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SERIES A PREFERRED STOCK PURCHASE AGREEMENTA系列优先股购买协议

This sample document is the work product of a national coalition of attorneys who specialize in venture capital financings, working under the auspices of the NVCA. See the NVCA website for a list of the Working Group members. This document is intended to serve as a starting point only, and should be tailored to meet your specific requirements. This document should not be construed as legal advice for any particular facts or circumstances. Note that this sample document presents an array of (often mutually exclusive) options with respect to particular deal provisions.

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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1. Purchase and Sale of Preferred Stock. (1)

1.1. Sale and Issuance of Series A Preferred Stock. (1)

(a) The Company shall adopt and file with the Secretary of State of the State of Delaware on

or before the Initial Closing (as defined below) the Amended and Restated Certificate of

Incorporation in the form of EXHIBIT B attached to this Agreement (the “Restated

Certificate”). (1)

(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)

1.2. Closing; Delivery. (1)

(a) The initial purchase and sale of the Shares shall take place remotely via the exchange of

documents and signatures, at [____] [_].m., on [________ __, 200_], 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”). In the event there is more

than one closing, the term “Closing” shall apply to each such closing unless otherwise

specified. (1)

(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], or by any combination of such methods. (2)

1.3. Sale of Additional Shares of Preferred Stock. (2)

(a) After the Initial Closing, the Company may sell, on the same terms and conditions as

those contained in this Agreement, 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], 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. (2)

(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.”] (3)

[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. (5)

2.2. Capitalization. 6

(a) [__________] shares of common stock, $[____] par value per share (the “Common

Stock”), [_________] shares of which are issued and outstanding immediately prior to the

Initial Closing. All of the outstanding shares of Common Stock have been duly authorized,

are fully paid and nonassessable and were issued in compliance with all applicable federal

and state securities laws. [The Company holds no treasury stock and no shares of Series A

Preferred Stock in its treasury.] (6)

(b) [__________] shares of Preferred Stock, of which [__________] shares have been

designated Series A Preferred Stock, none of which are issued and outstanding immediately

prior to the Initial Closing. The rights, privileges and preferences of the Preferred Stock are

as stated in the Restated Certificate and as provided by the general corporation law of the

jurisdiction of the Company’s incorporation. (6)

(c) The Company has reserved [__________] shares of Common Stock for issuance to officers, directors, employees and consultants of the Company pursuant to its [Plan Year] Stock [Option] Plan duly adopted by the Board of Directors and approved by the Company stockholders (the “Stock Plan”). Of such reserved shares of Common Stock, [__________] shares have been issued pursuant to restricted stock purchase agreements, options to purchase [__________] shares have been granted and are currently outstanding, and

[__________] shares of Common Stock remain available for issuance to officers, directors, employees and consultants pursuant to the Stock Plan. The Company has furnished to the Purchasers complete and accurate copies of the Stock Plan and forms of agreements used thereunder. (6)

(d) Section d of the Disclosure Schedule sets forth the capitalization of the Company immediately following the Initial Closing including the number of shares of the following: (i) issued and outstanding Common Stock, including, with respect to restricted Common Stock, vesting schedule and repurchase price; (ii) issued stock options, including vesting schedule and exercise price; (iii) stock options not yet issued but reserved for issuance; (iv) each series of Preferred Stock; and (v) warrants or stock purchase rights, if any. Except for (A) the conversion privileges of the Shares to be issued under this Agreement, (B) the rights provided in Section of the Investors’ Rights Agreement, and (C) the securities and rights described in Section c of this Agreement and Section d of the Disclosure Schedule, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Common Stock or Series A Preferred Stock, or any securities convertible into or exchangeable for shares of Common Stock or Series A Preferred Stock. All outstanding shares of the Company’s Common Stock and all shares of the Company’s Common Stock underlying outstanding options are subject to (i) a right of first refusal in favor of the Company upon any proposed transfer (other than transfers for estate planning purposes); and (ii) a lock-up or market standoff agreement of not less than 180 days following the Company’s initial public offering pursuant to a registration statement filed with the Securities and Exchange Commission under the Securities Act. (7)

(e) None of the Company’s stock purchase agreements or stock option documents contains a provision for acceleration of vesting (or lapse of a repurchase right) or other changes in the vesting provisions or other terms of such agreement or understanding upon the occurrence of any event or combination of events. The Company has never adjusted or amended the exercise price of any stock options previously awarded, whether through amendment, cancellation, replacement grant, repricing, or any other means. Except as set forth in the Restated Certificate, the Company has no obligation (contingent or otherwise) to purchase or redeem any of its capital stock. (7)

(f) [409A. The Company believes in good faith that any “nonqualified deferred compensation plan” (as such term is defined under Section 409A(d)(1) of the Code and the

guidance thereunder) under which the Company makes, is obligated to make or promises to

make, payments (each, a “409A Plan”) complies in all material respects, in both form and

operation, with the requirements of Section 409A of the Code and the guidance thereunder.

