Exhibit 10.22
THIRD AMENDED AND RESTATED STOCKHOLDERS' RIGHTS AGREEMENT
This Third Amended and Restated Stockholders' Rights Agreement (the
"Agreement") dated as of May 29, 1996 is entered into by and among Metasyn,
Inc., a Delaware corporation (the "Company"), Xxxxxxx X. Xxxxxxx (the
"Founder"), the holders of shares of the Company's Series A Convertible
Preferred Stock, $.01 par value per share (the "Series A Preferred"), and
warrants convertible into Series A Preferred, the holders of the Company's
Series B Convertible Preferred Stock, $.01 par value per share (the "Series B
Preferred"), and warrants convertible into Series B Preferred, the holders of
Convertible Promissory Notes issued by the Company and convertible into shares
of the Company's Series C Convertible Preferred Stock, $.01 par value per share
(the "Series C Preferred"), and warrants convertible into Series C Preferred,
and the purchasers of the Company's Series D Convertible Preferred Stock, $.01
par value per share (the "Series D Preferred"), and warrants convertible into
Series D Preferred listed on Schedule A hereto.
WITNESSETH:
WHEREAS, the Company, the purchasers of the Company's Series A Preferred
(the "Series A Purchasers") and the purchasers of the Company's Series B
Preferred (the "Series B Purchasers"), Dominion Ventures, Inc., a California
corporation, and Dominion Fund II, a California limited partnership (together,
"Dominion"), and the purchasers (the "Note Purchasers") of promissory notes
dated May 26, 1995 and January 19, 1996 issued by the Company and convertible
into shares of the Series C Preferred having an aggregate original principal
amount of $3,015,862.02 (the "Notes") were parties to a certain Second Amended
and Restated Stockholders' Rights Agreement dated as of January 19, 1996,
pursuant to which the Series A Purchasers, Series B Purchasers, Dominion and the
Note Purchasers were granted registration rights, rights of first refusal with
respect to new equity offerings by the Company, and other rights with respect to
certain actions proposed to be undertaken by the Company; and
WHEREAS, this Agreement is entered into as a condition to the purchase by
certain purchasers (the "Series D Purchasers") of the Company's Series D
Preferred pursuant to a Series D Convertible Preferred Stock Purchase Agreement
dated of even date herewith by and among the Series D Purchasers and the Company
(the "Series D Purchase Agreement"); and
WHEREAS, each of the parties hereto desires to set forth in a single
agreement the registration rights, first refusal rights, and certain other
rights of the Series A Purchasers, the Series B Purchasers, the Note Purchasers
and the Series D Purchasers with respect to all of the shares of Preferred Stock
(as defined herein) acquired or obtainable by the Purchasers (as defined herein)
pursuant to the Purchase Agreements (as defined herein), by Dominion upon
exercise of the Dominion Warrants (as defined herein), and upon the exercise of
the Accel Warrants and the Bessemer Warrant (each as defined herein).
- 1 -
NOW THEREFORE, in consideration of the mutual promises, covenants and
conditions hereinafter set forth and other good and valuable consideration, the
parties hereto agree as follows:
1. Certain Definitions.
As used in this Agreement, the following terms shall have the following
respective meanings:
"Accel Warrants" means collectively the warrants exercisable for shares of
Series D Preferred held by Accel Investors '93 L.P., Accel IV L.P., Accel
Keiretsu L.P., Prosper Partners and Xxxxxxx X. Xxxxxxxxx Partners.
"Affiliate" means any individual, partnership, joint venture, corporation,
trust, unincorporated organization or government or any department or agency
thereof (a "Person") which directly or indirectly controls, is controlled by, or
is under common control with, the indicated Person.
"Bessemer Warrant" means the warrant exercisable for Series D Preferred
held by Bessemer Venture Partners III, L.P.
"Commission" means the Securities and Exchange Commission, or any other
Federal agency at the time administering the Securities Act.
"Dominion Warrants" means the warrants exercisable for shares of Series A
Preferred, Series B Preferred and Series C Preferred held by Dominion.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any similar Federal statute, and the rules and regulations of the Commission
issued under such Act, as they each may, from time to time, be in effect.
"Founder's Shares" means the shares of the Company's Common Stock now owned
and hereafter acquired by Xxxxxxx X. Xxxxxxx.
"Preferred Stock" means collectively, the Series A Preferred, the Series B
Preferred, the Series C Preferred and the Series D Preferred.
"Purchase Agreements" means collectively the Series A Convertible Preferred
Stock Purchase Agreement dated as of March 25, 1992, as amended, by and among
the Company and the Series A Purchasers (the "Series A Purchase Agreement"), the
Series B Convertible Preferred Stock Purchase Agreement dated as of March 4,
1994, as amended, by and among the Company and the Series B Purchasers (the
"Series B Purchase Agreement"), the Convertible Promissory Note Purchase
Agreement dated as of May 26, 1995, as amended
- 2 -
by Amendment No. 1 to the Convertible Promissory Note Purchase Agreement
dated as of January 19, 1996, and the Series D Purchase Agreement.
"Purchasers" means collectively the Series A Purchasers, the Series B
Purchasers, the Note Purchasers and the Series D Purchasers.
"Registration Statement" means a registration statement filed by the
Company with the Commission for a public offering and sale of securities of the
Company (other than a registration statement on Form S-8 or Form S-4, or their
successors, or any other form for a limited purpose, or any registration
statement covering only securities proposed to be issued in exchange for
securities or assets of another corporation).
"Registration Expenses" means the expenses described in Subsection 2.5.
"Registrable Shares" means (i) the shares of Common Stock of the Company
issued or issuable upon conversion of the Shares (as defined below), (ii) any
shares of Common Stock of the Company acquired (directly or upon the conversion
of securities convertible into shares of Common Stock or pursuant to the
exercise of options, warrants or other rights) by the Securityholders (as
defined below) pursuant to any preemptive rights or rights of first refusal
contained in this Agreement or in any agreement contemplated by this Agreement,
and (iii) any other shares of Common Stock of the Company issued in respect of
the shares described in clauses (i) and (ii) hereof (because of stock splits,
stock dividends, reclassifications, recapitalizations or similar events);
provided, however, that shares of Common Stock which are Registrable Shares
shall cease to be Registrable Shares upon any sale pursuant to a Registration
Statement or Rule 144 under the Securities Act, or any sale in any manner to a
person or entity which, by virtue of Subsection 2.12 of this Agreement, is not
entitled to the rights provided by Section 2. Wherever reference is made in this
Agreement to a request or consent of holders of a certain percentage of
Registrable Shares, the determination of such percentage shall include shares of
Common Stock issuable upon conversion of the Shares, even if such conversion has
not yet been effected.
