,000 in the aggregate.
\ Representations, Warranties, and Covenants of the Purchasers \ Each <Purchaser> hereby represents and warrants to the <Company>, severally and not jointly, as follows.
\ Purchaser Authorization \ The <Purchaser> has full power and authority to enter into the <Agreement>. The <Agreement>, when executed and delivered by the <Purchaser>, will constitute a valid and legally binding obligation of the <Purchaser>, enforceable in accordance with their terms, except
\\ as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and any other laws of general application relating to or affecting the enforcement of creditors' rights generally, or
\\ the effect of rules of law governing the availability of equitable remedies.
\ Purchase Entirely for Own Account \ The <Agreement> is made with the <Purchaser> in reliance upon the <Purchaser>'s representation to the <Company>, which by the <Purchaser>'s execution of the <Agreement>, the <Purchaser> hereby confirms, that the shares of <Series Next Preferred Stock> 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 the <Agreement>, the <Purchaser> further represents that the <Purchaser> does not presently have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to any of the shares of <Series Next Preferred Stock>. The <Purchaser> has not been formed for the specific purpose of acquiring the shares of <Series Next Preferred Stock>.
\ 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 shares of <Series Next Preferred Stock> with the <Company>'s management. Nothing in {Representations, Warranties, and Covenants of the Purchasers}, including the foregoing sentence, limits or modifies the representations and warranties of the <Company> in {Representations and Warranties of the Company} or the right of the <Purchasers> to rely thereon.
\ Restricted Securities \ The <Purchaser> understands that the shares of <Series Next Preferred Stock> 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 shares of <Series Next Preferred Stock> are "restricted securities" under applicable United States federal and state securities laws and that, pursuant to these laws, the <Purchaser> must hold the shares of <Series Next Preferred Stock> 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 shares of <Series Next Preferred Stock>, or the <Common Stock> into which it may be converted, for resale. 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 shares of <Series Next Preferred Stock>, 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.
\ No Public Market \ The <Purchaser> understands that no public market now exists for the shares of <Series Next Preferred Stock>, and that the <Company> has made no assurances that a public market will ever exist for the shares of <Series Next Preferred Stock>.
\ Legends \ The <Purchaser> understands that the shares of <Series Next Preferred Stock> and any securities issued in respect of or exchange for the shares of <Series Next Preferred Stock>, may bear any 1 or more of the following legends:
\\ any legend set forth in, or required by, the <Agreement>;
\\ any legend required by the securities laws of any state to the extent such laws are applicable to the shares of <Series Next Preferred Stock> represented by the certificate so legended; and
\\ the following legend: "The shares represented by this certificate have not been registered under the Securities Act of 1933, as amended, and have been acquired for investment and not with a view to, or in connection with, the sale or distribution thereof. No transfer may be effected without an effective registration statement related thereto or an opinion of counsel in a form reasonably satisfactory to the company that such registration is not required under the Securities Act of 1933, as amended."
\ Accredited and Sophisticated Purchaser \ The <Purchaser> is an accredited investor as defined in Rule 501(a) of Regulation D promulgated under the <Securities Act>. The <Purchaser> is an investor in securities of companies in the development stage and acknowledges that <Purchaser> 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 shares of <Series Next Preferred Stock>. If other than an individual, <Purchaser> also represents it has not been organized for the purpose of acquiring the shares of <Series Next Preferred Stock>.
\ No General Solicitation \ Neither the <Purchaser> nor any of its officers, directors, employees, agents, stockholders or partners has either directly or indirectly, including through a broker or finder
\\ engaged in any general solicitation with respect to the offer and sale of the shares of <Series Next Preferred Stock>, or
\\ published any advertisement in connection with the offer and sale of the shares of <Series Next Preferred Stock>.
\ Exculpation Among Purchasers \ The <Purchaser> acknowledges that it is not relying upon any person, other than the <Company> and its officers and directors, in making its investment or decision to invest in the <Company>. The <Purchaser> agrees that neither any <Purchaser> nor the respective controlling persons, officers, directors, partners, agents, or employees of any <Purchaser> shall be liable to any other <Purchaser> for any action heretofore taken or omitted to be taken by any of them in connection with the purchase of the shares of <Series Next Preferred Stock>.