To the knowledge of the Company, no payment to be made under any 409A Plan is, or will

be, subject to the penalties of Section 409A(a)(1) of the Code.] (7)

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. (11)

2.10. Agreements; Actions. (12)

(a) Except for the Transaction Agreements, there are no agreements, understandings,

instruments, contracts or proposed transactions to which the Company is a party or by which

it is bound that involve (i) obligations (contingent or otherwise) of, or payments to, the

Company in excess of [_________], (ii) the license of any patent, copyright, trademark,

trade secret or other proprietary right to or from the Company, (iii) the grant of rights to manufacture, produce, assemble, license, market, or sell its products to any other Person that

limit the Company’s exclusive right to develop, manufacture, assemble, distribute, market

or sell its products, or (iv) indemnification by the Company with respect to infringements of

proprietary rights. (12)

(b) The Company has not (i) declared or paid any dividends, or authorized or made any

distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or incurred any other liabilities individually in excess of

[___________] or in excess of [__________] in the aggregate, (iii) made any loans or

advances to any Person, other than ordinary advances for travel expenses, or (iv) sold,

exchanged or otherwise disposed of any of its assets or rights, other than the sale of its

inventory in the ordinary course of business. For the purposes of subsections b and c of this

Section 2.10, all indebtedness, liabilities, agreements, understandings, instruments, contracts

and proposed transactions involving the same Person (including Persons the Company has

reason to believe are affiliated with each other) shall be aggregated for the purpose of

meeting the individual minimum dollar amounts of such subsection. (12)

(c) The Company is not a guarantor or indemnitor of any indebtedness of any other Person.12

(d) [The Company has not engaged in the past [three (3) months] in any discussion with any representative of any Person regarding (i) a sale or exclusive license of all or substantially

all of the Company’s assets, or (ii) any merger, consolidation or other business combination

transaction of the Company with or into another Person.] (12)

2.11. Certain Transactions. (13)

(a) Other than (i) standard employee benefits generally made available to all employees, (ii)

standard director and officer indemnification agreements approved by the Board of

Directors, and (iii) the purchase of shares of the Company’s capital stock and the issuance of

options to purchase shares of the Company’s Common Stock, in each instance, approved in

the written minutes of the Board of Directors (previously provided to the Purchasers or their counsel), there are no agreements, understandings or proposed transactions between the

Company and any of its officers, directors, consultants or Key Employees, or any Affiliate

thereof. (13)

(b) The Company is not indebted, directly or indirectly, to any of its directors, officers or

employees or to their respective spouses or children or to any Affiliate of any of the

foregoing, other than in connection with expenses or advances of expenses incurred in the

ordinary course of business or employee relocation expenses and for other customary

employee benefits made generally available to all employees. None of the Company’s

directors, officers or employees, or any members of their immediate families, or any

Affiliate of the foregoing are, directly or indirectly, indebted to the Company[ or, [to the

Company’s knowledge], have any (i) material commercial, industrial, banking, consulting,

legal, accounting, charitable or familial relationship with any of the Company’s customers,

suppliers, service providers, joint venture partners, licensees and competitors, (ii) direct or

indirect ownership interest in any firm or corporation with which the Company is affiliated

or with which the Company has a business relationship, or any firm or corporation which

competes with the Company except that directors, officers or employees or stockholders of

the Company may own stock in (but not exceeding two percent (2%) of the outstanding

capital stock of) publicly traded companies that may compete with the Company or (iii)

financial interest in any [material] contract with the Company]. (13)

2.12. Rights of Registration and Voting Rights. (13)

2.13. Absence of Liens. (14)

2.14. Financial Statements. (14)

2.15. Changes. 15

(a) any change in the assets, liabilities, financial condition or operating results of the

Company from that reflected in the Financial Statements, except changes in the ordinary

course of business that have not caused, in the aggregate, a Material Adverse Effect; (15)

(b) any damage, destruction or loss, whether or not covered by insurance, that would have a

Material Adverse Effect; (15)

(c) any waiver or compromise by the Company of a valuable right or of a material debt

owed to it; (15)

(d) any satisfaction or discharge of any lien, claim, or encumbrance or payment of any

obligation by the Company, except in the ordinary course of business and the satisfaction or

discharge of which would not have a Material Adverse Effect; (15)

(e) any material change to a material contract or agreement by which the Company or any of

its assets is bound or subject; (15)

(f) any material change in any compensation arrangement or agreement with any employee,

officer, director or stockholder; (15)

(g) any resignation or termination of employment of any officer or Key Employee of the

Company; (15)

(h) any mortgage, pledge, transfer of a security interest in, or lien, created by the Company,

with respect to any of its material properties or assets, except liens for taxes not yet due or

payable and liens that arise in the ordinary course of business and do not materially impair

the Company’s ownership or use of such property or assets; (15)