"Securities" means the Shares (as defined below), the Accel Warrants, the
Bessemer Warrant, the Dominion Warrants and the Notes.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar Federal statute, and the rules and regulations of the Commission issued
under such Act, as they each may, from time to time, be in effect.
"Securityholders" means the Purchasers, Dominion, and any persons or
entities to whom the rights granted under this Agreement are transferred by any
Securityholders, their successors or assigns pursuant to Subsection 2.12 hereof.
"Shares" shall mean (i) all shares of Preferred Stock acquired pursuant to
the Purchase Agreements and upon the exercise of the Accel Warrants, the
Bessemer Warrant
- 3 -
and the Dominion Warrants and (ii) the shares of Series C Preferred issued
or issuable upon conversion of the Notes.
2. Registration Rights.
2.1 Sale or Transfer of Securities; Legend.
(a) The Securities and the Registrable Shares and shares issued in
respect of the Securities or the Registrable Shares shall not be sold or
transferred unless either (i) they first shall have been registered under the
Securities Act, or (ii) the Company first shall have been furnished with an
opinion of legal counsel (which may be counsel to the Company), reasonably
satisfactory to the Company, to the effect that such sale or transfer is exempt
from the registration requirements of the Securities Act.
(b) Notwithstanding the foregoing, no registration or opinion of
counsel shall be required for (i) a transfer by a Securityholder which is a
partnership to a partner of such partnership or a retired partner of such
partnership who retires after the date hereof, or to the estate of any such
partner or retired partner or (ii) a transfer by a Securityholder to a
Subchapter S corporation that is wholly-owned by such Securityholder, if, in
either case, the transferee agrees in writing to be subject to the terms of this
Section 2 to the same extent as if he or it were an original Securityholder
hereunder, and if the transfer complies with all federal and state securities
laws and regulations promulgated thereunder.
(c) Each certificate or other instrument representing the
Securities and the Registrable Shares and shares issued in respect of the
Securities or the Registrable Shares shall bear a legend substantially in the
following form:
"This security has not been registered under the Securities Act of
1933, as amended, and may not be offered, sold or otherwise
transferred, pledged or hypothecated unless and until it has been
registered under such Act or an opinion of counsel satisfactory to the
Company is obtained to the effect that such registration is not
required."
The foregoing legend shall be removed from the certificates representing
any Registrable Shares, at the request of the holder thereof, at such time as
they become eligible for resale pursuant to Rule 144(k) under the Securities
Act.
- 4 -
2.2 Required Registrations.
(a) A Securityholder or Securityholders holding in the aggregate at
least 40% of the Registrable Shares then held by all Securityholders may
request, in writing, that the Company effect the registration on Form S-1 or
Form S-2 (or any successor form) of Registrable Shares owned by such
Securityholder or Securityholders having an aggregate offering price of at least
$7,500,000 (based on the then current market price or fair market value). If the
holders initiating the registration intend to distribute the Registrable Shares
by means of an underwriting, they shall so advise the Company in their request.
In the event such registration is underwritten, the right of other
Securityholders to participate shall be conditioned on such Securityholders'
participation in such underwriting. Upon receipt of any request for registration
pursuant to this paragraph (a), the Company shall promptly give written notice
of such proposed registration to all other Securityholders. Such other
Securityholders shall have the right, by giving written notice to the Company
within 30 days after the Company provides its notice, to elect to have included
in such registration such of their Registrable Shares as such Securityholders
may request in such notice of election, subject to the approval of the
underwriter managing the offering. If in the written opinion of the managing
underwriter the registration of all, or part of, the Registrable Shares which
the holders have requested to be included would materially and adversely affect
such public offering, then the Company shall be required to include in the
underwriting only that number of Registrable Shares owned by such holders which
the managing underwriter believes may be sold without causing such adverse
effect. If the number of Registrable Shares to be included in the underwriting
in accordance with the foregoing is less than the total number of shares which
the holders of Registrable Shares have requested to be included, then the
holders of Registrable Shares who have requested registration shall participate
in the underwriting pro rata based upon their total ownership of Registrable
Shares. Following a request for registration hereunder, the Company shall, as
expeditiously as practicable, use its best efforts to effect the registration,
on Form S-1 or Form S-2 (or any successor form), of all Registrable Shares which
the Company has been requested to so register.
(b) At any time after the Company becomes eligible to file a
Registration Statement on Form S-3 (or any successor form relating to secondary
offerings), a Securityholder or Securityholders may request the Company, in
writing, to effect the registration on Form S-3 (or such successor form), of
Registrable Shares owned by such Securityholder or Securityholders having an
aggregate offering price of at least $1,000,000 (based on the then current
market price or fair value). Upon receipt of any such request, the Company shall
promptly give written notice of such proposed registration to all other
Securityholders. Such other Securityholders shall have the right, by giving
written notice to the Company within 10 days after the Company provides its
notice, to elect to have included in such registration such of their Registrable
Shares as such Securityholders may request in such notice of election.
Thereupon, the Company shall, as expeditiously as practicable, use its best
efforts to effect the registration on Form S-3, or such successor form, of all
Registrable Shares which the Company has been requested to register.
- 5 -
(c) The Company shall not be required to effect (x) more than one
registration pursuant to paragraph (a) above or (y) during any 15-month period,
more than two registrations pursuant to paragraph (b) above; provided that any
registration effected under paragraph (a) above shall not be counted for the
purpose of the foregoing limitation if the Company elects to sell stock pursuant
to a registration at the same time as a registration is requested by
Securityholders pursuant to paragraph (a), unless all Registrable Shares
requested to be registered have been included therein and the inclusion of the
Company shares, in the written opinion of the managing underwriter, does not
reduce the offering price of the shares to be offered by the selling
Securityholders. In addition, the Company shall not be required to effect any
registration (other than on Form S- 3 or any successor form relating to
secondary offerings) within 180 days after the effective date of any other
Registration Statement of the Company.
(d) If at the time of any request to register Registrable Shares
pursuant to this Subsection 2.2, the Company is engaged or has fixed plans to
engage within 30 days of the time of the request in a registered public offering
as to which the Securityholders may include Registrable Shares pursuant to
Subsection 2.3 or is engaged in any other activity which, in the good faith
determination of the Company's Board of Directors, would be adversely affected
by the requested registration to the material detriment of the Company, then the
Company may direct, by a vote of a majority of the Company's Board of Directors
which, for this purpose, shall include at least one of the directors designated
by the Series B Purchasers, that such request be delayed for a period not in
excess of 90 days from the effective date of such offering or the date of
commencement of such other material activity, as the case may be, such right to
delay a request to be exercised by the Company not more than once.
