THIRD AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT
Exhibit 4.2
THIRD AMENDED AND RESTATED
INVESTORS’ RIGHTS AGREEMENT
INVESTORS’ RIGHTS AGREEMENT
This Third Amended and Restated Investors’ Rights Agreement (this “Agreement”) is made and
entered into as of December 24, 2009, by and among Carbonite, Inc., a Delaware corporation (the
“Company”), and the persons and entities listed on Exhibit A attached hereto (the
“Investors”).
A. The Company and certain of the Investors previously entered into a Second Amended and
Restated Investors’ Rights Agreement dated as of April 20, 2007, which was amended by Amendment No.
1 dated December 17, 2007 and Amendment No. 2 dated August 27, 2008 (as amended to date, the
“Original Investor Rights Agreement”) in connection with the issuance of the Company’s Series A
Preferred Stock (the “Series A Stock”), Series A-1 Preferred Stock (the “Series A-1 Stock”), Series
A-2 Preferred Stock (the “Series A-2 Stock”), Series B Preferred Stock (the “Series B Stock”),
Series B-2 Preferred Stock (the “Series B-2 Stock”) and the Series C Preferred Stock (the “Series C
Stock”) pursuant to that certain Series A Preferred Stock Purchase Agreement dated as of September
14, 2005 (the “Series A Agreement”), that certain Series A-1 Preferred Stock Purchase Agreement
dated as of December 12, 2005, as amended (the “Series A-1 Agreement”), that certain Series A-2
Preferred Stock Purchase Agreement dated as of September 12, 2006 (the “Series A-2 Agreement”),
that certain Series B Preferred Stock Purchase Agreement dated as of April 20, 2007 (the “Series B
Agreement”), that certain Series B-2 Preferred Stock Purchase Agreement dated as of December 17,
2007 (the “Series B-2 Agreement”), and that certain Series C Preferred Stock Purchase Agreement
dated as of August 27, 2008 (the “Series C Agreement”), respectively.
B. Certain of the Investors have agreed to purchase from the Company, and the Company has
agreed to sell to such Investors, shares of the Company’s Series D Preferred Stock (the “Series D
Stock”) on the terms and conditions set forth in that certain Series D Preferred Stock Purchase
Agreement, dated of even date herewith by and among the Company and such Investors (the “Series D
Agreement”).
C. In connection with the issuance and sale of the Series D Stock pursuant to the Series D
Agreement, the Company and the Investors desire to amend and restate further the Original Investor
Rights Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises hereinafter
set forth, the parties hereto agree that the Original Investor Rights Agreement shall be amended
and restated to read in its entirety as follows:
1. INFORMATION RIGHTS.
1.1 Financial Information. The Company covenants and agrees that, commencing on the
date of this Agreement, the Company will, for so long as such Investor (together with such
Investor’s affiliated entities and persons) holds (i) not less than 200,000 shares of Series B
Stock (or 600,000 shares of the Common Stock issued upon conversion of the Series B Stock, or a
combination of both) or (ii) not less than 60,000 shares of Series B-2 Stock (or 180,000 shares of
the Common Stock issued upon conversion of the Series B-2 Stock, or a combination of both) or
(iii) not less than 50,000 shares of Series C Stock (or 150,000 shares of the Common Stock
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issued upon conversion of the Series C Stock, or a combination of both) or (iv) with respect
to Sections 1.1(a), (b), (e) and (f), any shares of Series D Stock (or shares of the Common Stock
issued upon conversion of the Series D Stock), or (v) with respect to Sections 1.1(c) and (d), not
less than 50,000 shares of Series D Stock (or 150,000 shares of the Common Stock issued upon
conversion of the Series D Stock, or a combination of both) or (vi) at least five percent (5%) of
the Company’s capital stock on a fully diluted basis:
(a) Annual Reports. Furnish to such Investor, as soon as practicable and in any event
within ninety (90) days after the end of each fiscal year of the Company, a consolidated Balance
Sheet as of the end of such fiscal year, a consolidated Statement of Income and a consolidated
Statement of Cash Flows of the Company and its subsidiaries for such year, setting forth in each
case in comparative form the figures from the Company’s previous fiscal year (if any), all
prepared in accordance with generally accepted accounting principles and practices and audited by
nationally recognized independent certified public accountants;
(b) Quarterly Reports. Furnish to such Investor as soon as practicable, and in any
case within forty-five (45) days after the end of each fiscal quarter of the Company (except the
last quarter of the Company’s fiscal year), quarterly unaudited financial statements, including an
unaudited Balance Sheet, an unaudited Statement of Income, and an unaudited Statement of Cash
Flows, together with a comparison to the Company’s operating plan and budget by the Chief
Financial Officer of the Company explaining any significant differences in the statements from the
Company’s operating plan and budget for the period and stating that such statements fairly present
the consolidated financial position and consolidated financial results of the Company, for the
fiscal quarter covered;
(c) Monthly Reports. Furnish to such Investor as soon as practicable, and in any case
within thirty (30) days after the end of each calendar month (except the last month of the
Company’s fiscal year), monthly unaudited financial statements, including an unaudited Balance
Sheet, an unaudited Statement of Income and an unaudited Statement of Cash Flows, together with a
comparison to the Company’s operating plan and budget by the Chief Financial Officer of the
Company explaining any significant differences in the statements from the Company’s operating plan
and budget for the month covered and stating that such statements fairly present the consolidated
financial position and consolidated financial results of the Company for the month covered;
(d) Annual Budget. Furnish to such Investor as soon as practicable and in any event
no later than thirty (30) days prior to the close of each fiscal year of the Company, an annual
operating plan and budget, prepared on a monthly basis, for the next immediate fiscal year. The
Company shall also furnish to such Investor, within a reasonable time of its preparation,
amendments to the annual budget, if any;
(e) Capitalization Information. Furnish to such Investor promptly following the end
of each quarter an up-to-date capitalization table of the Company, certified by the Chief
Financial Officer of the Company; and
(f) Inspection Rights. Each such 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
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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 1.1(f) with respect to a competitor of the Company or with respect to
information which the Board of Directors determines in good faith is confidential or
attorney-client privileged and should not, therefore, be disclosed.”
1.2 Termination of Certain Rights. The Company’s obligations under Sections 1.1 above
will terminate (i) with respect to each series of Preferred Stock, upon the closing of the
Company’s underwritten initial public offering of Common Stock pursuant to an effective
registration statement filed under the U.S. Securities Act of 1933, as amended (the "Securities
Act”) in connection with which such series of Preferred Stock has converted into shares of Common
Stock of the Company, or (ii) upon a Deemed Liquidation (as defined in Section 3.7 of Article IV
of the Company’s Seventh Amended and Restated Certificate of Incorporation (such Seventh Amended
and Restated Certificate of Incorporation, as further amended from time to time, the “Restated
Certificate”).
2. REGISTRATION RIGHTS.
2.1 Definitions. For purposes of this Section 2:
(a) Registration. The terms “register”, “registration” and “registered” 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.
(b) Registrable Securities. The term “Registrable Securities” means: (1) all shares
of Common Stock of the Company issued or issuable upon the conversion of any shares of Series A
Stock issued under the Series A Agreement, the conversion of any shares of Series A-1 Stock issued
under the Series A-1 Agreement, the conversion of any shares of Series A-2 Stock issued under the
Series A-2 Agreement, the conversion of any shares of Series B Stock issued under the Series B
Agreement, the conversion of any shares of Series B-2 Stock issued under the Series B-2 Agreement,
the conversion of any shares of Series C Stock issued under the Series C Agreement, or the
conversion of any shares of Series D Stock issued under the Series D Agreement, and (2) any shares
of Common Stock of the Company issued (or issuable upon the conversion or exercise of any warrant,
right or other security which is issued) (i) as a dividend or other distribution with respect to,
or in exchange for or in replacement of, all such shares of Common Stock described in clause (1) of
this subsection (b); excluding in all cases, however, any Registrable Securities sold by a
person in a transaction in which rights under this Section 2 are not assigned in accordance with
this Agreement or any Registrable Securities sold to the public or sold pursuant to Rule 144
promulgated under the Securities Act.
(c) Registrable Securities Then Outstanding. The number of shares of “Registrable
Securities then outstanding” shall mean the number of shares of Common Stock which are Registrable
Securities that are then (1) issued and outstanding or (2) issuable pursuant to the exercise or
conversion of then outstanding and then exercisable and qualifying options, warrants or
convertible securities.