\ Residence \ If the <Purchaser> is an individual, then the <Purchaser> resides in the state identified in the address of the <Purchaser> set forth on the signature page hereto and/or on {List of Purchasers}; if the <Purchaser> is a partnership, corporation, limited liability company or other entity, then the office or offices of the <Purchaser> in which its principal place of business is identified in the address or addresses of the <Purchaser> set forth on the signature page hereto and/or on {List of Purchasers}. In the event that the <Purchaser> is not a resident of the United States, such <Purchaser> hereby agrees to make such additional representations and warranties relating to such <Purchaser>'s status as a non-United States resident as reasonably may be requested by the <Company> and to execute and deliver such documents or agreements as reasonably may be requested by the <Company> relating thereto as a condition to the purchase and sale of any shares of <Series Next Preferred Stock> by such <Purchaser>.
\ Covenants of the Company \
\ Information Rights \
\ Basic Financial Information \ The <Company> shall furnish to each <Purchaser> holding that number of shares equal to or in excess of the quotient determined by dividing
\\ the <Major Purchaser Dollar Threshold> by
\\ the <Purchase Price>, rounded up to the next whole share
(each, a ""Major Purchaser"" and collectively, ""Major Purchasers"") and any entity that requires such information pursuant to its organizational documents when available
\\ annual unaudited financial statements for each fiscal year of the <Company>, including an unaudited balance sheet as of the end of such fiscal year, an unaudited income statement, and an unaudited statement of cash flows, all prepared in accordance with generally accepted accounting principles and practices; and
\\ quarterly unaudited financial statements for each fiscal quarter of the <Company> (except the last quarter of the <Company>'s fiscal year), including an unaudited balance sheet as of the end of such fiscal quarter, an unaudited income statement, and an unaudited statement of cash flows, all prepared in accordance with generally accepted accounting principles and practices, subject to changes resulting from normal year-end audit adjustments.
If the <Company> has audited records of any of the foregoing, it shall provide those in lieu of the unaudited versions.
\ Confidentiality \ Anything in the <Agreement> to the contrary notwithstanding, no <Purchaser> by reason of the <Agreement> shall have access to any trade secrets or confidential information of the <Company>. The <Company> shall not be required to comply with any information rights of any <Purchaser> whom the <Company> reasonably determines to be a competitor or an officer, employee, director, or holder of 10% or more of a competitor. Each <Purchaser> shall keep confidential and shall not disclose, divulge, or use for any purpose (other than to monitor its investment in the <Company>) any confidential information obtained from the <Company> pursuant to the terms of the <Agreement> other than to any of the <Purchaser>'s attorneys, accountants, consultants, and other professionals, to the extent necessary to obtain their services in connection with monitoring the <Purchaser>'s investment in the <Company>.
\ Inspection Rights \ The <Company> shall permit each <Major Purchaser> to visit and inspect the <Company>'s properties, to examine its books of account and records and to discuss the <Company>'s affairs, finances and accounts with its officers, all at such reasonable times as may be requested by such <Major Purchaser>.
\ Additional Rights and Obligations \ If the <Company> issues securities in its next equity financing after the date hereof (the ""Next Financing"") that
\\ have rights, preferences or privileges that are more favorable than the terms of the shares of <Series Next Preferred Stock>, such as price-based anti-dilution protection, or
\\ provide all such future investors other contractual terms such as registration rights,
the <Company> shall provide substantially equivalent rights to the Purchasers with respect to the shares of <Series Next Preferred Stock> (with appropriate adjustment for economic terms or other contractual rights), subject to such Purchaser's execution of any documents, including, if applicable, investor rights, co-sale, voting, and other agreements, executed by the investors purchasing securities in the <Next Financing> (such documents, the ""Next Financing Documents""). Any <Major Purchaser> will remain a <Major Purchaser> for all purposes in the <Next Financing Documents> to the extent such concept exists. The <Company> shall pay the reasonable fees and expenses, not to exceed $5,000 in the aggregate, of 1 counsel for the Purchasers in connection with the Purchasers' review, execution, and delivery of the <Next Financing Documents>. Notwithstanding anything herein to the contrary, subject to the provisions of {Termination}, upon the execution and delivery of the <Next Financing Documents> by <Purchasers> holding a majority of the then-outstanding shares of <Series Next Preferred Stock> held by all <Purchasers>, the <Agreement> (excluding any then-existing and outstanding obligations) shall be amended and restated by and into such <Next Financing Documents> and shall be terminated and of no further force or effect.