(i) any loans or guarantees made by the Company to or for the benefit of its employees,

officers or directors, or any members of their immediate families, other than travel advances

and other advances made in the ordinary course of its business; (16)

(j) any declaration, setting aside or payment or other distribution in respect of any of the

Company’s capital stock, or any direct or indirect redemption, purchase, or other acquisition

of any of such stock by the Company; (16)

(k) any sale, assignment or transfer of any Company Intellectual Property that could

reasonably be expected to result in a Material Adverse Effect; (16)

(l) receipt of notice that there has been a loss of, or material order cancellation by, any major

customer of the Company; (16)

(m) to the Company’s knowledge, any other event or condition of any character, other than

events affecting the economy or the Company’s industry generally, that could reasonably be

expected to result in a Material Adverse Effect; or (16)

(n) any arrangement or commitment by the Company to do any of the things described in

this Section 2.15. (16)

2.16. Employee Matters. (16)

(a) As of the date hereof, the Company employs [________] full-time employees and

[________] part-time employees and engages [________] consultants or independent contractors. [Section 2.16 of] the Disclosure Schedule sets forth a detailed description of all compensation, including salary, bonus, severance obligations and deferred compensation paid or payable for each officer, employee, consultant and independent contractor of the Company who received compensation in excess of $[________] for the fiscal year ended [____ __, 200_] or is anticipated to receive compensation in excess of $[________] for the fiscal year ending [____ __, 200_]. (16)

(b) To the Company’s knowledge, none of its employe es is obligated under any contract (including licenses, covenants or commitments of any nature) or other agreement, or subject to any judgment, decree or order of any court or administrative agency, that would materially interfere with such employee’s abil ity to promote the interest of the Company or that would conflict with the Company’s business. Neither the execution or delivery of the Transaction Agreements, nor the carrying on of the Company’s business by the employees of the Company, nor the conduct of the Company’s business as now conducted and as presently proposed to be conducted, will, to the Company’s knowledge, conflict with or result in a breach of the terms, conditions, or provisions of, or constitute a default under, any contract, covenant or instrument under which any such employee is now obligated. (16)

(c) The Company is not delinquent in payments to any of its employees, consultants, or independent contractors for any wages, salaries, commissions, bonuses, or other direct compensation for any service performed for it to the date hereof or amounts required to be reimbursed to such employees, consultants, or independent contractors. The Company has complied in all material respects with all applicable state and federal equal employment opportunity laws and with other laws related to employment, including those related to wages, hours, worker classification, and collective bargaining. The Company has withheld and paid to the appropriate governmental entity or is holding for payment not yet due to such governmental entity all amounts required to be withheld from employees of the Company and is not liable for any arrears of wages, taxes, penalties, or other sums for failure to comply with any of the foregoing. (17)

(d) To the Company’s knowledge, no Key Employee intends to terminate employment with the Company or is otherwise likely to become unavailable to continue as a Key Employee, nor does the Company have a present intention to terminate the employment of any of the foregoing. The employment of each employee of the Company is terminable at the will of the Company. Except as set forth in Section 2.16 of the Disclosure Schedule or as required by law, upon termination of the employment of any such employees, no severance or other payments will become due. Except as set forth in Section 2.16 of the Disclosure Schedule, the Company has no policy, practice, plan, or program of paying severance pay or any form of severance compensation in connection with the termination of employment services. ..17

(e) The Company has not made any representations regarding equity incentives to any

officer, employees, director or consultant that are inconsistent with the share amounts and

terms set forth in the minutes of meetings of the Company’s board of directors. (17)

(f) Each former Key Employee whose employment was terminated by the Company has

entered into an agreement with the Company providing for the full release of any claims

against the Company or any related party arising out of such employment. (17)

(g) Section 2.16 of the Disclosure Schedule sets forth each employee benefit plan

maintained, established or sponsored by the Company, or which the Company participates

in or contributes to, which is subject to the Employee Retirement Income Security Act of

1974, as amended (“ERISA”). The Company has made all required contributions and has

no liability to any such employee benefit plan, other than liability for health plan

continuation coverage described in Part 6 of Title I(B) of ERISA, and has complied in all

material respects with all applicable laws for any such employee benefit plan. (17)

(h) [The Company is not bound by or subject to (and none of its assets or properties is

bound by or subject to) any written or oral, express or implied, contract, commitment or

arrangement with any labor union, and no labor union has requested or, to the knowledge of

the Company, has sought to represent any of the employees, representatives or agents of the Company. There is no strike or other labor dispute involving the Company pending, or to

the Company’s knowledge, threatened, which could have a Material Adver se Effect, nor is

the Company aware of any labor organization activity involving its employees.] (18)

