EXHIBIT 10.4
XXXXXXX.XXX, INC.
AMENDED AND RESTATED STOCKHOLDERS' RIGHTS AGREEMENT
THIS AMENDED AND RESTATED STOCKHOLDERS' RIGHTS AGREEMENT (this "Agreement")
is made as of this 13/th/ day of April, 2000 by and among XxxXxxx.xxx, Inc., a
Delaware corporation (the "Company"), Xxxx Xxxxxxxx and Xxxx Xxxxxxxx (such
individuals collectively, the "Founders" and each a "Founder"), the holders of
the Company's Series A Preferred Stock (the "Series A Preferred"), the holders
of the Company's Series B Preferred Stock (the "Series B Preferred"), the
holders of the Company's Series C Preferred Stock (the "Series C Preferred"),
the holders of the Company's Series D Preferred Stock (the "Series D Preferred")
and the purchasers of the Company's Series E Non-Voting Preferred Stock ("Series
E Preferred") set forth on Exhibit A of that certain Series E Non-Voting
Preferred Stock and Warrant Purchase Agreement of even date herewith (the
"Purchase Agreement"). The holders of the Series A Preferred, Series B
Preferred, Series C Preferred and Series D Preferred shall be referred to
hereinafter individually as an "Existing Holder" and collectively as the
"Existing Holders". The purchasers of the Series E Preferred shall be referred
hereinafter individually as a "Purchaser" and collectively as the "Purchasers."
Additional persons may be added as parties to this Agreement as contemplated
herein and each such addition will be evidenced by such person's execution of a
signature page hereto.
RECITALS
WHEREAS, the Company has granted the Existing Holders registration and
certain other rights under the Amended and Restated Stockholders' Rights
Agreement dated as of June 22, 1999 (the "Prior Agreement"); and
WHEREAS, the Company proposes to sell and issue up to five million three
hundred thirty thousand four hundred ninety (5,330,490) shares of Series E
Preferred warrants to purchase up to five hundred thirty-three thousand forty-
nine (533,049) shares of Series E Preferred (the "Warrants") pursuant to the
Purchase Agreement; and
WHEREAS, as a condition of entering into the Purchase Agreement, the
Purchasers have requested that the Company extend to them registration and
certain other rights with respect to the Series E Preferred as set forth below,
and the Existing Holders 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 in the
Purchase Agreement, the parties mutually agree as follows:
1. General
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(a) Amendment of Prior Agreement. Certain of the undersigned parties,
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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 in all respects by the rights and obligations set forth
in this Agreement, and any application of the rights of participation (including
any notice requirements) set forth in Section 17 of the Prior Agreement as to
the issuance of the Company's Series E Preferred and Warrants and Series E
Preferred issuable upon exercise of the Warrants under the Purchase Agreement is
hereby waived.
(b) Certain Definitions. As used in this Agreement, the following
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terms shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission or
any successor agency.
"Common Stock" shall mean the Common Stock of the Company.
"Family Member" shall have the meaning ascribed to it in Section
15 hereof.
"Form S-3" means Form S-3 under the Securities Act as in effect on
the date hereof or any successor registration form under the Securities Act
subsequently adopted by the Commission which permits inclusion or incorporation
of substantial information by reference to other documents filed by the Company
with the Commission.
"Holder" shall mean any person owning of record Registrable
Securities or any transferee of Registrable Securities who, pursuant to Section
15 below, is entitled to registration rights hereunder.
"Restricted Securities" shall have the meaning ascribed to it in
Section 3 hereof.
"Registrable Securities" shall mean (i) shares of the Common Stock
issued or issuable upon the conversion of the Shares (including Shares issuable
or issued upon exercise of the Warrants); and (ii) Common Stock issued as (or
issuable upon 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, securities described in clause (i) above.
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 this Agreement are not assigned.
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 the
effectiveness of such registration statement.
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"Registration Expenses" shall mean all reasonable out-of-pocket
expenses incurred by the Company in complying with Sections 5, 6 and 9 hereof,
including, without limitation, the legal fees of one special counsel to the
Holders, and all registration, qualification and filing fees, printing expenses,
escrow fees, fees and disbursements of counsel for the Company, blue sky fees
and expenses, accounting fees of the Company, and the expense of any special
audits incident to or required by any such registration.
