PURE STORAGE, INC. AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
Exhibit 10.1
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
TABLE OF CONTENTS
| PAGE | ||||||
| SECTION 1. |
GENERAL |
1 | ||||
| 1.1 |
Amendment and Restatement of Prior Agreement |
1 | ||||
| 1.2 |
Definitions |
2 | ||||
| SECTION 2. |
REGISTRATION; RESTRICTIONS ON TRANSFER |
4 | ||||
| 2.1 |
Restrictions on Transfer |
4 | ||||
| 2.2 |
Demand Registration |
5 | ||||
| 2.3 |
Piggyback Registrations |
7 | ||||
| 2.4 |
Form S-3 Registration |
8 | ||||
| 2.5 |
Expenses of Registration |
9 | ||||
| 2.6 |
Obligations of the Company |
10 | ||||
| 2.7 |
Delay of Registration; Furnishing Information |
11 | ||||
| 2.8 |
Indemnification |
12 | ||||
| 2.9 |
Assignment of Registration Rights |
14 | ||||
| 2.10 |
Limitation on Subsequent Registration Rights |
14 | ||||
| 2.11 |
“Market Stand-Off” Agreement |
14 | ||||
| 2.12 |
Agreement to Furnish Information |
15 | ||||
| 2.13 |
Rule 144 Reporting |
15 | ||||
| 2.14 |
Termination of Registration Rights |
16 | ||||
| SECTION 3. |
COVENANTS OF THE COMPANY |
16 | ||||
| 3.1 |
Basic Financial Information and Reporting |
16 | ||||
| 3.2 |
Inspection Rights |
17 | ||||
| 3.3 |
Confidentiality of Records |
17 | ||||
| 3.4 |
Reservation of Common Stock |
18 | ||||
| 3.5 |
Proprietary Information and Inventions Agreement |
18 | ||||
| 3.6 |
Assignment of Right of First Refusal |
18 | ||||
| 3.7 |
Stock Vesting |
18 | ||||
| 3.8 |
Termination of Covenants |
19 | ||||
| SECTION 4. |
RIGHTS OF FIRST REFUSAL |
20 | ||||
| 4.1 |
Subsequent Offerings |
20 | ||||
| 4.2 |
Exercise of Rights |
20 | ||||
| 4.3 |
Issuance of Equity Securities to Other Persons |
20 | ||||
| 4.4 |
Sale Without Notice |
21 | ||||
i.
TABLE OF CONTENTS
(CONTINUED)
| PAGE | ||||||
| 4.5 |
Termination and Waiver of Rights of First Refusal |
21 | ||||
| 4.6 |
Assignment of Rights of First Refusal |
21 | ||||
| 4.7 |
Excluded Securities |
21 | ||||
| SECTION 5. |
MISCELLANEOUS |
22 | ||||
| 5.1 |
Governing Law |
22 | ||||
| 5.2 |
Successors and Assigns |
22 | ||||
| 5.3 |
Entire Agreement |
23 | ||||
| 5.4 |
Severability |
23 | ||||
| 5.5 |
Amendment and Waiver |
23 | ||||
| 5.6 |
Delays or Omissions |
23 | ||||
| 5.7 |
Notices |
24 | ||||
| 5.8 |
Attorneys’ Fees |
24 | ||||
| 5.9 |
Titles and Subtitles |
24 | ||||
| 5.10 |
Additional Investors |
24 | ||||
| 5.11 |
Counterparts |
24 | ||||
| 5.12 |
Aggregation of Stock |
24 | ||||
| 5.13 |
Pronouns |
25 | ||||
| 5.14 |
Termination |
25 | ||||
ii.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
THIS AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT (the “Agreement”) is entered into as of April 17, 2014, by and among PURE Storage, Inc., a Delaware corporation (the “Company”) and the investors listed on EXHIBIT A hereto (including, without limitation, Schedule 1, Schedule 2, Schedule 3 and Schedule 4 to Exhibit A), referred to hereinafter as the “Investors” and each individually as an “Investor.”
RECITALS
WHEREAS, certain of the Investors are purchasing shares of the Company’s Series F Preferred Stock (the “Series F Preferred”), pursuant to that certain Series F Preferred Stock Purchase Agreement (the “Purchase Agreement”) of even date herewith (the “Financing”);
WHEREAS, the obligations in the Purchase Agreement are conditioned upon the execution and delivery of this Agreement;
WHEREAS, certain of the Investors (the “Prior Investors”) are holders of the Company’s Series A Preferred Stock (the “Series A Preferred”), Series B Preferred Stock (the “Series B Preferred”), Series C Preferred Stock (the “Series C Preferred”), Series D Preferred Stock (the “Series D Preferred”) and Series E Preferred Stock (the “Series E Preferred”);
WHEREAS, the Prior Investors and the Company are parties to an Amended and Restated Investor Rights Agreement dated August 22, 2013 (the “Prior Agreement”);
WHEREAS, the parties to the Prior Agreement desire to amend and restate the Prior Agreement and accept the rights and covenants hereof in lieu of their rights and covenants under the Prior Agreement; and
WHEREAS, in connection with the consummation of the Financing, the Company and the Investors have agreed to the registration rights, information rights, and other rights as set forth below.
NOW, THEREFORE, in consideration of these premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
| SECTION 1. | GENERAL. |
1.1 Amendment and Restatement of Prior Agreement. The Prior Agreement is hereby amended in its entirety and restated herein. Such amendment and restatement is effective upon the execution of this Agreement by the Company and the holders of at least seventy percent (70%) of the-then outstanding Registrable Securities (as defined in the Prior Agreement). Upon such execution, all provisions of, rights granted and covenants made in the Prior Agreement are hereby waived, released and superseded in their entirety and shall have no further force or effect, including, without limitation, all rights of first refusal and any notice period associated therewith otherwise applicable to the transactions contemplated by the Purchase Agreement.
1.
1.2 Definitions. As used in this Agreement the following terms shall have the following respective meanings:
(a) “Advised Holder” shall mean the Wellington Investors, the Fidelity Investors and the X. Xxxx Price Investors.
(b) “Affiliate” shall mean any person or entity who or which, directly or indirectly, controls, is controlled by, or is under common control with the relevant Holder, including, without limitation, any general partner, managing partner, manager, member, officer or director of such Investor or any venture capital fund now or hereafter existing that is controlled by one or more general partners or managing members of, shares the same management or advisory company with, or is otherwise affiliated with, such Holder; provided, however, that “Affiliate” with respect to (i) those Holders that are advisory clients of Wellington shall include other funds and accounts managed by Wellington, (ii) those Holders that are advisory clients of X. Xxxx Price shall include other funds and accounts managed by X. Xxxx Price and (iii) those Holders that are advisory clients of Fidelity shall include shall include other funds and accounts managed by Fidelity.
(c) “Exchange Act” means the Securities Exchange Act of 1934, as amended.
(d) “Fidelity” shall mean Fidelity Management & Research Company, FMR LCC and any successor or affiliated investment advisor to the Fidelity Investors.
(e) “Fidelity Investors” shall mean the Investors that are advisory clients of Fidelity. For the sake of clarity, as of the date hereof the Fidelity Investors are set forth on Schedule 1 to Exhibit A attached hereto.
(f) “Form S-3” means such form under the Securities Act as in effect on the date hereof or any successor or similar registration form under the Securities Act subsequently adopted by the SEC which permits inclusion or incorporation of substantial information by reference to other documents filed by the Company with the SEC.
(g) “Holder” means any person owning of record Registrable Securities that have not been sold to the public or any assignee of record of such Registrable Securities in accordance with Section 2.9 hereof.
(h) “Initial Offering” means the Company’s first firm commitment underwritten public offering of its Common Stock registered under the Securities Act.
(i) “Register,” “registered,” and “registration” refer to a registration effected by preparing and filing a registration statement in compliance with the Securities Act, and the declaration or ordering of effectiveness of such registration statement or document.
(j) “Registrable Securities” means (a) Common Stock of the Company issuable or issued upon conversion of the Shares and (b) any Common Stock of the Company
2.
issued as (or issuable upon the conversion or exercise of any warrant, right or other security which is issued as) a dividend or other distribution with respect to, or in exchange for or in replacement of, such above-described securities. Notwithstanding the foregoing, Registrable Securities shall not include any securities (i) sold by a person to the public either pursuant to a registration statement or Rule 144 or (ii) sold in a private transaction in which the transferor’s rights under Section 2 of this Agreement are not assigned.
(k) “Registrable Securities then outstanding” shall be the number of shares of the Company’s Common Stock that are Registrable Securities and either (a) are then issued and outstanding or (b) are issuable pursuant to then exercisable or convertible securities.
(l) “Registration Expenses” shall mean all expenses incurred by the Company in complying with Sections 2.2, 2.3 and 2.4 hereof, including, without limitation, all registration and filing fees, printing expenses, fees and disbursements of counsel for the Company, reasonable fees and disbursements not to exceed fifty thousand dollars ($50,000) of a single special counsel for the Holders, blue sky fees and expenses and the expense of any special audits incident to or required by any such registration (but excluding the compensation of regular employees of the Company which shall be paid in any event by the Company).
(m) “SEC” or “Commission” means the Securities and Exchange Commission.
(n) “Securities Act” shall mean the Securities Act of 1933, as amended.
(o) “Selling Expenses” shall mean all underwriting discounts and selling commissions applicable to the sale.
(p) “Shares” shall mean the Company’s Series F Preferred issued pursuant to the Purchase Agreement and shares of the Company’s Series A Preferred, Series B Preferred, Series C Preferred, Series D Preferred and Series E Preferred held from time to time by the Investors listed on EXHIBIT A hereto and their permitted assigns.
(q) “Special Registration Statement” shall mean (i) a registration statement relating to any employee benefit plan or (ii) with respect to any corporate reorganization or transaction under Rule 145 of the Securities Act, any registration statements related to the issuance or resale of securities issued in such a transaction or (iii) a registration related to stock issued upon conversion of debt securities.
(r) “X. Xxxx Price” shall mean X. Xxxx Price Associates, Inc. and any successor or affiliated investment advisor to the X. Xxxx Price Investors.
(s) “X. Xxxx Price Investors” shall mean the Investors that are advisory clients of X. Xxxx Price. For the sake of clarity, as of the date hereof the X. Xxxx Price Investors are set forth on Schedule 2 to Exhibit A attached hereto.