(i) [To the Company’s knowledge, none of the Key Employees or directors of the Company

has been (a) subject to voluntary or involuntary petition under the federal bankruptcy laws

or any state insolvency law or the appointment of a receiver, fiscal agent or similar officer

by a court for his business or property; (b) convicted in a criminal proceeding or named as a

subject of a pending criminal proceeding (excluding traffic violations and other minor

offenses); (c) subject to any order, judgment, or decree (not subsequently reversed,

suspended, or vacated) of any court of competent jurisdiction permanently or temporarily

enjoining him from engaging, or otherwise imposing limits or conditions on his engagement

in any securities, investment advisory, banking, insurance, or other type of business or

acting as an officer or director of a public company; or (d) found by a court of competent

jurisdiction in a civil action or by the Securities and Exchange Commission or the

Commodity Futures Trading Commission to have violated any federal or state securities, commodities, or unfair trade practices law, which such judgment or finding has not been

subsequently reversed, suspended, or vacated.] (18)

2.17. Tax Returns and Payments. (18)

2.18. Insurance. 18

2.19. Confidential Information and Invention Assignment Agreements. (19)

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. (20)

[2.25 Qualified Small Business Stock. (20)

2.26 Disclosure. 21

[2.27 Small Business Concern. (21)

[3. Representations and Warranties of the Founders. (22)

3.1 Conflicting Agreements. (22)

3.2 Litigation. 23

3.3 Stockholder Agreements. (23)

3.4 Representations and Warranties. (23)

4. Representations and Warranties of the Purchasers. (23)

4.1 Authorization. 23

4.2 Purchase Entirely for Own Account. (24)

4.3 Disclosure of Information. (24)

4.4 Restricted Securities. (24)

4.5 No Public Market. (25)

4.6 Legends. 25

(a) “THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN

REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN

ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION

WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH TRANSFER MAY BE

EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED

THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE

COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE

SECURITIES ACT OF 1933.” (25)

(b) Any legend set forth in, or required by, the other Transaction Agreements. (25)

(c) Any legend required by the securities laws of any state to the extent such laws are

applicable to the Shares represented by the certificate so legended (25)

4.7 Accredited Investor. (25)

4.8 Foreign Investors. 25

4.9 No General Solicitation. (26)

4.10 Exculpation Among Purchasers. (26)

4.11 Residence. 26

5. Conditions to the Purchasers’ Obligations at Closing. (26)

5.1 Representations and Warranties. (27)

5.2 Performance. 27

5.3 Compliance Certificate. (27)

5.4 Qualifications. 27

5.5 Opinion of Company Counsel (28)

5.6 Board of Directors. (28)

5.7 Indemnification Agreement. (28)

5.8 Investors’ Rights Agreement (28)

5.9 Right of First Refusal and Co-Sale Agreement. (28)

5.10 Voting Agreement. (28)

5.11 Restated Certificate. (28)

5.12 Secretary’s Certificate (28)

5.13 Proceedings and Documents. (29)

5.14 Minimum Number of Shares at Initial Closing. (29)

5.15 Management Rights. (29)

[5.16 SBA Matters. 29

[5.17 Preemptive Rights (29)

6. Cond itions of the Company’s Obligations at Closing. (29)

6.1 Representations and Warranties. (29)

6.2 Performance. 30

6.3 Qualifications. 30

6.4 Investors’ Rights Agreement (30)

6.5 Right of First Refusal and Co-Sale Agreement. (30)

6.6 Voting Agreement. (30)

[6.7 Minimum Number of Shares at Initial Closing. (30)

7. Miscellaneous. (30)

7.1 Survival of Warranties. (30)

7.2 Successors and Assigns. (30)

7.3 Governing Law. 31

7.4 Counterparts; Facsimile. (31)

7.5 Titles and Subtitles. (31)

7.6 Notices. 31

7.7 No Finder’s Fees. 32

7.8 Fees and Expenses. (32)

[7.9 Attorneys’ Fees. 32

7.10 Amendments and Waivers. (32)

7.11 Severability. 33

7.12 Delays or Omissions. (33)

7.13 Entire Agreement. (33)

[7.14 Corporate Securities Law. (33)

7.15 Dispute Resolution. (34)

[7.16 No Commitment for Additional Financing. (35)

EXHIBIT A - ................................................................. S CHEDULE OF PURCHASE EXHIBIT B - ................................................. FORM OF AMENDED AND RESTAT CERTIFICATE OF INCORPORATION

EXHIBIT C - ........................................................................ DISCLOSURE SCHEDU EXHIBIT D - .................................... FORM OF INDEMNIFICATION AGREEME EXHIBIT E - .................................. F ORM OF INVESTORS’ RIGHTS AGREEME EXHIBIT F - ...................................... F ORM OF MANAGEMENT RIGHTS LETT EXHIBIT G -FORM OF RIGHT OF FIRST REFUSAL AND CO-SALE AGREEM EXHIBIT H - .......................................................... FORM OF VOTING AGREEME EXHIBIT I - ................... FORM OF LEGAL OPINION OF [COMPANY COUNSE [EXHIBIT J - .............................................................................. M ILESTONE EVENT

