1
EXHIBIT 10.3
--------------------------------------------------------------------------------
THE PETROLEUM PLACE, INC.
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
March 2, 2000
--------------------------------------------------------------------------------
2
TABLE OF CONTENTS
PAGE
1. GENERAL..................................................................1
1.1 Definitions.....................................................1
1.2 Amendment and Restatement of Prior Agreement....................3
2. RESTRICTIONS ON TRANSFER.................................................3
2.1 Restrictions on Transfer........................................3
2.2 "Market Stand Off" Agreement....................................4
2.3 Co-Sale Right...................................................5
2.4 Transfers Exempt from Co-Sale Right.............................6
2.5 Prohibited Transfers............................................7
2.6 Assignment of Co-Sale Rights....................................8
2.7 Termination of Co-Sale Rights...................................8
3. REGISTRATION.............................................................8
3.1 Demand Registration.............................................8
3.2 Piggyback Registrations........................................10
3.3 Form S-3 Registration..........................................10
3.4 Registration Expenses..........................................11
3.5 Obligations of the Company.....................................12
3.6 Termination of Registration Rights.............................12
3.7 Furnish Information............................................13
3.8 Delay of Registration..........................................13
3.9 Assignment of Registration Rights..............................13
3.10 Amendment or Waiver of Registration Rights.....................13
3.11 Indemnification................................................14
3.12 Rule 144 Reporting.............................................16
4. COVENANTS OF THE COMPANY................................................16
4.1 Basic Financial Information and Reporting......................16
4.2 Inspection Rights..............................................17
4.3 Confidentiality of Records.....................................17
4.4 Reservation of Common Stock....................................17
i.
3
TABLE OF CONTENTS
(CONTINUED)
PAGE
4.5 SEC Compliance................................................17
4.6 Proprietary Information and Inventions Agreement..............17
4.7 Directors' Liability and Indemnification......................18
4.8 Advisory Board................................................18
4.9 Indemnification and Advancement...............................18
4.10 Assignment of Company's Rights................................19
4.11 Option Vesting................................................19
4.12 Redemption....................................................19
4.13 Termination of Covenants......................................19
5. PREEMPTIVE RIGHTS......................................................19
5.1 Subsequent Offerings..........................................19
5.2 Exercise of Rights............................................19
5.3 Issuance of Equity Securities to Other Investors..............20
5.4 Termination of Preemptive Rights..............................20
5.5 Transfer of Preemptive Rights.................................20
5.6 Excluded Securities...........................................20
6. VOTING.................................................................21
6.1 Voting. ......................................................21
6.2 Election of Directors.........................................21
6.3 Board of Directors of Subsidiaries............................22
6.4 Termination of Voting Provisions..............................22
7. MISCELLANEOUS..........................................................22
7.1 Governing Law.................................................22
7.2 Successors and Assigns........................................22
7.3 Severability..................................................22
7.4 Amendment and Waiver..........................................22
7.5 Notices, Etc..................................................23
7.6 Attorneys' Fees...............................................23
7.7 Titles and Subtitles..........................................23
7.8 Complete Agreement............................................23
7.9 Counterparts..................................................23
7.10 Survival......................................................23
7.11 Delays or Omissions...........................................24
7.12 Entire Agreement..............................................24
ii.
4
THE PETROLEUM PLACE, INC.
THIRD AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
This THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT (the
"AGREEMENT") is entered into as of the 2nd day of March, 2000, by and among THE
PETROLEUM PLACE, INC. a Delaware corporation (the "COMPANY"), the holders of the
Company's Series A Preferred Stock (the "SERIES A STOCK") set forth on Exhibit A
hereto, the holders of the Company's Series B Preferred Stock (the "SERIES B
STOCK") set forth on Exhibit A hereto, the holders of the Company's Series C
Preferred Stock (the "SERIES C STOCK") set forth on Exhibit A hereto and for the
purpose of Section 2 and 6 below, Xxxx X. Xxxxxxx (the "FOUNDER"). The holders
of the Series A Stock, the holders of the Series B Stock and the holders of the
Series C Stock collectively shall be referred to hereinafter as the "INVESTORS"
and each individually as an "INVESTOR."
WHEREAS, the Company has granted registration rights, information
rights and certain other rights pursuant to that certain Second Amended and
Restated Investors' Rights Agreement, dated as of December 30, 1999 (the "PRIOR
AGREEMENT");
WHEREAS, the Company proposes to sell and issue shares of its Series C
Stock pursuant to the Series C Preferred Stock Purchase Agreement of even date
herewith (the "PURCHASE AGREEMENT"); and
WHEREAS, as a condition of entering into the Purchase Agreement, the
prospective purchasers have requested that the Company extend to them
registration rights, information rights and other rights as set forth below, and
the Company and the parties to the Prior Agreement are willing to amend the
rights given to them pursuant to the Prior Agreement by replacing such rights in
their entirety with the rights set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in this
Agreement and the Purchase Agreement, the parties mutually agree as follows:
1. GENERAL
1.1 DEFINITIONS.
(a) "COMMON STOCK" shall mean the common stock, $.001 par
value per share, of the Company.
(b) "EQUITY SECURITIES" shall mean (i) any Common Stock or
Preferred Stock, (ii) any security convertible into any Common Stock or
Preferred Stock (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 or Preferred Stock or (iv) any such warrant or right.
(c) "EXCHANGE ACT" shall mean the Securities Exchange Act of
1934, as amended.
5
(d) "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.
(e) "HOLDER" means any Investor owning of record Registrable
Securities that have not been sold to the public or any assignee of record of
such Registrable Securities in accordance with Section 3.9 hereof.
(f) "INITIAL OFFERING" shall mean the Company's first firm
commitment underwritten public offering of its securities registered under the
Securities Act.
(g) "PREFERRED STOCK" shall mean the preferred stock, $.001
par value per share, of the Company.
(h) The terms "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.
(i) The term "REGISTRABLE SECURITIES" shall mean (a) Common
Stock of the Company issued or issuable upon conversion of the Shares, (b) 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,
the securities referred to in clause (a) above and (c) any Common Stock acquired
by the Investor subsequent to the date hereof. 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 Section 3 of this
Agreement with respect to such registration rights are not assigned.
(j) "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 (i) are then
issued and outstanding or (ii) are issuable pursuant to then exercisable or
convertible securities.
(k) "RULE 144" shall mean Rule 144 of the rules and
regulations promulgated under the Securities Act.
(l) "SEC" means the Securities and Exchange Commission.