"Sale of the Company" shall mean when the Company shall sell,
convey or otherwise dispose of all or substantially all of its property or
business or merge into or consolidate with any other corporation (other than a
wholly-owned subsidiary corporation) or effect any other transaction or series
of related transactions in which more than fifty (50%) of the voting power of
the Company is disposed of.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Selling Expenses" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities registered by
the Holders as well as fees and expenses of any special counsel in addition to
the one special counsel included in Registration Expenses, if any, to the
Holders.
"Shares" shall mean the Company's Series A Preferred, Series B
Preferred, Series C Preferred, Series D Preferred, and Series E Preferred.
2. Restrictions on Transferability. The Restricted Securities shall not
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be transferable except upon the conditions specified in this Agreement, which
conditions are intended, among other things, to ensure compliance with the
provisions of the Securities Act and other provisions, contained herein. Each
Holder of Restricted Securities will cause any proposed transferee of the
Restricted Securities held by such Holder to agree in writing to take and hold
such Restricted Securities subject to the provisions and upon the conditions
specified in this Agreement and to be bound by this Agreement in the same manner
as the transferring Holder. Without limiting the foregoing, a condition to any
valid transfer of any Restricted Securities shall be the addition of the
transferee to this Agreement and the execution by such transferee of a signature
page hereto.
3. Restrictive Legend. Each certificate representing (i) Shares or (ii)
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Registrable Securities (any such securities listed in the preceding subsections
(i) or (ii), "Restricted Securities"), shall (unless otherwise permitted by the
provisions of Section 4 below) be stamped or otherwise imprinted with a legend
in the following form (in addition to any legend required under applicable state
securities laws or the Purchase Agreement):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"). THESE SHARES MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM
UNDER THE SECURITIES ACT. COPIES OF THE AGREEMENTS COVERING THE PURCHASE
OF THESE
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SHARES AND RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT NO COST BY WRITTEN
REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY
OF THE CORPORATION AT THE PRINCIPAL EXECUTIVE OFFICES OF THE CORPORATION.
4. Notice of Proposed Transfers. The Holder of each certificate
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representing Restricted Securities by acceptance thereof agrees to comply in all
respects with the provisions of this Section 4. Prior to any proposed transfer
of any Restricted Securities, unless there is in effect a registration statement
under the Securities Act covering the proposed transfer, the Holder thereof
shall give written notice to the Company of such Holder's intention to effect
such transfer. Each such notice shall describe the manner and circumstances of
the proposed transfer in sufficient detail, and shall, if the Company so
requests, be accompanied (except in transactions in compliance with Rule 144) by
an unqualified written opinion of legal counsel who shall be reasonably
satisfactory to the Company, addressed to the Company and reasonably
satisfactory in form and substance to the Company's counsel, to the effect that
the proposed transfer of the Restricted Securities may be effected without
registration under the Securities Act, provided, however, that no opinion need
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be obtained with respect to a transfer to (A) a partner, active or retired, of a
Holder of Restricted Securities, (B) the estate of any such partner, (C) an
"affiliate" of a Holder of Restricted Securities as that term is defined in Rule
405 promulgated by the Commission under the Securities Act (an "Affiliate"), or
(D) the spouse, children, grandchildren or spouse of such children or
grandchildren of any Holder or to trusts for the benefit of any Holder or such
persons, if the transferee agrees to be subject to the terms hereof. Each
certificate evidencing the Restricted Securities transferred as above provided
shall bear the appropriate restrictive legend set forth in 3 above, except that
such certificate shall not bear such restrictive legend if in the opinion of
counsel for the Company such legend is not required in order to establish
compliance with any provisions of the Securities Act.