SERIES A PREFERRED STOCK PURCHASE AGREEMENT THIS SERIES A PREFERRED STOCK PURCHASE AGREEMENT is made as of the [__] day of [________, 200_] 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 Closing1(as defined below) the

Amended and Restated Certificate of Incorporation in the form of EXHIBIT B

attached to this Agreement (the “Restated Certificate”).2

(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

[________ __, 200_], 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 1If only one closing is contemplated, references to “Initial Closing,” “each Closing,” “such

Closing” etc. should be modified.

2Sometimes only a Certificate of Amendments is required.

designated as the “Initial Closing”).3 In the event there is more than one closing,

the term “Closing” shall apply to each such c losing 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 interest4], 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 Agreement5, 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 Shares6], 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 3If 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.

4If 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.

5The 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 t his 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.

6The 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.

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.”7]

[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.

“Affiliate” mea ns, 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.

“Code” means the Internal Revenue Code of 1986, as amended.

“Company Intellectual Property” means all patents, patent applications, trademarks, trademark applications, service marks, tradenames, copyrights, trade secrets, licenses, domain names, mask works, information and proprietary rights and processes as are nec essary to the conduct of the Company’s business as now conducted and as presently proposed to be conducted.

“Indemnification Agreement” means the agreement between the Company and the director designated by any Purchaser entitled to designate a member of the Board of Directors 7 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.

pursuant to the Voting Agreement, dated as of the date of the Initial Closing, in the form of EXHIBIT D attached to this Agreement.

“Investors’ Rights Agreement” means the agreement among the Company an d the Purchasers8 [and certain other stockholders of the Company] dated as of the date of the Initial Closing, in the form of EXHIBIT E attached to this Agreement.

“Key Employee” means any executive-level employee (including division director and vice president-level positions) as well as any employee or consultant who either alone or in concert with others develops, invents, programs or designs any Company Intellectual Property.9

“Knowledge,” including the phrase “to the Company’s knowledge,” shall mean the actual knowledge [after reasonable investigation] of the following officers: [specify names].10

“Management Rights Letter” means the agreement between the Company and [Purchaser], dated as of the date of the Initial Closing, in the form of EXHIBIT F attached to this Agreement.

“Material Adverse Effect” means a material adverse effect on the business, assets (including intangible assets), liabilities, financial condition, property, prospects11 or results of operations of the Company.

“Person”means any individual, corporation, partnership, trust, limited liability company, association or other entity.

8In 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.

9In a Series A round at a high-tech start-up, it is likely that the only key employees in addition to management, if any, are those who are responsible for developing the Company’s key intellectual property assets. It may be simpler for these early-stage companies to list the Key Employees by name. In later rounds, it may be appropriate to include others, e.g., important salespeople or consultants and define Key Employees by function (e.g., division director).

10An important point of negotiation is often whether the Company will represent that a given fact (a) is tr ue or (b) is true to the Company’s knowledge. Alternative (a) requires the Company to bear the entire risk of the truth or falsity of the represented fact, regardless whether the Company knew (or could have known) at the time of the representation whether or not the fact was true. Alternative (b) is preferable from the Company’s standpoint, since it holds the Company responsible only for facts of which it is actually aware.

11Since the prospects of high-tech start-up companies are by definition highly uncertain, the Company may resist the inclusion of the word “prospects” on the grounds that investors in a Series A financing are in the business of shouldering that risk.

“Purchaser” means each of the Purchasers who is initially a party to this Agreement and any Additional Purchaser who becomes a party to this Agreement at a subsequent Closing under Section 1.3.

“Right of First Refusal and Co-Sale Agreement” means the agreement among the Company, the Purchasers, and certain other stockholders of the Company, dated as of the date of the Initial Closing, in the form of EXHIBIT G attached to this Agreement.

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

“Shares” means the shares of Series A Preferred Stock issued at the Initial Closing and any [Milestone Shares or] Additional Shares issued at a subsequent Closing under Section 1.3.

“Transaction Agreements” means this Agreement, the Investors’ Rights Agreement, the Management Rights Letter, the Right of First Refusal and Co-Sale Agreement, the Voting Agreement and [list any other agreements, instruments or documents entered into in connection with this Agreement].

“Voting Agreement” means the agreement among the Company, the Purchasers and certain other stockholders of the Company, dated as of the date of the Initial Closing, in the form of EXHIBIT H attached to this Agreement.

2.Representations and Warranties of the Company.