2.3 Incidental Registration.
(a) Whenever the Company proposes to file a Registration Statement
(other than pursuant to Subsection 2.2) at any time and from time to time, it
will, prior to such filing, give written notice to all Securityholders of its
intention to do so and, upon the written request of a Securityholder or
Securityholders given within 30 days after the Company provides such notice
(which request shall state the intended method of disposition of such
Registrable Shares), the Company shall use its best efforts to cause all
Registrable Shares which the Company has been requested by such Securityholder
or Securityholders to register to be registered under the Securities Act to the
extent necessary to permit their sale or other disposition in accordance with
the intended methods of distribution specified in the request of such
Securityholder or Securityholders; provided that the Company shall have the
right to postpone or withdraw any registration effected pursuant to this
Subsection 2.3 without obligation to any Securityholder.
(b) In connection with any offering under this Subsection 2.3
involving an underwriting, the Company shall not be required to include any
Registrable Shares in such underwriting unless the holders thereof accept the
terms of the underwriting
- 6 -
as agreed upon between the Company and the underwriters selected by it, and then
only in such quantity as will not, in the written opinion of the underwriters,
jeopardize the success of the offering by the Company. If in the written opinion
of the managing underwriter the registration of all, or part of, the Registrable
Shares which the holders have requested to be included would materially and
adversely affect such public offering, then the Company shall be required to
include in the underwriting only that number of Registrable Shares which the
managing underwriter believes may be sold without causing such adverse effect.
If the number of Registrable Shares to be included in the underwriting in
accordance with the foregoing is less than the total number of shares which the
holders of Registrable Shares have requested to be included, then the holders of
Registrable Shares who have requested registration shall participate in the
underwriting pro rata based upon their total ownership of Registrable Shares;
provided, however, that such requesting holders shall not have the participation
rights conferred by this Subsection 2.3 if the underwriting relates to the
initial public offering of the Company's securities. If any holder would thus be
entitled to include more shares than such holder requested to be registered, the
excess shall be allocated among other requesting holders pro rata based upon
their total ownership of Registrable Shares.
2.4 Registration Procedures. If and whenever the Company is required by the
provisions of this Agreement to use its best efforts to effect the registration
of any of the Registrable Shares under the Securities Act, the Company shall:
(a) file with the Commission a Registration Statement with respect to
such Registrable Shares and use its best efforts to cause that Registration
Statement to become and remain effective;
(b) as expeditiously as practicable prepare and file with the
Commission any amendments and supplements to the Registration Statement and the
prospectus included in the Registration Statement as may be necessary to keep
the Registration Statement effective for a period of not less than 120 days from
the effective date;
(c) as expeditiously as practicable furnish to each selling
Securityholder such reasonable numbers of copies of the prospectus, including a
preliminary prospectus, in conformity with the requirements of the Securities
Act, and copies of such other documents as the selling Securityholder may
reasonably request in order to facilitate the public sale or other disposition
of the Registrable Shares owned by the selling Securityholder; and
(d) as expeditiously as practicable, use its best efforts to register
or qualify the Registrable Shares covered by the Registration Statement under
the securities or Blue Sky laws of such states as the selling Securityholders
shall reasonably request, and do any and all other acts and things that may be
necessary or desirable to enable the selling Securityholders to consummate the
public sale or other disposition in such states of the Registrable Shares owned
by the selling Securityholder; provided, however, that the
- 7 -
Company shall not be required in connection with this paragraph (d) to qualify
as a foreign corporation or execute a general consent to service of process in
any jurisdiction.
If the Company has delivered preliminary or final prospectuses to the
selling Securityholders and after having done so the prospectus is amended to
comply with the requirements of the Securities Act, the Company shall promptly
notify the selling Securityholders and, if requested, the selling
Securityholders shall immediately cease making offers of Registrable Shares and
return all prospectuses to the Company. The Company shall promptly provide the
selling Securityholders with revised prospectuses and, following receipt of the
revised prospectuses, the selling Securityholders shall be free to resume making
offers of the Registrable Shares.
2.5 Allocation of Expenses. The Company will pay all Registration Expenses
of all registrations under Subsections 2.2 and 2.3; provided, however, that if a
registration is withdrawn at the request of the Securityholders requesting such
registration (other than as a result of information concerning the business or
financial condition of the Company which is made known to the Securityholders
after the date on which such registration was requested) and if the requesting
Securityholders elect not to have such registration counted as a registration
requested under Subsection 2.2, the requesting Securityholders shall pay the
Registration Expenses of such registration pro rata in accordance with the
number of their Registrable Shares included in such registration. For purposes
of this Section 2, the term "Registration Expenses" shall mean all expenses
incurred by the Company in complying with this Section 2, including, without
limitation, all registration and filing fees, exchange listing fees, printing
expenses, fees and disbursements of counsel for the Company and the fees and
expenses of one counsel selected by the selling Securityholders to represent the
selling Securityholders, state Blue Sky fees and expenses, and the expense of
any special audits incident to or required by any such registration, but
excluding underwriting discounts, selling commissions and the fees and expenses
of selling Securityholders' own counsel (other than the counsel selected to
represent all selling Securityholders).
2.6 Indemnification. (a) In the event of any registration of any of the
Registrable Shares under the Securities Act pursuant to this Agreement, the
Company will, to the extent permitted by the Commission and the respective
Securities Commissions of each State in which the Registrable Shares are to be
sold, indemnify and hold harmless the seller of such Registrable Shares (which,
for purposes of this paragraph (a), shall include each of its officers,
directors, general partners and affiliated Securityholders), each underwriter of
such Registrable Shares, and each other person, if any, who controls such seller
or underwriter within the meaning of the Securities Act or the Exchange Act
against any losses, claims, damages or liabilities, joint or several, to which
such seller, underwriter or controlling person may become subject under the
Securities Act, the Exchange Act, state securities or Blue Sky laws or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement
- 8 -
under which such Registrable Shares were registered under the Securities Act,
any preliminary prospectus or final prospectus contained in the Registration
Statement, or any amendment or supplement to such Registration Statement, or
arise out of or are based upon the omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and the Company will reimburse such seller, underwriter
and each such controlling person for any legal or any other expenses reasonably
incurred by such seller, underwriter or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any untrue statement or omission (i) made in such Registration Statement,
preliminary prospectus or prospectus, or any such amendment or supplement, in
reliance upon and in conformity with information furnished to the Company, in
writing, by or on behalf of such seller, underwriter or controlling person
specifically for use in the preparation thereof; or (ii) contained in a
preliminary prospectus and corrected in a final or amended prospectus if such
seller, underwriter or controlling person received such final or amended
prospectus but failed to deliver a copy of the final or amended prospectus at or
prior to the confirmation of the sale of the Registrable Shares to the person
asserting any such loss, claim, damage or liability, in any case where such
delivery is required by the Securities Act.