(t) “Wellington” shall mean Wellington Management Company, LLP and any successor or affiliated investment advisor to the Wellington Investors.
(u) “Wellington Investors” shall mean the Investors that are advisory clients of Wellington. For the sake of clarity, as of the date hereof the Wellington Investors are set forth on Schedule 3 to Exhibit A attached hereto.
3.
| SECTION 2. | REGISTRATION; RESTRICTIONS ON TRANSFER. |
2.1 Restrictions on Transfer.
(a) Each Holder agrees not to make any disposition of all or any portion of the Shares or Registrable Securities unless and until:
(i) there is then in effect a registration statement under the Securities Act covering such proposed disposition and such disposition is made in accordance with such registration statement; or
(ii) (A) The transferee has agreed in writing to be bound by the terms of this Agreement, (B) such Holder shall have notified the Company of the proposed disposition and shall have furnished the Company with a detailed statement of the circumstances surrounding the proposed disposition, and (C) if reasonably requested by the Company, such Holder shall have furnished the Company with an opinion of counsel, reasonably satisfactory to the Company, that such disposition will not require registration of such shares under the Securities Act. It is agreed that the Company will not require opinions of counsel for transactions made pursuant to Rule 144, except in unusual circumstances. After its Initial Offering, in connection with any transfer pursuant to Rule 144, (i) the Holder shall not be required to comply with the notice and information requirements set forth in Section 2.1(a)(ii)(B) and (ii) the Company will not require any transferee pursuant to Rule 144 to be bound by the terms of this Agreement if the shares so transferred do not remain Registrable Securities hereunder following such transfer.
(b) Notwithstanding the provisions of subsection (a) above, no such restriction shall apply to a transfer by a Holder that is (A) a partnership transferring to its partners or former partners in accordance with partnership interests, (B) a corporation transferring to a wholly-owned subsidiary or a parent corporation that owns all of the capital stock of the Holder, (C) a limited liability company transferring to its members or former members in accordance with their interest in the limited liability company, (D) an individual transferring to the Holder’s family member or trust for the benefit of an individual Holder, (E) a venture capital fund, mutual find or other institutional investor transferring to an Affiliate (as defined below), (F) transfers pursuant to a merger or reorganization of a U.S. registered mutual fund or (G) transfers to any other entity that is a stockholder of the Company or an Affiliate of a stockholder of the Company; provided that in each case the transferee will agree in writing to be subject to the terms of this Agreement to the same extent as if such transferee were an original Holder hereunder.
4.
(c) Each certificate representing Shares or Registrable Securities shall be stamped or otherwise imprinted with legends substantially similar to the following (in addition to any legend required under applicable state securities laws):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “ACT”) AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
THE SALE, PLEDGE, HYPOTHECATION OR TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN INVESTOR RIGHTS AGREEMENT BY AND BETWEEN THE STOCKHOLDER AND THE COMPANY. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE COMPANY.
(d) The Company shall be obligated to reissue promptly unlegended certificates at the request of any Holder thereof if the Company has completed its Initial Offering and the Holder shall have obtained an opinion of counsel (which counsel may be counsel to the Company) reasonably acceptable to the Company to the effect that the securities proposed to be disposed of may lawfully be so disposed of without registration, qualification and legend, provided that the second legend listed above shall be removed only at such time as the Holder of such certificate is no longer subject to any restrictions hereunder.
(e) Any legend endorsed on an instrument pursuant to applicable state securities laws and the stop-transfer instructions with respect to such securities shall be removed upon receipt by the Company of an order of the appropriate blue sky authority authorizing such removal.
2.2 Demand Registration.
(a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least seventy percent (70%) of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration, then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable
5.
Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of at least seventy percent (70%) of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the earlier of (A) the third anniversary of the date of this Agreement or (B) of the expiration of the restrictions on transfer set forth in Section 2.11 following the Initial Offering;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following the effective date of the registration statement pertaining to the Initial Offering (or such longer period as may be determined pursuant to Section 2.11 hereof); provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company (the “Board”), it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period;
6.
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
2.3 Piggyback Registrations. The Company shall notify all Holders of Registrable Securities in writing at least fifteen (15) days prior to the filing of any registration statement under the Securities Act for purposes of a public offering of securities of the Company (including, but not limited to, registration statements relating to primary and/or secondary offerings of securities of the Company, but excluding Special Registration Statements) and will afford each such Holder an opportunity to include in such registration statement all or part of such Registrable Securities held by such Holder. Each Holder desiring to include in any such registration statement all or any part of the Registrable Securities held by it shall, within fifteen (15) days after the above-described notice from the Company, so notify the Company in writing. Such notice shall state the intended method of disposition of the Registrable Securities by such Holder. If a Holder decides not to include all of its Registrable Securities in any registration statement thereafter filed by the Company, such Holder shall nevertheless continue to have the right to include any Registrable Securities in any subsequent registration statement or registration statements as may be filed by the Company with respect to offerings of its securities, all upon the terms and conditions set forth herein.
(a) Underwriting. If the registration statement of which the Company gives notice under this Section 2.3 is for an underwritten offering, the Company shall so advise the Holders of Registrable Securities. In such event, the right of any such Holder to include Registrable Securities in a registration pursuant to this Section 2.3 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their Registrable Securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Agreement, if the underwriter determines in good faith that marketing factors require a limitation of the number of shares to be underwritten, the number of shares that may be included in the underwriting shall be allocated, first, to the Company; second, to the Holders on a pro rata basis based on the total number of Registrable Securities held by the Holders; and third, to any stockholder of the Company (other than a Holder) on a pro rata basis; provided, however, that no such reduction shall reduce the amount of securities of the selling Holders included in the registration below thirty percent (30%) of the total amount of securities included in such registration, unless such offering is the Initial Offering and such registration does not include shares of any other selling stockholders, in which event any or all of the Registrable Securities of the Holders may be excluded in accordance with the immediately preceding clause. In no event will shares of any other selling stockholder be included in such registration that would reduce the number of shares which may be included by Holders without the written consent of Holders of not less than seventy percent (70%) of the Registrable Securities proposed to be sold in the offering. If any Holder disapproves of the terms of any such underwriting, such Holder may elect to withdraw therefrom by written
7.
notice to the Company and the underwriter, delivered at least ten (10) business days prior to the effective date of the registration statement. Any Registrable Securities excluded or withdrawn from such underwriting shall be excluded and withdrawn from the registration. For any Holder which is a partnership, limited liability company, venture capital fund or corporation, the partners, retired partners, members, retired members, affiliated venture capital funds and stockholders of such Holder, or the estates and family members of any such partners, retired partners, members and retired members and any trusts for the benefit of any of the foregoing person shall be deemed to be a single “Holder,” and any pro rata reduction with respect to such “Holder” shall be based upon the aggregate amount of shares carrying registration rights owned by all entities and individuals included in such “Holder,” as defined in this sentence. The Wellington Investors, the X. Xxxx Price Investors and the Fidelity Investors shall each be deemed to be a single “Holder,” and any pro rata reduction with respect to any such “Holder” shall be based upon the aggregate amount of shares carrying registration rights owned by all entities and individuals included in such “Holder,” as defined in this sentence.
(b) Right to Terminate Registration. The Company shall have the right to terminate or withdraw any registration initiated by it under this Section 2.3 whether or not any Holder has elected to include securities in such registration, and shall promptly notify any Holder that has elected to include shares in such registration of such termination or withdrawal. The Registration Expenses of such withdrawn registration shall be borne by the Company in accordance with Section 2.5 hereof.
2.4 Form S-3 Registration. In case the Company shall receive from any Holder or Holders of Registrable Securities a written request or requests that the Company effect a registration on Form S-3 (or any successor to Form S-3) or any similar short-form registration statement and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company will:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders of Registrable Securities; and
(b) as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder’s or Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance pursuant to this Section 2.4:
(i) if Form S-3 is not available for such offering by the Holders, or
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public of less than one million dollars ($1,000,000), or
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(iii) if within thirty (30) days of receipt of a written request from any Holder or Holders pursuant to this Section 2.4, the Company gives notice to such Holder or Holders of the Company’s intention to make a public offering within ninety (90) days, other than pursuant to a Special Registration Statement;
(iv) if the Company shall furnish to the Holders a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such Form S-3 registration to be effected at such time, in which event the Company shall have the right to defer the filing of the Form S-3 registration statement for a period of not more than ninety (90) days after receipt of the request of the Holder or Holders under this Section 2.4; provided, that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) month period, or
(v) if the Company has, within the twelve (12) month period preceding the date of such request, already effected two (2) registrations on Form S-3 for the Holders pursuant to this Section 2.4, or
(vi) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(c) Subject to the foregoing, the Company shall file a Form S-3 registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the requests of the Holders. Registrations effected pursuant to this Section 2.4 shall not be counted as demands for registration or registrations effected pursuant to Section 2.2. All Registration Expenses incurred in connection with registrations requested pursuant to this Section 2.4 after the first two (2) registrations shall be paid by the selling Holders pro rata in proportion to the number of shares to be sold by each such Holder in any such registration.
2.5 Expenses of Registration. Except as specifically provided herein, all Registration Expenses incurred in connection with any registration, qualification or compliance pursuant to Section 2.2, 2.3 or 2.4 herein shall be borne by the Company. All Selling Expenses incurred in connection with any registrations hereunder, shall be borne by the holders of the securities so registered pro rata on the basis of the number of shares so registered. The Company shall not, however, be required to pay for expenses of any registration proceeding begun pursuant to Section 2.2 or 2.4, the request of which has been subsequently withdrawn by the Initiating Holders unless (a) the withdrawal is based upon material adverse information concerning the Company of which the Initiating Holders were not aware at the time of such request or (b) the Holders of at least seventy percent (70%) of Registrable Securities agree to deem such registration to have been effected as of the date of such withdrawal for purposes of determining whether the Company shall be obligated pursuant to Section 2.2(c)(ii) or 2.4(b)(v), as applicable, to undertake any subsequent registration, in which event such right shall be forfeited by all Holders. If the Holders are required to pay the Registration Expenses, such expenses shall be borne by the holders of securities (including Registrable Securities) requesting such registration in proportion to the number of shares for which registration was requested. If
9.
the Company is required to pay the Registration Expenses of a withdrawn offering pursuant to clause (a) above, then such registration shall not be deemed to have been effected for purposes of determining whether the Company shall be obligated pursuant to Section 2.2(c)(ii) or 2.4(b)(v), as applicable, to undertake any subsequent registration.