The Company hereby represents and warrants to each Purchaser that, except as set forth on the Disclosure Schedule attached as EXHIBIT C to this Agreement, 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 Initial Closing, except as otherwise indicated. The Disclosure Schedule shall be arranged in sections corresponding to the numbered and lettered sections and subsections contained in this Section 2, and the disclosures in any section or subsection of the Disclosure Schedule shall qualify other sections and subsections in this Section 2 only to the extent it is readily apparent from a reading of the disclosure that such disclosure is applicable to such other sections and subsections.12

12The purpose of the Company’s representations is primarily to create a mechanism to ensure full disclosure about the Company’s organization, financial condition and business to the investors. The Company is required to list any deviations from the representations on a Disclosure Schedule, the preparation and review of which drives the due diligence process on both sides of the deal. For subsequent closings, changes to the Disclosure Schedule are sometimes simply referenced on the Compliance Certificate. The introductory paragraph to this Section 2 may be modified to permit an update to the Disclosure Schedule that would be reasonably acceptable to each of the Purchasers. If this modification is made, a closing condition should be added to indicate that the updated Disclosure Schedule will be delivered and that each of the Purchasers may refuse to close if the updated Disclosure Schedule is reasonably unacceptable to that Purchaser. If there is to be a Milestone Closing, specific representations and warranties to be true as of the Milestone Closing date may need to be negotiated. Some practitioners prefer to deliver the Disclosure Schedule separately, instead of as an exhibit to the Stock Purchase

For purposes of these representations and warranties (other than those in Sections 2.2, 2.3, 2.4, 2.5, and 2.6), the term “the Company” shall include any subsidiaries of the Company, unless otherwise noted herein.

https://www.doczj.com/doc/c9617674.html,anization, Good Standing, Corporate Power and Qualification.

13 The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to carry on its business as presently conducted and as proposed to be conducted. The Company is duly qualified to transact business and is in good standing in each jurisdiction in which the failure to so qualify would have a Material Adverse Effect.

2.2.Capitalization.14

The authorized capital of the Company consists, immediately prior to the Initial Closing, of:

(a)[__________] shares of common stock, $[____] par value per

share (the “Common Stock”), [_________] shares of which are issued and

outstanding immediately prior to the Initial Closing. All of the outstanding

shares of Common Stock have been duly authorized, are fully paid and

nonassessable and were issued in compliance with all applicable federal and state

securities laws. [The Company holds no treasury stock and no shares of Series A

Preferred Stock in its treasury.]

(b)[__________] shares of Preferred Stock, of which [__________]

shares have been designated Series A Preferred Stock, none of which are issued

and outstanding immediately prior to the Initial Closing. The rights, privileges

and preferences of the Preferred Stock are as stated in the Restated Certificate and

as provided by the general corporation law of the jurisdiction of the Company’s

incorporation.

Agreement, so that the Disclosure Schedule will not have to be publicly filed in the event the Stock Purchase Agreement is filed as an exhibit to a public offering registration statement.

13The purpose of this representation is to ensure that basic corporate maintenance has been properly carried out by the Company. Note that the Company is required to disclose failure to qualify in other jurisdictions where it does business only if failure to do so could have a "material adverse effect;" the purpose of this language is to eliminate the time and expense of doing a state-by-state analysis to determine whether the Company should technically be qualified. If the Company has material connections to states in which it is not qualified, these states must be investigated by counsel to determine whether qualification is necessary and whether there are potential adverse effects of having failed to qualify.

14Section 2.2 describes the Company’s capital structure and can be stated either immediately prior to or upon the Initial Closing of the financing. This description details any outstanding rights or privileges with respect to the Company’s securities. In later round financings, this description would also list any co-sale rights and rights of first refusal granted to investors in prior rounds. In later round financings, consider adding representations that there have been no conversions of previously-issued preferred stock to common stock, the number of shares that would be outstanding on an as-converted-to-common stock basis and the current conversion ratios of each series of preferred stock.

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aseriesof…作主语谓语动词用单数还是用复数

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使用格式:AND(logical1,logical2, ...) 参数说明:Logical1,Logical2,Logical3……:表示待测试的条件值或表达式,最多这30个。 应用举例:在C5单元格输入公式:=AND(A5>=60,B5>=60),确认。如果C5中返回TRUE,说明A5和B5中的数值均大于等于60,如果返回FALSE,说明A5和B5中的数值至少有一个小于60。 特别提醒:如果指定的逻辑条件参数中包含非逻辑值时,则函数返回错误值“#VALUE!”或“#NAME”。 3、AVERAGE函数 函数名称:AVERAGE 主要功能:求出所有参数的算术平均值。 使用格式:AVERAGE(number1,number2,……) 参数说明:number1,number2,……:需要求平均值的数值或引用单元格(区域),参数不超过30个。 应用举例:在B8单元格中输入公式: =AVERAGE(B7:D7,F7:H7,7,8),确认后,即可求出B7至D7区域、F7至H7区域中的数值和7、8的平均值。 特别提醒:如果引用区域中包含“0”值单元格,则计算在内;如果引用区域中包含空白或字符单元格,则不计算在内。 4、COLUMN 函数 函数名称:COLUMN 主要功能:显示所引用单元格的列标号值。