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(d) Holder. The term “Holder” means any person owning of record Registrable
Securities or any assignee of record of such Registrable Securities to whom rights set forth
herein have been duly assigned in accordance with this Agreement; provided,
however, that for purposes of this Agreement, a record holder of shares of Series A Stock,
Series A-1 Stock, Series A-2 Stock, Series B Stock, Series B-2 Stock, Series C Stock or Series D
Stock convertible into such Registrable Securities shall be deemed to be the Holder of such
Registrable Securities; and provided, further, that the Company shall in no event
be obligated to register shares of any series of Preferred Stock, and that Holders of Registrable
Securities will not be required to convert their shares of Preferred Stock into Common Stock in
order to exercise the registration rights granted hereunder, until immediately before the closing
of the offering to which the registration relates.
(e) Form S-3. The term “Form S-3” means such form under the Securities Act as is in
effect on the date hereof or any successor 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.
(f) SEC. The term “SEC” means the U.S. Securities and Exchange Commission.
2.2 Demand Registration.
(a) Request by Holders. If the Company shall receive at any time after the earlier of
September 14, 2012, or six (6) months after the effective date of the Company’s initial public
offering of its securities pursuant to a registration filed under the Securities Act, a written
request from the Holders of at least thirty-five percent (35%) of the Registrable Securities then
outstanding that the Company file a registration statement under the Securities Act covering the
registration of Registrable Securities pursuant to this Section 2.2, then the Company shall,
within twenty (20) days after the receipt of such written request, give written notice of such
request (the “Request Notice”) to all Holders, and effect, as soon as practicable, the
registration under the Securities Act of all Registrable Securities which Holders request to be
registered and include in such registration by notice given by such Holders to the Company within
twenty (20) days after receipt of the Request Notice, subject only to the limitations of this
Section 2; provided that the Registrable Securities requested by all Holders to be
registered pursuant to such request must have an anticipated aggregate public offering price
(before any underwriting discounts and commissions) of not less than Ten Million Dollars
($10,000,000).
(b) Underwriting. If the Holders initiating the registration request under this
Section 2.2 (the “Initiating Holders”) intend to distribute the Registrable Securities covered by
their request by means of an underwriting, then they shall so advise the Company as a part of
their request made pursuant to this Section 2.2 and the Company shall include such information in
the Request Notice referred to in subsection 2.2(a). The Initiating Holders shall select the
managing underwriter or underwriters for such registration, subject to the consent of the Company,
which shall not be unreasonably withheld. In such event, the right of any Holder to include his,
her, or its Registrable 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 (unless otherwise mutually agreed by a majority in interest of the Initiating
Holders and such Holder) to the extent provided herein. All Holders proposing to
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distribute their securities through such underwriting shall enter into an underwriting
agreement with the managing underwriter or underwriters selected for such underwriting by the
Initiating Holders (and approved by the Company). Notwithstanding any other provision of this
Section 2.2, if the underwriter(s) advise(s) the Company in writing that marketing factors require
a limitation of the number of securities to be underwritten then the Company shall so advise all
Holders of Registrable Securities that would otherwise be registered and underwritten pursuant
hereto, and the number of Registrable Securities that may be included in the underwriting shall be
reduced as required by the underwriter(s) and allocated among the Holders of Registrable
Securities on a pro rata basis according to the number of Registrable Securities then outstanding
held by each Holder requesting registration (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 and withdrawn from such underwriting shall be withdrawn from the registration.
(c) Maximum Number of Demand Registrations. The Company is obligated to effect only
two (2) such registrations pursuant to this Section 2.2 and shall only be required to effect one
(1) registration pursuant to his Section 2.2 in any twelve (12) month period.
(d) Deferral. Notwithstanding the foregoing, if the Company shall furnish to Holders
requesting the filing of a registration statement pursuant to this Section 2.2, a certificate
signed by the President or Chief Executive Officer of the Company stating that in the good faith
judgment of the Board of Directors of the Company, it would be seriously detrimental to the
Company and its stockholders for such registration statement to be filed and it is therefore
essential to defer the filing of such registration statement, then the Company shall have the
right to defer such filing for a period of not more than one hundred twenty (120) days after
receipt of the request of the Initiating Holders; provided, however, that the
Company may not utilize this right more than once in any twelve (12) month period.
(e) Expenses. All expenses incurred in connection with a registration pursuant to
this Section 2.2, including, without limitation, all registration and qualification fees,
printers’ and accounting fees, fees and disbursements of counsel for the Company, and the
reasonable fees and disbursements of one counsel for the selling Holders, not to exceed
Twenty-Five Thousand Dollars ($25,000) (but excluding underwriters’ discounts and commissions),
shall be borne by the Company. Each Holder participating in a registration pursuant to this
Section 2.2 shall bear such Holder’s proportionate share (based on the number of shares sold by
such Holder over the total number of shares included in such registration at the time it goes
effective) of all discounts, commissions or other amounts payable to underwriters or brokers in
connection with such offering. Notwithstanding the foregoing, the Company shall not be required
to pay for any expenses of any registration proceeding begun pursuant to this Section 2.2 if the
registration request is subsequently withdrawn at the request of the Holders of a majority of the
Registrable Securities to be registered, unless the Holders of a majority of the Registrable
Securities then outstanding agree to forfeit their right to one (1) demand registration pursuant
to this Section 2.2 (in which case such right shall be forfeited by all Holders of Registrable
Securities); provided, further, however, that if at the time of such
withdrawal, the Holders have learned of a material adverse change in the condition, business, or
prospects of the Company not known to the Holders at the time of their request for such
registration and have
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withdrawn their request for registration with reasonable promptness after learning of such
material adverse change, then the Holders shall not be required to pay any of such expenses and
shall retain their demand registration rights pursuant to this Section 2.2.
2.3 Piggyback Registrations. The Company shall notify all Holders of Registrable
Securities in writing at least thirty (30) days prior to filing any registration statement under
the Securities Act for purposes of effecting a public offering of securities of the Company
(including, but not limited to, registration statements relating to secondary offerings of
securities of the Company, but excluding registration statements relating to any
registration under Section 2.2 or Section 2.4 of this Agreement or to any employee benefit plan or
a corporate reorganization) and will afford each such Holder an opportunity to include in such
registration statement all or any part of the Registrable Securities then held by such Holder.
Each Holder desiring to include in any such registration statement all or any part of the
Registrable Securities held by such Holder shall, within twenty (20) days after receipt of the
above-described notice from the Company, so notify the Company in writing, and in such notice
shall inform the Company of the number of Registrable Securities such Holder wishes to include in
such registration statement. 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 a registration statement under which the Company gives notice
under this Section 2.3 is for an underwritten offering, then the Company shall so advise the
Holders of Registrable Securities. In such event, the right of any such Holder’s Registrable
Securities to be included 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 with the managing underwriter or underwriter(s) selected by the Company or
the applicable stockholders, as the case may be, for such underwriting. Notwithstanding any
other provision of this Agreement, if the managing underwriter determine(s) in good faith that
marketing factors require a limitation of the number of shares to be underwritten, then the
managing underwriter(s) may exclude shares (including Registrable Securities) from the
registration and the underwriting, and the number of shares that may be included in the
registration and the underwriting shall be allocated, first, to the Company, and
second, to each of the Holders requesting inclusion of their Registrable Securities in
such registration statement; on a pro rata basis based on the total number of Registrable
Securities then held by each such Holder; provided however, that the, right of the
underwriters to exclude shares (including Registrable Securities) from the registration and
underwriting as described above shall be restricted so that (i) the number of Registrable
Securities included in any such registration is not reduced below twenty-five percent (25%) of
the shares included in the registration, except for a registration relating to the Company’s
initial public offering or an offering solely by stockholders of the Company exercising demand
registration rights, from which all Registrable Securities may be excluded; and (ii) all shares
that are not Registrable Securities and are held by persons who are employees or directors of the
Company (or any subsidiary of the Company) shall first be excluded from such registration and
underwriting before any Registrable Securities are so excluded. If any Holder disapproves of the
terms of
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any such underwriting, such Holder may elect to withdraw therefrom by written notice, given
in accordance with Section 6.1 hereof, to the Company and the underwriter, delivered at least
twenty (20) 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 that is a partnership or corporation, the partners, retired partners
and stockholders of such Holder, or the estates and family members of any such partners and
retired partners and any trusts for the benefit of any of the foregoing persons 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.