\ Assignment of Company's Preemptive Rights \ The <Company> shall obtain at or prior to the <Initial Closing>, and shall maintain, a right of first refusal with respect to transfers of shares of <Common Stock> by each holder thereof, subject to certain standard exceptions. If the <Company> elects not to exercise its right of first refusal with respect to a proposed transfer of the <Company>'s outstanding securities by any <Key Holder>, the <Company> shall assign such right of first refusal to the <Major Purchasers>. In the event of such assignment, each <Major Purchaser> shall have a right to purchase that portion of the securities proposed to be transferred by such <Key Holder> equal to the ratio of
\\ the number of shares of the <Company>'s <Common Stock> issued or issuable upon conversion of the shares of <Series Next Preferred Stock> owned by such <Major Purchaser>, to
\\ the number of shares of the <Company>'s <Common Stock> issued or issuable upon conversion of the shares of <Series Next Preferred Stock> owned by all <Major Purchasers>.
\ Reservation of Common Stock \ The <Company> shall at all times reserve and keep available, solely for issuance and delivery upon the conversion of the <Series Next Preferred Stock>, all <Common Stock> issuable from time to time upon conversion of that number of shares of <Series Next Preferred Stock> equal to the <Total Shares Authorized for Sale>, regardless of whether or not all such shares have been issued at such time.
\ Restrictions on Transfer; Drag Along \
\ Limitations on Disposition \ Each person owning of record shares of <Common Stock> of the <Company> issued or issuable pursuant to the conversion of the shares of <Series Next Preferred Stock> and any shares of <Common Stock> of the <Company> issued as a dividend or other distribution with respect thereto or in exchange therefor or in replacement thereof (collectively, the ""Securities"") or any assignee of record of <Securities> (each such person, a ""Holder"") shall not make any disposition of all or any portion of any <Securities> unless:
\ Effective Registration Statement \ there is then in effect a registration statement under the <Securities Act>, covering such proposed disposition and such disposition is made in accordance with such registration statement; or
\ Notice of Circumstances \ such <Holder> has notified the <Company> of the proposed disposition and has furnished the <Company> with a statement of the circumstances surrounding the proposed disposition, and, at the expense of such <Holder> or its transferee, with an opinion of counsel, reasonably satisfactory to the <Company>, that such disposition will not require registration of such securities under the <Securities Act>.
Notwithstanding the provisions of {Effective Registration Statement} and {Notice of Circumstances}, no such registration statement or opinion of counsel will be required:
\\ for any transfer of any <Securities> in compliance with the Securities and Exchange Commission's Rule 144 or Rule 144A, or
\ Investment Fund Internal Transfers \ for any transfer of any <Securities> by a <Holder> that is a partnership, limited liability company, a corporation, or a venture capital fund to
\\ a partner of such partnership, a member of such limited liability company, or stockholder of such corporation,
\\ an affiliate of such partnership, limited liability company or corporation (including, any affiliated investment fund of such <Holder>),
\\ a retired partner of such partnership or a retired member of such limited liability company,
\\ the estate of any such partner, member, or stockholder, or
\ Gratis Transfers \ for the transfer without additional consideration or at no greater than cost by gift, will, or intestate succession by any <Holder> to the <Holder>'s spouse or lineal descendants or ancestors or any trust for any of the foregoing;
provided that, in the case of {Investment Fund Internal Transfers} and {Gratis Transfers}, the transferee agrees in writing to be subject to the terms of the <Agreement> to the same extent as if the transferee were an original <Purchaser> under the <Agreement>.
