Exhibit 10.9
iPASS INC.
AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
THIS AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT (the "Agreement") is
entered into as of August 8, 2000, by and among iPASS INC., a Delaware
corporation (the "Company") and the purchasers of the Company's Preferred Stock
("Preferred Stock") set forth on Exhibit A ("Schedule of Holders of Preferred
Stock") hereto and the founders set forth on Exhibit B ("Schedule of Founders")
hereto (the "Founders"). The purchasers of the Preferred Stock and the Founders
shall be referred to hereinafter as the "Investors" and each individually as an
"Investor."
RECITALS
WHEREAS, that certain Amended and Restated Investor Rights Agreement dated
as of September 13, 1999, by and among the Company and certain stockholders of
the Company (the "Prior Investors") (the "Prior Agreement"), provides for the
rights and obligations of the Company and such stockholders with respect to
registration rights, information rights and other rights; and
WHEREAS, in connection with the Company's issuance of shares of Series F
Preferred Stock pursuant to the Series F Preferred Stock Purchase Agreement of
even date herewith (the "Series F Purchase Agreement"), between the Company and
certain investors (the "Series F Investors"), the Company and the Prior
Investors wish to amend and restate the Prior Agreement to include the Series F
Investors as parties thereto (to the extent they are not already parties) and to
include such investors within the rights and obligations thereof.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Prior Investors hereby agree that the Prior
Agreement shall be superseded and replaced in its entirety by this Agreement,
and the parties hereto further agree as follows:
SECTION 1. GENERAL.
1.1 DEFINITIONS. As used in this Agreement the following terms shall
have the following respective meanings:
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"FORM S-3" means such form under the Securities Act as 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.
1.
"HOLDER" means any person owning of record Shares or Registrable
Securities that have not been sold to the public or any assignee of record of
such Registrable Securities in accordance with Section 2.10 hereof.
"INITIAL OFFERING" means the Company's first firm commitment
underwritten public offering of its Common Stock registered under the Securities
Act.
"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.
"REGISTRABLE SECURITIES" means (i) Common Stock of the Company
issued or issuable upon conversion of the Shares, (ii) Common Stock held by the
Founders as of the date of this Agreement as set forth on Exhibit B and any
Common Stock acquired by the Founders after the date of this Agreement, and
(iii) any Common Stock of the Company 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 sold by a person to the
public either pursuant to a registration statement or Rule 144 or sold in a
private transaction in which the transferor's rights under Article II of this
Agreement are not assigned.
"REGISTRABLE SECURITIES THEN OUTSTANDING" shall be the number of
shares determined by calculating the total number of shares of the Company's
Common Stock that are Registrable Securities and either (1) are then issued and
outstanding or (2) are issuable pursuant to then exercisable or convertible
securities.
"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 Ten Thousand Dollars (10,000) 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).
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SELLING EXPENSES" shall mean all underwriting discounts and selling
commissions applicable to the sale.
"SHARES" shall mean the Preferred Stock set forth on Exhibit A
hereto.
"SEC" or "COMMISSION" means the Securities and Exchange Commission.
2.
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.
(III) Notwithstanding the provisions of paragraphs (i) and
(ii) above, no such registration statement or opinion of counsel shall be
necessary for a transfer by a Holder which is (A) a partnership to its partners
or former partners in accordance with partnership interests, (B) a corporation
to its stockholders in accordance with their interest in the corporation, (C) a
limited liability company to its members or former members in accordance with
their interest in the limited liability company, (D) to the Holder's family
member or trust for the benefit of an individual Holder, provided the transferee
will be subject to the terms of this Agreement to the same extent as if he were
an original Holder hereunder, or (E) a wholly or majority owned subsidiary of
the Holder, provided the transferee will be subject to the terms of this
Agreement to the same extent as if it were an original Holder hereunder.
(B) Each certificate representing Shares or Registrable Securities
shall (unless otherwise permitted by the provisions of the Agreement) be stamped
or otherwise imprinted with a legend substantially similar to the following (in
addition to any legend required under applicable state securities laws or as
provided elsewhere in this Agreement):
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.
3.
(C) The Company shall be obligated to reissue promptly unlegended
certificates at the request of any holder thereof if 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 or legend.