(b) Expenses. All expenses incurred in connection with a registration pursuant to
this Section 2.3, including without limitation all registration and qualification fees, printers’
and accounting fees, fees and disbursements of counsel for the Company, and the reasonable fees
and disbursements of one counsel for the selling Holders, not to exceed Twenty-Five Thousand
Dollars ($25,000) (but excluding underwriters’ discounts and commissions), shall be borne by the
Company. Each Holder participating in a registration pursuant to this Section 2.3 shall bear such
Holder’s proportionate share (based on the number of shares sold by such Holder over the total
number, of shares included in such registration at the time it goes effective) of all discounts,
commissions or other amounts payable to underwriters or brokers in connection with such offering.
2.4 Form S-3 Registration. In case the Company shall receive from any
Holder, or Holders of at least ten percent (10%) of Registrable Securities then outstanding a
written request or requests that the Company effect a registration on Form S-3 with respect to all
or a part of the Registrable Securities owned by such Holder or Holders, then the Company will do
the following:
(a) Notice. Promptly give written notice of the proposed registration and the
Holder’s or Holders’ request therefor to all other Holders of Registrable Securities.
(b) Registration. As soon as practicable, effect such registration as may be so
requested and qualify or comply with such other rules and regulations 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 twenty (20) 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:
(1) if Form S-3 is not available for such offering;
(2) 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 at an aggregate price to
the public of less than Two Million Five Hundred Thousand Dollars ($2,500,000);
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(3) if the Company shall furnish to the Holders a certificate signed by the President or
Chief Executive Officer of the Company stating that in the good faith judgment of the Board of
Directors of the Company, 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 no more than once during any
twelve (12) month period for a period of not more than one hundred twenty (120) days after
receipt of the request of the Holder or Holders under this Section 2.4;
(4) 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
(5) 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) Expenses. Subject to the foregoing, the Company shall file a Form S-3
registration statement covering the Registrable Securities pursuant to this Section 2.4 as soon as
practicable after receipt of the request or requests of the Holders for such registration. The
Company shall pay all expenses incurred in connection with each registration requested pursuant to
this Section 2.4, (excluding underwriters’ or brokers’ discounts and commissions), including
without limitation all filing, registration and qualification, printers’ and accounting fees and
the reasonable fees and disbursements of one (1) counsel for the selling Holder or Holders, not to
exceed Twenty-Five Thousand Dollars ($25,000), and counsel for the Company. Each Holder
participating in a registration pursuant to this Section 2.3 shall bear such Holder’s
proportionate share (based on the number of shares sold by such Holder over the total number of
shares included in such registration at the tune it goes effective) of all discounts, commissions
or other amounts payable to underwriters or brokers in connection with such offering.
(d) Not Demand Registration. Form S-3 registrations shall not be deemed to be demand
registrations as described in Section 2.2 above.
2.5 Obligations of the Company. Whenever required to effect the registration of any
Registrable Securities under this Agreement, 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 reasonable efforts to cause such registration statement to become effective,
and, upon the request of the Holders of a majority of the Registrable Securities registered
thereunder, keep such registration statement effective for up to one hundred twenty (120) days.
(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.
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(c) Furnish to the Holders such number of copies of a prospectus, including a preliminary
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 the Registrable Securities
owned by them that are included in such registration.
(d) Use 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, and each Holder participating in such underwriting hereby agrees to 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 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.
(g) Furnish, at the request of any Holder requesting registration of Registrable Securities,
on the date that such Registrable Securities are delivered to the underwriters for sale, if such
securities are being sold through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such securities becomes
effective: (1) 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 and reasonably satisfactory to a majority in interest of the Holders
requesting registration, addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities and (2) a “comfort” 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 and reasonably satisfactory to a majority in interest of the Holders requesting
registration, addressed to the underwriters, if any, and to the Holders requesting registration of
Registrable Securities.
2.6 Furnish Information. It shall be a condition precedent to the obligations of the
Company to take any action pursuant to Sections 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 timely
effect the registration of their Registrable Securities.
2.7 Delay of Registration. 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.
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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) By the Company. To the extent permitted by law and subject to the limitations set
forth in this Section 2.8, the Company will indemnify and hold harmless each Holder, the partners,
officers and directors 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 Securities Exchange Act of 1934, as amended, (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, the “Violations” and,
individually, a “Violation”):
(1) any untrue statement or alleged untrue statement of a material fact contained in such
registration statement, including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto; or
(2) 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
(3) any violation or alleged violation by the Company of the Securities Act, the Exchange
Act, any federal or state securities law or any rule or regulation promulgated under the
Securities Act, the Exchange Act or any federal or state securities law in connection with the
offering covered by such registration statement.
The Company will reimburse each such Holder, partner, officer or director, underwriter or
controlling person for any legal or other expenses reasonably incurred by them, as incurred, in
connection with investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the indemnity agreement contained in this subsection
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, officer, director,
underwriter or controlling person of such Holder.
(b) By Selling Holders. To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its officers who have
signed the registration statement, 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 any
person who controls such Holder within the meaning of the Securities Act or the Exchange Act,
against any losses, claims, damages or liabilities (joint or several) to which the Company or any
such director, officer, controlling person, underwriter or other such Holder, partner or
director, officer or controlling person of such other Holder may
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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 Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information furnished by such
Holder expressly for use in connection with such registration. 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, partner, officer, director or controlling person
of such other Holder in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the indemnity agreement contained in
this subsection 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; and provided further, that the
total amounts payable in indemnity by a Holder under this Section 2.8(b) in respect of any
Violation shall not exceed the net proceeds received by such Holder in the registered offering
out of which such Violation arises.
(c) Notice. 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. 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 indemnifying parties; provided,
however, that an indemnified party shall have the right to retain its own counsel, with
the fees and expenses to be paid by the indemnifying party, if representation of such indemnified
party by the counsel retained by the indemnifying party would be, pursuant to an opinion of the
indemnified party’s counsel, inappropriate due to actual or potential conflict of 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, if prejudicial to its ability to defend such action,
shall relieve such indemnifying party of any liability to the indemnified party under this
Section 2.8, 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) Defect Eliminated in Final Prospectus. The foregoing indemnity agreements of the
Company and Holders are subject to the condition that, insofar as they relate to any Violation
made in a preliminary prospectus but eliminated or remedied in the amended prospectus on file with
the SEC at the time the registration statement in question becomes effective or the amended
prospectus filed with the SEC pursuant to SEC Rule 424(b) (the “Final Prospectus”), such indemnity
agreement shall not inure to the benefit of any person if a copy of the Final Prospectus was
furnished to the indemnified party and was not furnished to the person asserting the loss,
liability, claim or damage at or prior to the time such action is required by the Securities Act.
(e) Contribution. In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which either (1) any Holder exercising rights
under this Agreement, or any controlling person of any such Holder, makes a
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claim for indemnification pursuant to this Section 2.8 but it is judicially determined (by
the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of
time to appeal or the denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this Section 2.8 provides for indemnification
in such case, or (2) contribution under the Securities Act may be required on the part of any such
selling Holder or any such controlling person in circumstances for which indemnification is
provided under this Section 2.8; then, and in each such case, the Company and such Holder will
contribute to the aggregate losses, claims, damages or liabilities to which they may be subject
(after contribution from others) in such proportion so that such Holder is responsible for the
portion represented by the percentage that the public offering price of its Registrable Securities
offered by and sold under the registration statement bears to the public offering price of all
securities offered by and sold under such registration statement, and the Company and other
selling Holders are responsible for the remaining portion; provided, however, that
in any such case, (A) no such Holder will be required to contribute any amount in excess of the
public offering price of all such Registrable Securities offered and sold by such Holder pursuant
to such registration statement; and (B) no person or entity guilty of fraudulent misrepresentation
(within the meaning of Section 11 (f) of the Securities Act) will be entitled to contribution from
any person or entity who was not guilty of such fraudulent misrepresentation.
(f) Survival. The obligations of the Company and Holders under this Section 2.8 shall
survive the completion of any offering of Registrable Securities in a registration statement.
2.9 “Market Stand-Off” Agreement. Each Holder hereby agrees that it shall not, to the
extent requested by the Company or an underwriter of securities of the Company, sell or otherwise
transfer or dispose of any Registrable Securities (other than to donees or partners of the Holder
who agree to be similarly bound) for up to one hundred eighty (180) days following the effective
date of a registration statement of the Company filed under the Securities Act; provided,
however, that:
(a) such agreement shall be applicable only to the first such registration statement of the
Company which covers securities to be sold on its behalf to the public in an underwritten offering
but not to Registrable Securities sold pursuant to such registration statement;
(b) (i) all officers and directors of the Company then holding Common Stock of the Company
and (ii) all stockholders holding in the aggregate at least five percent (5%) of the total equity
of the Company, enter into similar agreements; and
(c) any discretionary waiver or termination of the restrictions set forth in such agreement
or this Section 2.9 by the Company or the underwriters shall apply to all Holders on a pro rata
basis according to the total number of Registrable Securities owned by each Holder.