\ "Market Stand-Off" Agreement \ To the extent requested by the <Company> or an underwriter of securities of the <Company>, each <Holder> shall not sell or otherwise transfer or dispose of any <Securities> or other shares of stock of the <Company> then owned by such <Holder> (other than to donees or partners of the <Holder> who agree to be similarly bound) for up to 180 days following the effective date of any registration statement of the <Company> filed under the <Securities Act>; provided however that, if during the last 17 days of the restricted period the <Company> issues an earnings release or material news or a material event relating to the <Company> occurs, or before the expiration of the restricted period the <Company> announces that it will release earnings results during the 16-day period beginning on the last day of the restricted period, and if the <Company>'s securities are listed on the Nasdaq Stock Market and Rule 2711 thereof applies, then the restrictions imposed by {"Market Stand-Off" Agreement} will continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event; provided, further, that such automatic extension will not apply to the extent that the Financial Industry Regulatory Authority has amended or repealed NASD Rule 2711(f)(4), or has otherwise provided written interpretive guidance regarding such rule, in each case, so as to eliminate the prohibition of any broker, dealer, or member of a national securities association from publishing or distributing any research report, with respect to the securities of an "emerging growth company" (as defined in the Jumpstart Our Business Startups Act of 2012) before or after the expiration of any agreement between the broker, dealer, or member of a national securities association and the emerging growth company or its stockholders that restricts or prohibits the sale of securities held by the emerging growth company or its stockholders after the initial public offering date. In no event will the restricted period extend beyond 215 days after the effective date of the registration statement. For purposes of this {"Market Stand-Off" Agreement}, "<Company>" includes any wholly-owned subsidiary of the <Company> into which the <Company> merges or consolidates. The <Company> may place restrictive legends on the certificates representing the shares subject to {"Market Stand-Off" Agreement} and may impose stop transfer instructions with respect to the <Securities> and such other shares of stock of each <Holder> (and the shares or securities of every other person subject to the foregoing restriction) until the end of such period. Each <Holder> shall enter into any agreement reasonably required by the underwriters to implement the foregoing within any reasonable timeframe so requested.
\ Drag Along Right \ If a "<Deemed Liquidation Event>" (as defined in the <Restated Charter>, a ""Deemed Liquidation Event"") is approved by each of
\\ the holders of a majority of the shares of <Common Stock> then-outstanding (other than those issued or issuable upon conversion of the shares of <Series Next Preferred Stock>),
\\ the holders of a majority of the shares of <Common Stock> then issued or issuable upon conversion of the shares of <Series Next Preferred Stock> then-outstanding and
\\ the <Board>,
then each <Stockholder> shall vote (in person, by proxy or by action by written consent, as applicable) all shares of capital stock of the <Company> now or hereafter directly or indirectly owned of record or beneficially by such <Stockholder> (collectively, the ""Shares"") in favor of, and adopt, such <Deemed Liquidation Event> and to execute and deliver all related documentation and take such other action in support of the <Deemed Liquidation Event> as may reasonably be requested by the <Company> to carry out the terms and provision of {Drag Along Right}, including executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents. The obligation of any party to take the actions required by {Drag Along Right} will not apply to a <Deemed Liquidation Event> if the other party involved in such <Deemed Liquidation Event> is an affiliate or stockholder of the <Company> holding more than 10% of the voting power of the <Company>. ""Stockholder"" (collectively, ""Stockholders"") means each <Holder> and <Key Holder>, and any transferee thereof.