(D) 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 (excluding the Holders set
forth on Exhibit B) of more than thirty percent (30%) of the Registrable
Securities then outstanding (the "Initiating Holders") that the Company file a
registration statement under the Securities Act covering the registration of
Registrable Securities having an aggregate offering price to the public in
excess of $7,500,000 (a "Qualified Public Offering"), 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, use
its best efforts to effect, as soon as practicable, the registration under the
Securities Act of all Registrable Securities that the 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
and the Company shall include such information in the written notice referred to
in Section 2.2(a). In such event, the right of any Holder to include 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 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 a
majority in interest of the Initiating Holders (which underwriter or
underwriters shall be reasonably acceptable to the Company). Notwithstanding any
other provision of this Section 2.2, 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 which 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). 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 (i) October 1, 2001, or
4.
(II) after the Company has effected two (2) registrations
pursuant to this Section 2.2, and such registrations have been declared or
ordered effective; or
(III) during the period starting with the date of filing of,
and ending on the date twelve (12) months following the effective date of the
registration statement pertaining to the Initial Offering; 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 bona fide intention to make its Initial
Offering within ninety (90) days and makes reasonable efforts to cause such
registration to become effective; or
(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, 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.
2.3 PIGGYBACK REGISTRATIONS. The Company shall notify all Holders of
Registrable Securities in writing at least thirty (30) 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 secondary offerings of securities of the
Company, but excluding registration statements relating to employee benefit
plans or with respect to corporate reorganizations or other transactions under
Rule 145 of the Securities Act) 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 under 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 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 in customary form with the underwriter or underwriters
selected for such underwriting by the
5.
Company. Notwithstanding any other provision of the 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. No such reduction shall reduce the
securities being offered by the Company for its own account to be included in
the registration and underwriting, and in no event shall the amount of
securities of the selling Holders included in the registration be reduced 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 sentence. In no event will shares of any other
selling stockholders be included in such registration which would reduce the
number of shares which may be included by Holders without the written consent of
Holders of not less than a majority of the Registrable Securities proposed to be
sold in the offering.
(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 prior to the effectiveness of such registration whether or not any
Holder has elected to include securities in such registration. 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 the
Holder or Holders of more than twenty percent (20%) of the Registrable
Securities then outstanding 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 (or any successor or similar form) 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 $500,000, or
6.
(III) if the Company shall furnish to the Holders a
certificate signed by the Chairman of the Board of Directors 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 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 once in
any twelve (12) month period, or
(IV) if the Company has, within the six (6) month period
preceding the date of such request, already effected a registration on Form S-3
for the Holders pursuant to this Section 2.4, or
(V) 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
request or requests of the Holders. All such Registration Expenses incurred in
connection with registrations requested pursuant to this Section 2.4 after the
first three (3) registrations shall be paid by the selling Holders pro rata in
proportion to the number of shares sold by each.
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, any registration under
Section 2.3 and the first three (3) registrations under Section 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 a majority of Registrable Securities agree to forfeit their right to one
requested registration pursuant to Section 2.2 or Section 2.4, as applicable, 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 the Company is required to pay the Registration Expenses of a
withdrawn offering pursuant to clause (a) above, then the Holders shall not
forfeit their rights pursuant to Section 2.2 or Section 2.4 to a demand
registration.
7.
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 a majority 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.
(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.
(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 Registrable Securities owned by them.
(D) Use all 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 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 a majority of the Holders
participating in the registration, 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, (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 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 (ii) a letter
dated as of such date, from the independent certified public accountants of the
Company, in form and substance as is
8.
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 if permitted by applicable accounting standards, to the Holders
requesting registration of Registrable Securities.
2.7 TERMINATION OF REGISTRATION RIGHTS. All registration rights granted
under this Article II shall terminate and be of no further force and effect five
(5) years after the date of the Company's Initial Offering. In addition, a
Holder's registration rights shall expire if (i) the Company has completed its
Initial Offering and is subject to the provisions of the Exchange Act, and (ii)
all Registrable Securities held by and issuable to such Holder may be sold under
Rule 144(k) during any ninety (90) day period.
2.8 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.
(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.
2.9 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,
defend and hold harmless each Holder, the partners, officers, directors and
legal counsel 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, 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,
9.
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 each such Holder, partner, officer or 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 2.9(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) To the extent permitted by law, each Holder 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, defend
and hold harmless the Company, each of its directors, its officers, and legal
counsel 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 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 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 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 Violation; provided, however,
that the indemnity agreement contained in this Section 2.9(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 2.9 exceed the net proceeds from the offering
received by such Holder.
(C) Promptly after receipt by an indemnified party under this
Section 2.9 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 2.9, 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,
10.