5. Requested Registration.
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(a) Request for Registration. If at any time beginning the earlier
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of (i) June 12, 2004 or (ii) six (6) months after the effective date of the
first firm commitment underwritten public offering of equity securities of the
Company to the general public (an "IPO"), the Company shall receive from any
Holder or group of Holders holding more than fifty percent (50%) of the
Registrable Securities then outstanding (any such holder, or group of holders,
the "Initiating Holders") a written request that the Company affect any
registration, qualification or compliance with respect to Registrable Securities
having a reasonably anticipated aggregate offering price to the public, before
deduction of underwriter discounts and commissions, of at least $20,000,000, the
Company will:
(x) within ten (10) days of receipt thereof, give written notice
of the proposed registration, qualification or compliance to all other Holders
who are not Initiating Holders; and
(y) as soon as practicable and in any event within sixty (60) days
of the receipt of such request, use its reasonable efforts to affect such
registration, qualification or
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compliance (including, without limitation, the execution of an undertaking to
file post-effective amendments, appropriate qualification under applicable blue
sky or other state securities laws and appropriate compliance with applicable
regulations issued under the Securities Act and any other governmental
requirements or regulations) as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such Registrable
Securities as are specified in such request, together with all or such portion
of the Registrable Securities of any Holder(s) joining in such request as are
specified in a written request received by the Company within thirty (30) days
after the date of such written notice from the Company;
Provided, however, that the Company shall not be obligated to take any
action to affect any such registration, qualification or compliance pursuant to
this Section 5:
(A) In any particular jurisdiction in which the Company
would be required to execute a general consent to service of process in
affecting such registration, qualification or compliance unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Securities Act;
(B) After the Company has affected two (2) such
registrations pursuant to this Section 5(a), such registrations have been
declared or ordered effective and the securities offered pursuant to such
registrations have been sold; or
(C) During the period starting with the date sixty (60)
days prior to the Company's estimated date of filing of, and ending on the date
three (3) months immediately following the effective date of, any registration
statement pertaining to securities of the Company (other than a registration
statement relating to the sale of the Company's securities in connection with a
Rule 145 transaction, an employee benefit plan or the IPO), provided that the
Company is actively employing in good faith all reasonable efforts to cause such
registration statement to become effective;
Subject to the foregoing clauses (A) through (C), the Company shall file a
registration statement covering the Registrable Securities so requested to be
registered as soon as practicable after receipt of the request or requests of
the Initiating Holders. If, however, the Company shall furnish to the
Initiating Holders a certificate signed by the Chief Executive Officer or
President of the Company stating that, in the good faith judgment of the Board
of Directors of the Company (the "Board of Directors"), it would be seriously
detrimental to the Company and its stockholders for such registration statement
to be filed and it is therefore advisable to defer the filing of such
registration statement, 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, however, that the Company may not utilize this
right more than once in any twelve (12) month period.
(b) Underwriting. If the Initiating Holders intend to distribute the
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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
Section 5(a) and the Company shall include such information in the written
notice referred to in Section 5(a)(x). The right of any Holder to
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registration pursuant to Section 5 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 requested and to the
extent provided herein.
The Company shall (together with all Holders proposing to distribute their
securities through such underwriting) enter into an underwriting agreement in
customary form with the managing underwriter which managing underwriter shall be
selected by the Company. Upon the request of such underwriter, the Company
agrees to provide all necessary cooperation in connection with such underwriting
including participation in meetings, due diligence sessions, road shows, the
preparation of prospectuses and similar documents, and the preparation and
delivery of customary certificates or documents. Notwithstanding any other
provision of this Section 5, if the managing underwriter advises the Initiating
Holders in writing that marketing factors require a limitation of the number of
shares to be underwritten, then, subject to the provisions of Section 5(a), the
Company shall so advise all Holders and the number of shares of Registrable
Securities that may be included in the registration and underwriting shall be
allocated among all Holders requesting inclusion in the following priority: (i)
the Common Stock (other than shares as to which any person holds contractual
rights to inclusion) held by all persons other than the Holders shall first be
excluded from such registration and underwriting to the extent required; and
(ii) if a limitation of the number of shares to be included in such registration
and underwriting is still required, such limitation shall be allocated among the
Holders (including the Initiating Holders), in proportion, as nearly as
practicable, to the respective amounts of securities contractually entitled to
inclusion (determined without regard to any requirement of a request to be
included in such registration) in such registration held by all such Holders at
the time of filing the registration statement. No Registrable Securities
excluded from the underwriting by reason of the managing underwriter's marketing
limitation shall be included in such registration.