\ Exceptions to Drag Along Right \ Notwithstanding the foregoing, a <Stockholder> need not comply with {Drag Along Right} in connection with any proposed sale of the <Company> (the ""Proposed Sale"") unless:
\\ any representations and warranties to be made by the <Stockholder> in connection with the <Proposed Sale> are limited to representations and warranties related to authority, ownership and the ability to convey title to such <Shares>, including representations and warranties that
\\ the <Stockholder> holds all right, title and interest in and to the <Shares> the <Stockholder> purports to hold, free and clear of all liens and encumbrances,
\\ the obligations of the <Stockholder> in connection with the transaction have been duly authorized, if applicable,
\\ the documents to be entered into by the <Stockholder> have been duly executed by the <Stockholder> and delivered to the acquirer and are enforceable against the <Stockholder> in accordance with their respective terms and,
\\ neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the <Stockholder>'s obligations thereunder, will cause a breach or violation of the terms of any agreement, law, or judgment, order, or decree of any court or governmental agency;
\\ the <Stockholder> will not be liable for the inaccuracy of any representation or warranty made by any other individual, corporation, partnership, trust, limited liability company, association or other entity (a ""Person"") in connection with the <Proposed Sale>, other than the <Company> (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties, and covenants of the <Company> as well as breach by any stockholder of any identical representations, warranties and covenants provided by all stockholders);
\\ the liability for indemnification, if any, of the <Stockholder> in the <Proposed Sale> and for the inaccuracy of any representations and warranties made by the <Company> or its <Stockholders> in connection with such <Proposed Sale>, is several and not joint with any other <Person> (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the <Company> as well as breach by any stockholder of any identical representations, warranties, and covenants provided by all stockholders), and except as required to satisfy the liquidation preference of the <Series Next Preferred Stock>, if any, is pro rata in proportion to, and does not exceed, the amount of consideration paid to such <Stockholder> in connection with such <Proposed Sale>;
\\ liability will be limited to the <Stockholder>'s applicable share (determined based on the respective proceeds payable to each <Stockholder> in connection with the <Proposed Sale> in accordance with the provisions of the <Restated Charter>) of a negotiated aggregate indemnification amount that applies equally to all <Stockholders> but that in no event exceeds the amount of consideration otherwise payable to the <Stockholder> in connection with the <Proposed Sale>, except with respect to claims related to fraud by the <Stockholder>, the liability for which need not be limited as to the <Stockholder>;
\\ upon the consummation of the <Proposed Sale>,
\\ each holder of each class or series of the <Company>'s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock unless the holders of at least a majority of <Series Next Preferred Stock> elect otherwise,
\\ each holder of a series of <Series Next Preferred Stock> will receive the same amount of consideration per share of such series of <Series Next Preferred Stock> as is received by other holders in respect of their shares of such same series,
\\ each holder of <Common Stock> will receive the same amount of consideration per share of <Common Stock> as is received by other holders in respect of their shares of <Common Stock>, and
\\ unless the holders of at least a majority of the <Series Next Preferred Stock> elect to receive a lesser amount, the aggregate consideration receivable by all holders of the <Preferred Stock> and <Common Stock> shall be allocated among the holders of <Preferred Stock> and <Common Stock> on the basis of the relative liquidation preferences to which the holders of each respective series of <Preferred Stock> and the holders of <Common Stock> are entitled in a <Deemed Liquidation Event> (assuming for this purpose that the <Proposed Sale> is a <Deemed Liquidation Event>) in accordance with the <Company>'s <Restated Charter> in effect immediately prior to the <Proposed Sale>.
\ Participation Right \
\ General \ Each <Major Purchaser> has the right of first refusal to purchase the <Major Purchaser>'s <Pro Rata Share> of any <New Securities> (as defined below) that the <Company> may from time to time issue after the date of the <Agreement>, provided, however, the <Major Purchaser> will have no right to purchase any such <New Securities> if the <Major Purchaser> cannot demonstrate to the <Company>'s reasonable satisfaction that such <Major Purchaser> is at the time of the proposed issuance of such <New Securities> an "accredited investor" as such term is defined in Regulation D under the <Securities Act>. A <Major Purchaser>'s ""Pro Rata Share"" means the ratio of
\\ the number of shares of the <Company>'s <Common Stock> issued or issuable upon conversion of the shares of <Series Next Preferred Stock> owned by such <Major Purchaser>, to
\\ the <Fully-Diluted Share Number>.
\ New Securities \ ""New Securities"" means any <Common Stock> or <Preferred Stock>, whether now authorized or not, and rights, options or warrants to purchase <Common Stock> or <Preferred Stock>, and securities of any type whatsoever that are, or may become, convertible or exchangeable into <Common Stock> or <Preferred Stock>; provided, however, that "<New Securities>" does not include:
\\ shares of <Common Stock> issued or issuable upon conversion of any outstanding shares of <Preferred Stock>;
\\ shares of <Common Stock> or <Preferred Stock> issuable upon exercise of any options, warrants, or rights to purchase any securities of the <Company> outstanding as of the <Agreement Date> and any securities issuable upon the conversion thereof;
\\ shares of <Common Stock> or <Preferred Stock> issued in connection with any stock split or stock dividend or recapitalization;
\\ shares of <Common Stock> (or options, warrants or rights therefor) granted or issued after the <Agreement Date> to employees, officers, directors, contractors, consultants or advisers to, the <Company> or any subsidiary of the <Company> pursuant to incentive agreements, stock purchase or stock option plans, stock bonuses or awards, warrants, contracts or other arrangements that are approved by the <Board>;
\\ shares of the <Company>'s <Series Next Preferred Stock> issued pursuant to the <Agreement>;
\\ any other shares of <Common Stock> or <Preferred Stock> (and/or options or warrants therefor) issued or issuable primarily for other than equity financing purposes and approved by the <Board>; and
\\ shares of <Common Stock> issued or issuable by the <Company> to the public pursuant to a registration statement filed under the <Securities Act>.