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 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, if materially
prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
2.9, 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 2.9.
(D) If the indemnification provided for in this Section 2.9 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 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) 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 exceed the proceeds from the offering received by such Holder.
(E) The obligations of the Company and Holders under this Section
2.9 shall survive completion of any offering of Registrable Securities in a
registration statement. 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.
2.10 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 which (i) is a
subsidiary, parent, general partner, limited partner or retired partner of a
Holder, (ii) is a Holder's family member or trust for the benefit of an
individual Holder, or (iii) acquires at least five hundred thousand (500,000)
shares of Registrable Securities (as adjusted for stock splits, combinations and
the like); provided, however, (A) 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 (B) such transferee shall agree
to be subject to all restrictions set forth in this Agreement.
2.11 AMENDMENT OF REGISTRATION RIGHTS. Any provision of this Section 2 may
be amended and the observance thereof may be waived (either generally or in a
particular instance
11.
and either retroactively or prospectively), only with the written consent of the
Company and the Holders of at least a majority of the Registrable Securities
then outstanding. Any amendment or waiver effected in accordance with this
Section 2.11 shall be binding upon each Holder and the Company. By acceptance of
any benefits under this Section 2, Holders of Registrable Securities hereby
agree to be bound by the provisions hereunder.
2.12 LIMITATION ON SUBSEQUENT REGISTRATION RIGHTS. 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, enter into any agreement
with any holder or prospective holder of any securities of the Company that
would grant such holder registration rights senior or equal to those granted to
the Holders hereunder.
2.13 "MARKET STAND-OFF" AGREEMENT. If requested by the Company or the
representative of the underwriters of Common Stock (or other securities) of the
Company, each Holder shall not sell or otherwise transfer or dispose of any
Common Stock (or other securities) of the Company held by such Holder (other
than those included in the registration) for a period specified by the
representative of the underwriters not to exceed one hundred eighty (180) days
following the effective date of a registration statement of the Company filed
under the Securities Act with respect to the Initial Offering and with respect
to any other offering in which such Holders of Registrable Securities are
included, provided that all officers and directors of the Company enter into
similar agreements.
The obligations described in this Section 2.13 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 Commission Rule 145 transaction on Form S-4 or similar
forms that may be promulgated in the future. 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 said one
hundred eighty (180) day period.
2.14 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;
(B) File with the SEC, in a timely manner, all reports and other
documents required of the Company under the Exchange Act;
(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; and such other reports and documents as a Holder
12.
may reasonably request in availing itself of any rule or regulation of the SEC
allowing it to sell any such securities without registration.
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, 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) 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, the
Company will furnish each Investor a consolidated balance sheet of the Company,
as at the end of such fiscal year, and a consolidated statement of income and a
consolidated statement of cash flows of the Company, for such year, all prepared
in accordance with generally accepted accounting principles consistently applied
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 auditors selected by
the Company's Board of Directors.
(C) The Company will furnish each 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 ninety (45) days
thereafter, a consolidated balance sheet of the Company as of the end of each
such quarterly period, and a consolidated statement of income and a consolidated
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, 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 (with its affiliates) shall own not less
than five hundred thousand (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 plan for such
fiscal year (and as soon as available, any subsequent revisions thereto); and
(ii) as soon as practicable after the end of each month, and in any event within
twenty (20) days thereafter, a consolidated balance sheet of the Company as of
the end of each such month, and a consolidated statement of income and a
consolidated statement of cash flows of the Company for such month and for the
current fiscal year to date, including a comparison to plan figures for such
period, prepared in accordance with generally accepted accounting principles
consistently applied, with the exception that no notes need be attached to such
statements and year-end audit adjustments may not have been made.
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,
13.
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
information which the Board of Directors determines in good faith is
confidential and creates a conflict of interest with such Major Investor.
3.3 CONFIDENTIALITY OF RECORDS. Each Investor, other than Intel
Corporation, agrees to use, and to use its best efforts to insure that its
authorized representatives use, the same degree of care as such Investor uses to
protect its own confidential information to keep confidential any information
furnished to it which the Company identifies as being confidential or
proprietary (so long as such information is not in the public domain), except
that such Investor may disclose such proprietary or confidential information to
any partner, subsidiary or parent of such Investor for the purpose of evaluating
its investment in the Company as long as such partner, subsidiary or parent is
advised of the confidentiality provisions of this Section 3.3. With respect to
Intel Corporation, the Company's confidential and proprietary information shall
be governed by that certain Corporate Non-Disclosure Agreement No. 7541436
between the Company and Intel Corporation dated as of October 14, 1998.