(m) "SECURITIES ACT" shall mean the Securities Act of 1933, as
amended.
(n) "SENIOR HOLDER" means any Investor owning of record Senior
Registrable Securities that have not been sold to the public or any assignee of
record of such Senior Registrable Securities in accordance with Section 3.9
hereof.
(o) The term "SENIOR REGISTRABLE SECURITIES" shall mean (a)
Common Stock of the Company issued or issuable upon conversion of the Series A
Stock and Series C Stock and
2.
6
(b) 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, the securities referred to in clause (a) above. Notwithstanding
the foregoing, Senior 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
Section 3 of this Agreement with respect to such registration rights are not
assigned.
(p) "SENIOR 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 Senior Registrable Securities and either (i) are
then issued and outstanding or (ii) are issuable pursuant to then exercisable or
convertible securities.
(q) "SHARES" shall mean the Company's Series A Stock, Series B
Stock and Series C Stock held by the Investors listed on Exhibit A hereto and
their permitted assigns.
1.2 AMENDMENT AND RESTATEMENT OF PRIOR AGREEMENT. The undersigned
parties who constitute the requisite parties necessary to amend the Prior
Agreement hereby agree that, effective upon the date hereof, the Prior Agreement
is null and void and superseded by the rights and obligations set forth in this
Agreement, and any application of preemptive rights (including any notice
requirements) set forth in Section 5 of the Prior Agreement as to the issuance
of the Company's Series C Stock is waived by the undersigned Investors on behalf
of each and every Investor.
2. 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 the
transferee has agreed in writing for the benefit of the Company to be bound by
this Section 2.1 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) Such Holder shall have complied with the
provision of this Section 2 regarding Co-Sale Rights, (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 any or all
of its partners or former partners, (B) a corporation to its
3.
7
stockholders in accordance with their interest in the corporation, (C) a limited
liability company to its members or former members in accordance with their
membership interests, (D) by a trust to its beneficiaries in accordance with
their interests in the trust or (E) to the Holder's family member or trust for
the benefit of an individual Holder; provided, that the transferee will be
subject to the terms of this Agreement to the same extent as if he 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):
First Legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (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.
Second Legend:
THE SECURITIES REPRESENTED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED EXCEPT IN COMPLIANCE
WITH THE THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT, DATED
MARCH 2, 2000, COPIES OF WHICH ARE ON FILE AT THE OFFICE OF THE ISSUER.
(c) The Company shall 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 or if the sale of Shares or Registrable Securities occurred pursuant
to Section 2.1(a)(ii) and the Company did not require an opinion of counsel,
also if the securities proposed to be disposed are saleable under Rule 144(k) of
the Securities Act the Company shall promptly remove the First Legend stated
above in Section 2.2(b) upon the request of a Holder.
(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 "MARKET STAND OFF" AGREEMENT. Each Holder hereby agrees that
during the one hundred eighty (180) day period following the effective date of a
registration statement of the
4.
8
Company filed under the Securities Act pertaining to the Initial Offering, it
shall not, to the extent requested by the Company and the managing underwriter,
sell or otherwise transfer or dispose of (other than to donees who agree to be
similarly bound) any Common Stock of the Company held by it at any time during
such period except Common Stock included in such registration or Common Stock
purchased in the Initial Offering or otherwise in the public market; provided,
that all officers and directors of the Company enter into similar agreements.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Registrable Securities of each
Investor (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such one hundred eighty (180) day
period.
2.3 CO-SALE RIGHT.
(a) If an Investor or the Founder proposes to sell or transfer
any of his Equity Securities (a "SELLING HOLDER") then the Selling Holder shall,
after compliance with any right of first refusal contained in the Company's
Bylaws, promptly give written notice (the "NOTICE") simultaneously to the
Company and to the Investors prior to the closing of such sale or transfer. The
Notice shall describe in reasonable detail the proposed sale or transfer
including, without limitation, the number of Equity Securities to be sold or
transferred, the percentage such number of shares constitutes with respect to
the aggregate number of shares of Common Stock (on an as-if-converted to Common
Stock basis) then held by such Selling Holder, the nature of such sale or
transfer, the consideration to be paid and the name and address of each
prospective purchaser or transferee. In the event that the sale or transfer is
being made pursuant to the provisions of Sections 2.4(a), the Notice shall state
under which provision the sale or transfer is being made.
(b) Each Investor shall have the right, exercisable upon
written notice to such Selling Holder within ten (10) business days after the
Notice, to participate in such sale of Equity Securities on the same terms and
conditions. Such notice shall indicate the number of shares of Equity Securities
(on an as-if-converted to Common Stock basis) such Investor wishes to sell under
its right to participate. Subject to the provisions of subsection (c) below, to
the extent one or more of the Investors exercises such right of participation in
accordance with the terms and conditions set forth below, the number of Equity
Securities that such Selling Holder may sell in the transaction shall be
correspondingly reduced.
(c) Each electing Investor (a "PARTICIPANT") may sell all or
any part of that number of shares equal to the product obtained by multiplying
(i) the aggregate number of Equity Securities covered by the Notice by (ii) a
fraction the numerator of which is the number of shares of stock owned by such
Participant at the time of the sale or transfer and the denominator of which is
the total number of shares of Common Stock owned by such Selling Holder and the
number of shares of stock (on an as-if-converted to Common Stock basis) owned by
such electing Participants at the time of the sale or transfer.
(d) Each Participant shall effect its participation in the
sale by promptly delivering to the Selling Holder for transfer to the
prospective purchaser one or more certificates, properly endorsed for transfer,
which represent:
5.
9
(i) the type and number of shares of Common Stock
which such Participant elects to sell; or
(ii) that number of shares of Preferred Stock which
is at such time convertible into the number of shares of Common Stock which such
Participant elects to sell; provided, however, that if the prospective purchaser
objects to the delivery of Preferred Stock in lieu of Common Stock, such
Participant shall convert such Preferred Stock into Common Stock and deliver
Common Stock as provided in Section 2.3(d)(i) above. The Company agrees to make
any such conversion concurrent with the actual transfer of such shares to the
purchaser.