If any Holder proposing to participate in an underwriting pursuant to this
Section 5(b) disapproves of the terms of such underwriting, such Holder may
elect to withdraw therefrom by written notice to the Company, the managing
underwriter and the Initiating Holders. The Registrable Securities and/or other
securities so withdrawn shall also be withdrawn from registration; provided,
however, that if by the withdrawal of such Registrable Securities a greater
number of Registrable Securities held by other Holders may be included in such
registration (up to the maximum of any limitation imposed by the underwriters),
then the Company shall offer to all Holders who have included Registrable
Securities in the registration the right to include additional Registrable
Securities in the same proportion used in determining the underwriter limitation
in this Section 5(b). If the registration does not become effective due to the
withdrawal of Registrable Securities, then either (1) the Holders requesting
registration shall reimburse the Company for expenses incurred in complying with
the request or (2) the aborted registration shall be treated as affected for
purposes of Section 5(a)(B) and Section 9.
6. Company Registration.
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(a) Notice of Registration. If the Company shall determine to
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register any of its securities, either for its own account or the account of a
security holder or holders exercising their
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respective demand registration rights, other than (i) a registration relating to
employee benefit plans or, (ii) a registration relating solely to a Commission
Rule 145 transaction, the Company will:
(i) promptly give to each Holder written notice thereof; and
(ii) include in such registration (and any related qualification
under blue sky laws or other compliance), and in any underwriting involved
therein, all the Registrable Securities specified in a written request or
requests, made within thirty (30) days after receipt of such written notice from
the Company, by any Holder, except as set forth in Section 6(b) below.
(b) Underwriting. If the registration of which the Company gives
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notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 6(a)(i). In such event the right of any Holder to
registration pursuant to Section 6 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their securities through such underwriting shall
(together with the Company and other holders distributing their securities
through such underwriting) 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 Section 6, if the managing
underwriter advises the Company in writing that marketing factors require a
limitation of the number of shares to be underwritten, then the managing
underwriter may limit the number of Registrable Securities to be included in the
registration and underwriting by reducing the number of Registrable Securities
included on behalf of the Holders, on a pro-rata basis (or in such other
proportions as shall mutually be agreed upon by such Holders), based on the
total number of Registrable Securities entitled to registration held by each
Holder, but in no event shall the amount of securities of the Holders included
in the offering be reduced below ten percent (10%) of the total amount of
securities included in such offering, unless such offering is the initial public
offering of the Company, in which case the securities of the Holders can be
excluded in their entirety; provided, however, that any such limitation or
"cutback" shall be first applied to all shares proposed to be sold in such
offering other than for the account of the Company which are not Registrable
Securities. The Company shall advise all Holders of Registrable Securities which
would otherwise be registered and underwritten pursuant hereto of any such
limitations. If any Holder disapproves of the terms of any such underwriting, he
may elect to withdraw therefrom by written notice to the Company and the
underwriter. Any Registrable Securities excluded or withdrawn from such
underwriting shall not be included in such registration.
7. Expenses of Registration. All Registration Expenses incurred in
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connection with any registration, qualification or compliance pursuant to
Sections 5, 6 and 9 shall be borne by the Company. All Selling Expenses relating
to securities registered by the Holders shall be borne by the Holders of such
securities pro rata on the basis of the number of shares so registered.
8. Registration Procedures. In the case of each registration,
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qualification or compliance effected by the Company pursuant to this Agreement,
the Company will keep each Holder advised in
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writing as to the initiation of each registration, qualification and compliance
and as to the completion thereof. At its expense the Company will:
(a) Prepare and file with the Commission a registration statement with
respect to such securities and use its reasonable efforts to cause such
registration statement to become and remain effective for at least one hundred
twenty (120) days or until the distribution described in the registration
statement has been completed; provided, however, that such one hundred twenty
(120) day period shall be extended for a period of time equal to the period the
Holder refrains from selling any securities included in such registration at the
request of an underwriter of Common Stock (or other securities) of the Company;
(b) Prepare and file with the Commission 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 participating in such registration and to
the underwriters of the securities being registered such reasonable number of
copies of the registration statement, preliminary prospectus, final prospectus
and such other documents as such underwriters may reasonably request in order to
facilitate the public offering of such securities;
(d) Use its reasonable efforts to register and qualify the securities
covered by such registration statement under such other securities or blue sky
laws of such jurisdictions as shall be reasonably requested by the Holders;
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions, unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Securities Act;
(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 of such offering; provided that each Holder
participating in such underwriting shall also enter into and perform its
obligations under such underwriting 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
known to the Company as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue statement of
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) Cause such Registrable Securities registered pursuant hereunder to
be listed on each securities exchange on which similar securities issued by the
Company are then listed; and
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(h) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
(i) Use its best efforts to furnish, at the request of any Holder
requesting registration of Registrable Securities pursuant to this Agreement, on
the date that such Registrable Securities are delivered to the underwriters for
sale in connection with a registration pursuant to this Agreement, 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 such
date, of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to underwriters in
an underwritten public offering, addressed to the underwriters, if any, and the
Holders requesting registration of Registrable Securities and (ii) a letter
dated such date, from the independent certified public accountants of the
Company, in form and substance as is customarily given by independent certified
public accountants to underwriters in an underwritten public offering, addressed
to the underwriters, if any, and to the Holders requesting registration of
Registrable Securities.