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 STOCK VESTING. Unless otherwise approved by the Board of Directors,
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: (i) 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 (ii)
seventy-five percent (75%) of such stock shall vest monthly over the remaining
three (3) years. With respect to any shares of stock purchased by any such
person, the Company's repurchase option shall provide that upon such person's
termination of employment or service with the Company, with or without cause,
the Company or its assignee (to the extent permissible under applicable
securities laws and other laws) shall have the option to purchase at cost any
unvested shares of stock held by such person.
3.6 KEY MAN INSURANCE. Subject to the approval of the Board of Directors,
the Company will use reasonable efforts to obtain and maintain in full force and
effect term life insurance in the amount of one million ($1,000,000) dollars on
the life of Xxxxxxx Xxxxxxxx, naming the Company as beneficiary.
3.7 PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT. The Company shall
require all employees and consultants to execute and deliver a Proprietary
Information and Inventions Agreement in substantially the form attached to the
Purchase Agreement.
3.8 REAL PROPERTY HOLDING CORPORATION. The Company covenants that it will
operate in a manner such that it will not become a "United States real property
holding corporation" as that term is defined in Section 897(c)(2) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder
("FIRPTA"). The Company agrees to make
14.
determinations as to its status as a USRPHC, and will file statements concerning
those determinations with the Internal Revenue Service, in the manner and at the
times required under Reg. Section 1.897-2(h), or any supplementary or successor
provision thereto. Within 30 days of a request from an Investor or any of its
partners, the Company will inform the requesting party, in the manner set forth
in Reg. Section 1.897-2(h)(1)(iv) or any supplementary or successor provision
thereto, whether that party's interest in the Company constitutes a United
States real property interest (within the meaning of Internal Revenue Code
Section 897(c)(1) and the regulations thereunder) and whether the Company has
provided to the Internal Revenue Service all required notices as to its USRPHC
status.
3.9 BOARD VISITATION RIGHTS. The Company shall allow one representative
designated by any Investor holding in excess of one million (1,000,000) shares
of Series F Preferred stock (as adjusted for stock splits, combinations and the
like) to attend all meetings of the Company's Board of Directors in a nonvoting
capacity; provided, however, that the Company reserves the right to exclude such
representative 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 proprietary information or for other similar reasons.
3.10 TERMINATION OF COVENANTS. All covenants of the Company contained in
Section 3 of this Agreement shall expire and terminate as to each Investor on
the effective date of the registration statement pertaining to the Initial
Offering.
SECTION 4. RIGHTS OF FIRST REFUSAL.
4.1 SUBSEQUENT OFFERINGS. Each Investor shall have a right of first
refusal to purchase 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
4.6 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 issued or issuable upon conversion of the Shares) 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, with or without consideration,
into 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 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 Investor shall have fifteen
(15) days from the giving of such notice to agree to purchase 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
15.
Securities to be purchased. Notwithstanding the foregoing, the Company shall not
be required to offer or sell such Equity Securities to any 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
Investors elect to purchase their pro rata share of the Equity Securities, then
the Company shall promptly notify in writing the Investors who do so elect and
shall offer such Investors the right to acquire such unsubscribed shares. The
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. If the Investors fail to exercise in full the rights of first refusal,
the Company shall have ninety (90) days thereafter to sell the Equity Securities
in respect of which the Investor's rights were not exercised, at a price and
upon general terms and conditions materially no more favorable to the purchasers
thereof than specified in the Company's notice to the 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 Investors in the manner provided above.
4.4 TERMINATION OF RIGHTS OF FIRST REFUSAL. The rights of first refusal
established by this Section 4 shall not apply to, and shall terminate upon the
effective date of the registration statement pertaining to the Company's Initial
Offering.
4.5 TRANSFER OF RIGHTS OF FIRST REFUSAL. The rights of first refusal of
each Investor under this Section 4 may be transferred to the same parties,
subject to the same restrictions as any transfer of registration rights pursuant
to Section 2.10.