For purposes of this Section 2.9, the term “Company” shall include any wholly-owned subsidiary of
the Company into which the Company merges or consolidates. In order to enforce the foregoing
covenant, the Company shall have the right to place restrictive legends on the certificates
representing the shares subject to this Section and to impose stop transfer
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instructions with respect to the Registrable Securities and such other shares of stock of each
Holder (and the shares or securities of every other person subject to the foregoing restriction)
until the end of such period.
2.10 Rule 144 Reporting. With a view to making available the benefits of certain
rules and regulations of the SEC which may at any time permit the sale of the Registrable
Securities to the public without registration, after such time as a public market exists for the
Common Stock of the Company, the Company agrees to:
(a) Make and keep public information available, as those terms are understood and defined in
Rule 144 under the Securities Act, at all times after the effective date of the first
registration under the Securities Act filed by the Company for an offering of its securities to
the general public;
(b) Use reasonable, diligent efforts to file with the SEC in a timely manner all reports and
other documents required of the Company under the Securities Act and the Exchange Act (at any time
after it has, become subject to such reporting requirements); and
(c) So long as a Holder owns any Registrable Securities, to furnish to the Holder forthwith
upon request a written statement by the Company as to its compliance with the reporting
requirements of said Rule 144 (at any time after ninety (90) days after the effective date of the
first registration statement filed by the Company for an offering of its securities to the
general public), and of the Securities Act and the Exchange Act (at any time after it has become
subject to the reporting requirements of the Exchange Act), a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents of the Company as a Holder
may reasonably request in availing itself of any rule or regulation of the SEC allowing a Holder
to sell any such securities without registration (at any time after the Company has become
subject to the reporting requirements of the Exchange Act).
2.11 Termination of the Company’s Obligations. The Company shall have no obligations
pursuant to this Section 2, and all registration rights set forth in Sections 2.2, 2.3 and 2.4
shall terminate, on the earlier of: (a) five (5) years after the closing date of the Company’s
initial public offering; (b) consummation of a Deemed Liquidation (as defined in Section 3.7 of
Article IV of the Company’s Restated Certificate) or (c) the date on which all Registrable
Securities proposed to be sold by a Holder may, in the opinion of counsel to the Company, be sold
in a three (3) month period without registration under the Securities Act pursuant to Rule 144
under the Securities Act.
2.12 Limitations on Subsequent Registration Rights. From and after the date of this
Agreement, the Company shall not, without the prior written consent of the Holders of a majority
of the Registrable Securities then outstanding, enter into any agreement with any holder or
prospective holder of any securities of the Company which would allow such holder or prospective
holder (a) to include such securities in any registration filed under Section 2.2 hereof, unless
under the terms of such agreement, such holder or prospective holder may include such securities
in any such registration only to the extent that the inclusion of his securities will not reduce
the amount of the Registrable Securities of the Holders which is included, or (b) to make a demand
registration which could result in such registration statement being declared effective prior to
the earlier of either of the dates set forth in subsection 2.2(a),
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or within one hundred twenty (120) days of the effective date of any registration effected
pursuant to Section 2.2.
3. RIGHT OF FIRST REFUSAL.
3.1 General. Each Holder (as defined in Section 2.1(d)) and any party to whom such
Holder’s rights under this Section 3 have been duly assigned in accordance with this Agreement
(each such Holder or assignee being hereinafter referred to as a “Rights Holder”) has the
right of first refusal to purchase such Rights Holder’s Pro Rata Share (as defined herein), of all
(or any part) of any “New Securities” (as defined in Section 3.2) that the Company may from time
to time issue after the date of this Agreement. A Rights Holder’s “Pro Rata Share” for purposes of
this right of first refusal is the ratio of (a) the number of Registrable Securities as to which
such Rights Holder is the Holder (and/or is deemed to be the Holder under Section 2.1(d)), to (b)
the number of shares of Common Stock of the Company equal to the sum of (1) the total number of
shares of Common Stock of the Company then outstanding plus (2) the total number of shares of
Common Stock of the Company into which all then outstanding shares of Preferred Stock of the
Company are then convertible. For purposes of this Agreement, “Preferred Stock” shall mean the
Company’s outstanding Series A Stock, Series A-1 Stock, Series A-2 Stock, Series B Stock, Series
B-2 Stock, Series C Stock and Series D Stock.
3.2 New Securities. “New Securities” shall mean any Common Stock or Preferred Stock
of the Company, whether now authorized or not, and rights, options or warrants to purchase such
Common Stock or Preferred Stock, and securities of any type whatsoever that are, or may become,
convertible or exchangeable into such Common Stock or Preferred Stock; provided,
however, that the term “New Securities” does not include:
(a) shares of Common Stock issued or issuable upon conversion of the outstanding shares of
any series of Preferred Stock;
(b) up to 3,601,551 shares of Common Stock (or options, warrants or rights therefor) granted
or issued hereafter to employees, officers, directors, contractors, consultants or advisers to,
the Company or any of its subsidiaries pursuant to incentive agreements, stock purchase or stock
option plans, stock bonuses or awards, warrants, contracts or other arrangements that are approved
by the Board of Directors (such number of shares to be calculated net of any repurchases of such
shares by the Company and net of any such expired or terminated options, warrants or rights and to
be proportionally adjusted to reflect any subsequent stock split, stock dividend or the like);
provided, that the reference to such number of shares of Common Stock set forth herein shall
automatically be deemed amended to mirror the number of shares available for issuance pursuant to
the Company’s 2005 Stock Incentive Plan if such plan is further amended by the Company’s
stockholders with respect to the number of shares of Common Stock available for issuance under
such plan;
(c) up to 100,000 shares of the Company’s Common Stock or Preferred Stock (and/or options or
warrants therefor) issued or issuable to parties that are providing the Company with equipment
leases, real property leases, loans, credit lines, guaranties of indebtedness, cash price
reductions or similar transactions, under arrangements, in each case, approved by the Board of
Directors;
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(d) shares of Common Stock or Preferred Stock issued pursuant to the acquisition of another
corporation or entity by the Company by consolidation, merger, purchase of all or substantially
all of the assets, or other reorganization in which the Company acquires, in a single transaction
or series of related transactions, all or substantially all of the assets of such other
corporation or entity or fifty percent (50%) or more of the voting power of such other corporation
or entity or fifty percent (50%) or more of the equity ownership of such other entity; provided
that such transaction or series of transactions has been approved by the Company’s Board of
Directors;
(e) shares of Common Stock or Preferred Stock issuable upon exercise of any options, warrants
or rights to purchase any securities of the Company outstanding as of the date of the Restated
Certificate and any securities issuable upon the conversion thereof;
(f) shares of Common Stock issued pursuant to stock split, stock dividend or the like;
(g) shares of Common Stock issued or issuable in a public offering where (1) prior to or in
connection with such public offering all outstanding shares of Preferred Stock will be converted
to Common Stock or (2) the filing of the first registration statement related to such public
offering occurs prior to the first anniversary of the date on which the first shares of Series D
Stock were issued by the Company; and
(h) 3,772 shares of Series A-2 Preferred Stock issued or issuable pursuant to a Preferred
Stock Purchase Warrant to be issued to Square One Bank or its affiliates or permitted transferees.
3.3 Procedures. In the event that the Company proposes to undertake an issuance of
New Securities, it shall give to each Rights Holder a written notice of its intention to issue New
Securities (the “Notice”), describing the type of New Securities and the price and the general
terms upon which the Company proposes to issue such New Securities given in accordance with
Section 6.1 hereof. Each Rights Holder shall have twenty (20) days from the date such Notice is
effective, as determined pursuant to Section 6.1 hereof based upon the manner or method of notice,
to agree in writing to (i) purchase such Rights Holder’s Pro Rata Share of such New Securities for
the price and upon the general terms specified in the Notice by giving written notice to the
Company and stating therein the quantity of New Securities to be purchased (not to exceed such
Rights Holder’s Pro Rata Share) and (ii) if electing to purchase such Pro Rata Shares of New
Securities, such Rights Holder’s intention to purchase any shares pursuant to any rights to
overallotment (as described below). If any Rights Holder fails to so agree in writing within such
twenty (20) day period to purchase such Rights Holder’s full Pro Rata Share of an offering of New
Securities (a “Nonpurchasing Holder”), then such Nonpurchasing Holder shall forfeit the right
hereunder to purchase that part of his Pro Rata Share of such New Securities (and shall forfeit
any right to overallotment) that he, she or it did not so agree to purchase. Each Rights Holder
who has timely agreed to purchase his full Pro Rata Share of such offering of New Securities (a
“Purchasing Holder”) shall also have a right of overallotment such that such Purchasing Holder may
purchase a portion of any Nonpurchasing Holder’s unpurchased Pro Rata Share of such offering of
New Securities on a
15
pro rata basis according to the relative Pro Rata Shares of the Purchasing Rights Holders.