(e) The stock certificate or certificates that the Participant
delivers to such Selling Holder pursuant to Section 2.3(d) shall be transferred
to the prospective purchaser in consummation of the sale of the Common Stock
pursuant to the terms and conditions specified in the Notice, and such Selling
Holder shall concurrently therewith remit to such Participant that portion of
the sale proceeds to which such Participant is entitled by reason of its
participation in such sale. To the extent that any prospective purchaser or
purchasers prohibits such assignment or otherwise refuses to purchase shares or
other securities from a Participant exercising its rights of co-sale hereunder,
such Selling Holder shall not sell to such prospective purchaser or purchasers
any Equity Securities unless and until, simultaneously with such sale, such
Selling Holder shall purchase such shares or other securities from such
Participant on the same terms and conditions specified in the Notice. Any
prospective purchaser shall furnish the Investors with a written agreement to be
bound by and comply with all provisions of Section 2.3.
(f) In the event that the prospective purchaser(s) purchase(s)
fewer shares than set forth in the Notice, the shares sold by the Selling Holder
and the Participants shall be reduced pro rata calculated pursuant to Section
2.3(c), based on the number of shares they would have been entitled to sell had
the purchaser(s) purchased all the shares set forth in the Notice.
(g) The exercise or non-exercise of the rights of the
Participants hereunder to participate in one or more sales of Equity Securities
made by a Selling Holder shall not adversely affect their rights to participate
in subsequent sales of Equity Securities subject to Section 2(a).
(h) If none of the Investors elects to participate in the sale
of the Equity Securities subject to the Notice, such Selling Holder may, not
later than sixty (60) days following delivery to the Company of the Notice,
enter into an agreement providing for the closing of the transfer of the Equity
Securities covered by the Notice within thirty (30) days of such agreement on
terms and conditions not more favorable to the transferor than those described
in the Notice. Any proposed transfer on terms and conditions more favorable than
as described in the Notice by the Selling Holder, shall again be subject to the
co-sale rights of the Investors and shall require compliance by such Selling
Holder with the procedures described in this Section 2.3.
2.4 TRANSFERS EXEMPT FROM CO-SALE RIGHT.
(a) Notwithstanding the foregoing, the co-sale rights of the
Investors contained in Sections 2.3 and 2.5 shall not apply to any transfer or
transfers by a Selling Holder which, in the aggregate, over the term of this
Agreement, amount to no more than five percent (5%) of the Equity Securities
held by each Selling Holder as of the date hereof, or to a transfer
6.
10
by a Selling Holder which is (A) a partnership to any or all of its partners or
former partners, (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 membership interests, (D) by a trust to
its beneficiaries in accordance with their interests in the trust, (E) an
Investor to an affiliate of such Investor or (F) to the Selling Holder's family
member or trust for the benefit of an individual Selling Holder; provided, that
the transferee will be subject to the terms of this Agreement to the same extent
as if he were an original Holder hereunder.
(b) Notwithstanding the foregoing, the provisions of Section
2.3 shall not apply to the sale of any Equity Securities to the public pursuant
to a registration statement filed with, and declared effective by, the
Securities and Exchange Commission under the Securities Act.
(c) This Agreement is subject to, and shall in no manner limit
the right which the Company may have to repurchase securities from a Selling
Stockholder pursuant to any right of first refusal set forth in the Bylaws of
the Company.
2.5 PROHIBITED TRANSFERS.
(a) In the event that a Selling Holder should sell any Equity
Securities in contravention of the co-sale rights of each Investor under this
Agreement (a "PROHIBITED TRANSFER"), each Investor, in addition to such other
remedies as may be available at law, in equity or hereunder, shall have the put
option provided below, and the Selling Holders shall be bound by the applicable
provisions of such option.
(b) In the event of a Prohibited Transfer, each Investor shall
have the right to sell to such Selling Holder the type and number of shares of
Equity Securities equal to the number of shares each Investor would have been
entitled to transfer to the purchaser under Section 2.3(c) hereof had the
Prohibited Transfer been effected pursuant to and in compliance with the terms
hereof. Such sale shall be made on the following terms and conditions:
(i) The price per share at which the shares are to be
sold to such Selling Holder shall be equal to the price per share paid by the
purchaser to such Selling Holder in such Prohibited Transfer. Such Selling
Holder shall also reimburse each Investor for any and all fees and expenses,
including legal fees and expenses, incurred pursuant to the exercise or the
attempted exercise of the Investor's rights under Section 2.3 and this Section
2.5.
(ii) Within thirty (30) business days after the date
on which an Investor received notice of the Prohibited Transfer or otherwise
became aware of the Prohibited Transfer, such Investor shall, if exercising the
option created hereby, deliver to the Selling Holder the certificate or
certificates representing shares to be sold, each certificate to be properly
endorsed for transfer.
(iii) The Selling Holder shall, upon receipt of the
certificate or certificates for the shares to be sold by an Investor, pursuant
to this Section 2.5(b), pay the aggregate purchase price therefor and the amount
of reimbursable fees and expenses, as specified in Section 4(b)(i), in cash or
by other means acceptable to the Investor.
7.
11
(iv) Notwithstanding the foregoing, any attempt by a
Selling Holder to transfer Equity Securities in violation of Section 2 hereof
shall be voidable at the option (which option must be exercised within fifteen
(15) business days after the date on which an Investor received notice of a
Prohibited Transfer) of fifty percent (50%) in interest of the Investors if the
Investors do not elect to exercise the put option set forth in this Section 2.5,
and the Company agrees it will not effect such a transfer nor will it treat any
alleged transferee as the holder of such shares without the written consent of a
majority in interest of the Investors.
2.6 ASSIGNMENT OF CO-SALE RIGHTS.
(a) The Investors may assign their co-sale rights described
herein to a subsidiary, parent, general partner, limited partner, retired
partner, member, former member or other affiliated entity.
2.7 TERMINATION OF CO-SALE RIGHTS.
(a) All Co-Sale Rights contained in Section 2 of this
Agreement shall expire and terminate as to each Investor on the effective date
of the registration statement pertaining to the Initial Offering.
3. REGISTRATION
3.1 DEMAND REGISTRATION.
(a) Subject to the conditions of this Section 3.1, if the
Company shall receive a written request from the Senior Holders of more than
thirty percent (30%) of the Senior Registrable Securities then outstanding on an
as-converted basis (the "INITIATING HOLDERS") that the Company file a
registration statement under the Securities Act covering the registration of
Senior Registrable Securities having an aggregate offering price to the public
of at least $15,000,000, then the Company shall, within twenty (20) days of the
receipt thereof, give written notice of such request to all Senior Holders, and
subject to the limitations of this Section 3.1, use its best efforts to effect,
as soon as practicable, the registration under the Securities Act of all Senior
Registrable Securities that the Senior Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Senior
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 3.1 and the Company shall include such information in the written
notice referred to in Section 3.1(a). In such event, the right of any Senior
Holder to include its Senior Registrable Securities in such registration shall
be conditioned upon such Senior Holder's participation in such underwriting and
the inclusion of such Senior Holder's Registrable Securities in the underwriting
(unless otherwise mutually agreed by a majority in interest of the Initiating
Holders and such Senior Holder) to the extent provided herein. All Senior
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
3.1, if the underwriter advises the Company that marketing factors require a
limitation of the number of securities to be underwritten, the
8.