2.6 Obligations of the Company. Whenever required to effect the registration of any Registrable Securities, the Company shall, as expeditiously as reasonably possible:
(a) prepare and file with the SEC a registration statement with respect to such Registrable Securities and use all reasonable efforts to cause such registration statement to become effective, and, upon the request of the Holders of at least seventy percent (70%) of the Registrable Securities registered thereunder, keep such registration statement effective for up to ninety (90) days or, if earlier, until the Holder or Holders have completed the distribution related thereto; provided, however, that at any time, upon written notice to the participating Holders and for a period not to exceed sixty (60) days thereafter (the “Suspension Period”), the Company may delay the filing or effectiveness of any registration statement or suspend the use or effectiveness of any registration statement (and the Initiating Holders hereby agree not to offer or sell any Registrable Securities pursuant to such registration statement during the Suspension Period) if the Company reasonably believes that there is or may be in existence material nonpublic information or events involving the Company, the failure of which to be disclosed in the prospectus included in the registration statement could result in a Violation (as defined below). In the event that the Company shall exercise its right to delay or suspend the filing or effectiveness of a registration hereunder, the applicable time period during which the registration statement is to remain effective shall be extended by a period of time equal to the duration of the Suspension Period. The Company may extend the Suspension Period for an additional consecutive sixty (60) days with the consent of the holders of at least seventy percent (70%) of the Registrable Securities registered under the applicable registration statement, which consent shall not be unreasonably withheld. In no event shall any Suspension Period, when taken together with all prior Suspension Periods, exceed 120 days in the aggregate. If so directed by the Company, all Holders registering shares under such registration statement shall (i) not offer to sell any Registrable Securities pursuant to the registration statement during the period in which the delay or suspension is in effect after receiving notice of such delay or suspension; and (ii) use their best efforts to deliver to the Company (at the Company’s expense) all copies, other than permanent file copies then in such Holders’ possession, of the prospectus relating to such Registrable Securities current at the time of receipt of such notice. Notwithstanding the foregoing, the Company shall not be required to file, cause to become effective or maintain the effectiveness of any registration statement other than a registration statement on Form S-3 that contemplates a distribution of securities on a delayed or continuous basis pursuant to Rule 415 under the Securities Act.
(b) Prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection with such registration statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement for the period set forth in subsection (a) above.
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(c) Furnish to the Holders such number of copies of a prospectus, including a preliminary prospectus and any Free Writing Prospectus, in conformity with the requirements of the Securities Act, and such other documents as they may reasonably request in order to facilitate the disposition of Registrable Securities owned by them. The term “Free Writing Prospectus” means a free-writing prospectus, as defined in Rule 405 under the Securities Act.
(d) Use its reasonable efforts to register and qualify the securities covered by such registration statement under such other securities or Blue Sky laws of such jurisdictions as shall be reasonably requested by the Holders; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter(s) of such offering. Each Holder participating in such underwriting shall also enter into and perform its obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by such registration statement at any time when a prospectus or Free Writing Prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing. The Company will use reasonable efforts to amend or supplement such prospectus or Free Writing Prospectus in order to cause such prospectus not to include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing.
(g) Use its reasonable efforts to furnish, on the date that such Registrable Securities are delivered to the underwriters for sale, if such securities are being sold through underwriters, (i) an opinion, dated as of such date, of the counsel representing the Company for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering, addressed to the underwriters, if any, and (ii) a letter, dated as of such date, from the independent certified public accountants of the Company, in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering addressed to the underwriters.
2.7 Delay of Registration; Furnishing Information.
(a) No Holder shall have any right to obtain or seek an injunction restraining or otherwise delaying any such registration as the result of any controversy that might arise with respect to the interpretation or implementation of this Section 2.
(b) It shall be a condition precedent to the obligations of the Company to take any action pursuant to Section 2.2, 2.3 or 2.4 that the selling Holders shall furnish to the Company such information regarding themselves, the Registrable Securities held by them and the intended method of disposition of such securities as shall be required to effect the registration of their Registrable Securities.
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(c) The Company shall have no obligation with respect to any registration requested pursuant to Section 2.2 or Section 2.4 if the number of shares or the anticipated aggregate offering price of the Registrable Securities to be included in the registration does not equal or exceed the number of shares or the anticipated aggregate offering price required to originally trigger the Company’s obligation to initiate such registration as specified in Section 2.2 or Section 2.4, whichever is applicable.
2.8 Indemnification. In the event any Registrable Securities are included in a registration statement under Sections 2.2, 2.3 or 2.4:
(a) To the extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and investment advisors of each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder 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 they may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively a “Violation”) by the Company: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement or incorporated by reference therein, including any preliminary prospectus, final prospectus or Free Writing Prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law in connection with the offering covered by such registration statement; and the Company will reimburse, as incurred, each such Holder, partner, member, officer, director, underwriter or controlling person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided however, that the indemnity agreement contained in this Section 2.8(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Company, which consent shall not be unreasonably withheld, nor shall the Company be liable in any such case for any such loss, claim, damage, liability or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by such Holder, partner, member, officer, director, underwriter or controlling person of such Holder.
(b) To the extent permitted by law, each Holder, severally and not jointly, will, if Registrable Securities held by such Holder are included in the securities as to which such registration qualifications or compliance is being effected, indemnify and hold harmless the Company, each of its directors, its officers and each person, if any, who controls the Company within the meaning of the Securities Act, any underwriter and any other Holder selling securities under such registration statement or any of such other Holder’s partners, directors or officers or
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any person who controls such Holder, against any losses, claims, damages or liabilities (joint or several) to which the Company or any such director, officer, controlling person, underwriter or other such Holder, or partner, director, officer or controlling person of such other Holder may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages or liabilities (or actions in respect thereto) arise out of or are based upon any of the following statements: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement or incorporated reference therein, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by the Company of the Securities Act (collectively, a “Holder Violation”), in each case to the extent (and only to the extent) that such Holder Violation occurs in reliance upon and in conformity with written information furnished by such Holder under an instrument duly executed by such Holder and stated to be specifically for use in connection with such registration; and each such Holder will reimburse any legal or other expenses reasonably incurred by the Company or any such director, officer, controlling person, underwriter or other Holder, or partner, officer, director or controlling person of such other Holder in connection with investigating or defending any such loss, claim, damage, liability or action if it is judicially determined that there was such a Holder Violation; provided, however, that the indemnity agreement contained in this Section 2.8(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Holder, which consent shall not be unreasonably withheld; provided further, that in no event shall any indemnity under this Section 2.8 exceed the net proceeds from the offering received by such Holder when combined with any amounts contributed under Section 2.8(d) by such Holder.
(c) Promptly after receipt by an indemnified party under this Section 2.8 of notice of the commencement of any action (including any governmental action), such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section 2.8, deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain its own counsel, with the fees and expenses thereof to be paid by the indemnifying party, 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 such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action shall relieve such indemnifying party of any liability to the indemnified party under this Section 2.8 to the extent, and only to the extent, prejudicial to its ability to defend such action, but the omission so to deliver written notice to the indemnifying party will not relieve it of any liability that it may have to any indemnified party otherwise than under this Section 2.8.
(d) If the indemnification provided for in this Section 2.8 is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any losses, claims, damages or liabilities referred to herein, the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall to the extent permitted by applicable law contribute to
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the amount paid or payable by such indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the indemnified party on the other in connection with the Violation(s) or Holder Violation(s) that resulted in such loss, claim, damage or liability, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified party shall be determined by a court of law by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission; provided, that in no event shall any contribution by a Holder hereunder, when combined with the amounts paid or payable by such Holder pursuant to Section 2.8(b), exceed the net proceeds from the offering received by such Holder.
(e) The obligations of the Company and Holders under this Section 2.8 shall survive completion of any offering of Registrable Securities in a registration statement and, with respect to liability arising from an offering to which this Section 2.8 would apply that is covered by a registration filed before termination of this Agreement, such termination. 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 to such claim or litigation.
2.9 Assignment of Registration Rights. The rights to cause the Company to register Registrable Securities pursuant to this Section 2 may be assigned by a Holder to a transferee or assignee of Registrable Securities (for so long as such shares remain Registrable Securities) that (a) is a subsidiary, parent, general partner, limited partner, retired partner, member or retired/former member, affiliated fund or stockholder of a Holder that is a corporation, partnership or limited liability company, (b) is a Holder’s family member or trust for the benefit of an individual Holder, or (c) acquires at least five hundred thousand (500,000) shares of Registrable Securities (as adjusted for stock splits and combinations), or (d) is an Affiliate of such Holder; provided, however, (i) the transferor shall, within ten (10) days after such transfer, furnish to the Company written notice of the name and address of such transferee or assignee and the securities with respect to which such registration rights are being assigned and (ii) such transferee shall agree to be subject to all restrictions set forth in this Agreement.
2.10 Limitation on Subsequent Registration Rights. Other than as provided in Section 5.10, after the date of this Agreement, the Company shall not enter into any agreement with any holder or prospective holder of any securities of the Company that would grant such holder rights to demand the registration of shares of the Company’s capital stock, or to include such shares in a registration statement that would reduce the number of shares includable by the Holders.
2.11 “Market Stand-Off” Agreement. Each Holder hereby agrees that such Holder shall not sell, transfer, make any short sale of, grant any option for the purchase of, or enter into any hedging or similar transaction with the same economic effect as a sale, any Common Stock (or other securities) of the Company held by such Holder (other than those included in the registration) during the 180-day period following the effective date of the Initial Offering (or
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such longer period, not to exceed 34 days after the expiration of the 180-day period, as the underwriters or the Company shall request in order to facilitate compliance with FINRA Rule 2711 or any successor or similar rule or regulation), as the underwriters or the Company shall request in order to facilitate compliance with FINRA Rule 2711 or any successor or similar rule or regulation (the “Market Stand-off Period”); provided, that all officers and directors of the Company and holders of at least one percent (1%) of the Company’s voting securities are bound by and have entered into similar agreements; provided, further, that, subject to standard carve-outs, if the Company or its underwriters waive or terminate any of the lock-up obligations (including the restrictions set forth in this Section 2.11) of its officers, directors, Investors or stockholders (a “Released Person”), the lock-up obligations of the Holders shall be waived or terminated, as applicable, to the same extent and with respect to the same percentage of securities of each Holder as the percentage of released securities represent with respect to the securities held by the Released Person. The obligations described in this Section 2.11 shall not apply to a registration relating solely to employee benefit plans on Form S-1 or Form S-8 or similar forms that may be promulgated in the future, or a registration relating solely to a transaction on Form S-4 or similar forms that may be promulgated in the future. Notwithstanding anything herein to the contrary, the provisions of this Section 2.11 shall not apply to any shares purchased in the Initial Offering or in the secondary market following the Initial Offering.