If a Purchasing Holder elects to exercise his overallotment rights, he shall so agree within the
same 20-day period from the date such Notice is effective.
3.4 Failure to Exercise. In the event that the Rights Holders fail to exercise in
full the right of first refusal within such twenty (20) day period, then the Company shall have
ninety (90) days thereafter to sell the New Securities with respect to which the Rights Holders’
rights of first refusal hereunder were not exercised, at a price and upon general terms not
materially more favorable to the purchasers thereof than specified in the Company’s Notice to the
Rights Holders. In the event that the Company has not issued and sold the New Securities within
such ninety (90) day period, then the Company shall not thereafter issue or sell any New
Securities without again first offering such New Securities to the Rights Holders pursuant to
this Section 3.
3.5 Termination. This right of first refusal shall terminate (a) immediately before
the closing of the first underwritten sale of Common Stock of the Company to the public pursuant
to a registration statement filed with, and declared effective by, the SEC under the Securities
Act, covering the offer and sale of Common Stock to, the public or (b) upon the consummation of a
Deemed Liquidation (as defined in the Company’s Restated Certificate).
4. ASSIGNMENT AND AMENDMENT.
4.1 | Assignment. Notwithstanding anything herein to the contrary: |
(a) Information Rights. The rights of an Investor under Section 1 hereof may be
assigned only to a party who acquires from an Investor (or an Investor’s permitted assigns) at
least that minimum number of shares of any series of Preferred Stock or an equivalent number (on
an as-converted basis) of shares of Common Stock as described in Section 1.1.
(b) Registration Rights; Refusal Rights. The registration rights of a Holder under
Section 2 hereof and the rights of first refusal of a Rights Holder under Section 3 hereof may be
assigned only to a party who acquires at least 50,000 shares of any series of Preferred Stock
issued under the Series A Agreement, the Series A-1 Agreement, the Series A-2 Agreement, the
Series B Agreement, the Series B-2 Agreement, the Series C Agreement or the Series D Agreement,
as applicable, and/or an equivalent number (on an as-converted basis) of Registrable Securities
issued upon conversion thereof; provided, however that the Company is given
written notice by the assigning party at the time of such assignment stating the name and address
of the assignee and identifying the securities of the Company as to which the rights in question
are being assigned; and provided further that any such assignee shall receive
such assigned rights subject to all the terms and conditions of this Agreement, including without
limitation the provisions of this Section 4. The foregoing assignments of the registration
rights under Section 2 and rights of first refusal under Section 3 may be made without the
Company’s consent so long as the Company is provided written notice, and if the assignment is to
a partner, affiliate, stockholder, parent, child or spouse of the holder or to the holder’s
estate, such assignment may be made without obtaining the minimum number of shares of the
Registrable Securities noted above.
16
(c) Notwithstanding any other provision of this Agreement or any other provision of any
other agreement among some or all of the parties hereto, Menlo Ventures X, L.P., Menlo
Entrepreneurs Fund X, L.P. and MMEF X, L.P. and any Menlo Ventures Party may, from time to time,
transfer all or any portion of the shares of capital stock of the Company that any such entity
owns to any affiliate of MV Management X, L.L.C. (each a “Menlo Ventures Party”); provided,
however, that the Menlo Ventures Party to whom shares are transferred must first agree, in
writing, to be bound by the terms of this Agreement and any Related Agreement (as defined in the
Series B Agreement and as each such Related Agreement may be amended from time to time).
4.2 Amendment and Waiver of Rights. Except as otherwise expressly provided, any
provision of this Agreement may be amended and the obligations of the Company and the rights of
the Holders under this Agreement may be waived (either generally or in a particular instance and
either retroactively or prospectively), only upon the written consent of the Company and the
holders (and/or any of their permitted successors or assigns) of at least a majority of the
then-outstanding Registrable Securities; provided, however, that any amendment or waiver of
Section 2 of this Agreement only with the written consent of the Company and the holders of at
least sixty-six and two-thirds percent (66 2/3%) of then-outstanding Registrable Securities. Any
amendment or waiver effected in accordance with this Section 4.2 shall be binding upon each
Investor, each Holder, each permitted successor or assignee of such Investor or Holder and the
Company; provided, however, that any amendment or waiver of a provision of this Agreement that
applies to a particular Holder or Investor but does not affect all Holders or Investors in a
proportionately similar manner shall not be effected without the written consent of the Holder or
Investor affected in the dissimilar manner.
5. ADDITIONAL COVENANTS.
5.1 Matters Requiring Non-Employee Director Approval. So long as
the Investors who originally purchased shares (the
“Original Investors”) of Series A Stock, Series
A-1 Stock, Series A-2 Stock, Series B Stock, Series B-2 Stock, Series C Stock or Series D Stock
pursuant to the Series A Agreement, the Series A-1 Agreement, the Series A-2 Agreement, the Series
B Agreement, the Series B-2 Agreement, the Series C Agreement and the Series D Agreement,
respectively, continue to hold at least forty percent (40%) of the outstanding Series A Stock,
Series A-1 Stock, Series A-2 Stock, Series B Stock, Series B-2 Stock, Series C Stock and Series D
Stock, in the aggregate, the Company will not, without the approval of a majority of the members of
the Board of Directors of the Company who are not employees of the Company:
(a) make any loan or advance to, or own any stock or other securities of, any subsidiary or
other corporation, partnership, or employee or director of the Company;
(b) guarantee any indebtedness except for trade accounts of the Company or any subsidiary
arising in the ordinary course of business;
(c) make any investment other than investments in prime commercial paper, money market funds,
certificates of deposit in any United States bank having a net worth in excess of $100,000,000, or
obligations issued or guaranteed by the United States of America;
17
(d) enter into or be a party to any transaction with any director, officer or employee of the
Company or any “associate” (as defined in Rule 12b-2 promulgated under the Exchange Act) of any
such person except transactions resulting in payments to or by the Company in an amount less than
$100,000 per year, or transactions made in the ordinary course of business and pursuant to
reasonable requirements of the Company’s business and upon fair and reasonable terms that are
approved by a majority of the Board of Directors;
(e) hire, fire or change the compensation of the executive officers, including approving any
options that are components of such compensation arrangements; or
(f) sell, transfer, license, pledge or encumber technology or intellectual property, other
than licenses granted in the ordinary course of business.
5.2 Stock Vesting. For so long as the any series of Preferred Stock remains
outstanding, all options, stock and stock equivalents issued by the Company to employees,
directors, consultants or other service providers of the Company after the Closing of the
transactions contemplated by this Agreement shall vest as follows: twenty-five percent (25%) of the
shares one (1) year following the vesting commencement dates, with the remaining seventy-five
percent (75%) vesting in equal quarterly installments over the next three (3) years, unless the
Company’s Board of Directors approves different vesting terms (which approval must include the
consent of at least one director designated by the holders of Series A Stock, Series A-1 Stock and
Series A-2 Stock (together), the Series B Stock or the Series D Stock). The Company shall have a
repurchase option that provides that upon the termination of an employment, consulting or service
providing relationship, with or without cause, or upon a director’s departure from the Board of
Directors, the Company shall have the option to repurchase all unvested shares of restricted stock
held by such shareholder.
5.3 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.
5.4 Key Person Insurance. Until the earlier of the date on which the Preferred Stock
is no longer outstanding or the applicable Founder (as defined herein) is no longer employed by the
Company, the Company shall maintain life insurance on Xxxxx Xxxxxx and Xxxxxx Xxxxxxx (the
“Founders”) in an amount satisfactory to the Board of Directors of the Company with proceeds of
such insurance policy payable to the Company.
5.5 Business Insurance. The Company has, and shall maintain, general business
insurance policies in order to allow the Company to replace any of its properties that may be
destroyed or damaged, such insurance, as currently in place, is for amounts and with insurers that
are reasonably satisfactory to the Board of Directors of the Company.
5.6 Non-Disclosure and Proprietary Rights Agreements. The Company shall have each new
and existing employee, consultant and service provider with access to any confidential information
or trade secrets of the Company enter into a non-disclosure and proprietary rights assignment
agreement for so long as any shares of Preferred Stock remain outstanding.