(b) In the event of any registration of any of the Registrable Shares
under the Securities Act pursuant to this Agreement, each seller of Registrable
Shares, severally and not jointly, will indemnify and hold harmless the Company,
each of its directors and officers and each underwriter (if any) and each
person, if any, who controls the Company or any such underwriter within the
meaning of the Securities Act or the Exchange Act, against any losses, claims,
damages or liabilities, joint or several, to which the Company, such directors
and officers, underwriter or controlling person may become subject under the
Securities Act, Exchange Act, state securities or Blue Sky laws or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement under which
such Registrable Shares were registered under the Securities Act, any
preliminary prospectus or final prospectus contained in the Registration
Statement, or any amendment or supplement to the Registration Statement, or
arise out of or are based upon any omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, if the statement or omission was made in reliance upon
and in conformity with information furnished in writing to the Company by or on
behalf of such seller, specifically for use in connection with the preparation
of such Registration Statement, prospectus, amendment or supplement; and each
seller of Registrable Shares, severally and not jointly, will reimburse the
Company, each of its directors and officers and each underwriter (if any) and
each person, if any, who controls the Company or any such underwriter within the
meaning of the Securities Act or the Exchange Act, for any legal or any other
expenses reasonably incurred by any such person or entity in connection with
investigating or defending such loss, claim, damage, liability or action;
provided, however, that (i) no seller of Registrable Shares will be liable in
any such
- 9 -
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon any untrue statement or omission contained in a preliminary
prospectus and corrected in a final or amended prospectus if the Company
received such final or amended prospectus and failed to deliver a copy of the
final or amended prospectus at or prior to the confirmation of the sale of the
Registrable Shares to the person asserting any such loss, claim, damage or
liability, in any case where such delivery is required by the Securities Act,
and (ii) in any event, the obligations of each Securityholder hereunder shall be
limited to an amount equal to the proceeds to such Securityholder of Registrable
Shares sold as contemplated herein.
(c) Each party entitled to indemnification under this Subsection 2.6
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided, however, that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not be
unreasonably withheld); and, provided, further, that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 2. The Indemnified
Party may participate in such defense at such party's expense; provided,
however, that the Indemnifying Party shall pay such expense if representation of
such Indemnified Party by the counsel retained by the Indemnifying Party would
be inappropriate due to actual or potential differing interests between the
Indemnified Party and any other party represented by such counsel in such
proceeding. No Indemnifying Party, in the defense of any such claim or
litigation shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect of such claim or
litigation, and no Indemnified Party shall consent to entry of any judgment or
settle such claim or litigation without the prior written consent of the
Indemnifying Party.
2.7 Indemnification with Respect to Underwritten Offering. In the event
that Registrable Shares are sold pursuant to a Registration Statement in an
underwritten offering pursuant to Subsection 2.2(a), the Company agrees to enter
into an underwriting agreement containing customary representations and
warranties with respect to the business and operations of an issuer of the
securities being registered and customary covenants and agreements to be
performed by such issuer, including without limitation customary provisions with
respect to indemnification by the Company of the underwriters of such offering.
2.8 Information by Holder. Each holder of Registrable Shares included in
any registration shall promptly furnish to the Company such information
regarding such holder and the distribution proposed by such holder as the
Company may request in writing and as shall be required from time to time in
connection with any registration, qualification or compliance referred to in
this Section 2.
- 10 -
2.9 "Stand-Off" Agreement. Each Securityholder, if requested by the Company
and an underwriter of Common Stock or other securities of the Company, shall
agree not to sell or otherwise transfer or dispose of any Registrable Shares or
other securities of the Company held by such Securityholder for a specified
period of time (not to exceed 120 days) following the effective date of a
Registration Statement relating to the initial public offering of the Company's
Common Stock; provided, that (i) all officers and directors of the Company and
all holders of more than five percent (5%) of the outstanding shares of Common
Stock of the Company enter into similar agreements, and (ii) the Company shall
use its best efforts to cause all holders of more than two percent (2%) of the
outstanding shares of Common Stock of the Company to enter into similar
agreements.
Such agreement shall be in writing in a form satisfactory to the Company
and such underwriter. The Company may impose stop transfer instructions with
respect to the Registrable Shares or other securities subject to the foregoing
restriction until the end of the stand-off period.
2.10 Limitations on Subsequent Registration Rights. The Company shall not,
without the prior written consent of holders of Securities converted or
convertible into at least 51% of the Registrable Shares, enter into any
agreement (other than this Agreement) with any holder or prospective holder of
any securities of the Company which would give any such holder or prospective
holder the right to register or cause the registration of, any securities of the
Company except for incidental registration rights which are subordinate to, or
pari passu with, those provided to the Securityholders under Subsection 2.3
hereof.
2.11 Rule 144 Requirements. After the earliest of (i) the closing of the
sale of securities of the Company pursuant to a Registration Statement, or (ii)
the registration by the Company of a class of securities under Section 12 of the
Exchange Act, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act (at any time after it has become subject to
such reporting requirements); and
(c) furnish to any holder of Registrable Shares upon request a written
statement by the Company as to its compliance with the reporting requirements of
said Rule 144 (at any time after 90 days following the closing of the first sale
of securities by the Company pursuant to a Registration Statement), and of the
Securities Act and the Exchange Act (at any time after it has become subject to
such reporting requirements), a copy of the most recent annual or quarterly
report of the Company and such other reports and documents of the Company as
such holder may reasonably request to avail itself of any
- 11 -
similar rule or regulation of the Commission allowing it to sell any such
securities without registration.
2.12 Transfers of Certain Rights.
(a) The rights granted to a Securityholder under this Section 2 may be
transferred by such Securityholder only to another Securityholder, to any
Affiliate of the Company or to any person or entity that is acquiring Securities
converted or convertible into at least Two Hundred Thousand (200,000) Shares or
Registrable Shares; provided, however, that the Company is given written notice
by the transferee at the time of such transfer stating the name and address of
the transferee and identifying the securities with respect to which such rights
are being assigned.
(b) Transferees. Any transferee (other than a Securityholder) to whom
rights under Section 2 are transferred pursuant to this Section 2.12 shall, as a
condition to such transfer, deliver to the Company a written instrument by which
such transferee agrees to be bound by the obligations imposed upon
Securityholders under Section 2 of this Agreement to the same extent as if such
transferee were a Securityholder hereunder.