2.12 Agreement to Furnish Information. Each Holder agrees to execute and deliver such other agreements as may be reasonably requested by the Company or the underwriter that are consistent with the Holder’s obligations under Section 2.11 or that are necessary to give further effect thereto. In addition, if requested by the Company or the representative of the underwriters of Common Stock (or other securities) of the Company, each Holder shall provide, within ten (10) days of such request, such information as may be required by the Company or such representative in connection with the completion of any public offering of the Company’s securities pursuant to a registration statement filed under the Securities Act. The obligations described in Section 2.11 and this Section 2.12 shall not apply to a Special Registration Statement. The Company may impose stop-transfer instructions with respect to the shares of Common Stock (or other securities) subject to the foregoing restriction until the end of the Market Stand-Off Period. Prior to the Initial Offering, each Holder agrees that any transferee of any shares of Registrable Securities shall be bound by Sections 2.11 and 2.12. The underwriters of the Company’s stock are intended third party beneficiaries of Sections 2.11 and 2.12 and shall have the right, power and authority to enforce the provisions hereof as though they were a party hereto.
2.13 Rule 144 Reporting. With a view to making available to the Holders the benefits of certain rules and regulations of the SEC which may permit the sale of the Registrable Securities to the public without registration, the Company agrees to use its best efforts to:
(a) Make and keep public information available, as those terms are understood and defined in SEC Rule 144 or any similar or analogous rule promulgated under the Securities Act, at all times after the effective date of the first registration filed by the Company for an offering of its securities to the general public;
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(b) File with the SEC, in a timely manner, all reports and other documents required of the Company under the Exchange Act; and
(c) So long as a Holder owns any Registrable Securities, furnish to such Holder forthwith upon request: a written statement by the Company as to its compliance with the reporting requirements of said Rule 144 of the Securities Act, and of 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 filed with the Commission; and such other reports and documents as a Holder may reasonably request in connection with availing itself of any rule or regulation of the SEC allowing it to sell any such securities without registration.
2.14 Termination of Registration Rights. The right of any Holder to request registration or inclusion of Registrable Securities in any registration pursuant to Section 2.2, Section 2.3, or Section 2.4 hereof shall terminate upon the earlier of: (i) the date three (3) years following an initial public offering that results in the conversion of all outstanding shares of Preferred Stock; or (ii) such time as (x) such Holder holds less than one percent (1%) of the Company’s outstanding Common Stock (treating all shares of Preferred Stock on an as converted basis), (y) the Company has completed its Initial Offering and (z) all Registrable Securities of the Company held by such Holder (and its Affiliates) may be sold pursuant to Rule 144 without any volume limitation during any ninety (90) day period and, solely with respect to Holders who are not an “affiliate” pursuant to Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144(c)(1). Upon such termination, such shares shall cease to be “Registrable Securities” hereunder for all purposes.
| SECTION 3. | COVENANTS OF THE COMPANY. |
3.1 Basic Financial Information and Reporting.
(a) The Company will maintain true books and records of account in which full and correct entries will be made of all its business transactions pursuant to a system of accounting established and administered in accordance with generally accepted accounting principles consistently applied (except as noted therein), and will set aside on its books all such proper accruals and reserves as shall be required under generally accepted accounting principles consistently applied.
(b) To the extent requested by an Investor, as soon as practicable after the end of each fiscal year of the Company, and in any event within one hundred twenty (120) days thereafter or such other time period as may be approved by the Board including the Preferred Directors (as defined in the Company’s Amended and Restated Certificate of Incorporation in effect as of the date hereof), the Company will furnish such Investor a current capitalization table of the Company, an audited balance sheet of the Company, as at the end of such fiscal year, and an audited statement of income and statement of cash flows of the Company, for such year, all prepared in accordance with generally accepted accounting principles consistently applied (except as noted therein) and setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail. Such financial statements shall be accompanied by a report and opinion thereon by independent public accountants selected by the Board.
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(c) To the extent requested by an Investor, the Company will furnish such Investor, as soon as practicable after the end of the first, second and third quarterly accounting periods in each fiscal year of the Company, and in any event within forty-five (45) days thereafter, a current capitalization table of the Company, a balance sheet of the Company as of the end of each such quarterly period, and a statement of income and a statement of cash flows of the Company for such period and for the current fiscal year to date, prepared in accordance with generally accepted accounting principles consistently applied (except as noted therein), with the exception that no notes need be attached to such statements and year-end audit adjustments may not have been made.
(d) So long as an Investor (together with its Affiliates) shall own not less than one million five hundred thousand (1,500,000) shares of Registrable Securities (as adjusted for stock splits and combinations) (a “Major Investor”), the Company will furnish each such Major Investor: (i) at least thirty (30) days prior to the beginning of each fiscal year an annual budget and operating plans for such fiscal year (and as soon as available, any subsequent written revisions thereto); and (ii) as soon as practicable after the end of each month, and in any event within thirty (30) days thereafter, a balance sheet of the Company as of the end of each such month, and a statement of income and a statement of cash flows of the Company for such month and for the current fiscal year to date, prepared in accordance with generally accepted accounting principles consistently applied (except as noted thereon), with the exception that no notes need be attached to such statements and year-end audit adjustments may not have been made.
(e) Notwithstanding the foregoing, each Advised Holder and each of the Investors set forth on Schedule 4 to Exhibit A shall be considered a “Major Investor” for all purposes of this Agreement, for so long as such Investor holds any Registrable Securities.
3.2 Inspection Rights. Each Major Investor shall have the right to visit and inspect any of the properties of the Company or any of its subsidiaries, and to discuss the affairs, finances and accounts of the Company or any of its subsidiaries with its officers, and to review such information as is reasonably requested all at such reasonable times and as often as may be reasonably requested; provided, however, that the Company shall not be obligated under this Section 3.2 with respect to a competitor of the Company or with respect to information which the Board determines in good faith is confidential or attorney-client privileged and should not, therefore, be disclosed.
3.3 Confidentiality of Records. Each Holder agrees to use the same degree of care as such Holder uses to protect its own confidential information to keep confidential any information furnished to such Holder hereof that the Company identifies as being confidential or proprietary (so long as such information is not in the public domain), except that such Holder may disclose such proprietary or confidential information (i) to any former or current or partner, subsidiary or parent of such Holder (each a “Permitted Disclosee”) or legal counsel or accountants for such Holder or Permitted Disclosee, as long as such Permitted Disclosee is advised of and agrees or has agreed to be bound by the confidentiality provisions of this Section 3.3 or comparable restrictions; (ii) at such time as it enters the public domain through no fault of such Holder; (iii) that is communicated to it free of any obligation of confidentiality; (iv) that is developed by Holder or its agents independently of and without reference to any confidential information communicated by the Company; or (v) as required by applicable law.
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Notwithstanding the foregoing, a Holder that is an investment fund or mutual fund may disclose the existence and nature of its relationship with the Company to its Affiliates, members or partners, or to provide its Affiliates, members, limited partners or partners with periodic reports and such other financial information about the Company prepared by such Holder in the ordinary course of its business. Furthermore, nothing contained herein shall prevent any Holder or Permitted Disclosee from entering into any business, entering into any agreement with a third party, or investing in or engaging in investment discussions with any other company (whether or not competitive with the Company), provided that such Holder or Permitted Disclosee does not, except as permitted in accordance with this Section 3.3, disclose any proprietary or confidential information of the Company in connection with such activities. For the sake of clarity, nothing contained in this Section 3.3 shall in any way restrict or impair the obligations of Wellington, X. Xxxx Price and Fidelity to report the investment of its advisory clients (as Investors) in the Company in accordance with applicable laws and regulations, without any requirement of prior notice to the Company.
3.4 Reservation of Common Stock. The Company will at all times reserve and keep available, solely for issuance and delivery upon the conversion of the Preferred Stock, all Common Stock issuable from time to time upon such conversion.
3.5 Observer Rights. The Company shall allow (i) one representative designated by Index Ventures VI (Jersey), L.P. (“Index Ventures”), (ii) one representative designated by X. Xxxx Price, (iii) one representative designated by Fidelity , (iv) one representative designated by Tiger Global Private Investment Partners VII, L.P. and (v) one representative designated by Wellington on behalf of the Wellington Investors, to attend all meetings of the Company’s Board of Directors in a nonvoting capacity, and in connection therewith, the Company shall give, at the same time as provided to the Board, such representative copies of all notices, minutes, consents and other materials, financial or otherwise, which the Company provides to its Board of Directors; provided, however, that the Company reserves the right to exclude such representatives from access to any material or meeting or portion thereof if the Company believes upon advice of counsel that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect highly confidential information or for other similar reasons. The decision of the Board with respect to the privileged (upon advice of counsel made in accordance with the foregoing) or confidential nature of such information shall be final and binding. The Company shall reimburse such representative for travel and other reasonable out-of-pocket expenses in accordance with the Company’s travel policy.
3.6 Proprietary Information and Inventions Agreement. The Company shall require all employees and consultants to execute and deliver a Proprietary Information and Inventions Agreement substantially in a form approved by the Company’s counsel or the Board.