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5.7 Board of Directors Matters. For so long as the holders of the Series A Stock, the
holders of the Series A-1 Stock and Series A-2 Stock (together), the holders of Series B Stock or
the holders of Series D Stock have the right to designate a member of the Board of Directors of the
Company, whether pursuant to contract or the Company’s Restated Certificate:
(a) Meetings. The Board of Directors shall meet at least four times per year, unless
otherwise agreed by a vote of the majority of directors, and shall have informal conference calls
or meetings as needed between meeting dates. The Company shall reimburse all non-employee members
of the Board of Directors for all reasonable out-of-pocket expenses incurred in attending meetings
of the Board of Directors.
(b) Directors’ and Officers’ Indemnity. The Company’s amended and restated
certificate of incorporation, as in effect, or Bylaws shall provide (a) for the elimination of the
liability of directors for breach of fiduciary duty to the maximum extent permitted by law and (b)
for indemnification of directors for acts on behalf of the Company.
(c) Directors’ and Officers’ Insurance. The Company has, and shall maintain,
directors’ and officers’ insurance, which is with a carrier and in an amount (not less than
$3,000,000) that is and shall remain reasonably satisfactory to the Board of Directors and the
holders of a majority of the Preferred Stock until the provisions of this Section 5 terminate. In
the event the Company merges with another entity and is not the surviving corporation, or transfers
all of its assets, proper provisions shall be made so that successors of the Company assume
Company’s obligations with respect to indemnification of the members of the Board of Directors.
5.8 Termination. The covenants and other provisions of this Section 5 shall terminate
(a) immediately before the closing of the first underwritten sale of Common Stock of the Company to
the public pursuant to a registration statement filed with, and declared effective by, the SEC
under the Securities Act, covering the offer and sale of Common Stock to, the public or (b) upon
the consummation of a Deemed Liquidation.
6. GENERAL PROVISIONS.
6.1 Notices. Except as may be otherwise provided herein, all notices, requests,
waivers and other communications made pursuant to this Agreement shall be in writing and shall be
conclusively deemed to have been duly given (a) when hand delivered to the other party; (b) upon
successful transmission if sent by e-mail or by facsimile at the address and number set forth
below, with a confirming copy sent by U.S. mail if receipt of such email or facsimile has not been
acknowledged in a timely manner; (c) three (3) business days after deposit in the U.S. mail first
class, postage prepaid, addressed to the party as set forth below; or (d) the next business day
after deposit with a national overnight delivery service, postage prepaid, addressed to the parties
as set forth below. A party may change or supplement the addresses given below, or designate
additional addresses, for purposes of this section by giving the other party written notice of the
new address in the manner set forth above.
(a) If to an Investor, at such Investor’s respective address as set forth on Exhibit A
hereto.
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(b) If to the Company, marked “Attention: President”, at 000 Xxxxxxxxxx Xxxxxx,
00xx xxxxx, Xxxxxx, XX 00000, fax (000) 000-0000.
6.2 Entire Agreement. This Agreement and the schedules and exhibits hereto which
are hereby expressly incorporated herein by this reference constitute the entire understanding
and agreement between the parties with regard to the subjects hereof and thereof, and supersede
any and all prior understandings and agreements, whether oral or written, between or among the
parties hereto with respect to the specific subject matter hereof.
6.3 Governing Law. This Agreement will be governed by and construed in accordance
with the laws of the State of Delaware without giving effect to that body of laws pertaining to
conflict of laws. With respect to any claim arising out of or related to this Agreement or the
Securities purchased hereunder, each Investor hereby agrees that such claim may be brought in the
courts located in the State of California and submits and consents to the jurisdiction of the
courts located in the State of California.
6.4 Severability. If any paragraph, provision or clause of this Agreement shall be
found or be held to be illegal, invalid or unenforceable, the remainder of this Agreement shall be
valid and enforceable and the parties shall use good faith to negotiate a substitute, valid and
enforceable provision that most nearly effects the parties’ intent in entering into this
Agreement.
6.5 Third Parties. Nothing in this Agreement, express or implied, is intended to
confer upon any person, other than the parties hereto and their successors and assigns, any
rights or remedies under or by reason of this Agreement.
6.6 Successors And Assigns. Except as otherwise expressly provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns,
heirs, executors and administrators of the parties hereto.
6.7 Titles and Headings. The titles, captions and headings of this Agreement are
included for ease of reference only and will be disregarded in interpreting or construing this
Agreement. Unless otherwise specifically stated, all references herein to “sections” and
“exhibits” will mean “sections” and “exhibits” to this Agreement.
6.8 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.
6.9 Costs And Attorneys’ Fees. In the event that any action, suit or other
proceeding is instituted concerning or arising out of this Agreement or any transaction
contemplated hereunder, the prevailing party shall recover all of such party’s costs and
attorneys’ fees incurred in each such action, suit or other proceeding, including any and all
appeals or petitions therefrom.
6.10 Adjustments for Stock Splits, Etc. Wherever in this Agreement there is a
reference to a specific number of shares of Common Stock or Preferred Stock of the Company of any
class or series, then, upon the occurrence of any subdivision, combination or stock dividend of
such class or series of stock, the specific number of shares so referenced in this
20
Agreement shall automatically be proportionally adjusted to reflect the affect on the
outstanding shares of such class or series of stock by such subdivision, combination or stock
dividend.
6.11 Aggregation of Stock. For purposes of this Agreement, all shares held or
acquired by affiliated entities or persons shall be aggregated together for the purpose of
determining the availability of any rights under this Agreement.
6.12 Further Assurances. The parties agree to execute such further documents and
instruments and to take such further actions as may be reasonably necessary to carry out the
purposes and intent of this Agreement.
6.13 Facsimile Signatures. This Agreement may be executed and delivered by facsimile
and upon such delivery the facsimile signature will be deemed to have the same effect as if the
original signature had been delivered to the other party.
6.14 Delays or Omissions. No delay or omission to exercise any right, power or
remedy accruing to the Company or to any Investor, upon any breach or default of any party hereto
under this Agreement, shall impair any such right, power or remedy of the Company, or any such
Investor nor shall it be construed to be a waiver of any such breach or default, or an
acquiescence therein, or of any similar breach of default thereafter occurring; nor shall any
waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character on the part of the Company or an Investor of any
breach of default under 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, or by
law or otherwise afforded to the Company or an Investor shall be cumulative and not alternative.
6.15 Amendment of Original Investor Rights Agreement. The Original Investor Rights
Agreement is hereby amended and superseded in its entirety and restated herein. Such amendment
and restatement is effective upon the execution of this Agreement by the Company and the parties
required for an amendment pursuant to Section 4.2 of the Original Investor Rights Agreement. Upon
such execution, all provisions of, rights granted and covenants made in the Original Investor
Rights Agreement are hereby waived, released and superseded in their entirety by the provisions
hereof and shall have no further force or effect.
