Stock Purchase Agreement (jensen Charitable)

STOCK PURCHASE AGREEMENT


THIS AGREEMENT is entered into as of the 21st day of June, 1996, by and among the JENSEN CHARITABLE REMAINDER TRUST (the "Seller"), BESSEMER VENTURE PARTNERS III, L.P. ("Bessemer") and VERTEX INVESTMENT (II) PTE. LTD. (together with Bessemer, the "Purchasers").


In consideration of the mutual promises, covenants and conditions hereinafter set forth, the parties hereto agree as follows:


1. PURCHASE AND SALE OF THE SHARES.


Subject to the terms and conditions hereof, at the Closing provided for in Section 2.1 below, the Seller shall sell to each Purchaser and each Purchaser shall purchase from the Seller the number of shares of Common Stock of the Company, par value $0.001 per share (the "Shares") set forth opposite such Purchaser's name on the Schedule of Purchasers attached hereto as Exhibit A, at a purchase price of $0.75 per share.


2. CLOSING DATE; DELIVERY.


2.1 Closing. The Closing of the purchase and sale of the Shares under this Agreement (the "Closing") will be held at the offices of Cooley Godward Castro Huddleson & Tatum in Boulder, Colorado on June 21, 1996 or on such other date as the Seller and the Purchasers may agree, orally or in writing (the "Closing Date").


2.2 Delivery. Subject to the terms of this Agreement, at the Closing: (a) the Seller shall deliver to the Purchasers certificates representing the Shares ("Certificates"), accompanied by duly executed stock powers in a form appropriate for transfer of the Shares to the Purchasers, and (b) the Purchasers shall deliver to the Seller the purchase price therefor by check or wire transfer made payable to the order of the Seller.


3. REPRESENTATIONS AND WARRANTIES OF THE SELLER.


Except as otherwise described below, the Seller hereby represents and warrants to, and agrees with, the Purchasers as set forth in this Section 3.


3.1 Title. The Seller owns and holds good and valid title to the Shares being sold to the Purchasers, free and clear of any liens, security interests, restrictions, options or encumbrances other than (i) restrictions on transfer under applicable securities 2 laws and (ii) restrictions contained in each of the Shareholders Agreements, dated November 1, 1991 and March 25, 1992, by and among Seller, the Company and certain other holders of the capital stock of the Company. The Seller has not pledged the shares, granted any option or similar right with respect to any such Shares or granted any right to acquire any of the Shares other than as contemplated hereby.


3.2 Validity.


(a) The Seller has the full and unrestricted right, power and capacity to enter into, execute and deliver this Agreement, and as of the Closing will have the full unrestricted right, power and capacity to transfer and deliver good and valid title to the Shares being sold by the Seller free and clear of any liens, security interests, restrictions, options, or encumbrances (other than restrictions on transfer under applicable securities laws) and to transfer and deliver the Shares, as represented by the Certificates.

(b) This Agreement is a valid and binding obligation of the Seller enforceable in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and rules or laws concerning equitable remedies.

3.3 Share Disposition Decision.


(a) Information. The Seller has had a continuing opportunity to discuss the Company's business, condition, assets, properties, prospects, plans, management, financial affairs and the like, together with the terms and conditions of this sale of the Shares, with the Company's management and Board of Directors, and has had a continuing opportunity to inspect and review, and to make inquiries of the Company's management concerning, the Company's facilities, plant and equipment. In addition, the Seller has received all information regarding the Company that the Seller believes is material or otherwise necessary to the Seller's decision to sell the Shares to the Purchasers, including but not limited to, copies of the Company's unaudited financial statements dated March 31, 1996 and budget and forecasts dated April 30, 1996.

(b) Acknowledgment. The Seller hereby acknowledges that it has been informed by the Company's management that the Company is considering the pursuit of an initial public offering of its Common Stock ("IPO") as early as six (6) months from the date hereof, which, if it occurs, would have a direct and positive affect on the Shares. There is no guarantee, however, that an IPO will in fact occur within this, or any other, timeframe. The Seller further acknowledges its unequivocal understanding, after discussions with the Company's management, that if such IPO occurs, the post-IPO market value of the Shares, in terms of, among other factors, market price and liquidity,


2 3 may be materially and substantially higher than the purchase price received by the Seller for the Shares pursuant to this Agreement, and in fact the post-IPO price is likely to be many times greater than such purchase price to be received by the Seller. The Seller also acknowledges that the amount (i.e., the purchase price) to be received by it for the Shares pursuant to this Agreement represents, in light of all the factors and potentiality surrounding the likely value of the Company's shares in the very near future, a fair ...