12
Company will include in such registration all Senior Registrable Securities
requested to be included therein prior to the inclusion of any other securities
(including, without limitations, any securities offered by the Company). If the
underwriter advises the Company that marketing factors require a decrease in the
number of Senior Registrable Securities requested to be included in such
registration, then the Company shall so advise all Senior Holders of Senior
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 Senior Holders of such Senior Registrable Securities on a pro
rata basis based on the total number of Senior Registrable Securities held by
all such Senior Holders (including Initiating Holders). If due to limitations
imposed by the underwriters the Senior Holders are unable to include at least
50% of all Senior Registrable Securities requested to be included in a
registration under this Section 3.1, then upon vote or written consent of a
majority of the Senior Holders all Senior Registrable Securities shall be
withdrawn from such underwriting. Any Senior 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 3.1:
(i) prior to the earlier of (i) the consummation by
the Company of its Initial Offering and (ii) March 2, 2004; or
(ii) after the Company has filed two (2) registration
statements pursuant to this Section 3.1, and either: (A) such registration has
been declared or ordered effective; or (B) the request for such registration has
been subsequently withdrawn by the Initiating Holders, unless the withdrawal is
based upon (1) material information concerning the Company of which the
Initiating Holders were not aware at the time of such request or (2) a majority
vote of the Initiating Holders pursuant to Section 3.1(b); or
(iii) during the period starting with the date of
filing of, and ending on the date ninety (90) days following the closing of the
Company's Initial Offering; provided, that the Company makes best efforts to
cause such registration statement to become effective as soon as practicable; or
(iv) if within thirty (30) days of receipt of a
written request from Initiating Holders pursuant to Section 3.1(a), the Company
gives notice to the Senior Holders of the Company's intention to make an Initial
Offering within ninety (90) days and it files a registration statement within
such 90 day period; or
(v) if the Company shall furnish to Senior Holders
requesting a registration statement pursuant to this Section 3.1, 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 the right to delay a request hereunder or
under Section 3.3(c) shall be exercised by the Company not more than once in any
twelve (12) month period.
9.
13
3.2 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 and to offerings of securities of the Company initiated by any party
exercising its demand registration rights, but excluding registration statements
relating to employee benefit plans and 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 receipt of 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.
If the registration statement under which the Company gives notice
under this Section 3.2 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 3.2 shall
be conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Securities in the underwriting to the
extent provided herein. All Holders proposing to distribute their Registrable
Securities through such underwriting shall enter into an underwriting agreement
in customary form with the underwriter or underwriters selected for such
underwriting by the Company. Notwithstanding any other provision of this
Agreement, if the underwriter determines in good faith that marketing factors
require a limitation of the number of shares to be underwritten, the number of
shares that may be included in the underwriting shall be allocated as follows:
(i) first, to the Company, (ii) second, to the Holders on a pro rata basis based
on the total number of Registrable Securities held by the Holders and (iii)
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.
In no event will shares of any other selling stockholder be included in such
registration which would reduce the number of shares which may be included by
the Holders, without the written consent of Holders of a majority of the
Registrable Securities proposed to be sold in the offering. The Company shall
have the right to terminate or withdraw any registration initiated by it under
this Section 3.2 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 3.4 hereof.
3.3 FORM S-3 REGISTRATION. In case the Company shall receive a
written request from the Holders of more than thirty percent (30%) of the
Registrable Securities then outstanding on an as-converted basis 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:
10.
14
(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 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 3.3:
(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 $1,000,000; or
(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 3.3; provided, that the
right to delay a request hereunder of under Section 3.1(c)(v) shall be exercised
by the Company not more than once in any twelve (12) month period, or
if the Company has already effected two (2)
registrations in any twelve (12) month period on Form S-3 for the Holders
pursuant to this Section 3.3, or
(iv) 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.
3.4 REGISTRATION EXPENSES. The Company shall bear all fees and
expenses incurred in connection with any registration under this Agreement,
including without limitation all registration, filing, qualification, printers'
and accounting fees, fees and disbursements of counsel to the Company,
reasonable fees and disbursements of a single special counsel for the Holders,
not to exceed $20,000, except that each participating Holder shall bear its
proportionate share of all amounts payable to underwriters in connection with
such offering for discounts and commissions. The Company shall not, however, be
required to pay for expenses of any registration proceeding begun pursuant to
Sections 3.1 or 3.3, the request of which has been
11.
15
subsequently withdrawn by the Holders, unless the withdrawal is based upon
material information concerning the Company of which the Holders initiating the
registration request were not aware at the time of such request. If the Holders
are required to pay their 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.
3.5 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 its best 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.
(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 its best 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, in form and substance reasonably acceptable to the Holders 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 or incomplete in the light of the
circumstances then existing.
3.6 TERMINATION OF REGISTRATION RIGHTS. The right of any Holder to
request inclusion of Registrable Securities in any registration pursuant to this
Section 3 shall terminate when both (i) all Registrable Securities held by and
issuable to such Holder (and its affiliates,
12.
16
partners and former partners) may be sold under Rule 144 during any ninety (90)
day period and (ii) the Company has completed its Initial Offering and is
subject to the provisions of the Exchange Act.
3.7 FURNISH INFORMATION.
(a) 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 legally
required to effect the registration of their Registrable Securities; provided
that the if the Holders do not provide such information, then the Company has no
obligation to proceed with any such registration.
(b) The Company shall have no obligation with respect to any
registration requested pursuant to Section 3.1 if, due to the operation of
subsection 3.1(b), 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 3.1.
3.8 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 3.
3.9 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the
Company to register Registrable Securities pursuant to this Section 3 may be
assigned by a Holder to a transferee or assignee of Registrable Securities which
(a) is a subsidiary, parent, general partner, limited partner, retired partner,
member, former member, affiliate or trust beneficiaries of a Holder, (b) is a
Holder's family member or trust or other entity for the benefit of an individual
Holder or a family member or (c) acquires at least fifty thousand (50,000)
shares of Registrable Securities (as adjusted for stock dividends, stock splits
and combinations); 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. For all purposes
under this Agreement, all shares held by the Investors or their transferees
shall be aggregated with those held by their respective affiliates.