21
IN WITNESS WHEREOF, the parties hereto have executed this Investor Rights’ Agreement as of the date and year first written above. |
CARBONITE, INC. |
||||
By: | /s/ Xxxxx Xxxxxx | |||
Xxxxx Xxxxxx, President | ||||
[Third Amended and Restated Investors’ Rights Agreement]
INVESTORS: | ||||
/s/ Xxxxxxx Xxxxxx | ||||
Xxxxxxx Xxxxxx | ||||
/s/ Xxxxx Xxxxxx | ||||
Xxxxx Xxxxxx | ||||
WATERLINE CAPITAL, LLC | ||||
By: /s/ Xxxxxxxxx Xxxxxx | ||||
Xxxxxxxxx Xxxxxx, Member | ||||
/s/ Xxxxxx Xxxxxxx | ||||
Xxxxxx Xxxxxxx | ||||
/s/ Xxxx Xxxxxxx | ||||
Xxxx Xxxxxxx | ||||
/s/ Xxxxx X. Pravda | ||||
Xxxxx X. Pravda, individually and under power of attorney for each of Xxxxxxx Xxxxxxx, Xxxxxx Xxxxxxx, the Oaks Family LLC, Xxxxxx Xxxxxxx, Xxxxx Xxxxxxx, Xxxxxx XxxXxxxxx, Xxxx Xxxxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxxx, Xxxxx Xxx, Xxxx Xxxxxxxxx, Xxxx Xxxxx, the Xxxxx-Xxxxxxxx Family Trust, Xxxxx X. Xxxxx and Xxxx X. Xxxxxx | ||||
/s/ Xxxxxx X. Xxxxxxx | ||||
Xxxxxx X. Xxxxxxx | ||||
/s/ Xxxxxxx X. Xxxxxx | ||||
Xxxxxxx X. Xxxxxx | ||||
/s/ Xxxx Xxxxxx | ||||
Xxxx Xxxxxx | ||||
COMMONANGELS CO-INVESTMENT FUND II LLC: | ||||
By: /s/ Xxxxx Xxxxxxx | ||||
Name: Xxxxx Xxxxxxx | ||||
Title: Managing Director | ||||
Alain Hanover |
[Third Amended and Restated Investors’ Rights Agreement]
Xxxxxx X. Xxxxxxx Trust —2003 | ||||
By: /s/ Xxxxxx X Xxxxxxx | ||||
Xxxxxx X Xxxxxxx, Trustee | ||||
Xxxxx X. Xxxxxxx Trust —2003 | ||||
By: /s/ Xxxxx X. Xxxxxxx | ||||
Xxxxx X. Xxxxxxx, Trustee | ||||
Xxxxx Xxxxx | ||||
/s/ Xxxxxxx Xxxxxxx | ||||
Xxxxxxx Xxxxxxx | ||||
/s/ Xxxxxxx Xxxx | ||||
Xxxxxxx Xxxx | ||||
X.X. Xxxxx Nominee No. 1 Trust: | ||||
By: /s/ X.X. Xxxxx | ||||
X.X. Xxxxx, Trustee | ||||
US Unlimited Inc. | ||||
By: | ||||
Xxxxxxx Xxxxxxxxxxxx, President | ||||
/s/ Xxxxxxx X. Xxxx | ||||
Xxxxxxx X. Xxxx | ||||
/s/ Xxxxx X. Xxxxxx | ||||
Xxxxx X. Xxxxxx | ||||
/s/ Xxxxxxx Xxxxxxxxxx | ||||
Xxxxxxx Xxxxxxxxxx | ||||
/s/ Xxxxxxx Xxxxxxxxx | ||||
Xxxxxxx Xxxxxxxxx | ||||
/s/ Xxxxxx Xxxxxx | ||||
Xxxxxx Xxxxxx | ||||
Xxxxxx Xxxxxx | ||||
/s/ Xxxxxx Xxxxxxxxx | ||||
Xxxxxx Xxxxxxxxx | ||||
/s/ Xxxxxx Xxxxxxx | ||||
Xxxxxx Xxxxxxx |
[Third Amended and Restated Investors’ Rights Agreement]
Xxxxx Xxxxx | ||||
Xxx Xxxxxxxxx | ||||
/s/ Xxxxxx Xxxxxxxxxx | ||||
Xxxxxx Xxxxxxxxxx | ||||
S&S Investments, a partnership | ||||
By: /s/ Xxxx Xxxxxx | ||||
Xxxx Xxxxxx, Partner | ||||
/s/ Xxxxx Xxxx | ||||
Xxxxx Xxxx | ||||
/s/ Xxxxxxx Xxxxx | ||||
Xxxxxxx Xxxxx | ||||
SHARPTOWN LIMITED: | ||||
By: /s/ Kiran Xxxxxxxxxx Xxxxx | ||||
Name: Kiran Xxxxxxxxxx Xxxxx | ||||
Title: Director | ||||
By: /s/ Xxxxx Xxxx Xxxx Xxxxxx | ||||
Name: Xxxxx Xxxx Xxxx Xxxxxx | ||||
Title: Director | ||||
/s/ Xxxx Xxxxxxx | ||||
Xxxx Xxxxxxx | ||||
/s/ Xxxxx Xxxxxxx | ||||
Xxxxx Xxxxxxx | ||||
/s/ Xxxxxx Xxxxx | ||||
Xxxxxx Xxxxx | ||||
Bantam Group LLC | ||||
/s/ Xxxxxx Xxxxxx | ||||
Xxxxxx Xxxxxx, President | ||||
/s/ X. Xxxxxx Dilg | ||||
X. Xxxxxx Xxxx |
[Third Amended and Restated Investors’ Rights Agreement]
MENLO VENTURES X, L.P. MENLO ENTREPRENEURS FUND X, L.P. MMEF X, L.P. |
||||
BY: | MV MANAGEMENT X, L.L.C. | |||
Their General Partner |
By: | /s/ Xxxxxx Xxxxxxxx | |||
Managing Member |
FOUR RIVERS PARTNERS, L.P. |
||||
BY: | FSL Capital, LLC, its General Partner |
By: | /s/ Xxxxxx Xxxxx | |||
Xxxxxx Xxxxx, Managing Member |
TRANSLINK CAPITAL PARTNERS I, L.P. |
||||
BY: | Translink Management I, L.L.C., its general | |||
partner |
By: | /s/ Xxx Xxx | |||
Xxx Xxx, Managing Director |
REDPINE FINANCE HOLDINGS, INC. |
||||
By: | /s/ Xxxxx Xxxx | |||
Name: Xxxxx Xxxx | ||||
Title: Authorized Signatory | ||||
[Third Amended and Restated Investors’ Rights Agreement]
PERFORMANCE DIRECT INVESTMENTS, II, L.P. |
||||
By: | Performance Direct Investors II, a series of | |||
Performance Equity Management, LLC, its general | ||||
partner | ||||
By: | Performance Equity Management, LLC | |||
By: | /s/ Xxxx Xxxxxx | |||
Name: | Xxxx Xxxxxx | |||
Title: | Managing Director | |||
FIRST PLAZA GROUP TRUST JPMorgan Chase Bank, National Association, as trustee for First Plaza Group Trust for the sole benefit of Pool PMI-127 (beneficially owned by General Motors Hourly-Rate Employees Pension Plan) |
||||
By: | /s/ Xxxxxx Xxxxxxx | |||
Name: | Xxxxxx Xxxxxxx | |||
Title: | Vice President | |||
JPMorgan Chase Bank, National Association, as trustee for First Plaza Group Trust for the sole benefit of Pool PMI-129 (beneficially owned by General Motors Retirement Program for Salaried Employees) |
||||
By: | /s/ Xxxxxx Xxxxxxx | |||
Name: | Xxxxxx Xxxxxxx | |||
Title: | Vice President | |||
[Third Amended and Restated Investors’ Rights Agreement]
JPMorgan Chase Bank, National Association, as trustee for First Plaza Group Trust for the sole benefit of Pool PMI-128 (beneficially owned by Delphi Hourly-Rate Employees Pension Plan) |
||||
By: | /s/ Xxxxxx Xxxxxxx | |||
Name: | Xxxxxx Xxxxxxx | |||
Title: | Vice President | |||
JPMorgan Chase Bank, National Association, as trustee for First Plaza Group Trust for the sole benefit of Pool PMI-130 (beneficially owned by Delphi Retirement Program for Salaried Employees |
||||
By: | /s/ Xxxxxx Xxxxxxx | |||
Name: | Xxxxxx Xxxxxxx | |||
Title: | Vice President | |||
SHARPTOWN LIMITED: |
||||
By: | ||||
Name: | ||||
Title: | ||||
[Third Amended and Restated Investors’ Rights Agreement]
CROSSLINK VENTURES V, L.P. |
||||
By: | Crosslink Ventures V Holdings, L.L.C., | |||
Its General Partner | ||||
By: | /s/ Xxxxxx Contro | |||
Xxxxxx Contro, Authorized Signatory | ||||
OFFSHORE CROSSLINK VENTURES V UNIT TRUST |
||||
By: | Crosslink Ventures V Holdings, L.L.C., | |||
Investment Manager | ||||
By: | /s/ Xxxxxx Contro | |||
Xxxxxx Contro, Authorized Signatory | ||||
CROSSLINK BAYVIEW V, L.L.C. |
||||
By: | /s/ Xxxxxx Contro | |||
Xxxxxx Contro, Authorized Signatory | ||||
CROSSLINK CROSSOVER FUND V, L.P. |
||||
By: | Crossover Fund V Management, L.L.C., | |||
Its General Partner | ||||
By: | /s/ Xxxxxx Contro | |||
Xxxxxx Contro, Authorized Signatory | ||||
OCTAVE FUND |
||||
By: | /s/ Xxxx Xxxxxxxx | |||
Xxxx Xxxxxxxx, Managing Member | ||||
[Third Amended and Restated Investors’ Rights Agreement]