\ Procedures \ If the <Company> proposes to undertake an issuance of <New Securities>, it shall give notice to each <Major Purchaser> of its intention to issue <New Securities> (the ""Notice""), describing the type of <New Securities> and the price and the general terms upon which the <Company> proposes to issue the <New Securities>. Each <Major Purchaser> will have 10 days from the date of notice, to agree in writing to purchase such <Major Purchaser>'s <Pro Rata Share> of such <New Securities> for the price and upon the general terms specified in the <Notice> by giving written notice to the <Company> and stating therein the quantity of <New Securities> to be purchased (not to exceed such <Major Purchaser>'s <Pro Rata Share>).
\ Failure to Exercise \ If the <Major Purchasers> fail to exercise in full the right of first refusal within the 10-day period, then the <Company> will have 120 days thereafter to sell the <New Securities> with respect to which the <Major Purchasers>' rights of first refusal hereunder were not exercised, at a price and upon general terms not materially more favorable to the purchasers thereof than specified in the <Company>'s <Notice> to the <Major Purchasers>. If the <Company> has not issued and sold the <New Securities> within the 120-day period, then the <Company> shall not thereafter issue or sell any <New Securities> without again first offering those <New Securities> to the <Major Purchasers> pursuant to {Participation Right}.
\ Election of Board of Directors \
\ Voting; Board Composition \ Subject to the rights of the stockholders to remove a director for cause in accordance with applicable law, during the term of the <Agreement>, each <Stockholder> shall vote (or consent pursuant to an action by written consent of the stockholders) all shares of capital stock of the <Company> now or hereafter directly or indirectly owned of record or beneficially by the <Stockholder> (the ""Voting Shares""), or to cause the <Voting Shares> to be voted, in such manner as may be necessary to elect (and maintain in office) as the members of the <Board>:
\ Common Board Members \ that number of individuals, if any, equal to the <Common Board Member Count> (each, a ""Common Board Designee"") designated from time to time in a writing delivered to the <Company> and signed by <Common Control Holders> who then hold shares of issued and outstanding <Common Stock> of the <Company> representing a majority of the voting power of all issued and outstanding shares of <Common Stock> then held by all <Common Control Holders>;
\ Series Next Board Members \ that number of individuals, if any, equal to the <Series Next Board Member Count> (each, a ""Series Next Board Designee"") designated from time to time in a writing delivered to the <Company> and signed by <Purchasers> who then hold a majority of the then-outstanding shares of <Series Next Preferred Stock> issued pursuant to the <Agreement>;
\\ that number of individuals, if any, equal to the <Mutual Consent Board Member Count> (together with any <Common Board Designee> and any <Series Next Board Designee>, each a ""Board Designee"") designated from time to time in a writing delivered to the <Company> and signed by
\\ <Purchasers> who then hold a majority of the then-outstanding shares of <Series Next Preferred Stock> issued pursuant to the <Agreement> and
\\ <Common Control Holders> who then hold shares of issued and outstanding <Common Stock> of the <Company> representing a majority of the voting power of all issued and outstanding shares of <Common Stock> of the <Company> then held by all <Common Control Holders>.