3.10 AMENDMENT OR WAIVER OF REGISTRATION RIGHTS. Any provision of
this Section 3 may be amended and the observance thereof may be waived (either
generally or in a particular instance 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; provided,
that any amendment that would alter or change the rights of the Series A Stock,
the Series B Stock or the Series C Stock as set forth herein and does not apply
equally to each of the Series A Stock, the Series B Stock and the Series C Stock
shall require the approval of the holders of a majority of each of the Series B
Stock and the Series C Stock voting separately as a class. Any amendment or
waiver effected in accordance with this Section 3.10 shall be binding upon each
Holder and the Company. By acceptance of any benefits under this Agreement,
Holders of Registrable Securities hereby agree to be bound by the provisions
hereunder.
13.
17
3.11 INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under Sections 3.1, 3.2 or 3.3:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Holder, the partners, members, officers, directors,
employees, agents and affiliates 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, 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, member, officer, employee, agent, affiliate, director, legal
counsel, 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 3.11(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 inclusion in the
registration statement by such Holder, partner, member, officer, employee,
agent, affiliate, 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, qualification or compliance is being effected,
indemnify 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, officers, legal counsel or any person who controls such
other Holder, against any losses, claims, damages or liabilities (joint or
several) to which the Company or any such director, officer, legal counsel,
controlling person, underwriter or other such Holder, or partner, director,
officer, legal counsel 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 arises directly from and
in conformity with written information furnished by such Holder under an
instrument duly executed by such Holder and stated to be specifically for
inclusion in the registration statement; and each such Holder will reimburse any
legal or other expenses reasonably incurred by the Company or any such director,
14.
18
officer, legal counsel, controlling person, underwriter or other Holder, or
partner, officer, director, legal counsel 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 3.11(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
3.11(b) exceed the net proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 3.11 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 3.11, 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 reasonably
satisfactory to the indemnified party; 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 inappropriate
due to actual or reasonably likely differing interests between such indemnified
party and any other party represented by such counsel in such proceeding.
(d) If the indemnification provided for in this Section 3.11
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 net proceeds from the offering received by such
Holder.
(e) The obligations of the Company and Holders under this
Section 3.11 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.
15.
19
3.12 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 may reasonably request in availing itself of any rule or regulation of
the SEC allowing it to sell any such securities without registration.
4. COVENANTS OF THE COMPANY
4.1 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) So long as an Investor (together with its affiliates or
other investment companies with a common investment adviser) shall own not less
than one hundred thousand (100,000) shares of Registrable Securities (as
adjusted for stock splits, stock dividends, recapitalizations and the like) (a
"MAJOR INVESTOR"), as soon as practicable after the end of each fiscal year of
the Company, and in any event within one hundred twenty (120) days thereafter,
the Company will furnish each such Major Investor an audited consolidated
balance sheet of the Company, as at the end of such fiscal year, an audited
consolidated statement of income and an audited consolidated statement of cash
flows of the Company, for such year, all prepared in accordance with generally
accepted accounting principles and setting forth in each case, in comparative
form, the figures for the previous fiscal year, all in reasonable detail. After
completion of such financial statements, Investors (other than Major Investors)
will be provided a copy of such yearly audited financial statements upon
request.
(c) The Company will furnish each Major Investor, as soon as
practicable after the end of the first, second and third quarterly accounting
periods in each fiscal year of the Company, and in any event within forty-five
(45) days thereafter, an unaudited consolidated balance sheet of the Company as
of the end of each such quarterly period, an unaudited consolidated statement of
income and an unaudited consolidated statement of cash flows of the
16.
20
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) The Company will furnish each Major Investor (i) at least
thirty (30) days prior to the beginning of each fiscal year an annual 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 thirty (30) days thereafter, an unaudited consolidated balance
sheet of the Company as of the end of each such month and an unaudited
consolidated statement of income and an unaudited consolidated statement of cash
flows of the Company for such month and for the current fiscal year to date.
4.2 INSPECTION RIGHTS. Each Major Investor shall have the right to
visit and inspect any of the properties of the Company or any of its
subsidiaries, and to discuss the affairs, finances and accounts of the Company
or any of its subsidiaries with its officers, and to review such information as
is reasonably requested all at such reasonable times and as often as may be
reasonably requested; provided, however, that the Company shall not be obligated
under this Section 4.2 with respect to a competitor of the Company or with
respect to information which the Board of Directors determines in good faith is
confidential and should not, therefore, be disclosed.
4.3 CONFIDENTIALITY OF RECORDS. Each Investor agrees to use, and
to use its best efforts to insure that its authorized representatives uses, 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,
investment adviser, director, parent or affiliate of such Investor for the
purpose of evaluating its investment in the Company as long as such partner,
subsidiary, investment advisor, director, parent or affiliate is advised of the
confidentiality provisions of this Section 4.3.
4.4 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.
4.5 SEC COMPLIANCE. During any time that the Company is subject to
the reporting requirements of the Exchange Act, the Company shall timely file
all required reports pursuant to the Exchange Act. Additionally, the Company
shall make available to Investors the information contemplated by Rule 144A. At
such time that any stock held by an Investor is eligible for transfer pursuant
to Rule 144(k), the Company shall, upon the request of such Investor, remove any
restrictive legend from the applicable stock certificate at no cost to such
Investor.
4.6 PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT. The Company
shall require all employees and consultants to execute and deliver a Proprietary
Information and Inventions Agreement.
17.
21
4.7 DIRECTORS' LIABILITY AND INDEMNIFICATION. The Company's
Restated Certificate of Incorporation and Bylaws shall provide (a) for
elimination of the liability of director to the maximum extent permitted by law
and (b) for indemnification of directors for acts on behalf of the Company to
the maximum extent permitted by law.
4.8 ADVISORY BOARD. At the discretion of the Company's Board of
Directors, the Company may establish an advisory board and the members of such
advisory board may receive stock options or other stock equivalents of the
Company which options and stock equivalents need not vest in accordance with the
provisions of Section 4.11 below.