4.6 EXCLUDED SECURITIES. The rights of first refusal established by this
Section 4 shall have no application to any of the following Equity Securities:
(A) shares of Common Stock (and/or options, warrants or other Common
Stock purchase rights issued pursuant to such options, warrants or other rights)
issued or to be issued 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 of Directors;
(B) stock issued pursuant to any rights or agreements outstanding as
of the date of this Agreement, options and warrants 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, provided that the rights of first
refusal established by this Section 4 applied 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 or similar business
combination;
(D) shares of Common Stock issued in connection with any stock
split, stock dividend or recapitalization by the Company;
(E) shares of Common Stock issued upon conversion of the Shares;
16.
(F) any Equity Securities issued pursuant to any equipment leasing
arrangement, or debt financing from a bank or similar financial institution
approved by the Board of Directors;
(G) any Equity Securities that are issued by the Company pursuant to
a registration statement filed under the Securities Act; and
(H) shares of the Company's Common Stock or Preferred Stock issued
in connection with strategic transactions involving the Company and other
entities, including (A) joint ventures, manufacturing, marketing or distribution
arrangements or (B) technology transfer or development arrangements; provided
that such strategic transactions and the issuance of shares therein, have been
approved by the Company's Board of Directors.
SECTION 5. MISCELLANEOUS.
5.1 GOVERNING LAW. This Agreement shall be governed by and construed under
the laws of the State of California, without giving effect to the principles of
conflicts of law.
5.2 SURVIVAL. The representations, warranties, covenants, and agreements
made herein shall survive any investigation made by any Holder and the closing
of the transactions contemplated hereby. All statements as to factual matters
contained in any certificate or other instrument delivered by or on behalf of
the Company pursuant hereto in connection with the transactions contemplated
hereby shall be deemed to be representations and warranties by the Company
hereunder solely as of the date of such certificate or instrument.
5.3 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
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 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.
5.4 SEVERABILITY. In case any provision of the Agreement shall be invalid,
illegal, or unenforceable, the validity, legality, and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
5.5 AMENDMENT AND WAIVER.
(A) Except as otherwise expressly provided, this Agreement may be
amended or modified only upon the written consent of the Company and the holders
of a majority of the Registrable Securities.
17.
(B) Except as otherwise expressly provided, the obligations of the
Company and the rights of the Holders under this Agreement may be waived only
with the written consent of the holders of at least a majority of the
Registrable Securities.
(C) Notwithstanding the foregoing, this Agreement may be amended
with only the written consent of the Company to include additional purchasers of
Shares as "Investors," "Holders" and parties hereto.
5.6 DELAYS OR OMISSIONS. It is agreed that no delay or omission to
exercise any right, power, or remedy accruing to any Holder, upon any breach,
default or noncompliance of the Company under this Agreement shall impair any
such right, power, or remedy, nor shall it be 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 Holder's part of any breach, default or noncompliance under the Agreement or
any waiver on such Holder'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 Holders, 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: (i) upon personal delivery to the
party to be notified, (ii) when sent by confirmed telex or facsimile if sent
during normal business hours of the recipient; if not, then on the next business
day, (iii) five (5) days after having been sent by registered or certified mail,
return receipt requested, postage prepaid, or (iv) one (1) day after deposit
with a nationally recognized overnight courier, specifying next day 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 dispute among the parties to
this Agreement should result in litigation, 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 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.
5.11 AGGREGATION OF STOCK. All shares of the Preferred Stock 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.
[THIS SPACE INTENTIONALLY LEFT BLANK]
18.
Exhibit 10.9
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: INVESTORS:
iPASS INC. EQUANT FINANCE BV
By: /s/ Xxxxxxx Xxxxxxxx By:
------------------------------- ------------------------------------
Printed Name: Xxxxxxx Xxxxxxxx Printed Name:
--------------------- --------------------------
Title: Chairman & CEO Title:
---------------------------- --------------------------------
iPASS INC.
SERIES F AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
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: INVESTORS:
iPASS INC. EQUANT FINANCE BV
By: By: /s/ X. Xxxxxxx
------------------------------- -----------------------------------
Printed Name: Printed Name: X. Xxxxxxx
---------------------- -----------------------------------
Title: Title: Director
----------------------------- --------------------------------
SAND HILL CAPITAL II, LP
By:
----------------------------------
Printed Name:
------------------------
Title:
-------------------------------
CROSSPOINT VENTURE PARTNERS 1996
By:
----------------------------------
Printed Name:
------------------------
Title:
-------------------------------
CROSSPOINT VENTURE PARTNERS LS 1997 FUND
By:
----------------------------------
Printed Name:
------------------------
Title:
-------------------------------
iPASS INC.
