美国优先股法律模板之SeriesAPreferredStockPurcha.docx

SERIES A PREFERRED STOCK PURCHASE AGREEMENT

Preliminary Note
The Stock Purchase Agreement sets forth the basic terms of the purchase and sale of the preferred stock to the investors (such as the purchase price, closing date, conditions to closing) and identifies the other financing documents. Generally this agreement does not set forth either (1) the characteristics of the stock being sold (which are defined in the Certificate of Incorporation) or (2) the relationship among the parties after the closing, such as registration rights, rights of first refusal and co-sale, voting arrangements (these matters often implicate other persons than just the Company and the investors in this round of financing, and are usually embodied in separate agreements to which those others persons are parties, or in some cases by the Certificate of Incorporation). The main items of negotiation in the Stock Purchase Agreement are therefore the price and number of shares being sold, and the representations and warranties that the Company, and sometimes the Founders as well, must make to the investors.

TABLE OF CONTENTS
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Page
1. Purchase and Sale of Preferred Stock 1
1.1 Sale and Issuance of Series A Preferred Stock 1
1.2 Closing; Delivery 1
1.3 Sale of Additional Shares of Preferred Stock 2
1.4 [Use of Proceeds] 3
1.5 Defined Terms Used in this Agreement 3
2. Representations and Warranties of the Company 5
2.1 Organization, Good Standing, Corporate Power and Qualification 6
2.2 Capitalization 6
2.3 Subsidiaries 8
2.4 Authorization 8
2.5 Valid Issuance of Shares 9
2.6 Governmental Consents and Filings 9
2.7 Litigation 9
2.8 Intellectual Property 10
2.9 Compliance with Other Instruments 12
2.10 Agreements; Actions 12
2.11 Certain Transactions 13
2.12 Rights of Registration and Voting Rights 14
2.13 Property 14
2.14 Financial Statements 14
2.15 Changes 15
2.16 Employee Matters 16
2.17 Tax Returns and Payments 18
2.18 Insurance 18
2.19 Employee Agreements 18
2.20 Permits 19
2.21 Corporate Documents 19
2.22 [83(b) Elections] 19
2.23 [Real Property Holding Corporation] 19
2.24 Environmental and Safety Laws 19
225 [Qualified Small Business Stock] 20
2.26 Disclosure 21
2.27 [Small Business Concern] 21
2.28 [Foreign Corrupt Practices Act] 21
2.29 [Data Privacy] 22
3. Representations and Warranties of the Purchasers 22
3.1 Authorization 22
3.2 Purchase Entirely for Own Account 23
3.3 Disclosure of Information 23
3.4 Restricted Securities 23
3.5 No Public Market 24
3.6 Legends 24
3.7 Accredited Investor 24
3.8 Foreign Investors 24
3.9 No General Solicitation 25
3.10 Exculpation Among Purchasers 25
3.11 Residence 25
3.12 [Consent to Promissory Note Conversion and Termination] 25
4. Conditions to the Purchasers’ Obligations at Closing 26
4.1 Representations and Warranties 26
4.2 Performance 26
4.3 Compliance Certificate 26
4.4 Qualifications 26
4.5 Opinion of Company Counsel 27
4.6 Board of Directors 27
4.7 Indemnification Agreement 27
4.8 Investors’ Rights Agreement 27
4.9 Right of First Refusal and CoSale Agreement 27
4.10 Voting Agreement 27
4.11 Restated Certificate 27
4.12 Secretary’s Certificate 27
4.13 Proceedings and Documents 27
4.14 Minimum Number of Shares at Initial Closing 28
4.15 Management Rights 28
4.16 [SBA Matters] 28
4.17 [Preemptive Rights] 28
5. Conditions of the Company’s Obligations at Closing 28
5.1 Representations and Warranties 28
5.2 Performance 28
5.3 Qualifications 28
5.4 Investors’ Rights Agreement 28
5.5 Right of First Refusal and CoSale Agreement 28
5.6 Voting Agreement 29
5.7 [Minimum Number of Shares at Initial Closing] 29
6. Miscellaneous 29
6.1 Survival of Warranties 29
6.2 Successors and Assigns 29
6.3 Governing Law 29
6.4 Counterparts 29
6.5 Titles and Subtitles 29
6.6 Notices 30
6.7 No Finder’s Fees 30
6.8 Fees and Expenses 30
6.9 [Attorneys’ Fees] 30
6.10 Amendments and Waivers 30
6.11 Severability 31
6.12 Delays or Omissions 31
6.13 Entire Agreement 31
6.14 [Corporate Securities Law] 31
6.15 Dispute Resolution 32
6.16 [No Commitment for Additional Financing] 33
6.17 [Waiver of Conflicts] 33