4.9 INDEMNIFICATION AND ADVANCEMENT.
(a) The Company hereby agrees to hold harmless and indemnify
the Investors, the Investors' direct and indirect subsidiaries, affiliated
entities and corporations, and each of their partners, members, officers,
directors, employees, stockholders, agents, affiliates and representatives
(collectively, referred to as the "INVESTOR INDEMNITEES") against any and all
expenses (including attorneys' fees), damages, judgments, fines, amounts paid in
settlements, or any other amounts that a Investor Indemnitee incurs as a result
of any claim or claims made against it in connection with any threatened,
pending or completed action, suit, arbitration, investigation or other
proceeding arising out of, or relating to the Investors' actions in connection
with any transaction undertaken in connection with this Agreement.
(b) The Company shall reimburse, promptly following request
therefor, all reasonable expenses incurred by a Investor Indemnitee in
connection with any threatened, pending or completed action, suit, arbitration,
investigation or other proceeding arising out of, or relating to, the Investors'
actions in connection with any transaction undertaken in connection with this
Agreement, provided, however, that no Investor Indemnitee shall be entitled to
reimbursement in connection with acts, conduct or omissions as to which there
has been a final adjudication that such Investor Indemnitee engaged in
intentional misconduct, or in knowing and culpable violation of the law.
(c) The Company's indemnity obligations set forth above are
subject to the Investors providing prompt written notice of a claim. The Company
shall control the defense of any such action and, at its discretion, may enter
into a stipulation of discontinuance or settlement thereof; provided that the
Company may not discontinue any action or settle any claim in a manner that does
not unconditionally release the Investors without the Investors' prior written
approval. The Investors shall, at the Company's expense and reasonable request,
cooperate with the Company in any such defense and shall make available to the
Company at the Company's expense all those persons, documents (excluding
attorney/client or attorney work product materials) reasonably required by the
Company in the defense of any such action. The Purchasers may, at their expense,
assist in such defense.
(d) The Company's liability to any Investor Indemnitee under
this Section 4.9 shall be limited to the amount received by the Company from
such Investor Indemnitee, and the Company's aggregate cumulative liability under
this Section 4.9 shall be limited to the amount received by the Company pursuant
to the transactions contemplated by this Agreement.
18.
22
4.10 ASSIGNMENT OF COMPANY'S RIGHTS. In the event the Company
elects not to exercise, in whole or in part, its right of first refusal set
forth in Section 47 of the Company's Bylaws, the Company shall assign to the
Investors the portion of such right that is not exercised. The Company shall
notify each Investor of such assignment promptly, but in no event later than
three (3) days following the Company's receipt of a notice of proposed transfer
from a holder of Common Stock pursuant to Section 47 of the Company's Bylaws
(the "TRANSFER NOTICE"). Each Investor shall have the right and option to
purchase up to its pro rata share (as described in Section 5.1 below) of the
securities subject to such assigned right of first refusal. Any purchases made
by the Investor pursuant to the exercise of the foregoing right shall be made in
accordance with the terms set forth in Section 47 of the Company's Bylaws and in
the Transfer Notice.
4.11 OPTION VESTING. Unless otherwise approved by the Board of
Directors (including the representatives of the Investors), 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 that is no less favorable to the Company than as follows: (i)
twenty-five percent (25%) of such stock shall vest at the end of the first
twelve (12) months following such person's services commencement date with the
Company and (ii) seventy-five percent (75%) of such stock shall vest monthly
thereafter over thirty-six (36) months.
4.12 REDEMPTION. In the event the Company shall redeem or
otherwise purchase any shares of the Series A Stock, then the other holders of
Preferred Stock will have the right to participate in any such redemption or
purchase on a pro rata basis, subject to the same terms and conditions as the
shares of Series A Stock.
4.13 TERMINATION OF COVENANTS. All covenants of the Company
contained in Section 4 of this Agreement shall expire and terminate as to each
Investor on the effective date of the registration statement pertaining to the
Initial Offering.
5. PREEMPTIVE RIGHTS
5.1 SUBSEQUENT OFFERINGS. Each Investor shall have a preemptive
right to purchase up to its pro rata share of all Equity Securities 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 5.6 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) of which such Investor is deemed to be a
holder immediately prior to the issuance of such Equity Securities to (B) the
total number of shares of the Company's outstanding Common Stock on a
fully-diluted basis (including all shares of Common Stock issued or issuable
upon the exercise of outstanding options, warrants or convertible securities)
immediately prior to the issuance of the Equity Securities.
5.2 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) business 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
19.
23
Equity 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.
5.3 ISSUANCE OF EQUITY SECURITIES TO OTHER INVESTORS. 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) business 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 their preemptive rights, 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 5.2 hereof. If the Company
has not sold such Equity Securities within ninety (90) days of the notice
provided pursuant to Section 5.2, the Company shall not thereafter issue or sell
any Equity Securities, without first offering such securities to the Investors
in the manner provided above.
5.4 TERMINATION OF PREEMPTIVE RIGHTS. The preemptive rights
established by this Section 5 shall not apply to, and shall terminate upon, the
effective date of the registration statement pertaining to an Initial Offering.
5.5 TRANSFER OF PREEMPTIVE RIGHTS. The preemptive rights of each
Investor under this Section 5 may be transferred to the same parties, subject to
the same restrictions, as any transfer of registration rights pursuant to
Section 3.9.
5.6 EXCLUDED SECURITIES. The preemptive rights established by this
Section 5 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) (as adjusted for stock splits, recapitalizations and the like) 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
(including the Series C designee);
(b) stock issued pursuant to any rights or agreements
outstanding as of the date of this Agreement, options, warrants and convertible
promissory notes 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 preemptive rights established by this Section 5
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, including up to 16,856 shares of Common Stock that may be issued in
the acquisition of StrataWeb;
(d) shares of Common Stock issued in connection with any stock
split, stock dividend or recapitalization by the Company;
20.
24
(e) shares of Common Stock issued upon conversion of the
Shares;
(f) any Equity Securities that are issued by the Company
pursuant to a registration statement filed under the Securities Act;
(g) shares of capital stock, or other securities, or warrants,
rights, options or other convertible securities (as adjusted for stock splits,
stock dividends, recapitalizations and the like), issued pursuant to any
equipment leasing arrangement, commercial credit arrangement or debt financing
from a bank or similar financial institution;
(h) shares of Series C Stock issued pursuant to the Purchase
Agreement; and
(i) warrants to purchase up to 110,148 (as adjusted for stock
splits, stock dividends, recapitalizations and the like) shares of Series C
Stock at an exercise price of $59.12 (as adjusted for stock splits, stock
dividends, recapitalizations and the like) per share (and the shares of Common
Stock issuable upon the exercise thereof).