(c) Subsequent Transferees. A transferee to whom rights under Section
2 are transferred pursuant to this Subsection 2.12 may not again transfer such
rights to any other person or entity, other than as provided in paragraphs (a)
or (b) above.
(d) Partners, Stockholders, Affiliates and Wholly-Owned S
Corporations. Notwithstanding anything to the contrary contained in this
Agreement, any Securityholder (i) which is a partnership or corporation may
transfer rights granted to such Securityholder under this Section 2 to any
partner, stockholder or Affiliate thereof or (ii) who is the sole owner of a
Subchapter S corporation may transfer rights granted to such Securityholder
under this Section 2 to such Subchapter S corporation, in either case to whom
Securities are transferred pursuant to Subsection 2.1 and who delivers to the
Company a written instrument in accordance with subparagraph (b) above and
containing the representation that the transfer is exempt from registration
under the Securities Act. In the event of such transfer, such partner,
stockholder, Affiliate or corporation shall be deemed a Securityholder for
purposes of this Subsection 2.12 and may again transfer such rights to any other
person or entity which acquires Securities from such partner, stockholder,
Affiliate or corporation, in accordance with, and subject to, the provisions of
subparagraphs (a), (b) and (c) above.
2.13 Termination of Registration Rights. The rights granted to the
Securityholders under this Section 2 shall terminate and be of no further force
and effect upon the earlier of (i) five years following the date on which shares
of Common Stock of the Company are first offered to the public pursuant to a
Registration Statement, or (ii) the date on which all Registrable Shares have
become eligible for resale pursuant to Rule 144(k) under the Securities Act.
- 12 -
3. Right of First Refusal.
(a) The Company hereby grants to each Securityholder a right of first
refusal to purchase, on a pro rata basis, all or any part of New Securities (as
defined below) which the Company may, from time to time, propose to sell and
issue, subject to the terms and conditions set forth below. Any Securityholder's
pro rata share, for purposes of this Section 3, shall equal a fraction, the
numerator of which is the number of shares of Common Stock then held by such
Securityholder or issuable upon conversion or exercise of any Securities,
convertible securities, options, rights or warrants then held by such
Securityholder, and the denominator of which is the total number of shares of
Common Stock then outstanding plus the number of shares of Common Stock issuable
upon conversion or exercise of then outstanding Securities, convertible
securities, options, rights or warrants.
(b) "New Securities" shall mean any capital stock of the Company
whether now authorized or not, and rights, options or warrants to purchase
capital stock, and securities of any type whatsoever which are, or may become,
convertible into capital stock; provided, however, that the term "New
Securities" does not include Preferred Stock or shares of Common Stock issuable
upon conversion of the Securities issued and outstanding as of the date hereof;
(ii) securities offered to the public pursuant to a Registration Statement (as
defined in Section 1); (iii) securities issued for the acquisition of another
corporation by the Company by merger, purchase of substantially all the assets
of such corporation or other reorganization resulting in the ownership by the
Company of not less than a majority of the voting power of such corporation;
(iv) securities issued as a result of a stock split, stock dividend or
reclassification of Common Stock, distributable on a pro rata basis to all
holders of Common Stock; (v) securities issued in connection with equipment
lease transactions between the Company and unaffiliated third parties; or (vi)
"Employee Shares" which, for purposes of this Agreement, shall consist of not
more than 1,749,852 shares of Common Stock issued or issuable to employees,
officers and directors of, or consultants to, the Company pursuant to
agreements, plans or programs, or pursuant to rights, options or warrants
granted under stock option plans, employee stock purchase plans, restricted
stock plans or other employee stock plans or agreements, in each case approved
by the Board of Directors of the Company.
(c) In the event the Company intends to issue New Securities, it shall
give each Securityholder written notice of such intention, describing the type
of New Securities to be issued, the price thereof and the general terms upon
which the Company proposes to effect such issuance. Each Securityholder shall
have 10 days from the date of any such notice to agree to purchase all or part
of its or his pro rata share of such New Securities for the price and upon the
general terms and conditions specified in the Company's notice by giving written
notice to the Company stating the quantity of New Securities to be so purchased.
Each Securityholder shall have a right of overallotment such that if any
purchaser fails to exercise his or its right hereunder to purchase his or its
total pro rata portion of New Securities, the other Securityholders may purchase
such portion on a pro rata basis, by giving written notice to the Company within
5 days from the date that the Company
- 13 -
provides written notice to the other Securityholders of the amount of New
Securities with respect to which such nonpurchasing purchaser has failed to
exercise its or his right hereunder.
(d) In the event any Securityholder fails to exercise the foregoing
right of first refusal with respect to any New Securities within such 10-day
period (or the additional 5-day period provided for overallotments), the Company
may within 120 days thereafter sell any or all of such New Securities not agreed
to be purchased by the Securityholders, at a price and upon general terms no
more favorable to the purchasers thereof than those specified in the notice
given to each Purchaser pursuant to paragraph (c) above. In the event the
Company has not sold such New Securities within such 120-day period, the Company
shall not thereafter issue or sell any New Securities without first offering
such New Securities to the Securityholders in the manner provided above.
(e) For purposes of this Section 3 (other than the notice provisions
of paragraph (c)), "Securityholder" shall mean and include the partners,
stockholders, officers or other Affiliates of a Securityholder, and, subject to
compliance with applicable Federal and state securities laws, a Securityholder
may apportion its pro rata share among itself and such partners, stockholders,
officers and other Affiliates in such proportions as it deems appropriate.
(f) The covenants of the Company contained in Section 3 of
this Agreement shall terminate, and be of no further force and effect, upon the
closing of the Company's first public offering of Common Stock, pursuant to a
Registration Statement (as defined in Section 1), in which the price per share
to the public exceeds $6.00 (subject to appropriate adjustment in the event of
any stock dividend, stock split, combination or other similar recapitalization)
and the gross proceeds to the Company equal at least $15,000,000.