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Please supply us with the following sample of product: *Packaging: The goods shall be packed suitable for air/inland transportation. *Deliver as soon as possible; *Please send an order confirmation by e‐mail ; *Please place our order number on the invoice; *The packing list should indicate the weight of a balk and the quantity of bales; *Please send the following files by e-mail for our customs clearance and inspection: Purchase Order PO20180117 Xi'an Hardis Import and Export TradingCo.,Ltd. Purchase Date : NO.114,No.1 Fengcheng Road, Purchaser: Weiyang District, Xi’an City,Shaanxi Province, China. Mobile:+86 - Tel:+86‐29‐ Page 1/2 E‐mail: Purchase from: Delivery Address: Fitzgerald Industries International Xi'an Hardis Import and Export TradingCo.,Ltd. 30 Sudbury Road, Suite 1A N, No.1 Building, Acton, MA 01720 South Area of XianFeng Garden, USA. East Section of NO.1 FengCheng Road, T: Weiyang District, Xi ’an City, Shaanxi Province, E: China. W: T: +86‐29‐ M:+86- E‐mail: SKU Product Name Catalog Quantity Unit Price(USD) Amount(USD) CRP protein 30‐AC05PP 5mg Sample Complement 3 antiserum 88R-7581 5mg Sample Complement 4 antiserum 20C-CR2019SP 5mg Sample Immunoglobulin A antiserum 20C-CR6043SP 5mg Sample Immunoglobulin A antiserum 31C-CP1034I 5mg Sample Immunoglobulin G antiserum 20C-CR6050SP 5mg Sample Goat anti Human IgM antibody (mu chain) 41-XG59 5mg Sample Premium for express delivery(USD) Total (USD) :

EXCEL中常用函数及使用方法

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Unit 3 Leonardo da Vinci, one of the greatest minds of the Italian Renaissance, is perhaps the most diversely talented person ever to have lived. A painter, sculptor, architect, mathematician, engineer, and inventor, he is famous for a wide range of accomplishments. His natural genius, which crossed multiple disciplines, won him the title of "Renaissance Master". Leonardo is renowned primarily as a painter. Among his works, the Mona Lisa is the best known and The Last Supper the most reproduced religious painting of all time. What make Leonardo's drawings unique are mainly his innovative techniques and acute scientific mind. Perhaps only 15 of his painting shave survived, partly because his constant experimentation with new techniques made his total output quite small. Although not a prolific(多产的)painter, Leonardo was a most productive draftsman, keeping journals full of sketches, drawings, and diagrams. These notebooks, often referred to as da Vinci's manuscripts, recorded his inventions, observations, and theories about everything that captured his attention. Leonard's genius made him a pioneer in almost every field of study he undertook. His paintings, together with his notebooks, have contributed significantly to the history of art. Ink and wash painting, one of the unique traditional art forms of China, is representative of Chinese painting. It began around the time of the Tang Dynasty, and then prospered in the Song and Yuan dynasties. With a history of over one thousand years, it has experienced constant development, improvement and perfection. The tools and materials used to create ink and wash painting, i.e. brushes, rice paper, and ink, are characteristic of Chinese culture and closely related to the features of the paintings. For example, the mixing of water and ink creates different shades of dryness, wetness, thickness and thinness. The integration and infiltration of water, ink, and rice paper enables such paintings to convey rich images, and hence to achieve unique aesthetic effects. Ink and wash painting holds a high status in the history of Chinese painting, and it is even regarded as the criterion to evaluate the artistic level of Oriental paintings. Unit 4 Venice is the world's famous island city in northern Italy. Founded in the 5th century, Venice became a major maritime power in the 10th century. In the Middle Ages and the Renaissance, Venice was a major center for commerce and trade, and became an extremely wealthy European city, a leader in political and economic affairs. After several hundred years in power, Venice began to decline in the 15th century. Nowadays, it is regarded as one of the world's most beautiful cities and one of the most important tourist destinations in the world. Venice has a rich and diverse architectural style, the most famous of which is the Gothic style. Venice is also known for several important artistic movements in history, especially the Renaissance period. The influence of Venice on the development of architecture and arts has been considerable. Today, it is still playing an important role in contemporary arts and popular cultures. In 1987, Venice was listed as a World Heritage Site. In March 1980, Venice became a sister city of China's Suzhou City.