3.7 Assignment of Right of First Refusal. In the event the Company elects not to exercise any right of first refusal or right of first offer the Company may have on a proposed transfer of any of the Company’s outstanding capital stock pursuant to the Company’s charter documents, by contract or otherwise, the Company shall, to the extent it may do so, assign such right of first refusal or right of first offer to each Major Investor. In the event of such assignment, each Major Investor shall have a right to purchase its pro rata portion of the capital stock proposed to be transferred. Each Major Investor’s pro rata portion shall be equal to the
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product obtained by multiplying (i) the aggregate number of shares proposed to be transferred by (ii) a fraction, the numerator of which is the number of shares of Registrable Securities held by such Major Investor at the time of the proposed transfer and the denominator of which is the total number of Registrable Securities owned by all Major Investors at the time of such proposed transfer. In the event of any conflict between this Section 3.7 and that certain Amended and Restated Right of First Refusal and Co-Sale Agreement of even date herewith by and among the Company and the other parties thereto (the “Co-Sale Agreement), the Co-Sale Agreement shall control.
3.8 Stock Vesting. Unless otherwise approved by the Board, all stock options and other stock equivalents issued after the date of this Agreement to employees, directors, consultants and other service providers shall be subject to vesting as follows: (a) twenty-five percent (25%) of such stock shall vest at the end of the first year following the earlier of the date of issuance or such person’s services commencement date with the Company, and (b) seventy-five percent (75%) of such stock shall vest over the remaining three (3) years.
3.9 Additional Information. The Company shall promptly respond or cause its transfer agent to respond to all information requests made by any Advised Holder relating to (i) accounting or securities law matters required in connection with the audit of such Advised Holder and (ii) the actual holdings of a such Advised Holder, including in relation to the total outstanding shares; provided, however, that the Company reserves the right to exclude any information or material if the Company believes that such exclusion is reasonably necessary to avoid a potential violation of applicable law or conflict with the Company’s xxxxxxx xxxxxxx policy to protect highly confidential information or for other similar reasons. The decision of the Board with respect to the privileged (upon advice of counsel made in accordance with the foregoing), legal or xxxxxxx xxxxxxx policy violation, or confidential nature of such information shall be final and binding. Notwithstanding the foregoing, the covenant set forth in this Section 3.9 shall expire and terminate as to each Advised Holder when such Advised Holder no longer holds any securities of the Company that are “restricted securities” under the Securities Act.
3.10 Publicity. The Company shall not use the name or trademarks of Wellington, X. Xxxx Price, Fidelity, Tiger Global Private Investment Partners VII, L.P. or their respective Affiliates or Investors in any press release, marketing communication or otherwise, without the prior written consent of Wellington, X. Xxxx Price, Fidelity, Tiger Global Private Investment Partners VII, L.P. or their respective Affiliates or Investors, as applicable.
3.11 The Company shall use commercially reasonable efforts to ensure that the Registrable Securities held by any Investor set forth on Schedule 1 remain certificated until the expiration of the Market Stand-off Period.
3.12 Termination of Covenants. All covenants of the Company contained in Section 3 of this Agreement (other than the provisions of Sections 3.3, 3.9, 3.10 and 3.11) shall expire and terminate as to each Investor upon the earlier of (i) the effective date of the registration statement pertaining to an Initial Offering or (ii) upon an “Acquisition” as defined in the Company’s Certificate of Incorporation as in effect as of the date hereof; provided, however, that Section 3.1 shall not terminate upon an Acquisition if the consideration paid to the Investors in such Acquisition includes securities in an entity that is not subject to the reporting requirements of Section 13(a) or Section 15(d) of the Exchange Act.
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| SECTION 4. | RIGHTS OF FIRST REFUSAL. |
4.1 Subsequent Offerings. Subject to applicable securities laws, each Major Investor shall have a right of first refusal to purchase up to its pro rata share of all Equity Securities, as defined below, that the Company may, from time to time, propose to sell and issue after the date of this Agreement, other than the Equity Securities excluded by Section 4.7 hereof. Each Investor’s pro rata share is equal to the ratio of (a) the number of shares of the Company’s Common Stock (including all shares of Common Stock issuable or issued upon conversion of the Shares or upon the exercise of outstanding warrants or options) of which such Investor is deemed to be a holder immediately prior to the issuance of such Equity Securities to (b) the total number of shares of the Company’s outstanding Common Stock (including all shares of Common Stock issued or issuable upon conversion of the Shares or upon the exercise of any outstanding warrants or options) immediately prior to the issuance of the Equity Securities. The term “Equity Securities” shall mean (i) any Common Stock, Preferred Stock or other security of the Company, (ii) any security convertible into or exercisable or exchangeable for, with or without consideration, any Common Stock, Preferred Stock or other security (including any option to purchase such a convertible security), (iii) any security carrying any warrant or right to subscribe to or purchase any Common Stock, Preferred Stock or other security or (iv) any such warrant or right.
4.2 Exercise of Rights. If the Company proposes to issue any Equity Securities, it shall give each Major Investor written notice of its intention, describing the Equity Securities, the price and the terms and conditions upon which the Company proposes to issue the same. Each Major Investor shall have fifteen (15) days from the giving of such notice to agree to purchase up to its pro rata share of the Equity Securities for the price and upon the terms and conditions specified in the notice by giving written notice to the Company and stating therein the quantity of Equity Securities to be purchased. Notwithstanding the foregoing, the Company shall not be required to offer or sell such Equity Securities to any Major Investor who would cause the Company to be in violation of applicable federal securities laws by virtue of such offer or sale.
4.3 Issuance of Equity Securities to Other Persons. If not all of the Major Investors elect to purchase their pro rata share of the Equity Securities, then the Company shall promptly notify in writing the Major Investors who do so elect and shall offer such Major Investors the right to acquire such unsubscribed shares on a pro rata basis. The Major Investors shall have five (5) days after receipt of such notice to notify the Company of its election to purchase all or a portion thereof of the unsubscribed shares. The Company shall have ninety (90) days thereafter to sell the Equity Securities in respect of which the Major Investor’s rights were not exercised, at a price not lower and upon general terms and conditions not materially more favorable to the purchasers thereof than specified in the Company’s notice to the Major Investors pursuant to Section 4.2 hereof. If the Company has not sold such Equity Securities within ninety (90) days of the notice provided pursuant to Section 4.2, the Company shall not thereafter issue or sell any Equity Securities, without first offering such securities to the Major Investors in the manner provided above.
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4.4 Sale Without Notice. In lieu of giving notice to the Major Investors prior to the issuance of Equity Securities as provided in Section 4.2, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of Equity Securities. Such notice shall describe the type, price and terms of the Equity Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of shares that would, if purchased by such Major Investor, maintain such Major Investor’s pro rata share (as set forth in Section 4.1) of the Company’s equity securities after giving effect to all such purchases. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investors.
4.5 Termination and Waiver of Rights of First Refusal. The rights of first refusal established by this Section 4 shall not apply to, and shall terminate upon the earlier of (i) the closing of a firmly underwritten public offering pursuant to an effective registration statement under the Securities Act of 1933, as amended, covering the offer and sale of Common Stock for the account of the Company in which the gross cash proceeds to the Company (before underwriting discounts, commissions and fees) are at least $30,000,000 and the Company’s shares have been listed for trading on the New York Stock Exchange, NASDAQ Global Select Market or NASDAQ Global Market or (ii) an Acquisition. Notwithstanding Section 5.5 hereof, the rights of first refusal established by this Section 4 may be amended, or any provision waived with and only with the written consent of the Company and the Major Investors holding at least seventy percent (70%) of the Registrable Securities held by all Major Investors; provided, that, in the event that the rights of first refusal of a Major Investor established by this Section 4 are waived with respect to a particular issuance of Equity Securities without such Major Investor’s prior written consent (a “Waived Investor”) and any other Major Investor actually purchases securities in such issuance, then the Company shall grant each Waived Investor the right to purchase the same percentage of its full pro rata share as the highest percentage of any purchasing Major Investor in a subsequent closing of such issuance on substantially the same terms and conditions.
4.6 Assignment of Rights of First Refusal and Information Rights. The rights of first refusal and information rights of each Major Investor under this Section 4 may be assigned to the same parties, subject to the same restrictions as any transfer of registration rights pursuant to Section 2.9.
4.7 Excluded Securities. The rights of first refusal established by this Section 4 shall have no application to any of the following Equity Securities:
(a) Common Stock and/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like after the date hereof) issued or to be issued after the date hereof to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board;
(b) stock issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and stock issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the
21.
rights of first refusal established by this Section 4 were complied with, waived, or were inapplicable pursuant to any provision of this Section 4.7 with respect to the initial sale or grant by the Company of such rights or agreements;
(c) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition, strategic alliance or similar business combination approved by the Board including at least one of the Preferred Directors;
(d) any Equity Securities issued in connection with any stock split, stock dividend or recapitalization by the Company;
(e) any Equity Securities issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement, or debt financing from a bank or similar financial or lending institution approved by the Board including at least one of the Preferred Directors;
(f) any Equity Securities that are issued by the Company pursuant to a registration statement filed under the Securities Act;
(g) any Equity Securities issued in connection with strategic transactions involving the Company and other entities, including, without limitation (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that the issuance of shares therein has been approved by the Board including at least one of the Preferred Directors; or
(h) any Equity Securities issued by the Company pursuant to the terms of Section 2.2 or Section 2.3 of the Purchase Agreement, including, without limitation, pursuant to the Representations Letter (as defined in the Purchase Agreement).
| SECTION 5. | MISCELLANEOUS. |
5.1 Governing Law. This Agreement shall be governed by and construed under the laws of the State of California in all respects as such laws are applied to agreements among California residents entered into and to be performed entirely within California, without reference to conflicts of laws or principles thereof. The parties agree that any action brought by either party under or in relation to this Agreement, including without limitation to interpret or enforce any provision of this Agreement, shall be brought in, and each party agrees to and does hereby submit to the jurisdiction and venue of, any state or federal court located in the County of Santa Clara, California. THE PARTIES TO THIS AGREEMENT HEREBY WAIVE THEIR RIGHT TO A TRIAL BY JURY WITH RESPECT TO DISPUTES ARISING UNDER THIS AGREEMENT AND THE RELATED AGREEMENTS AND CONSENT TO A BENCH TRIAL WITH THE APPROPRIATE JUDGE ACTING AS THE FINDER OF FACT.
5.2 Successors and Assigns. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the parties hereto and their respective successors, assigns, heirs, executors, and administrators and shall inure to the benefit of and be enforceable by each person who shall be a holder of Registrable Securities from time to time; provided, however, that prior to the receipt by the Company of adequate written notice
22.
of the transfer of any Registrable Securities specifying the full name and address of the transferee, the Company may deem and treat the person listed as the holder of such shares in its records as the absolute owner and holder of such shares for all purposes, including the payment of dividends or any redemption price.