9. Registration on Form S-3. In addition to the rights set forth in
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Section 5, if the Holders request in writing that the Company file a
registration statement on Form S-3 (or any successor form thereto) for a public
offering of shares of Registrable Securities the reasonably anticipated
aggregate price to the public of which is at least two million dollars
($2,000,000), and the Company is a registrant entitled to use Form S-3 to
register securities for such an offering, the Company shall use its reasonable
efforts to cause such shares to be registered for the offering on such form (or
any successor thereto). The Company will promptly give written notice of the
request for the proposed registration to all other Holders and include all
Registrable Securities of any Holder or Holders joining in such request as are
specified in a written request received by the Company within thirty (30) days
after the date of such written notice from the Company. The substantive
provisions of Section 5(b) shall be applicable to each registration initiated
under this Section 9. Notwithstanding Section 5(a)(B), the Holders shall be
entitled to four (4) registrations on Form S-3, but not more than two (2) in any
twelve month period.
10. Termination of Registration Rights. Except as provided elsewhere in
----------------------------------
Agreement, the registration rights granted pursuant to this Agreement shall
terminate (i) as to all Holders on the fifth anniversary of the closing of the
IPO and (ii) as to any Holder, at such time as such Holder is able to sell all
of its Registrable Securities under Rule 144 in a three (3) month period or such
Holder is able to sell all Registrable Securities held by it pursuant to Rule
144(k) promulgated under the Securities Act.
11. Indemnification.
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(a) The Company will indemnify each Holder, each of its officers,
directors and partners and such Holder's legal counsel and independent
accountants, and each person controlling such Holder within the meaning of
Section 15 of the Securities Act, with respect to which registration,
qualification or compliance has been affected pursuant to this Agreement, and
each
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underwriter, if any, and each person who controls any underwriter within the
meaning of Section 15 of the Securities Act, against all expenses, claims,
losses, damages and liabilities (or actions in respect thereof), including any
of the foregoing incurred in settlement of any litigation, arising out of or
based on any untrue statement (or alleged untrue statement) of a material fact
contained in any registration statement, prospectus, offering circular or other
document, or any amendment or supplement thereto, incident to any such
registration, qualification or compliance affected pursuant to this Agreement,
or based on any 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 any violation by the Company of any rule or regulation
promulgated under the Securities Act applicable to the Company and relating to
action or inaction required of the Company in connection with any such
registration, qualification or compliance, and will reimburse each such Holder,
each of its officers, directors and partners and such Holder's legal counsel and
independent accountants, and each person controlling such Holder, each such
underwriter and each person who controls any such underwriter, for any legal and
any other expenses reasonably incurred in connection with investigating,
preparing or defending any such claim, loss, damage, liability or action,
provided that the Company will not be liable in any such case to the extent that
any such claim, loss, damage, liability or expense arises out of or is based on
any untrue statement or omission or alleged untrue statement or omission
contained in any registration statement, prospectus, offering circular or other
document or any amendment or supplement thereto, incident to any registration,
qualification or compliance affected pursuant to this Agreement, made in
reliance upon and in conformity with written information furnished to the
Company by an instrument duly executed by such Holder or underwriter and stated
to be specifically for use therein.