Exhibit A - SCHEDULE OF PURCHASERS
Exhibit B - FORM OF AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION
Exhibit C - DISCLOSURE SCHEDULE
Exhibit D - FORM OF INDEMNIFICATION AGREEMENT
Exhibit E - FORM OF INVESTORS’ RIGHTS AGREEMENT
Exhibit F - FORM OF MANAGEMENT RIGHTS LETTER
Exhibit G - FORM OF RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
Exhibit H - FORM OF VOTING AGREEMENT
Exhibit I - FORM OF LEGAL OPINION OF [COMPANY COUNSEL]
[Exhibit J - MILESTONE EVENTS]

ADDENDUM TO STOCK PURCHASE AGREEMENT: SAMPLE FOUNDER REPRESENTATIONS AND WARRANTIES

SERIES A PREFERRED STOCK PURCHASE AGREEMENT
THIS SERIES A PREFERRED STOCK PURCHASE AGREEMENT (this “Agreement”), is made as of the [__] day of [________, 20_] by and among [____________], a Delaware corporation (the “Company”), the investors listed on Exhibit A attached to this Agreement (each a “Purchaser” and together the “Purchasers”) [and the persons listed as “Founders” on the signature pages to this Agreement (each a “Founder” and together the “Founders”)].
The parties hereby agree as follows:
1. Purchase and Sale of Preferred Stock
.
1.1 Sale and Issuance of Series A Preferred Stock
.
(a) The Company shall adopt and file with the Secretary of State of the State of Delaware on or before the Initial Closing If only one closing is contemplated, references to “Initial Closing,” “each Closing,” “such Closing” etc. should be modified.
(as defined below) the Amended and Restated Certificate of Incorporation in the form of Exhibit B attached to this Agreement (the “Restated Certificate”). Sometimes only a Certificate of Amendment is required.