5.3 Entire Agreement. This Agreement, the Exhibits and Schedules hereto, the Purchase Agreement and the other documents delivered pursuant thereto constitute the full and entire understanding and agreement between the parties with regard to the subjects hereof and no party shall be liable or bound to any other in any manner by any oral or written representations, warranties, covenants and agreements except as specifically set forth herein and therein. Each party expressly represents and warrants that it is not relying on any oral or written representations, warranties, covenants or agreements outside of this Agreement.
5.4 Severability. In the event one or more of the provisions of this Agreement should, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
5.5 Amendment and Waiver.
(a) Except as otherwise expressly provided, this Agreement (other than Sections 3.1(d), 3.2, 3.7, 4 and 5.5) may be amended or modified, and the obligations of the Company and the rights of the Holders under this Agreement may be waived, only upon the written consent of the Company and the holders of at least seventy percent (70%) of the then-outstanding Registrable Securities. Sections 3.1(d), 3.2, 3.7, 4 and 5.5 may be amended or modified, and the obligations of the Company and the rights of the Holders under such sections may be waived, only upon the written consent of the Company and the holders of at least seventy percent (70%) of the then-outstanding Registrable Securities held by Major Investors. Notwithstanding anything to the contrary in this Agreement, Sections 3.1(e), 3.5, 3.9, 3.10 and 3.11 shall not be amended, modified, waived or terminated without the prior written consent of Wellington, the Wellington Investors, Index Ventures, X. Xxxx Price, the X. Xxxx Price Investors, Fidelity, the Fidelity Investors or Tiger Global Private Investment Partners VII, L.P., to the extent such amendment, modification, waiver or termination affects such Investor. Notwithstanding the foregoing, any amendment to this Agreement which on its face expressly treats one Investor differently from all other Investors would require the consent of the Investor being treated differently. For the avoidance of doubt, an amendment that might impact one Investor differently than all others but does not on its face expressly provide for different treatment shall not require the consent of such Investor.
(b) For the purposes of determining the number of Holders or Investors entitled to vote or exercise any rights hereunder, the Company shall be entitled to rely solely on the list of record holders of its stock as maintained by or on behalf of the Company.
5.6 Delays or Omissions. It is agreed that no delay or omission to exercise any right, power, or remedy accruing to any party, upon any breach, default or noncompliance by another party under this Agreement shall impair any such right, power, or remedy, nor shall it be
23.
construed to be a waiver of any such breach, default or noncompliance, or any acquiescence therein, or of any similar breach, default or noncompliance thereafter occurring. It is further agreed that any waiver, permit, consent, or approval of any kind or character on any party’s part of any breach, default or noncompliance under the Agreement or any waiver on such party’s part of any provisions or conditions of this Agreement must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement, by law, or otherwise afforded to any party, shall be cumulative and not alternative.
5.7 Notices. All notices required or permitted hereunder shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient; if not, then on the next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, (d) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt or (e) in the case of international deliveries, three (3) business days after deposit with an international courier, specifying expedited delivery, with written verification of receipt. All communications shall be sent to the party to be notified at the address as set forth on the signature pages hereof or EXHIBIT A hereto or at such other address as such party may designate by ten (10) days advance written notice to the other parties hereto.
5.8 Attorneys’ Fees. In the event that any suit or action is instituted under or in relation to this Agreement, including without limitation to enforce any provision in this Agreement, the prevailing party in such dispute shall be entitled to recover from the losing party all fees, costs and expenses of enforcing any right of such prevailing party under or with respect to this Agreement, including without limitation, such reasonable fees and expenses of attorneys and accountants, which shall include, without limitation, all fees, costs and expenses of appeals.
5.9 Titles and Subtitles. The titles of the sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement.
5.10 Additional Investors. Notwithstanding anything to the contrary contained herein, if the Company shall issue additional shares of its Preferred Stock pursuant to the Purchase Agreement, any purchaser of such shares of Preferred Stock shall become a party to this Agreement by executing and delivering an additional counterpart signature page to this Agreement and shall be deemed an “Investor,” a “Holder” and a party hereunder. Notwithstanding anything to the contrary contained herein, if the Company shall issue Equity Securities in accordance with Section 4.7 (c), (e) or (h) of this Agreement, any purchaser of such Equity Securities may become a party to this Agreement by executing and delivering an additional counterpart signature page to this Agreement and shall be deemed an “Investor,” a “Holder” and a party hereunder.
5.11 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument.
5.12 Aggregation of Stock. All shares of Registrable Securities held or acquired by Affiliates shall be aggregated together for the purpose of determining the availability of any rights under this Agreement.
24.
5.13 Pronouns. All pronouns contained herein, and any variations thereof, shall be deemed to refer to the masculine, feminine or neutral, singular or plural, as to the identity of the parties hereto may require.
5.14 Termination. This Agreement shall terminate and be of no further force or effect upon the earlier of (i) an Acquisition or (ii) the date three (3) years following the Closing of the Initial Offering; provided, that, (A) Section 2 of this Agreement shall remain in effect following an Acquisition if the consideration paid to the Investors in such an acquisition includes “restricted securities” (as defined in Rule 144), until such time that such securities may be sold pursuant to Rule 144 without any volume limitation during any 90 day period and, solely with respect to Holders who are not an “affiliate” pursuant to Rule 144, without the requirement for the issuer to be in compliance with the current public information required under Rule 144(c)(1) and (B) Section 3.1 of this Agreement shall not terminate upon an Acquisition if the consideration paid to the Investors in such Acquisition includes securities in an entity that is not subject to the reporting requirements of Section 13(a) or Section 15(d) of the Exchange Act.
[THIS SPACE INTENTIONALLY LEFT BLANK]
25.
IN WITNESS WHEREOF, the parties hereto have executed this AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in the first paragraph hereof.
| COMPANY: | ||
| PURE STORAGE, INC. | ||
| By: | /s/ Xxxxx Xxxxxxx | |
| Xxxxx Xxxxxxx, Chief Executive Officer | ||
IN WITNESS WHEREOF, the parties hereto have executed this AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT as of June 26, 2014.
| INVESTORS: | ||
| XXXXX EMERGING OPPORTUNITY FUND II-A, L.P. | ||
| By: | Xxxxx Management Evergreen LLC | |
| Its: | General Partner | |
| By: | /s/ Xxxxx Xxxxx | |
| Managing Director | ||
| Address: | [Intentionally omitted.] |
IN WITNESS WHEREOF, the parties hereto have executed this AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT as of June 26, 2014.
| INVESTORS: | ||
| XXXXX EMERGING OPPORTUNITY FUND II, L.P. | ||
| By: | Xxxxx Management Evergreen LLC | |
| Its: | General Partner | |
| By: | /s/ Xxxxx Xxxxx | |
| Managing Director | ||
| Address: | [Intentionally omitted.] |
IN WITNESS WHEREOF, the parties hereto have executed this AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT as of June 26, 2014.
| INVESTORS: | ||
| XXXXX EMERGING OPPORTUNITY FUND, L.P. | ||
| By: | Xxxxx Capital Management LLC | |
| Its: | General Partner | |
| By: | /s/ Xxxxx Xxxxx | |
| Managing Director | ||
| Address: | [Intentionally omitted.] |
IN WITNESS WHEREOF, the parties hereto have executed this AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT as of June 26, 2014.
| INVESTORS: | ||
| XXXXX PARTNERS III, L.P. | ||
| By: | Xxxxx Management III, LLC | |
| Its: | General Partner | |
| By: | /s/ Xxxxx Xxxxx | |
| Managing Director | ||
IN WITNESS WHEREOF, the parties hereto have executed this AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT as of June 26, 2014.
| INVESTORS: | ||
| AME CLOUD VENTURES, LLC | ||
| By: | /s/ Xxxx Xxxxxxxxx | |
| Xxxx Xxxxxxxxx, Manager | ||
IN WITNESS WHEREOF, the parties hereto have executed this AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT as of June 26, 2014.
| INVESTORS: | ||||
| X. XXXXXX CO-INVEST FUND, LLC | ||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| By: | X. Xxxxxx Asset Management, LLC | |||
| Name: | Its: | Managing Member | ||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Managing Member | |||
| X. XXXXXX CO-INVEST FUND II, LLC. | ||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| By: | X. Xxxxxx Asset Management, LLC | |||
| Name: | Its: | Managing Member | ||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Managing Member | |||
IN WITNESS WHEREOF, the parties hereto have executed this AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT as of June 26, 2014.
| INVESTORS: | ||
| XXXXXX ENTERPRISES LP | ||
| By: | /s/ Xxxx Xxxxxx | |
| Name: | Xxxx Xxxxxx | |
| Title: | General Partner | |
IN WITNESS WHEREOF, the parties hereto have executed this AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in the first paragraph hereof.
| INVESTORS: | ||
| INSTITUTIONAL VENTURE PARTNERS XIV, L.P. | ||
| By: | Institutional Venture Management XIV LLC | |
| Its: | General Partner | |
| By: | /s/ Xxxxx Xxxxxxx | |
| Managing Director | ||
| Address: | [Intentionally omitted.] |
IN WITNESS WHEREOF, the parties hereto have executed this AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT as of July 21, 2014.
| INVESTORS: | ||
| GC&H Investments, LLC | ||
| By: | /s/ Xxx Xxxxxxx | |
| Name: | Xxx Xxxxxxx | |
| Title: | Manager | |
IN WITNESS WHEREOF, the parties hereto have executed this AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT as of July 11, 2014.
| INVESTORS: | ||
| SR Pure Storage Holdings LLC | ||
| By: | /s/ Sumih Kaji | |
| Name: | Sumih Kaji | |
| Title: | Manager | |
EXHIBIT A
SCHEDULE OF INVESTORS
REDPOINT VENTURES IV, L.P.
[Intentionally omitted.]
REDPOINT ASSOCIATES IV, LLC
[Intentionally omitted.]
GREYLOCK XIII LIMITED PARTNERSHIP
[Intentionally omitted.]
GREYLOCK XIII-A LIMITED PARTNERSHIP
[Intentionally omitted.]
GREYLOCK XIII PRINCIPALS LLC
[Intentionally omitted.]