4. Co-Sale Rights.
4.1 Series B, C and D Preferred Stock. (a) Except for transfers permitted
pursuant to Section 4.1(b) hereof, each of the Purchasers of the Company's
Series B Preferred Stock, Series D Preferred Stock and Notes agrees that it will
not transfer any Shares, whether now owned or hereafter acquired by such
Purchaser, in any one or more transactions, until such Purchaser (the "Selling
Purchaser") notifies the Purchasers of the Company's Series B Preferred Stock,
Series D Preferred Stock and Notes (together, the "Offerees") of the proposed
transaction and gives the Offerees the opportunity to include in the sale to the
proposed transferee, upon the same terms and conditions offered to the Selling
Purchaser by such transferee, its Shares. The number of Shares that the Selling
Purchaser and the Offerees, respectively, shall be entitled to have included in
such sale will be a number determined by multiplying the number of Shares
proposed to be sold by the Selling Purchaser multiplied by a fraction, the
numerator of which is the total number of Shares owned by the Selling Purchaser
or Shares owned by the Offerees, as the case may be, and the denominator of
which is the sum of the aggregate number of Shares then owned by the
- 14 -
Selling Purchasers and the number of Shares owned by the Offerees. For purposes
of the foregoing formula, all options, warrants and convertible securities shall
be deemed to have been exercised and/or converted into Common Stock at the
applicable exercise price or conversion price. Each of the Offerees shall have a
period of 15 days (the "Offer Period") from the date notice of such opportunity
is received to give the Selling Purchaser written notice of its desire to
participate in such sale, stating in such notice the number of Shares desired to
be sold; and if no such notice is given within the Offer Period, such Offeree
shall be deemed to have chosen not to participate. If one or more Offerees
choose (or are deemed to have chosen) not to participate in such a sale, in
whole or in part, the Selling Purchaser shall promptly notify all other
participating Offerees, and such Offerees shall have the right, for a 5-day
period beginning on the date of such notice, to increase the number of Shares
they may sell pursuant to this Section 4.1, pro rata on the basis of the number
of Shares held by all Offerees participating in such sale, in an aggregate
amount equal to the number of Shares that such non-participating Offerees would
have been entitled to sell had they participated.
(b) Notwithstanding the foregoing, the provisions of this Section 4.1
shall be inapplicable to the following transactions:
(i) A transfer of Shares held by a Purchaser, either during the
Purchaser's lifetime or in death by will or intestacy, to a member of such
Purchaser's immediate family or to a trust the beneficiaries of which are
exclusively one or more of the group of persons consisting of such Purchaser and
members of such Purchaser's immediate family. "Immediate family" as used herein
shall mean the spouse, lineal descendant, father, mother, brother or sister of
such Purchaser;
(ii) The sale, assignment or transfer by way of bequest or
inheritance upon the death of the Purchaser;
(iii) The sale of Shares by a Purchaser's estate solely for
purposes of paying estate taxes; or
(iv) The assignment or transfer of Shares by a Purchaser to (A)
any officer, director or partner of such Purchaser, (B) a subchapter S
corporation wholly-owned by such Purchaser, (C) an entity that directly, or
indirectly through one or more intermediaries, controls, or is controlled by, or
is under common control with, such Purchaser, or (D) a person or entity
acquiring at least Two Hundred Thousand (200,000) Shares or Registrable Shares;
provided, that in any event, any transferee of such Purchaser shall agree to be
bound by this Agreement and shall so signify in writing.
4.2 Founder's Shares. (a) Except for transfers permitted pursuant to
Section 4.2(b) hereof, the Founder agrees that he shall not transfer any shares
of capital
- 15 -
stock of the Company, whether now owned or hereafter acquired by him (the
"Founder's Shares"), in any one or more transactions, until he notifies the
Purchasers of the proposed transaction and gives the Purchasers the opportunity
to include in the sale to the proposed transferee, upon the same terms and
conditions offered to the Founder by such transferee, its Shares. The number of
Founder's Shares and Shares that the Founder and the Purchasers, respectively,
shall be entitled to have included in such sale will be a number determined by
multiplying the number of Founder's Shares proposed to be sold by the Founder
multiplied by a fraction, the numerator of which is the total number of
Founder's Shares owned by the Founder or Shares owned by the Purchasers, as the
case may be, and the denominator of which is the sum of the aggregate number of
Founder's Shares then owned by the Founder and the number of Shares owned by the
Purchasers. For purposes of the foregoing formula, all options, warrants and
convertible securities shall be deemed to have been exercised and/or converted
into Common Stock at the applicable exercise price or conversion price. Each of
the Purchasers shall have a period of 15 days (the "Offer Period") from the date
notice of such opportunity is received to give the Founder written notice of its
desire to participate in such sale, stating in such notice the number of Shares
desired to be sold; and if no such notice is given within the Offer Period, such
Purchaser shall be deemed to have chosen not to participate. If one or more
Purchasers choose (or is deemed to have chosen) not to participate in such a
sale, in whole or in part, the Founder shall promptly notify all other
participating Purchasers, and such Purchasers shall have the right, for a 5-day
period beginning on the date of such notice, to increase the number of Shares
they may sell pursuant to this Section 4.2, pro rata on the basis of the number
of Shares held by all Purchasers participating in such sale, in an aggregate
amount equal to the number of Shares that such non-participating Purchasers
would have been entitled to sell had they participated.
(b) Notwithstanding the foregoing, the provisions of this Section 4.2
shall be inapplicable to the following transactions:
(i) A transfer of any or all of the Founder's Shares, either
during the Founder's lifetime or in death by will or intestacy, to a member of
the Founder's immediate family or to a trust the beneficiaries of which are
exclusively one or more of the group of persons consisting of the Founder and
members of the Founder's immediate family. "Immediate family" as used herein
shall mean the spouse, lineal descendant, father, mother, brother or sister of
the Founder;
(ii) The sale, assignment or transfer by way of bequest or
inheritance upon the death of the Founder; or
(iii) The sale of the Founder's Shares by the Founder's estate
solely for purposes of paying estate taxes;
provided, that in any event, any transferee of the Founder shall agree to be
bound by this Agreement and shall so signify in writing.
- 16 -
4.3 The covenants contained in this Section 4 shall terminate, and be
of no further force and effect, with respect to each Purchaser upon the
closing of a public offering of the Company's Common Stock, pursuant to a
Registration Statement, in which the price per share sold to the public
exceeds $6.00 (subject to appropriate adjustment in the event of any stock
dividend, stock split, combination or other similar recapitalization) and
the gross proceeds to the Company equal at least $15,000,000.
5. Successors and Assigns. Except as otherwise provided herein, the
provisions of this Agreement shall be binding upon, and inure to the benefit of,
the respective successors and assigns of the parties hereto.
6. Amendments. Except as otherwise expressly set forth in this Agreement,
any term of this Agreement may be amended or modified with the written consent
of the Company and the holders of Securities converted or convertible into at
least 66 2/3% of the Registrable Shares; provided that this Agreement may be
amended or modified with the consent of the holders of less than all Registrable
Shares only in a manner which affects all Registrable Shares in the same
fashion. No waivers of or exceptions to any term, condition or provision of this
Agreement in any one or more instances shall be deemed to be, or construed as, a
further or continuing waiver of any such term, condition or provision.
7. Remedies. In case any one or more of the covenants or agreements set
forth in this Agreement shall have been breached by any party hereto, the other
parties may proceed to protect and enforce their rights either by suit in equity
or by action at law, including an action for damages as a result of any such
breach or an action for specific performance of any such covenant or agreement
contained in this Agreement.