Subject to the rights of the stockholders of the <Company> to remove a director for cause in accordance with applicable law, during the term of the <Agreement>, a <Stockholder> shall not take any action to remove an incumbent <Board Designee> or to designate a new <Board Designee> unless such removal or designation of a <Board Designee> is approved in a writing signed by the parties entitled to designate the <Board Designee>. Each <Stockholder> hereby appoints, and shall appoint, the then-current Chief Executive Officer of the <Company>, as the <Stockholder>'s true and lawful proxy and attorney, with the power to act alone and with full power of substitution, to vote all shares of the <Company>'s capital stock held by the <Stockholder> as set forth in the <Agreement> and to execute all appropriate instruments consistent with the <Agreement> on behalf of the <Stockholder> if, and only if, the <Stockholder>
\\ fails to vote or
\\ attempts to vote (whether by proxy, in person or by written consent), in a manner which is inconsistent with the terms of the <Agreement>, all of the <Stockholder>'s <Voting Shares> or execute such other instruments in accordance with the provisions of the <Agreement> within 5 days of the <Company>'s or any other party's written request for the <Stockholder>'s written consent or signature.
The proxy and power granted by each <Stockholder> pursuant to {Election of Board of Directors} are coupled with an interest and are given to secure the performance of the <Stockholder>'s duties under the <Agreement>. Each such proxy and power will be irrevocable for the term of the <Agreement>. The proxy and power, so long as any <Stockholder> is an individual, will survive the death, incompetency and disability of such <Stockholder> and, so long as any <Stockholder> is an entity, will survive the merger or reorganization of the <Stockholder> or any other entity holding <Voting Shares>.
\ General Provisions \
\ Successors and Assigns \ The terms and conditions of the <Agreement> shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in the <Agreement>, express or implied, is intended to confer upon any party other than the parties to the <Agreement> or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of the <Agreement>, except as expressly provided in the <Agreement>. No <Stockholder> may transfer <Shares> unless each transferee agrees to be bound by the terms of the <Agreement>.
\ Governing Law \ The <Agreement> is governed by the <Governing Law>, regardless of the laws that might otherwise govern under applicable principles of choice of law.
\ Counterparts; Facsimile or Electronic Signature \ The <Agreement> may be executed and delivered by facsimile or electronic signature and in 2 or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
\ Titles and Subtitles \ The titles and subtitles used in the <Agreement> are used for convenience only and are not to be considered in construing or interpreting the <Agreement>.
\ Notices \ All notices and other communications given or made pursuant to the <Agreement> must be in writing and will be deemed to have been given upon the earlier of actual receipt or:
\\ personal delivery to the party to be notified,
\\ when sent, if sent by facsimile or electronic mail during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient's next business day,
\\ 5 days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or
\\ 1 business day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery, with written verification of receipt.
All communications must be sent to the respective parties at their address as set forth on the signature page or {List of Purchasers}, or to such address, facsimile number or electronic mail address as subsequently modified by written notice given in accordance with {Notices}.
\ No Finder's Fees \ Each party severally represents to the other parties that it neither is nor will be obligated for any finder's fee or commission in connection with this transaction. Each <Purchaser> shall indemnify, defend, and hold harmless the <Company> from any liability for any commission or compensation in the nature of a finder's or broker's fee arising out of this transaction (and the costs and expenses of defending against such liability or asserted liability) for which the <Purchaser> or any of its officers, employees, or representatives is responsible. The <Company> shall indemnify, defend, and hold harmless each <Purchaser> from any liability for any commission or compensation in the nature of a finder's or broker's fee arising out of this transaction (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.
\ Attorneys' Fees \ If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of the <Agreement>, the prevailing party will be entitled to reasonable attorneys' fees, costs, and necessary disbursements in addition to any other relief to which the party may be entitled. Each party shall pay all costs and expenses that it incurs with respect to the negotiation, execution, delivery, and performance of the <Agreement>; provided, however, that the <Company> shall, at the <Closing>, reimburse the fees and expenses of 1 counsel for <Purchasers>, for a flat fee equal to the <Purchaser Counsel Reimbursement Amount>.