XXXXX XXXXXXX XXXXXXX & XXXXXXX XX XXXXXXX TRUSTEES OR SUCCESSOR TRUSTEE, UNDER THE XXXXXXX REVOCABLE TRUST, U/A/D 7/2/97
[Intentionally omitted.]
EXHIBIT A
SCHEDULE OF INVESTORS (CONTINUED)
XXXXXX XXXX VENTURES, A CALIFORNIA LIMITED PARTNERSHIP
[Intentionally omitted.]
XXXXX X. XXXXXXXX, TRUSTEE OF THE XXXXXXXX LIVING TRUST U/A/D 1/22/98
[Intentionally omitted.]
ANVEST, L.P.
[Intentionally omitted.]
THE XXX XXXXX XXXXXXX 2009 IRREVOCABLE TRUST
THE XXX XXXXX XXXXXXX 2010 IRREVOCABLE TRUST
THE XXXX XXXXX XXXXXXX 2006 IRREVOCABLE TRUST
THE XXXX XXXXX XXXXXXX 2010 IRREVOCABLE TRUST
[Intentionally omitted.]
G. XXXXXXX XXXXX, XX. AND XXXX XXXX XXXXX, CO-TRUSTEES OF THE XXXXX REVOCABLE TRUST U/A/D 2/3/03
[Intentionally omitted.]
XXXXXXXX HOLDINGS, L.P.
[Intentionally omitted.]
EXHIBIT A
SCHEDULE OF INVESTORS (CONTINUED)
XXXXXXX X. XXXXXXX, XX., TRUSTEE OF THE XXXXXXX X. XXXXXXX, XX. REVOCABLE TRUST U/A/D 8/5/09
[Intentionally omitted.]
YOVEST, L.P.
[Intentionally omitted.]
ROOSTER PARTNERS, LP
[Intentionally omitted.]
XXXXXXX X. XXXXX AND XXXXX X.X. XXXXX AS TRUSTEES OF XXXXXXX X. AND XXXXX X.X. XXXXX TRUST AGREEMENT DATED 2/24/99
[Intentionally omitted.]
XXXXX X. XXXXX AND XXXXXXXX X. X’XXXXX AS TRUSTEES OF THE WHITE FAMILY TRUST U/A/D 4/3/97
[Intentionally omitted.]
XXXXXXX X. XXXX AND XXXXXXXXX X. XXXX AS TRUSTEES OF XXXXXXX X. AND XXXXXXXXX X. XXXX TRUST AGREEMENT DATED 10/31/00
[Intentionally omitted.]
EXHIBIT A
SCHEDULE OF INVESTORS (CONTINUED)
XXXXXXX X. XXXXXXX AND XXXX XXXXXXXXX XXXXXXX, CO-TRUSTEES OF XXXXXXX TRUST AGREEMENT DATED 7/19/06
XXXXX FARGO BANK, N.A. FBO SHV PROFIT SHARING PLAN FBO XXXXXX XXX
XXXXX FARGO BANK, N.A. FBO SHV PROFIT SHARING PLAN FBO XXXXX XXXX
XXXXX FARGO BANK, N.A. FBO SHV PROFIT SHARING PLAN FBO XXXXXX X. XXXXXXX
XXXXX FARGO BANK, N.A. FBO SHV PROFIT SHARING PLAN FBO XXXXX X. XXXXX (ROLLOVER)
XXXXX FARGO BANK, N.A. FBO SHV PROFIT SHARING PLAN FBO XXXXX X. XXXX
XXXXX FARGO BANK, N.A. FBO SHV PROFIT SHARING PLAN FBO YU-XXXX XXXX
EXHIBIT A
SCHEDULE OF INVESTORS (CONTINUED)
XXXXX FARGO BANK, N.A. FBO SHV PROFIT SHARING PLAN FBO XXXXXXXX XXX (POST)
XXXXX FARGO BANK, N.A. FBO XXXXXXX X. XXXXX XXXX XXX
XXXXX FARGO BANK, N.A. FBO XXXXX X. XXXXX XXXX XXX
XXXXX FARGO BANK, N.A. FBO XXXXX X. XXXXX XXXX XXX
XXXXX FARGO BANK, N.A. FBO XXXXXXXX XXX XXX
XXXXXX FAMILY TRUST U/A 2/7/96
XXXXXX ENTERPRISES LP
THE RENI AND XXXXXXXX XXXXXXX FAMILY PARTNERSHIP, A CALIFORNIA LIMITED PARTNERSHIP
EXHIBIT A
SCHEDULE OF INVESTORS (CONTINUED)
THE XXXXX XXXXXX AND XXXXXXX XXXXXXX TRUST
XXXXXX X. XXXXXX AND XXXXXX X. XXXXXX, OR THEIR SUCCESSORS, TRUSTEES OF THE XXXXXX FAMILY TRUST UAD 11/3/95, AS AMENDED
THE BOARD OF TRUSTEES OF THE XXXXXX XXXXXXXX JUNIOR UNIVERSITY (LSVF)
XXXXXXXXX LIVING TRUST, DATED 2/22/02, XXXX XXXXXXXXX TTEE AND XXXXX XXXXXXXXX TTEE
THE XXXXXXXXXX FAMILY TRUST
XXXX X. XXXXXXX AND XXXXXXX X. XXXXXXX REVOCABLE LIVING TRUST
SLOOTMAN LIVING TRUST, DATED SEPTEMBER 8, 1999
XXXXXXX AND XXXXXXXX XXXX FAMILY TRUST
XXXXXX X. XXXXXX 1998 TRUST
EXHIBIT A
SCHEDULE OF INVESTORS (CONTINUED)
XXXX VAN DEN BOSCH TRUST DD. 12/01/2004
XXXX XXXXXXXX
LRFA, LLC
XXXXXX X. XXXXXXX III
XXXXXX X. XXXXXXX III AND XXXXX XXXX XXXXXXX, CO-TRUSTEES OF THE XXXXXXX REVOCABLE TRUST U/A/D 8/21/13
HENG FAMILY TRUST, DATED AUGUST 22, 1994, TRUSTEES: XXXX X. XXXX AND XXXXX X. XXXX
THE XXXXXXX FAMILY TRUST, TRUSTEES XXXXXXX X. XXXXXXX III AND XXXXXXX X. XXXXXXX
POONEN FAMILY 2006 TRUST
XXXXX X. XXXXXX
XXXXXX X. XXXXXXX AND XXXXX X. XXXXXXX, CO-TRUSTEES OF THE LENOSKI LIVING TRUST U/T/A DATED JAN. 8, 2001
EXHIBIT A
SCHEDULE OF INVESTORS (CONTINUED)
GC&H INVESTMENTS LLC
XXXX X. XXXXXX
XXXXXX XXXXXXXXX
GREENEROSE LP-FUND 1
GREENEROSE LP-FUND 4
XXXXXXX X. XXXXXXX & XXXXXXX XX XXXXXXX AB LIVING TRUST
HANS XXXXXXX XXXXXXXXXXXX
XXXX X. XXXXXXXXXXXX
XXXXXXX X. XXXXXXXXXXXX
THE XXXX XXXXXX XXXXXXXXXXXX 2012 IRREVOCABLE TRUST UNDER AGREEMENT DATED NOVEMBER 21, 2012
EXHIBIT A
SCHEDULE OF INVESTORS (CONTINUED)
THE HANS XXXXXXX XXXXXXXXXXXX 2012 IRREVOCABLE TRUST UNDER AGREEMENT DATED NOVEMBER 21, 2012
THE XXXXXXX XXXXX XXXXXXXXXXXX 2012 IRREVOCABLE TRUST UNDER AGREEMENT DATED NOVEMBER 21, 2012
XXXXXX XXXXX
EMBARCADERO VENTURES, LLC
XXXXX X. XXXXX, CUSTODIAN FBO XXXXX X. XXXXX UNDER CUTMA UNTIL AGE 21
XXXXX X. XXXXX, CUSTODIAN FBO XXXXXX X. XXXXX UNDER CUTMA UNTIL AGE 21
XXXXX X. XXXXX, CUSTODIAN FBO XXXXXXX X. XXXXX UNDER CUTMA UNTIL AGE 21
XXXXX X. XXXXXXX, TRUSTEE OF THE XXXXXXX REVOCABLE TRUST U/A/D 9/28/2000
EXHIBIT A
SCHEDULE OF INVESTORS (CONTINUED)
TALLACK PARTNERS, L.P.