8. Notices. All notices, requests, consents, and other communications under
this Agreement shall be in writing and shall be delivered by hand or mailed by
first class certified or registered mail, return receipt requested, postage
prepaid:
If to the Company, at 00 Xxxxxx Xxxxxx, Xxxxxxxxx, XX 00000-0000,
Attention: Xxxxxxx X. Xxxx, or at such other address or addresses as may have
been furnished in writing by the Company to the Purchasers, with a copy to
Xxxxxxx X. Xxxxxx, Esq., Xxxxxx & Dodge LLP, Xxx Xxxxxx Xxxxxx, Xxxxxx, XX
00000.
If to a Purchaser, at its address set forth on Schedule A hereto, or at
such other address or address as may have been furnished to the Company in
writing by such Purchaser, with a copy to Xxxxxx X. Xxxxxx, Esq., Mintz, Levin,
Cohn, Ferris, Glovsky and Popeo, P.C., Xxx Xxxxxxxxx Xxxxxx, Xxxxxx, XX 00000.
9. Entire Agreement. With respect to the subject matter hereof, this
Agreement embodies the entire agreement and understanding between the
Securityholders and the Company, and supersedes in their entirety all prior
agreements and understandings relating to
- 17 -
such subject matter, including but not limited to Section 9 of the Series A
Purchase Agreement and Section 8 of the Series B Purchase Agreement.
10. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
11. Headings. The headings of the Sections, Subsections, and Paragraphs of
this Agreement have been added for convenience only and shall not be deemed to
be a part of this Agreement.
12. Governing Law. The validity, performance and enforcement of this
Agreement with respect to each of the parties shall be governed by and construed
in accordance with the laws of the Commonwealth of Massachusetts without giving
effect to any choice or conflict of laws rule or provision that would cause the
application of the laws of any other jurisdiction.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of the
day and year first above written.
METASYN, INC.
By: /s/ Xxxxxxx X. Xxxx
--------------------------
Name: Xxxxxxx X. Xxxx
Title: President
/s/ Xxxxxxx X. Xxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxx
- 18 -
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED STOCKHOLDERS' RIGHTS AGREEMENT
SUMMIT PHARMACEUTICALS
INTERNATIONAL CORPORATION
By: /s/ X. Xxxxx
--------------------
Name: X. Xxxxx
Title: President and CEO
NIPPON SHOJI KAISHA, LTD.
By: /s/ Xxxxxxxx Xxxxxxx
--------------------
Name: Xxxxxxxx Xxxxxxx
Title: Managing Director
- 19 -
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED STOCKHOLDERS' RIGHTS AGREEMENT
ACCEL IV L.P.
By: Accel IV Associates L.P.,
its General Partner
By: /s/ Xxxx Xxxxx
--------------------------
Name:
Title: General Partner
ACCEL INVESTORS '93 L.P.
By: /s/ X. Xxxxxx Sednaoui
--------------------------
Name:
Title: General Partner
ACCEL KEIRETSU L.P.
By: Accel Partners & Co., Inc.,
its General Partner
By: /s/ X. Xxxxxx Sednaoui
--------------------------
Name:
Title: General Partner
XXXXXXX X. XXXXXXXXX PARTNERS
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------
Name:
Title: General Partner
PROSPER PARTNERS
By: /s/ X. Xxxxxx Sednaoui
--------------------------
Name:
Title: Attorney-in-Fact
- 20 -
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED STOCKHOLDERS' RIGHTS AGREEMENT
BESSEMER VENTURE PARTNERS III L.P.
By: Deer III & Co.,
General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: General Partner
*
--------------------------
Neill X. Xxxxxxxxxx
*
--------------------------
G. Xxxxx Xxxxxxxx
*
--------------------------
Xxxxxxxxxxx Xxxxxxxx
*
--------------------------
Gabrieli Family Foundation
*
--------------------------
Xxxxx X. Xxxxx
*
--------------------------
C. Xxxxxxxx Xxxx
*
--------------------------
Xxxxxx X. Xxxxxxxx
*
--------------------------
Xxxxxx X. Xxxxxxx
- 21 -
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED STOCKHOLDERS' RIGHTS AGREEMENT
*
--------------------------
Xxxx X. Xxxxxxx
*
--------------------------
Xxxxxx X. Xxxxx
*
--------------------------
Xxxxxxx X. Xxxxx
*
--------------------------
Xxxx X. Xxxxxxx
*
--------------------------
Xxxxxxx X. Xxxxxxx
*
--------------------------
Belisarius Corporation
*
--------------------------
Xxxxxxx Corporation
*
--------------------------
Xxxxx X. XxXxxxxxx
*
--------------------------
Xxxx X. Xxxx
*
--------------------------
Xxxxxx X. X. Xxxxxxxx
*
--------------------------
Xxxxxxx X. Xxxxxxxxxx
- 22 -
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED STOCKHOLDERS' RIGHTS AGREEMENT
*
--------------------------
Xxxxxxx X. Xxxxxx
*
--------------------------
Xxxxxxx X. Xxxxxx
*
--------------------------
Xxxx Xxxxxx
/s/ Xxxxxx X. Xxxxxxxx
--------------------------
Xxxxxx X. Xxxxxxxx
* By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Attorney-in-Fact
BVP III SPECIAL SITUATIONS L.P.
By: Deer III & Co.,
General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: General Partner
BRIMSTONE ISLAND CO. L.P.
By: *
--------------------------
Name:
Title:
- 23 -
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED STOCKHOLDERS' RIGHTS AGREEMENT
DOMINION VENTURES, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
--------------------------
Name:
Title:
DOMINION FUND II
By: /s/ Xxxxxxxx X. Xxxxxx
--------------------------
Name:
Title:
- 24 -
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED STOCKHOLDERS' RIGHTS AGREEMENT
ROVENT II LIMITED PARTNERSHIP
By: Advent International Limited Partnership,
General Partner
By: Advent International Corporation,
General Partner
By: /s/ Xxxx Xxxxxxx
--------------------------
Name: Xxxx Xxxxxxx
Title: Investment Manager
ADVENT PERFORMANCE MATERIALS LIMITED
PARTNERSHIP
By: Advent International Limited Partnership,
General Partner
By: Advent International Corporation,
General Partner
By: /s/ Xxxx Xxxxxxx
--------------------------
Name: Xxxx Xxxxxxx
Title: Investment Manager
ADWEST LIMITED PARTNERSHIP
By: Advent International Limited Partnership,
General Partner
By: Advent International Corporation,
General Partner
By: /s/ Xxxx Xxxxxxx
--------------------------
Name: Xxxx Xxxxxxx
Title: Investment Manager
- 25 -
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED STOCKHOLDERS' RIGHTS AGREEMENT
ADVENT PARTNERS LIMITED
PARTNERSHIP
By: Advent International Corporation,
General Partner
By: /s/ Xxxx Xxxxxxx
--------------------------
Name: Xxxx Xxxxxxx
Title: Investment Manager
FIDELITY VENTURES, LTD.
by: Fidelity Capital Associates, Inc.