EXHIBIT A
List of Investors
Name, Address and Fax Number
_________________________
Xxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxx Xxxxxx, XX 00000
Fax: (000) 000-0000
X.X. Xxx 0000
Xxxx Xxxxxx, XX 00000
Fax: (000) 000-0000
Xxxxx Xxxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: 9309)000-0000
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: 9309)000-0000
Xxxxxxx Xxxxx
0 Xxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
0 Xxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Waterline Capital, LLC
c/o Xxxxxxxxx Xxxxxx
000 Xxxxxxxx Xx., #00X
Xxxxxx, XX 00000
Fax: (000) 000-0000
c/o Xxxxxxxxx Xxxxxx
000 Xxxxxxxx Xx., #00X
Xxxxxx, XX 00000
Fax: (000) 000-0000
Xxxxxx X. Xxxxxxx
c/x Xxxxxx law Firm
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
c/x Xxxxxx law Firm
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
Xxxxx Xxxxxxx
000 Xxxx Xx.
Xxxx Xxxxx, XX 00000
Fax: (000) 000-0000
000 Xxxx Xx.
Xxxx Xxxxx, XX 00000
Fax: (000) 000-0000
Xxxx Xxxxxx
0000 Xxxxxxx Xxxxx
Xxxxxx, XX
Fax: (000) 000-0000
0000 Xxxxxxx Xxxxx
Xxxxxx, XX
Fax: (000) 000-0000
Xxxxx-Xxxxxxxx Family Trust
c/o Xxxxxxx Xxxxxxxx, Trustee
000 Xxxxx Xxxxx
Xxxxxx, XX 00000
c/o Xxxxxxx Xxxxxxxx, Trustee
000 Xxxxx Xxxxx
Xxxxxx, XX 00000
[Third Amended and Restated Investors’ Rights Agreement]
Xxxxxx Xxxxxxx
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Xxxx Xxxxxxx
00 Xxx Xxxxxx Xxxx
Xxxxxx, XX 00000
00 Xxx Xxxxxx Xxxx
Xxxxxx, XX 00000
Xxxxx X. Pravda
Xxxxxx X. Xxxxxxx
Xxxxx X. Xxxxx
Xxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
c/x Xxxxx & Xxxxxxx LLP
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
Xxxxxx X. Xxxxxxx
Xxxxx X. Xxxxx
Xxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
c/x Xxxxx & Xxxxxxx LLP
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
Xxxx Xxxxxxxxx
c/o Crescendo Partners, L.P.
00 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
c/o Crescendo Partners, L.P.
00 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Xxxx Xxxxxxxxx
#00, 00 Xx. Xxxxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
Fax: (000) 000-0000
#00, 00 Xx. Xxxxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
Fax: (000) 000-0000
Xxxxxx XxxXxxxxx
00 X’Xxxxxx, Xxx. 0000,
Xxxxxx, Xxxxxx, Xxxxxx X0X 0X0
Fax: (000) 000-0000
00 X’Xxxxxx, Xxx. 0000,
Xxxxxx, Xxxxxx, Xxxxxx X0X 0X0
Fax: (000) 000-0000
Xxxxxxx Xxxxxxx
c/o Nutter XxXxxxxxx & Fish LLP
000 Xxxxxxx Xxxx.
Xxxxxx, XX 00000
Fax: (000) 000-0000
c/o Nutter XxXxxxxxx & Fish LLP
000 Xxxxxxx Xxxx.
Xxxxxx, XX 00000
Fax: (000) 000-0000
Xxxxx Xxx
00 Xxxx Xxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
00 Xxxx Xxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
[Third Amended and Restated Investors’ Rights Agreement]
Xxxxxxx Xxxxxx
00 Xxxxx Xxxx
X.X. Xxx 000
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
00 Xxxxx Xxxx
X.X. Xxx 000
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
Xxxxxx X. Xxxxxxx
The Oaks Family LLC, Xxxxxx X. Xxxxxxx, Managing Member
000 Xxxxxxx Xxxxxx — Xxxxxxxxx
Xxxxxx, XX 00000
Fax: (617)
The Oaks Family LLC, Xxxxxx X. Xxxxxxx, Managing Member
000 Xxxxxxx Xxxxxx — Xxxxxxxxx
Xxxxxx, XX 00000
Fax: (617)
Xxxxxxx Xxxxxxx
000 Xxxxxx Xx., Xxx. 0
Xxxxxx, XX 00000
Fax: (000) 000-0000
000 Xxxxxx Xx., Xxx. 0
Xxxxxx, XX 00000
Fax: (000) 000-0000
Xxxxx Xxxxxxx
The Xxxxxx Xxxxxx Xxxxxxx Memorial Trust
0 Xxxx Xxxxxx Xxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
The Xxxxxx Xxxxxx Xxxxxxx Memorial Trust
0 Xxxx Xxxxxx Xxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
CommonAngels Co-Investment Fund II, LLC
c/o Xxxxx Xxxxxxx, Managing Director
Xxx Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
c/o Xxxxx Xxxxxxx, Managing Director
Xxx Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Alain Hanover
Xxxxxx X. Xxxxxxx Trust — 2003
Xxxxx X. Xxxxxxx Trust — 2003
Xxxxx Xxxxx
Xxxxxxx Xxxxxxx Xx.
Xxxxxx Xxxx
X.X. Xxxxx Nominee Trust No. 1
US Unlimited Inc.
Xxxxxxx X. Xxxx
Xxxxx X. Xxxxxx
Xxxxxxx Xxxxxxxxxx
Xxxxxxx Xxxxxxxxx
Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx Trust — 2003
Xxxxx X. Xxxxxxx Trust — 2003
Xxxxx Xxxxx
Xxxxxxx Xxxxxxx Xx.
Xxxxxx Xxxx
X.X. Xxxxx Nominee Trust No. 1
US Unlimited Inc.
Xxxxxxx X. Xxxx
Xxxxx X. Xxxxxx
Xxxxxxx Xxxxxxxxxx
Xxxxxxx Xxxxxxxxx
Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxx
[Third Amended and Restated Investors’ Rights Agreement]
Xxxxx Xxxxx
Xxx Xxxxxxxxx
Xxx Xxxxxxxxxx
S&S Investments
Xxxxx Xxxx
Xxxxxxx Xxxxx
c/o Common Angels Co-Investment Fund II, LLC (see above)
Xxx Xxxxxxxxx
Xxx Xxxxxxxxxx
S&S Investments
Xxxxx Xxxx
Xxxxxxx Xxxxx
c/o Common Angels Co-Investment Fund II, LLC (see above)
Menlo Ventures X, L.P.
Menlo Entrepreneurs Fund X, L.P.
MMEF X, L.P.
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Menlo Entrepreneurs Fund X, L.P.
MMEF X, L.P.
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Four Rivers Partners, L.P.
0000 Xxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
0000 Xxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Xxxx Xxxxxxx
00 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
00 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
Performance Direct Investments, II, L.P.
0 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000-0000
Attn: Xxxx Xxxxxx
0 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000-0000
Attn: Xxxx Xxxxxx
First Plaza Group Trust
c/o XX Xxxxxx Chase Bank
Private Equity Fund Services
0 Xxxxx Xxxxxxxxx Xxxxx, 00xx xxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxx
With a copy to Xxxx Xxxxxx and Xxxxxx Xxxx-Xxxxxxxx at the above address
c/o XX Xxxxxx Chase Bank
Private Equity Fund Services
0 Xxxxx Xxxxxxxxx Xxxxx, 00xx xxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxx
With a copy to Xxxx Xxxxxx and Xxxxxx Xxxx-Xxxxxxxx at the above address
Xxxxx Xxxxxxx
0000 Xxxx Xxxxxx Xxxx
XX Xxx 000
Xxxxx Xxxxxxx, XX 00000
0000 Xxxx Xxxxxx Xxxx
XX Xxx 000
Xxxxx Xxxxxxx, XX 00000
[Third Amended and Restated Investors’ Rights Agreement]
Xxxxxx Xxxxx
00 Xxxxxxxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
00 Xxxxxxxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Bantam Group LLC
x/x Xxxxxx Xxxxxx
00 Xxx Xxxxxx Xxxxx
Xxxxxxxx, XX 00000-0000
x/x Xxxxxx Xxxxxx
00 Xxx Xxxxxx Xxxxx
Xxxxxxxx, XX 00000-0000
X. Xxxxxx Xxxx
POB 271
Egg Harbor, NJ 08215
POB 271
Egg Harbor, NJ 08215
Crosslink Ventures V, L.P.
Offshore Crosslink Ventures V Unit Trust
Crosslink Bayview V, L.L.C.
Crosslink Crossover Fund V, L.P.
Octave Fund
Xxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx
Offshore Crosslink Ventures V Unit Trust
Crosslink Bayview V, L.L.C.
Crosslink Crossover Fund V, L.P.
Octave Fund
Xxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx
[Third Amended and Restated Investors’ Rights Agreement]