XXXXXX X. XXXXXXX AND XXXXXX X. XXXXXXX AS TRUSTEES OF XXXXXXX 2003 TRUST
XXXXX X. XXXXX AND XXXXX X. XXXXX AS TRUSTEES OF THE XXXXX AND XXXXX XXXXX LIVING TRUST DATED 7/6/04
XXXXX FARGO BANK, N.A. FBO SHV PROFIT SHARING PLAN FBO G. XXXXXXX XXXXX, XX. XXXX XXX
XXXXX FARGO BANK, N.A. FBO XXXXXXX XXXX XXXX XXX
XXXXX FARGO BANK, N.A. FBO SHV PROFIT SHARING PLAN FBO XXXXXX X. XXXXXXX (ROLLOVER)
XXXXX FARGO BANK, N.A. FBO SHV PROFIT SHARING PLAN FBO XXXXXXX X. XXXXXXX
EXHIBIT A
SCHEDULE OF INVESTORS (CONTINUED)
XXXXX FARGO BANK, N.A. FBO YU-XXXX XXXX XXXX XXX
X. XXXXXX CO-INVEST FUND, LLC
SC-NGU LLC
THE SYDNEY XXXXXXX XXXXXXXX 2010 IRREVOCABLE TRUST
XXXXX XXXX AND XXXXXX XXXX XXXX, CO-TRUSTEES OF THE XXXX REVOCABLE TRUST U/A/D 4/23/98
XXXXXXX XXXXXX XXXX AND YU-XXXX XXXX CHEN AS TRUSTEES OF XXXXXXX AND XXXX XXXX 2001 LIVING TRUST DATED 3/17/01
XXXXXXXX XXX
EXHIBIT A
SCHEDULE OF INVESTORS (CONTINUED)
XXXXXX XXXXXXXX CUSTODIAN FOR XXXXXX XXXX XXXX XXXX XXX
XXXXXXX X. XXXXX, TRUSTEE OF XXXXXXX X. XXXXX CHARITABLE REMAINDER UNITRUST
XXXXX X. XXXXX, TRUSTEE OF SIERRA TRUST U/A/D 12/16/1997
XXXXXX X. XXXXXXXXXX AND XXXXX X. XXXXXXXXXX-XXXXXXX, OR THEIR SUCCESSOR(S) AS TRUSTEES UNDER THE DYCKERHOFF 2001 REVOCABLE TRUST AGREEMENT DATED AUGUST 30, 2001
ACRUX PARTNERS, LP
NESTEGG HOLDINGS, XX
XXXXX FARGO BANK, N.A. FBO G. XXXXXXX XXXXX, XX. XXXX XXX
EXHIBIT A
SCHEDULE OF INVESTORS (CONTINUED)
XXXXX FARGO BANK, N.A. FBO XXXXX XXXX XXXX XXX
XXXXX FARGO BANK, N.A. FBO XXXXX X. XXXXX XXXX XXX
XXXXX FARGO BANK, N.A. AS TRUSTEE OF THE XXXXXXXX XXX XXXX XXX
XXXXX FARGO BANK, N.A. FBO XXXXX X. XXXX XXXX XXX
XXXXX FARGO BANK, N.A. FBO SHV PROFIT SHARING PLAN FBO XXXXXXX X. XXXXX
XXXXX FARGO BANK, N.A. FBO SHV PROFIT SHARING PLAN FBO XXXXXXX X. XXXX
XXXXX FARGO BANK, N.A. AS TRUSTEE OF THE XXXXX X. XXXXX XXXX XXX
EXHIBIT A
SCHEDULE OF INVESTORS (CONTINUED)
XXXXX FARGO BANK, N.A. AS TRUSTEE OF THE XXXXXXXX XXX XXXX XXX
XXXXX FARGO BANK, N.A. AS CUSTODIAN FOR XXXXX X. XXXXX XXX
XXXXX FARGO BANK, N.A. FBO XXXXXXX X. XXXXXXX XXXX XXX
SVIC NO. 14 NEW TECHNOLOGY BUSINESS INVESTMENT L.L.P.
STARFISH HOLDINGS, LP
XXXXXXX X. NAAR AND XXXXX X. XXXX AS TRUSTEES OF NAAR FAMILY TRUST U/A/D 12/22/94
ROSETIME PARTNERS, L.P.
EXHIBIT A
SCHEDULE OF INVESTORS (CONTINUED)
THE XXXXXXXX 2011 IRREVOCABLE GRANDCHILDREN’S TRUST
THE BIRD 2011 IRREVOCABLE CHILDREN’S TRUST
THE LINDSAY XXXXXXXXX XXXXXXXX 2013 IRREVOCABLE TRUST
THE WHITE 2011 IRREVOCABLE CHILDREN’S TRUST
XXXXXXXX MA
XXXXX FARGO BANK, N.A. FBO XXXXX X. XXXXXXXX XXXX XXX
XXXXX FARGO BANK, N.A. FBO SHV PROFIT SHARING PLAN FBO XXXXX X. XXXXX (ROLLOVER)
EXHIBIT A
SCHEDULE OF INVESTORS (CONTINUED)
XXXXX FARGO BANK, N.A. FBO XXXXXXX XXXX XXXX XXX
INDEX VENTURES VI (JERSEY), L.P.
INDEX VENTURES VI PARALLEL ENTREPRENEUR FUND (JERSEY), L.P
YUCCA (JERSEY) SLP
IN-Q-TEL, INC.
EXHIBIT A
SCHEDULE OF INVESTORS (CONTINUED)
KKR GROUP INVESTMENTS II, LLC
AME CLOUD VENTURES, LLC
INDEX VENTURES GROWTH II (JERSEY), L.P.
INDEX VENTURES GROWTH II PARALLEL ENTREPRENEUR FUND (JERSEY), L.P.
INSTITUTIONAL VENTURE PARTNERS XIV, X.X.
XXXXX PARTNERS III, L.P.
XXXXX X. XXXXXXX
THE XXXXXX FAMILY TRUST
EXHIBIT A
SCHEDULE OF INVESTORS (CONTINUED)
SCHEDULE 1
FIDELITY CONTRAFUND: FIDELITY CONTRAFUND
[Intentionally omitted.]
FIDELITY CONTRAFUND: FIDELITY SERIES OPPORTUNISTIC INSIGHTS FUND
[Intentionally omitted.]
FIDELITY CONTRAFUND: FIDELITY ADVISOR SERIES OPPORTUNISTIC INSIGHTS FUND
[Intentionally omitted.]
FIDELITY SECURITIES FUND: FIDELITY OTC PORTFOLIO
[Intentionally omitted.]
FIDELITY MAGELLAN FUND: FIDELITY MAGELLAN FUND
[Intentionally omitted.]
EXHIBIT A
SCHEDULE OF INVESTORS (CONTINUED)
FIDELITY MT. XXXXXX STREET TRUST: FIDELITY GROWTH COMPANY FUND
[Intentionally omitted.]
FIDELITY MT. XXXXXX STREET TRUST: FIDELITY SERIES GROWTH COMPANY FUND
[Intentionally omitted.]
FIDELITY GROUP TRUST FOR EMPLOYEE BENEFIT PLANS: FIDELITY GROWTH COMPANY COMMINGLED POOL
[Intentionally omitted.]
XXXXX EMERGING OPPORTUNITY FUND, L.P.
[Intentionally omitted.]
XXXXX EMERGING OPPORTUNITY FUND II, L.P.
[Intentionally omitted.]
XXXXX EMERGING OPPORTUNITY FUND II-A, L.P.
[Intentionally omitted.]
X. XXXXXX CO-INVEST FUND II, LLC
[Intentionally omitted.]
EXHIBIT A
SCHEDULE OF INVESTORS (CONTINUED)
SR PURE STORAGE HOLDING LLC
[Intentionally omitted.]
SCHEDULE 2
X. XXXX PRICE NEW HORIZONS FUND, INC.
[Intentionally omitted.]
X. XXXX PRICE NEW HORIZONS TRUST
[Intentionally omitted.]
X. XXXX PRICE U.S. EQUITIES TRUST
[Intentionally omitted.]
SCHEDULE 3
ALPHA OPPORTUNITIES FUND
[Intentionally omitted.]
ALPHA OPPORTUNITIES TRUST
[Intentionally omitted.]
ANCHOR SERIES CAPITAL APPRECIATION PORTFOLIO
[Intentionally omitted.]
ARKANSAS TEACHER RETIREMENT SYSTEM
[Intentionally omitted.]
BAY POND INVESTORS (BERMUDA) L.P.
[Intentionally omitted.]
BAY POND PARTNERS, L.P.
[Intentionally omitted.]
CHEVRON MASTER PENSION TRUST
[Intentionally omitted.]
DEFERRED COMPENSATION PLAN FOR EMPLOYEES OF THE CITY OF NEW YORK AND RELATED AGENCIES AND INSTRUMENTALITIES
[Intentionally omitted.]
GLOBAL MULTI-STRATEGY FUND
[Intentionally omitted.]
GREATLINK GLOBAL TECHNOLOGY FUND
[Intentionally omitted.]
HARTFORD CAPITAL APPRECIATION HLS FUND
[Intentionally omitted.]
HARTFORD GLOBAL CAPITAL APPRECIATION FUND
[Intentionally omitted.]
HARTFORD GLOBAL RESEARCH HLS FUND
[Intentionally omitted.]
HARTFORD GROWTH OPPORTUNITIES HLS FUND
[Intentionally omitted.]
HARTFORD SMALL COMPANY HLS FUND
[Intentionally omitted.]
HAZELBROOK INVESTORS (BERMUDA) L.P.
[Intentionally omitted.]
HAZELBROOK PARTNERS, L.P.
[Intentionally omitted.]
INCARNATE WORD CHARITABLE TRUST
[Intentionally omitted.]
ITHAN CREEK MASTER INVESTORS (CAYMAN) L.P.
[Intentionally omitted.]
X. XXXXX INVESTORS (BERMUDA) L.P.
[Intentionally omitted.]
X. XXXXX PARTNERS, L.P.
[Intentionally omitted.]
XXXX XXXXXXX FUNDS II SMALL CAP GROWTH FUND
[Intentionally omitted.]
XXXX XXXXXXX PENSION PLAN
[Intentionally omitted.]
XXXX XXXXXXX VARIABLE INSURANCE TRUST SMALL CAP GROWTH TRUST
[Intentionally omitted.]
MID CAP GROWTH PORTFOLIO
[Intentionally omitted.]
MID CAP STOCK FUND
[Intentionally omitted.]
MID CAP STOCK TRUST
[Intentionally omitted.]
NORTHEAST UTILITIES SERVICE COMPANY MASTER TRUST
[Intentionally omitted.]
OPTIMUM SMALL-MID CAP GROWTH FUND
[Intentionally omitted.]
PUBLIC EMPLOYEES’ RETIREMENT SYSTEM OF MISSISSIPPI
[Intentionally omitted.]
QUISSETT INVESTORS (BERMUDA) L.P.
[Intentionally omitted.]
QUISSETT PARTNERS, L.P.
[Intentionally omitted.]
SCIENCE & TECHNOLOGY FUND
[Intentionally omitted.]
THE XXXXXX XXXXX DUBUIS RELIGIOUS AND CHARITABLE TRUST
[Intentionally omitted.]
THE CONGREGATION OF THE SISTERS OF CHARITY OF THE INCARNATE WORD, HOUSTON TEXAS
[Intentionally omitted.]
THE HARTFORD CAPITAL APPRECIATION FUND
[Intentionally omitted.]
THE HARTFORD GLOBAL RESEARCH FUND
[Intentionally omitted.]
THE HARTFORD GROWTH OPPORTUNITIES FUND
[Intentionally omitted.]
THE HARTFORD SMALL COMPANY FUND
[Intentionally omitted.]
USAA SCIENCE & TECHNOLOGY FUND
[Intentionally omitted.]
VANGUARD EXPLORER FUND
[Intentionally omitted.]
SCHEDULE 4
TIGER GLOBAL PRIVATE INVESTMENT PARTNERS VII, L.P.
[Intentionally omitted.]
XXXXXXX XXXXXXXXX
[Intentionally omitted.]