(its General Partner)
By: /s/ Xxxx Xxxxxxxx
--------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
- 26 -
Schedule A
Name and Address of Purchasers
Series A Purchasers
Summit Pharmaceuticals International
Corporation
Hirose 2nd Xxxx.
0-00 Xxxxxxxxxxxxxxx, Xxxxxxx-xx
Xxxxx 000 Xxxxx
Attn: X. Xxxxx
President and CEO
Nippon Shoji Kaisha, Ltd.
0-0, Xxxxxxxxx, 0-xxxxx
Xxxx-xx, Xxxxx, Xxxxx
Attn: Xxxxxxxx Xxxxxxx
Managing Director
Series B Purchasers
Accel IV L.P.
c/o Accel Partners
Xxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Accel Investors '93 L.P.
c/o Accel Partners
Xxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Accel Keiretsu L.P.
c/o Accel Partners
Xxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxxxx Partners
c/o Accel Partners
Xxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Series B Purchasers (cont.)
Prosper Partners
c/o Accel Partners
Xxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Bessemer Venture Partners III, L.P.
c/o Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
BVP III Special Situations L.P.
c/o Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Neill X. Xxxxxxxxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxx X. Xxxxxxxx
x/x Xxxxxxxx Xxxxxxx Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
G. Xxxxx Xxxxxxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxxxxxxx Xxxxxxxx
x/x Xxxxxx X. Xxxxxxxx
Xxxxxxxx Xxxxxxx Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Gabrieli Family Foundation
x/x Xxxxxx X. Xxxxxxxx
Xxxxxxxx Xxxxxxx Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
- 27 -
Series B Purchasers (cont.)
Xxxxx X. Xxxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
C. Xxxxxxxx Xxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxx X. Xxxxxxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxx X. Xxxxxxx
x/x Xxxxxx X. Xxxxxxxx
Xxxxxxxx Xxxxxxx Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxx X. Roadakis
x/x Xxxxxx X. Xxxxxxxx
Xxxxxxxx Xxxxxxx Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxx X. Xxxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxxx X. Xxxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxx X. Xxxxxxx
x/x Xxxxxx X. Xxxxxxxx
Xxxxxxxx Xxxxxxx Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Belisarius Corporation
c/o Xxxxxx X. Xxxxxxxx
Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxxx Corporation
c/o Xxxxxx X. Xxxxxxxx
Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Dominion
Dominion Ventures, Inc.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Dominion Fund II
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
- 28 -
Note Purchasers
Accel IV L.P.
c/o Accel Partners
Xxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Accel Investors '93 L.P.
c/o Accel Partners
Xxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Accel Keiretsu L.P.
c/o Accel Partners
Xxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxxxx Partners
c/o Accel Partners
Xxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Prosper Partners
c/o Accel Partners
Xxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Bessemer Venture Partners III L.P.
c/o Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
BVP III Special Situations L.P.
c/o Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxx X. Xxxxxxxx
x/x Xxxxxxxx Xxxxxxx Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxx X. Xxxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
C. Xxxxxxxx Xxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxx X. Xxxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxxx X. Xxxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxx X. Xxxxxxx
x/x Xxxxxx X. Xxxxxxxx
Xxxxxxxx Xxxxxxx Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Belisarius Corporation
c/o Xxxxxx X. Xxxxxxxx
Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxxx Corporation
c/o Xxxxxx X. Xxxxxxxx
Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
- 29 -
Note Purchasers (cont.)
G. Xxxxx Xxxxxxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxxxxxxx Xxxxxxxx
x/x Xxxxxx X. Xxxxxxxx
Xxxxxxxx Xxxxxxx Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Gabrieli Family Foundation
x/x Xxxxxx X. Xxxxxxxx
Xxxxxxxx Xxxxxxx Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxx X. XxXxxxxxx
x/x Xxxxxx X. Xxxxxxxx
Xxxxxxxx Xxxxxxx Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxx X. Xxxxxxx
x/x Xxxxxx X. Xxxxxxxx
Xxxxxxxx Xxxxxxx Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxx X. Xxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxx X. X. Xxxxxxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxxxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Series D Purchasers
Rovent II Limited Partnership
c/o Advent International
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Advent Performance Materials Limited
Partnership
c/o Advent International
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Adwest Limited Partnership
c/o Advent International
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Advent Partners Limited Partners
c/o Advent International
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Fidelity Ventures Ltd.
c/o Fidelity CAPITAL
00 Xxxxxxxxxx Xxxxxx, X00X
Xxxxxx, XX 00000
Accel IV L.P.
c/o Accel Partners
Xxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Accel Investors '93 L.P.
c/o Accel Partners
Xxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
- 30 -
Series D Purchasers (cont.)
Accel Keiretsu L.P.
c/o Accel Partners
Xxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxxxx Partners
c/o Accel Partners
Xxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Prosper Partners
c/o Accel Partners
Xxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Bessemer Venture Partners III L.P.
c/o Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
BVP III Special Situations L.P.
c/o Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxx X. Xxxxxxxx
x/x Xxxxxxxx Xxxxxxx Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxx X. Xxxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxx X. Xxxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxxx X. Xxxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxx X. Xxxxxxx
x/x Xxxxxx X. Xxxxxxxx
Xxxxxxxx Xxxxxxx Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Belisarius Corporation
c/o Xxxxxx X. Xxxxxxxx
Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxxx Corporation
c/o Xxxxxx X. Xxxxxxxx
Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
G. Xxxxx Xxxxxxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxxxxxxx Xxxxxxxx
x/x Xxxxxx X. Xxxxxxxx
Xxxxxxxx Xxxxxxx Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Gabrieli Family Foundation
x/x Xxxxxx X. Xxxxxxxx
Xxxxxxxx Xxxxxxx Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxx X. XxXxxxxxx
x/x Xxxxxx X. Xxxxxxxx
Xxxxxxxx Xxxxxxx Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
- 31 -
Series D Purchasers (cont.)
Xxxxxx X. Xxxxxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxx X. Xxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxx X. X. Xxxxxxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxxxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Brimstone Island Co. L.P.
c/o Xxxxxx X. Xxxxxxxx
Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxxx Xxxxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxx Xxxxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Neill X. Xxxxxxxxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Venture Partners
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
- 32 -