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a series of一系列,一连串 above all首先,尤其是 after all毕竟,究竟 ahead of在...之前 ahead of time提前 all at once突然,同时 all but几乎;除了...都 all of a sudden突然 all over遍及 all over again再一次,重新 all the time一直,始终 all the same仍然,照样的 as regards关于,至于 anything but根本不 as a matter of fact实际上 apart from除...外(有/无) as a rule通常,照例 as a result(of)因此,由于 as far as...be concerned就...而言as far as远至,到...程度 as for至于,关于 as follows如下 as if好像,仿怫 as good as和...几乎一样 as usual像平常一样,照例 as to至于,关于 all right令人满意的;可以 as well同样,也,还 as well as除...外(也),即...又aside from除...外(还有) at a loss茫然,不知所措 at a time一次,每次 at all丝毫(不),一点也不 at all costs不惜一切代价 at all events不管怎样,无论如何

at all times随时,总是 at any rate无论如何,至少 at best充其量,至多 at first最初,起先 at first sight乍一看,初看起来at hand在手边,在附近 at heart内心里,本质上 at home在家,在国内 at intervals不时,每隔... at large大多数,未被捕获的 at least至少 at last终于 at length最终,终于 at most至多,不超过 at no time从不,决不 by accident偶然 at one time曾经,一度;同时at present目前,现在 at sb's disposal任...处理 at the cost of以...为代价 at the mercy of任凭...摆布 at the moment此刻,目前 at this rate照此速度 at times有时,间或 back and forth来回地,反复地back of在...后面 before long不久以后 beside point离题的,不相干的beyond question毫无疑问 by air通过航空途径 by all means尽一切办法,务必by and by不久,迟早 by chance偶然,碰巧 by far最,...得多 by hand用手,用体力

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1、ABS函数 函数名称:ABS 主要功能:求出相应数字的绝对值。 使用格式:ABS(number) 参数说明:number代表需要求绝对值的数值或引用的单元格。 应用举例:如果在B2单元格中输入公式:=ABS(A2),则在A2单元格中无论输入正数(如100)还是负数(如-100),B2中均显示出正数(如100)。 特别提醒:如果number参数不是数值,而是一些字符(如A等),则B2中返回错误值“#VALUE!”。 2、AND函数 函数名称:AND 主要功能:返回逻辑值:如果所有参数值均为逻辑“真(TRUE)”,则返回逻辑“真(TRUE)”,反之返回逻辑“假(FALSE)”。 使用格式:AND(logical1,logical2, ...) 参数说明:Logical1,Logical2,Logical3……:表示待测试的条件值或表达式,最多这30个。 应用举例:在C5单元格输入公式:=AND(A5>=60,B5>=60),确认。如果C5中返回TRUE,说明A5和B5中的数值均大于等于60,如果返回FALSE,说明A5和B5中的数值至少有一个小于60。 特别提醒:如果指定的逻辑条件参数中包含非逻辑值时,则函数返回错误值“#VALUE!”或“#NAME”。 3、AVERAGE函数 函数名称:AVERAGE 主要功能:求出所有参数的算术平均值。 使用格式:AVERAGE(number1,number2,……) 参数说明:number1,number2,……:需要求平均值的数值或引用单元格(区域),参数不超过30个。

应用举例:在B8单元格中输入公式:=AVERAGE(B7:D7,F7:H7,7,8),确认后,即可求出B7至D7区域、F7至H7区域中的数值和7、8的平均值。 特别提醒:如果引用区域中包含“0”值单元格,则计算在内;如果引用区域中包含空白或字符单元格,则不计算在内。 4、COLUMN 函数 函数名称:COLUMN 主要功能:显示所引用单元格的列标号值。 使用格式:COLUMN(reference) 参数说明:reference为引用的单元格。 应用举例:在C11单元格中输入公式:=COLUMN(B11),确认后显示为2(即B列)。 特别提醒:如果在B11单元格中输入公式:=COLUMN(),也显示出2;与之相对应的还有一个返回行标号值的函数——ROW(reference)。 5、CONCATENATE函数 函数名称:CONCATENATE 主要功能:将多个字符文本或单元格中的数据连接在一起,显示在一个单元格中。 使用格式:CONCATENATE(Text1,Text……) 参数说明:Text1、Text2……为需要连接的字符文本或引用的单元格。 应用举例:在C14单元格中输入公式:=CONCATENATE(A14,"@",B14,".com"),确认后,即可将A14单元格中字符、@、B14单元格中的字符和.com连接成一个整体,显示在C14单元格中。 特别提醒:如果参数不是引用的单元格,且为文本格式的,请给参数加上英文状态下的双引号,如果将上述公式改为:=A14&"@"&B14&".com",也能达到相同的目的。 6、COUNTIF函数 函数名称:COUNTIF 主要功能:统计某个单元格区域中符合指定条件的单元格数目。 使用格式:COUNTIF(Range,Criteria) 参数说明:Range代表要统计的单元格区域;Criteria表示指定的条件表达式。

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