(b) 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 affected, indemnify the Company, each of its directors and
officers and its legal counsel and independent accountants, each underwriter, if
any, of the Company's securities covered by such a registration statement, each
person who controls the Company or such underwriter within the meaning of
Section 15 of the Securities Act, and each other such Holder, each of its
officers and directors and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, against all claims, losses, damages
and liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any such registration statement, prospectus, offering circular or other
document, or any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Company, such Holders, such directors,
officers, legal counsel, independent accountants, underwriters or control
persons for any legal or any other expenses reasonably incurred in connection
with investigating or defending any such claim, loss, damage, liability or
action, in each case to the extent, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) is
made in such registration statement, prospectus, offering circular or other
document in reliance upon and in conformity with written information furnished
to the Company by an instrument duly executed by such Holder and stated to be
specifically for use therein; provided, however, that the obligations of any
such Holder hereunder shall be limited to an amount equal to the gross proceeds
before expenses and commissions to such Holder of Registrable Securities sold as
contemplated herein.
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(c) Each party entitled to indemnification under this Section 11 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld), and the Indemnified Party may participate in such defense at such
party's expense; provided, however, that the Indemnified Party (together with
all other Indemnified Parties that may be represented without conflict by one
counsel) shall have the right to retain one separate 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; and provided further that the failure of any Indemnified Party to
give notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Agreement, except to the extent, but only to the extent,
that the Indemnifying Party's ability to defend against such claim or litigation
is impaired as a result of such failure to give notice. 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.
(d) If the indemnification provided for in paragraphs (a) and (b) of
this Section 11 is unavailable or insufficient to hold harmless an Indemnified
Party thereunder, then each Indemnifying Party thereunder shall contribute to
the account paid or payable by such Indemnified Party as a result of the losses,
claims, damages, costs, expenses, liabilities or actions referred to in
paragraphs (a) and (b) of this Section 11 in such proportion as is appropriate
to reflect the relative fault of the Indemnifying Party on the one hand and the
Indemnified Party on the other in connection with statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Indemnifying Party or the Indemnified
Party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statements or omission. The
parties hereto agree that it would not be just and equitable if contributions
pursuant to this paragraph (d) of Section 11 were to be determined by pro rata
or per capita allocation or by any other method of allocation which does not
take account of the equitable considerations referred to in the first sentence
of this paragraph (d) of Section 11. The amount paid by an Indemnified Party as
a result of the losses, claims, damages or liabilities referred to in the first
sentence of this paragraph (d) of Section 11 shall be deemed to include any
legal or other expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending any action or claim which is the
subject of this paragraph (d) of Section 11. Promptly after receipt by an
Indemnified Party of notice of the commencement of any action against such party
in respect of which a claim for contribution may be made against an Indemnifying
Party under this paragraph (d) of Section 11, such Indemnified Party shall
notify the
-11-
Indemnifying Party in writing of the commencement thereof if the notice
specified in paragraph (c) of this Section 11 has not been given with respect to
such action; provided that the omission so to notify the Indemnifying Party
--------
shall not relieve the Indemnifying Party from any liability which it may have to
any Indemnified Party otherwise under this paragraph (d) of Section 11, except
to the extent that the Indemnifying Party is actually prejudiced by such failure
to give notice. The parties hereto agree with each other and shall agree with
the underwriters of the Common Stock of the Company pursuant to the terms
hereof, if requested by such underwriters, that (a) the underwriters' portion of
such contribution shall not exceed the underwriting discount, commission and
other compensation and (b) except for the Company, the amount of such
contribution shall not exceed an amount equal to the proceeds received by such
Indemnifying Party from the sale of securities in the offering to which the
losses, claims, damages or liabilities of the indemnified parties relate. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
12. Lock-up Agreement. In consideration for the Company agreeing to
-----------------
its obligations under this Agreement each Holder of Registrable Securities and
each transferee pursuant to Section 15 hereof agrees, in connection with the
first registration of the Company's securities, upon request of the underwriters
managing such underwritten offering of the Company's securities, not to sell,
make any short sale of, loan, grant any option for the purchase of, or otherwise
dispose of any Registrable Securities or other securities of the Company (other
than those included in the registration and securities acquired in open market
transactions on or after the effective date of such registration) without the
prior written consent of the Company or such underwriters, as the case may be,
for such period of time from the effective date of such registration as the
Company or the underwriters may specify, which period shall not exceed one
hundred eighty (180) days following the effective date of the IPO; provided,
however that (i) all directors, officers and 1% stockholders of the Company
agree to the same lockup and (ii) such agreement shall provide that any
discretionary waiver or termination of the restrictions of such agreements by
the Company or representatives of the underwriters shall apply to all persons
subject to such agreements pro rata based on the number of shares subject to
such agreements. Each Holder agrees that the Company may instruct its transfer
agent to place stop transfer notations in its records to enforce the provisions
of this Section 12.