6. VOTING
6.1 VOTING. The Investors and the Founder agree to hold all shares
of capital stock of the Company subject to, and to vote such shares in
accordance with, the provisions of this Agreement.
6.2 ELECTION OF DIRECTORS. Each Holder hereby agrees to take all
actions necessary or appropriate to call, or cause the Company and the
appropriate officers and directors of the Company to call, an annual meeting
(and when circumstances so require, a special meeting) of the stockholders of
the Company and to vote all Shares owned or held of record by such Holder at any
such meeting and at any other annual or special meeting of stockholders in favor
of, or take all actions by written consent in lieu of any such meeting as may be
necessary or appropriate to cause, the election as members of the Board of
Directors of those individuals so designated in accordance with, and to
otherwise effect the intent of, this Section 6.2.
(a) At each election of directors in which the holders of
Common Stock, voting together as a separate class, are entitled to elect three
(3) directors of the Company pursuant to Article IV(E)(2)(e) of the Company's
Restated Certificate of Incorporation, the holders of Common Stock shall vote
their respective shares so as to elect three (3) designees of Xxxx X. Xxxxxxx.
(b) At each election of directors in which the Series A
Holders, voting together as a separate class on an as-converted basis, are
entitled to elect two (2) directors of the Company pursuant to Article
IV(E)(2)(e) of the Company's Restated Certificate of Incorporation, the holders
of Series A Stock shall vote their respective Shares so as to elect one (1)
person designated by Anschutz Family Investment Company LLC and one (1) person
designated by Sequel Limited Partnership II.
(c) At each election of directors in which the Series C
Holders, voting together as a separate class on an as-converted basis, are
entitled to elect one (1) directors of the Company pursuant to Article
IV(E)(2)(e) of the Company's Restated Certificate of
21.
25
Incorporation, the holders of Series C Stock shall vote their respective Shares
so as to elect one (1) person designated by Xxxxxxxxx Partners IV L.P., which
person shall initially be Xxxx Xxxxxxx.
(d) At each election of directors in which the holders of
Common Stock and Preferred Stock, voting together as a separate class on an
as-converted basis, are entitled to elect directors, the holders of Common Stock
and Preferred Stock shall vote their respective shares so as to elect persons
who are mutually acceptable to all the existing members of the Board of
Directors; provided, that if such existing members of the Board of Directors are
unable to agree on the designees, then the holders of Common Stock and Preferred
Stock shall vote their respective shares so as to elect at least one (1) person
designated by Xxxx X. Xxxxxxx.
6.3 BOARD OF DIRECTORS OF SUBSIDIARIES. Upon the request of the
Series C Designee, the Company shall cause the Series C Designee to be appointed
to the Board of Directors of each or any of the Company's subsidiaries.
6.4 TERMINATION OF VOTING PROVISIONS. The provisions of this
Section 6 shall expire and terminate as to each Series A Holder and Series B
Holder and Founder on the effective date of the registration statement
pertaining to the Initial Offering and as to each Series C Holder on the
effective date of the registration statement pertaining to the Company's
Qualified Public Offering (as defined in the Company's Restated Certificate of
Incorporation).
7. MISCELLANEOUS
7.1 GOVERNING LAW. This Agreement shall be construed and enforced
in accordance with the laws of the State of Colorado without regard to its
conflict-of-laws rules; provided, however, that all matters of corporate law
shall be governed by Delaware General Corporation Law.
7.2 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.
7.3 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.
7.4 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; provided, that no such
amendment or modification which applies
22.
26
specifically to an Investor's or Founder's right to designate a member of the
Board of Directors as set forth in Section 6 shall be binding on such Investor
or Founder, as applicable, without a written instrument signed by such Investor
or Founder, as applicable; and further provided, that any amendment that would
alter or change the rights of the Series A Stock, the Series B Stock or the
Series C Stock as set forth herein and does not apply pari passu to each of the
Series A Stock, the Series B Stock and the Series C Stock shall require the
approval of the holders of a majority of each of the Series B Stock and the
Series C Stock voting separately as a class.
(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 a majority of the Registrable Securities;
provided, that no such waiver which applies specifically to an Investor's or
Founder's right to designate a member of the Board of Directors as set forth in
Section 6 shall be binding on such Investor or Founder, as applicable, without a
written instrument signed by such Investor or Founder, as applicable.
7.5 NOTICES, ETC. All notices required or permitted hereunder
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 set forth on the signature pages hereto 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.
7.6 ATTORNEYS' FEES. If legal action is brought to enforce or
interpret this Agreement, the prevailing party shall be entitled to recover from
the losing party all fees, costs and expenses of enforcing any rights 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.
7.7 TITLES AND SUBTITLES. The titles of the paragraphs and
subparagraphs of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
7.8 COMPLETE AGREEMENT. This Agreement constitutes the entire
agreement and supersedes all other prior and contemporaneous agreements and
undertakings, both written and oral, between the parties hereto with regard to
the subject matter hereof.
7.9 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.
7.10 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
23.
27
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.
7.11 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.
7.12 ENTIRE AGREEMENT. This Agreement, the Exhibits and Schedules
hereto, the Purchase Agreement and the other documents delivered pursuant
thereto constitute the full and entire understanding and agreement between the
parties with regard to the subjects hereof and no party shall be liable or bound
to any other in any manner by any representations, warranties, covenants and
agreements except as specifically set forth herein and therein.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
24.
28
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth in the first paragraph hereof.
COMPANY: INVESTORS:
/s/
THE PETROLEUM PLACE, INC. -----------------------------------
0000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
By: /s/ Xxxx X. Xxxxxxx By:
--------------------------------------- --------------------------------
Xxxx X. Xxxxxxx
President and Chief Executive Officer Name:
------------------------------
Title:
-----------------------------
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
29
EXHIBIT A
THE PETROLEUM PLACE, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
NAME AND ADDRESS Energetic Investors LLC
---------------- Xxxxxxx Xxxxx Xxxxxxx & Co., P.C.
000 Xxxxx Xxxxxx
SERIES A PREFERRED HOLDERS Xxx Xxxx, XX 00000-0000
Xxxxxxx Energy Services, LLC Attn: Xxx X. Xxxxxxxx
0000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000 SERIES B PREFERRED HOLDERS
Xxxxxxx X. Xxxxx, Xx.
KERS & Co. 2410 Pleasant Creek Dr.