SERIES F AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
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: INVESTORS:
iPASS INC. EQUANT FINANCE BV
By: By:
------------------------------- -----------------------------------
Printed Name: Printed Name:
---------------------- ------------------------
Title: Title:
----------------------------- -------------------------------
SAND HILL CAPITAL II, LP
By: /s/ Xxxxxxx X. Del Xxxxxxx III
-------------------------------
Printed Name: Xxxxxxx X. Del Biaggio III
------------------------
Title: Managing Member
--------------------------------
CROSSPOINT VENTURE PARTNERS 1996
By:
----------------------------------
Printed Name:
------------------------
Title:
-------------------------------
CROSSPOINT VENTURE PARTNERS LS 1997
FUND
By:
----------------------------------
Printed Name:
------------------------
Title:
-------------------------------
iPASS INC.
SERIES F AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
CROSSPOINT VENTURE PARTNERS LS 2000 L.P.
By: /s/ Xxxx Xxxxxx
----------------------------------
Printed Name: Xxxx Xxxxxx
------------------------
Title: Managing Partner
------------------------------
CROSSPOINT VENTURE PARTNERS 1996
By: /s/ Xxxx Xxxxxx
---------------------------------
Printed Name: Xxxx Xxxxxx
-------------------------
Title: Managing Partner
-------------------------------
CROSSPOINT VENTURE PARTNERS LS 1997
FUND
By: /s/ Xxxx Xxxxxx
---------------------------------
Printed Name: Xxxx Xxxxxx
-----------------------
Title: Managing Partner
------------------------------
iPASS INC.
SERIES F AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
ACCEL V L.P.
By: Accel V Associates L.L.C.
Its General Partner
By: /s/ X. Xxxxxx Sednaoui
---------------------------------
Managing Member
Printed Name: X. Xxxxxx Sednaoui
-----------------------
ACCEL INTERNET/STRATEGIC
TECHNOLOGY FUND L.P.
By: Accel Internet/Strategic
Technology Fund Associates L.L.C.
Its General Partner
By: /s/ X. Xxxxxx Sednaoui
---------------------------------
Managing Member
Printed Name: X. Xxxxxx Sednaoui
------------------------
iPASS INC.
SERIES F AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
THOMVEST INTERNATIONAL LTD.
By: /s/ Xxxxx Xxxxx
----------------------------------
Name: Xxxxx Xxxxx
--------------------------------
Title: Director
--------------------------------
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxx
---------------------------------
Title: President and Secretary
-------------------------------
iPASS INC.
SERIES F AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
ACCEL KEIRETSU V L.P.
By: Accel Keiretsu V Associates L.L.C.
Its General Partner
By: /s/ X. Xxxxxx Sednaoui
---------------------------------
Managing Member
Printed Name: X. Xxxxxx Sednaoui
-------------------------
ACCEL INVESTORS `96 L.P.
By: /s/ X. Xxxxxx Sednaoui
----------------------------------
Its General Partner
Printed Name: X. Xxxxxx Sednaoui
-----------------------
XXXXXXX X. XXXXXXXXX PARTNERS
By: /s/ Xxxxxx Xxxxxxxxx
----------------------------------
General Partner
Printed Name:
-------------------------
INTEL CORPORATION
By:
------------------------------------
Printed Name:
---------------------------
Title:
---------------------------------
CELEBRITY SOFTWARE LIMITED
By:
------------------------------------
Printed Name:
---------------------------
Title:
---------------------------------
iPASS INC.
SERIES F AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
APV TECHNOLOGY PARTNERS II, L.P.
By: APV Management Co. II, L.L.C.,
--------------------------------
Managing General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Managing Member
Printed Name: Xxxxxxx X. Xxxxxxx
-------------------------
APV TECHNOLOGY PARTNERS US, L.P.
By: APV Management Co., L.L.C.
Managing General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Managing Member
Printed Name: Xxxxxxx X. Xxxxxxx
--------------------------
APV TECHNOLOGY PARTNERS, L.P.
By: APV Management Co., L.L.C.
Managing General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Managing Member
Printed Name: Xxxxxxx X. Xxxxxxx
--------------------------
WPS, L.L.C.
By: WPS, L.L.C.
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Printed Name: Xxxxxxx X. Xxxxxxx
-------------------------
iPASS INC.
SERIES F AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
XXXXXX TELECOMMUNICATIONS LIMITED
By: /s/ Xxxx Xxxx
------------------------------------
Name: Xxxx Xxxx
---------------------------------
Title: Director
---------------------------------
By: /s/ J. C. C. Wansbrough
---------------------------------
Name: J. C. C. Wansbrough
---------------------------------
Title: Chairman
---------------------------------
iPASS INC.