(b) Subject to the terms and conditions of this Agreement, each Purchaser agrees to purchase at the Closing and the Company agrees to sell and issue to each Purchaser at the Closing that number of shares of Series A Preferred Stock $ [__] par value per share (the “Series A Preferred Stock”), set forth opposite each Purchaser’s name on Exhibit A, at a purchase price of $[__] per share. The shares of Series A Preferred Stock issued to the Purchasers pursuant to this Agreement (including any shares issued at the Initial Closing and any [Milestone Shares or] Additional Shares, as defined below) shall be referred to in this Agreement as the “Shares.”
1.2 Closing; Delivery
.
(a) The initial purchase and sale of the Shares shall take place remotely via the exchange of documents and signatures, at [____] [_].m., on [______ __, 20_], or at such other time and place as the Company and the Purchasers mutually agree upon, orally or in writing (which time and place are designated as the “Initial Closing”). If the Agreement is signed prior to the Closing, this provision gives the parties flexibility to change the closing date as contingencies arise. As a practical matter, however, the Agreement is usually signed on the date of the Closing. This means that, until the Closing, everyone has an opportunity to back out of the deal.
In the event there is more than one closing, the term “Closing” shall apply to each such closing unless otherwise specified.
(b) At each Closing, the Company shall deliver to each Purchaser a certificate representing the Shares 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[, including interest If some or all of the Purchasers will be converting previously issued notes to Shares, consider paying the interest in cash, if the terms of the notes permit this, to avoid last-minute recomputations if the closing is delayed. Note that cancellation of interest in return for stock may be a taxable event in the amount of the interest cancelled. Accordingly, some of the Purchasers may require payment of interest in cash to avoid imputation of income without the corresponding payment of cash to pay the tax.
], or by any combination of such methods.
1.3 Sale of Additional Shares of Preferred Stock
.
(a) After the Initial Closing, the Company may sell, on the same terms and conditions as those contained in this Agreement The Company will often try to negotiate a “cushion” in the negotiated limit of the number of preferred shares in order to permit it to issue additional shares of preferred stock in transactions outside the financing, e.g., warrants for preferred stock issued in connection with an equipment financing. The language “on the same terms and conditions as those contained in this Agreement” is flexible enough to permit this. If the investors want to limit the number of preferred shares to be issued to those preferred shares issued in the financing, the language “pursuant to this Agreement” should be substituted.
, up to [________] additional shares (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or similar recapitalization affecting such shares) of Series A Preferred Stock (the “Additional Shares”), to one or more purchasers (the “Additional Purchasers”) [reasonably acceptable to Purchasers holding a [specify percentage] of the then outstanding Shares The Company may want to limit this approval right to the larger Purchasers. As an alternative, the Agreement may specify that Additional Purchasers must be approved by the Board of Directors, including the directors elected by the Series A Preferred Stockholders.
], provided that (i) such subsequent sale is consummated prior to [90] days after the Initial Closing (ii) each Additional Purchaser shall become a party to the Transaction Agreements (as defined below) (other than the Management Rights Letter), by executing and delivering a counterpart signature page to each of the Transaction Agreements[; and (iii) [_________], counsel for the Company, provides an opinion dated as of the date of such Closing that the offer, issuance, sale and delivery of the Additional Shares to the Additional Purchasers do not require registration under the Securities Act of 1933, as amended, or applicable state securities laws]. Exhibit A to this Agreement shall be updated to reflect the number of Additional Shares purchased at each such Closing and the parties purchasing such Additional Shares.
(b) [After the Initial Closing, the Company shall sell, and the Purchasers shall purchase, on the same terms and conditions as those contained in this Agreement, up to [_____________] additional shares of Series A Preferred Stock (the “Milestone Shares”), pro rata in accordance with the number of Shares being purchased by each such Purchaser at all prior Closings, on the certification by the [Board] [Purchasers] that the events specified in Exhibit J attached to this Agreement have occurred (the “Milestone Events”). The date of the purchase and sale of the Milestone Shares are referred to in this Agreement as the “Milestone Closing.” Consider whether the obligations of each Purchaser at a Milestone Closing are conditioned on (i) the representations and warranties remaining true (or materially so) as of such Milestone Closing, (ii) each other Purchaser purchasing shares at the Milestone Closing (i.e., if one Purchaser breaches then no others are obligated), and (iii) any other conditions. In a tranched milestone funding, investors should confirm with their accountants prior to the first closing that the initial and later tranches will not be treated as separate instruments for purposes of ASC 480 based on the specific structure of the transaction.
]
1.4 [Use of Proceeds
. In accordance with the directions of the Company’s Board of Directors, as it shall be constituted in accordance with the Voting Agreement, the Company will use the proceeds from the sale of the Shares for product development and other general corporate purposes.]
1.5 Defined Terms Used in this Agreement
. In addition to the terms defined above, the following terms used in this Agreement shall be construed to have the meanings set forth or referenced below.
(a) “Affiliate” means, with respect to any specified Person, any other Person who, directly or indirectly, controls, is controlled by, or is under common control with such Person, including, without limitation, any general partner, managing member, officer or director of such Person or any venture capital fund now or hereafter existing that is controlled by one or more general partners or managing members of, or shares the same management company with, such Person.
(b) “Code” means the Internal Revenue Code of 1986, as amended.
(c) “Company Intellectual Property” means all patents, patent applications, trademarks, trademark applications, service marks, service mark applications, tradenames, copyrights, trade secrets, domain names, mask works, information and proprietary rights and processes, similar or other intellectual property rights, subject matter of any of the foregoing, tangible embodiments of any of the foregoing, licenses in, to and under any of the foregoing, and any and all such cases [that are owned or used by] [as are necessary to] the Company in the conduct of the Company’s business as now conducted and as presently proposed to be conducted.
(d) “Indemnification Agreement” means the agreement between the Company and the director [and Purchaser Affiliates] See Model Indemnification Agreement for discussion of the issue of expanding coverage to include not just VC designee director, but also the fund(s) making the investment.
designated by any Purchaser entitled to designate a member of the Board of Directors pursuant to the Voting Agreement, dated as of the date of the Initial Closing, in the form of Exhibit D attached to this Agreement.
(e) “Investors’ Rights Agreement” means the agreement among the Company and the Purchasers In Series A Preferred Stock financings, the Investors’ Rights Agreement will normally be signed by all the Series A Purchasers. In subsequent financing rounds, the standard practice is to amend and restate the Investor Rights Agreement, which will then be signed by the Company as well as the subsequent and prior round purchasers.
[and certain other stockholders of the Company] d