Xxxx Xxxx Xxxxxx Xxxx Xxxxxxxx, Xxxxx 00000
1223 N. Rock Road
Building H, Suite 000 Xxxxx X. Xxxx
Xxxxxxx, XX 00000 000 Xxxxxx Xxxxx, Xxxxx 000
Attention: Xxxxxx Xxxxxxxx Xxxxxxx, Xxxxx 00000
Xxxxxxx O&X.xxx, L.P. Xxxxx X. Xxxx
0000 X. Xxxxxxx Xxxx 000 Xxxxxxx Xxxx
Xxxxx 0000 Xxxxxxx, Xxxxx 00000
Xxxxxxxxx Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx Xxxxx X. Xxxx
0000 Xxxx Xxxxxxx, Xxxxx 000
Anschutz Family Investment Company LLC Xxxxxxx, Xxxxx 00000
000 00xx Xxxxxx
Xxxxx 0000 Xxxxxxxxx Xxxx Xxxxxx
Xxxxxx, XX 00000 000 Xxxxxx Xxxxx, Xxxxx 000
Attention: Xxxxx Xxxxxxxxx Xxxxxxx, Xxxxx 00000
A.C.E. Investment Partnership Xxxxx X. Xxxx
000 00xx Xxxxxx 0000 Xxxxxx Xxxxx
Xxxxx 0000 Xxxxxx, Xxxxx 00000
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx Xxxxxx X. Xxxxxxxxx, Xx.
1616 X. Xxxx, Suite 830
Sequel Limited Partnership II Xxxxxxx, Xxxxx 00000
0000 Xxxxxxxx Xxxxxx
Xxxxx 000 X.X. Xxxxxxxxx
Xxxxxxx, XX 00000 0000 Xxxxxxx, Xxxxx 000
Attention: Xxx Washing Xxxxxxx, Xxxxx 00000
Greenwood Gulch Ventures, LLC Xxxxxxx X. X'Xxxxxxxxxxx
0000 Xxxxxxxx Xxxxx X.X. Xxx 00
Xxxxxx Xxxx, XX 00000 Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxxx, Xx.
30
SERIES C PREFERRED HOLDERS Damac Investors (XVI) Inc.
Craiguir Xxxxxxxx, X.X. Xxx 00
Anschutz Family Investment Company LLC Road Town, Tortola
000 00xx Xxxxxx Xxxxxxx Xxxxxxxx Island
Suite 2400
Xxxxxx, XX 00000 W. Xxxx Xxxxxx
Attention: Xxxxx Xxxxxxxxx 0000 Xxx Xxxxxx
Xxxx Xxxx, XX 00000
A.C.E. Investment Partnership Tel: (000) 000-0000
000 00xx Xxxxxx
Xxxxx 0000 Xxxxxx X. Xxxxxxx
Xxxxxx, XX 00000 0000 Xxxxxx Xxxx
Attention: Xxxxx Xxxxxxxxx Xxxxx Xxxx, XX 00000
Tel: (000) 000-0000
Channel P2, LLC
Nine Greenwich Xxxxxx Xxxx X. Xxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000 0000 Xxxxxxxxxx Xxx
Xxx Xxxx, XX 9512
Channel P2 Group, LLC Tel: (000) 000-0000
Nine Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000 Founders III, LLC
000 Xxxxx Xxxxxx, 00xx Xxxxx
PCG Ventures LLC Xxx Xxxx, XX 00000
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000 The Xxxxxxx Xxxxx Group, Inc.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxx Ventures, LP Xxx Xxxx, XX 00000
00000 Xxxx 000xx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000 Xxxxxxxx Communications and Information
Fund, Inc.
BV Ventures, Ltd 000 Xxxx Xxxxxx, Xxxxxxx Xxxxx
00000 Xxxx 000xx Xxxxxx, Xxxxx 000 Xxx Xxxx, XX 00000
Xxxxxxxxxx, XX 00000
Xxxxxxxx New Technologies Fund, Inc.
Damac Technology Partners, LP 000 Xxxx Xxxxxx, Xxxxxxx Xxxxx
X.X. Xxx 000 Xxx Xxxx, XX 00000
Xxxxxx Xxxxx
Xxxxx Xxxxxx Xxxxxx, Xxxxxx Xxxx Xxxxxxxx Investment Opportunities (Master)
Grand Cayman, Cayman Island Fund- NTV Portfolio
000 Xxxx Xxxxxx, Xxxxxxx Xxxxx
Damac Investors (XV) Inc. Xxx Xxxx, XX 00000
Xxxxxxxx Xxxxxxxx, X.X. Xxx 00
Xxxx Xxxx, Xxxxxxx NIG-Petro, Ltd.
British Virginia Island 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
X-0
00
XxxXxxxx Xxxxxxxx, X.X. Xxxxxxxxxxx Xxxxxxx Ventures
Two Embarcadero Center, Suite 460 00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000 Xxx Xxxx, XX 00000
NeoCarta Scout Fund, L.L.C. Xxxxxx Xxxxxxx
Two Embarcadero Center, Suite 000 Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Partech U.S. Partners IV LLC Xxxxxxx X. Xxxxxxx
50 California Street, Suite 0000 Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Xxx X.X. Growth Fund LLC WB Internet Fund 2000, LLC
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000 Two Embarcadero Center, Suite 2320
San Francisco, CA 94111 Xxx Xxxxxxxxx, XX 00000
Parallel Capital I LLC WB Internet Fund 2000 QP, LLC
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000 Two Embarcadero Center, Suite 2320
San Francisco, CA 94111 Xxx Xxxxxxxxx, XX 00000
Parallel Capital II LLC Winfield Capital Corp.
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000 000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
Double Black Diamond II LLC Xxxxx Xxxxx
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000 [Address]
Xxx Xxxxxxxxx, XX 00000
45th Parallel LLC Xxxx X. Xxxxxxx
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000 000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Sequel Limited Partnership II Xxxxx X. Xxxxxxxx
0000 Xxxxxxxx Xxxxxx 000 Xxxxxxx Xxxx Xxxx
Xxxxx 000 Xxx Xxxx, XX 00000
Xxxxxxx, XX 00000
Attention: Xxx Washing Xxxxxx Xxxxxxx
000 Xxxx Xxxxxx, #00
Xxxxxx Entrepreneurs' Fund II LP Xxx Xxxx, XX 00000
0000 Xxxxxxxx Xxxxxx
Xxxxx 000 Xxxx XxXxxxxx
Xxxxxxx, XX 00000 000 Xxxxxx Xxxx Xxxx
Attention: Xxx Washing Xxxxxxxxx, XX 00000
A-3