SERIES F AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
ACCEL KEIRETSU V L.P.
By: Accel Keiretsu V Associates L.L.C.
Its General Partner
By:
------------------------------------
Managing Member
Printed Name:
--------------------------
ACCEL INVESTORS `96 L.P.
By:
------------------------------------
Its General Partner
Printed Name:
--------------------------
XXXXXXX X. XXXXXXXXX PARTNERS
By:
------------------------------------
General Partner
Printed Name:
--------------------------
INTEL CORPORATION
By:
------------------------------------
Printed Name:
--------------------------
Title:
--------------------------------
CELEBRITY SOFTWARE LIMITED
By: /s/ Xxxxx Xxxxxxxxxx-Xxxxx
------------------------------------
Printed Name: Xxxxx Xxxxxxxxxx-Xxxxx
-------------------------
Title: Director
--------------------------------
iPASS INC.
SERIES F AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
JAMBOREE INVESTMENTS, INC.
By: /s/ Xxxx Xxxxx
-----------------------------------
Printed Name: Xxxx Xxxxx
---------------------------
Title: Proxy Holder
--------------------------------
PEAPOD GROUP LIMITED
By:
-----------------------------------
Printed Name:
--------------------------
Title:
--------------------------------
XXXXX XXXXXXXXXX
By:
-----------------------------------
Printed Name:
--------------------------
Title:
--------------------------------
XXXXX XXX
By:
-----------------------------------
Printed Name:
--------------------------
Title:
--------------------------------
iPASS INC.
SERIES F AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
XXXXXXXXXXX X. XXXXX
By: /s/ Xxxxx Xxxxx
-----------------------------------
Printed Name: Xxxxx Xxxxx
--------------------------
Title:
--------------------------------
THOMVEST HOLDINGS INC.
By:
-----------------------------------
Printed Name:
--------------------------
Title:
--------------------------------
1267104 ONTARIO LTD.
By:
-----------------------------------
Printed Name:
--------------------------
Title:
--------------------------------
COMDISCO, INC.
By:
-----------------------------------
Printed Name:
--------------------------
Title:
--------------------------------
iPASS INC.
SERIES F AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
XXXXXXXXXXX X. XXXXX
By:
-----------------------------------
Printed Name:
--------------------------
Title:
--------------------------------
THOMVEST HOLDINGS INC.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Printed Name: Willliam X. Xxxxx
------------------------
Title: V.P
--------------------------------
1267104 ONTARIO LTD.
By:
-----------------------------------
Printed Name:
--------------------------
Title:
--------------------------------
COMDISCO, INC.
By:
-----------------------------------
Printed Name:
--------------------------
Title:
--------------------------------
iPASS INC.
SERIES F AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
XXXXXXXXXXX X. XXXXX
By:
-----------------------------------
Printed Name:
--------------------------
Title:
--------------------------------
THOMVEST HOLDINGS INC.
By:
-----------------------------------
Printed Name:
--------------------------
Title:
--------------------------------
1267104 ONTARIO LTD.
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Printed Name: Xxxxxx Xxxxxx
-------------------------
Title: Director of Finance
--------------------------------
COMDISCO, INC.
By:
-----------------------------------
Printed Name:
--------------------------
Title:
--------------------------------
iPASS INC.
SERIES F AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
XXXXXXXXXXX X. XXXXX
By:
-----------------------------------
Printed Name:
--------------------------
Title:
--------------------------------
THOMVEST HOLDINGS INC.
By:
-----------------------------------
Printed Name:
--------------------------
Title:
--------------------------------
1267104 ONTARIO LTD.
By:
-----------------------------------
Printed Name:
--------------------------
Title:
--------------------------------
COMDISCO, INC.
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Printed Name: Xxxx X. Xxxxxx
-------------------------
Title: Senior Vice President
---------------------------------
iPASS INC.
SERIES F AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
CISCO SYSTEMS, INC.
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Printed Name: Xxxxxx Xxxxxxxxx
-------------------------
Title: SRVP Legal & Govt Affairs
---------------------------------
ACCEL V L.P.
By:
-----------------------------------
Printed Name:
--------------------------
Title:
--------------------------------
iPASS INC.
SERIES F AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
CISCO SYSTEMS, INC.