\ Amendments and Waivers \ Except as specified in {Additional Closings}, any term of the <Agreement> may be amended, terminated or waived (either generally or in a particular instance and either retroactively or prospectively) only with the written consent of the <Company> and the <Purchasers> holding a majority of the then-outstanding shares of <Series Next Preferred Stock> (or <Common Stock> issued on conversion thereof); provided, however, that any amendment to {Common Board Members} or {Series Next Board Members} will also require the additional written consent of the holders of a majority of the outstanding shares of the <Company>'s <Common Stock> then held by all of the <Common Control Holders>. Notwithstanding the foregoing, the addition of a party to the <Agreement> pursuant to a transfer of <Shares> in accordance with {Successors and Assigns} will not require any further consent. Any amendment or waiver effected in accordance with {Amendments and Waivers} will be binding upon the <Purchasers>, the <Key Holders>, each transferee of the shares of <Series Next Preferred Stock> (or the <Common Stock> issuable upon conversion thereof) or <Common Stock> from a <Purchaser> or <Key Holders>, as applicable, and each future holder of all such securities, and the <Company>. It is specifically intended that entering into the <Next Financing Documents> in a form substantially similar to the form agreements set as forth as Model Legal Documents on http://www.nvca.org shall be considered an amendment to the <Agreement> provided that it is done in accordance with {Amendments and Waivers}.
\ Severability \ The invalidity or unenforceability of any provision of the <Agreement> will in no way affect the validity or enforceability of any other provision.
\ Delays or Omissions \ No delay or omission to exercise any right, power or remedy accruing to any party under the <Agreement>, upon any breach or default of any other party under the <Agreement>, will impair any such right, power or remedy of such non-breaching or non-defaulting party nor will 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 will any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any breach or default under the <Agreement>, or any waiver on the part of any party of any provisions or conditions of the <Agreement>, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under the <Agreement> or by law or otherwise afforded to any party, are cumulative and not alternative.
\ Termination \ Unless terminated earlier pursuant to the terms of the <Agreement>,
\\ the rights, duties and obligations under {Covenants of the Company}, {Participation Right} and {Election of Board of Directors} will terminate immediately prior to the closing of the <Company>'s initial public offering of <Common Stock> pursuant to an effective registration statement filed under the <Securities Act>,
\\ notwithstanding anything to the contrary herein, the <Agreement> (excluding any then-existing obligations) will terminate upon the closing of a <Deemed Liquidation Event> as defined in the <Company>'s <Restated Charter>, as amended from time to time and
\\ notwithstanding anything to the contrary herein, {Purchase and Sale of Series Next Preferred Stock}, {Representations and Warranties of the Company}, {Representations, Warranties, and Covenants of the Purchasers}, {Covenants of the Company} and {General Provisions} will survive any termination of the <Agreement>.
\ Dispute Resolution \ Each party
\\ hereby irrevocably and unconditionally submits to the personal jurisdiction of the <Dispute Resolution Jurisdiction> for the purpose of any suit, action, or other proceeding arising out of or based upon the <Agreement>;
\\ shall not commence any suit, action or other proceeding arising out of or based upon the <Agreement> except in the <Dispute Resolution Jurisdiction>; and
\\ hereby waives, and shall not assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject to the personal jurisdiction of the <Dispute Resolution Jurisdiction>, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that the <Agreement>, or the subject matter hereof and thereof may not be enforced in or by the <Dispute Resolution Jurisdiction>.
\\
\ List of Purchasers \ /* #purchasers */ /* & name */: /* & shares */ shares of <Series Next Preferred Stock>. /* /purchasers */
\ Disclosure Schedule \
\ Exceptions to Organization, Good Standing, Corporate Power, and Qualification \ None.
\ Exceptions to Capitalization \ None.
\ Key Holder Ownership \ /* #key holders */ /* & name */: /* & shares */ shares of <Common Stock>. /* /key holders */
\ Key Holder Vesting Schedules \ /* #key holders */ /* & name */: /* & vesting */. /* /key holders */
\ Exceptions to Subsidiaries \ None.
\ Exceptions to Company Authorization \ None.
\ Exceptions to Valid Issuance of Shares \ None.
\ Exceptions to Litigation \ None.
\ Exceptions to Intellectual Property \ None.
\ Exceptions to Employee and Consultant Matters \ None.
\ Exceptions to Compliance with Other Instruments \ None.
\ Exceptions to Title to Property and Assets \ None.
\ Exceptions to Agreements \ None.
\ Exceptions to Liabilities \ None.
\ Restated Charter \ (Attached)