By:
-----------------------------------
Printed Name:
--------------------------
Title:
--------------------------------
ACCEL V L.P.
By: Accel V Associates L.L.C.
Its General Partner
By: /s/ X. Xxxxxx Sednaoui
-----------------------------------
X. Xxxxxx Sednaoui
Managing Member
iPASS INC.
SERIES F AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
Exhibit 10.9
EXHIBIT A
SCHEDULE OF HOLDERS OF PREFERRED STOCK
Series F
Preferred
Series A Series B Series C Series D Series E Series F Stock
Preferred Preferred Preferred Preferred Preferred Preferred 11/2/00 &
Stock (1) Stock (1) Stock (1) Stock (1) Stock Stock 12/12/00
--------- --------- --------- --------- --------- --------- ---------
Accel V L.P. -- 2,729,445 1,313,427 1,220,736 614,245 676,370 70,529
Accel Internet/Strategic -- 365,733 175,992 163,572 82,306 -- --
Technology Fund L.P.
Accel Keiretsu V L.P. -- 54,183 26,073 24,234 12,193 -- --
Accel Investors `96 L.P. -- 162,546 78,219 72,699 36,580 -- --
Xxxxxxx X. Xxxxxxxxx Partners -- 74,502 35,850 33,321 16,766 -- --
Thomvest Holdings Inc. -- -- -- 1,740,948 278,559 -- --
Thomvest International Ltd. -- -- -- -- -- 299,658 --
1267104 Ontario Ltd. -- -- -- 1,392,759 222,849 -- --
Crosspoint Venture Partners -- 3,386,409 1,629,561 1,514,562 -- -- --
Crosspoint Venture Partners LS -- -- -- -- 2,202,798(2) -- --
1997 Fund
Crosspoint Venture Partners LS -- -- -- -- -- 2,551,370 --
2000 L.P.
APV Technology Partners, L.P. -- 602,862 289,698 -- 55,812 -- --
APV Technology Partners U.S., -- 150,717 72,426 -- 13,953 -- --
L.P.
APV WPS, L.L.C. -- -- -- -- 57,033(3) -- --
APV Technology Partners II, -- -- -- 1,741,068 387,333 -- --
L.P.
GC&H Investments -- -- -- -- 14,655 -- --
Comdisco, Inc. -- -- -- 174,099 -- 85,617 --
Celebrity Software Limited 497,226 -- -- -- -- -- --
(1) All numbers adjusted for the 3-for-1 split of the Company's Capital Stock
on September 2, 1999.
(2) Of which 268,260 was issued and sold pursuant to the second closing on
November 10, 1999.
(3) Of which 49,704 was issued and sold pursuant to the second closing on
November 10, 1999
A-1.
Series F
Preferred
Series A Series B Series C Series D Series E Series F Stock
Preferred Preferred Preferred Preferred Preferred Preferred 11/2/00 &
Stock (1) Stock (1) Stock (1) Stock (1) Stock Stock 12/12/00
--------- --------- --------- --------- --------- --------- ---------
Intel Corporation -- -- -- 586,224 -- --
Jamboree Investments, Inc. 757,893(4) -- -- -- -- -- --
Meritech Capital Partners, L.P. -- -- -- -- 1,417,657(5) -- --
Meritech Capital Affiliates, -- -- -- -- 23,051(6) -- --
L.P.
Peapod Distribution Ltd. 154,089(7) -- -- -- -- -- --
Xxxxx Xxx 30,000 -- -- -- -- -- --
Xxxxxx Telecommunications -- -- -- -- -- 171,233 --
Limited
Sand Hill Capital II, LP -- -- -- -- -- 342,465 --
Equant Finance BV -- -- -- -- -- 1,027,397 --
Cisco Systems, Inc. -- -- -- -- -- -- 3,424,658
(4) 45,000 of which was transferred to Xxxxxx Xxxx on September 14, 1998.
(5) Of which 263,968 was issued and sold pursuant to the second closing on
November 10, 1999.
(6) Of which 4,292 was issued and sold pursuant to the second closing on
November 10, 1999.
(7) Transferred to Peapod Group Limited on February 1, 1999.
A-2.
EXHIBIT B
SCHEDULE OF FOUNDERS
Common Stock
------------
Xxxxxxxxxxx X. Xxxxx 2,517,279
Xxxxx Xxxxxxxxxx 450,000
Celebrity Software Limited 473,685
Jamboree Investments, Inc. 2,842,107
1.