13. Information by Holder. The Holder or Holders of Registrable
----------------------
Securities included in any registration shall furnish to the Company such
information regarding such Holder or Holders and the distribution proposed by
such Holder or Holders as the Company may request in writing and as shall be
required in connection with any registration, qualification or compliance
referred to in this Agreement.
14. Rule 144 Reporting. With a view to making available the benefits of
------------------
certain rules and regulations of the Commission which may at any time permit the
sale of the Restricted Securities to the public without registration, after such
time as a public market exists for the Common Stock of the Company, the Company
agrees to:
-12-
(a) Use its reasonable efforts to make and keep public information
available, as those terms are understood and defined in Rule 144 under the
Securities Act, at all times after the effective date of the IPO;
(b) Use its reasonable efforts to then file with the Commission in a
timely manner all reports and other documents required of the Company under the
Securities Act and the Securities Exchange Act of 1934, as amended (at any time
after it has become subject to such reporting requirements); and
(c) Furnish to Holders of Registrable Securities forthwith upon
request, a written statement by the Company as to its compliance with the
reporting requirements of Rule 144 (at any time after ninety (90) days after the
effective date of the IPO, and of the Securities Act and the Securities Exchange
Act of 1934, as amended, (at any time after it has become subject to such
reporting requirements), a copy of the most recent annual or quarterly report of
the Company, and such other reports and documents of the Company as a Holder of
Registrable Securities may reasonably request in availing itself of any rule or
regulation of the Commission allowing such Holder to sell any such securities
without registration.
15. Transfer of Registration Rights. The right to cause the Company to
-------------------------------
register securities granted hereunder may be assigned to a transferee or
assignee who is an affiliate (as that term is defined in Rule 405 promulgated by
the Commission under the Securities Act), or who acquires at least two hundred
thousand (200,000) shares of Series A Preferred, Series B Preferred, Series C
Preferred, Series D Preferred, Series E Preferred or the Common Stock issued
upon conversion thereof (adjusted for stock splits, reverse stock splits or
similar events after the date hereof), provided that the Company is given
written notice of such assignment prior to such assignment. In addition, rights
to cause the Company to register securities may be freely assigned (a) to any
constituent partner or retired partner of a Holder, where such Holder is a
partnership, (b) to any officer, director or principal shareholder thereof,
where such Holder is a corporation or (c) to the spouse, children, grandchildren
or spouse of such children or grandchildren of any Holder or to trusts for the
benefit of any Holder or such persons where the Holder is a natural person (each
person or entity in this subsection (c), a "Family Member").
16. Information Rights. The Company hereby covenants and agrees as
------------------
follows:
(a) Annual Financial Information. The Company will furnish to each
----------------------------
Holder who holds at least ten percent (10%) of the number of originally issued
shares of Series A Preferred, Series B Preferred, Series C Preferred, Series D
Preferred or Series E Preferred (adjusted for stock splits, reverse stock splits
or similar events after the date hereof), as the case may be, as soon as
practicable after the end of each fiscal year, and in any event within ninety
(90) days thereafter, an income statement for such fiscal year, a balance sheet
of the Company and statement of stockholder's equity as of the end of such year,
and a statement of cash flows for such year, such year-end financial reports to
be in reasonable detail, prepared in accordance with generally accepted
accounting principles ("GAAP"), and audited and certified by an independent
public accounting firm
-13-
of nationally recognized standing selected by the Company, and the Company's
annual financial plan for the upcoming fiscal year to be in reasonable detail
and broken down on a monthly basis.
(b) Monthly Financial Information. Upon written request, the
-----------------------------
Company will deliver to each Holder who holds at least ten percent (10%) of the
number of originally issued shares of Series A Preferred, Series B Preferred,
Series C Preferred, Series D Preferred or Series E Preferred (adjusted for stock
splits, reverse stock splits or similar events after the date hereof), as the
case may be, as soon as practicable after the end of each month, and in any
event within thirty (30) days thereafter, an unaudited income statement and
schedule as to the sources and applications of funds and balance sheet and
comparison to prior year results and budget for and as of the end of such month.
(c) Assignment of Rights to Financial Information. The rights to
---------------------------------------------
receive information pursuant to this Section 16 may be assigned or otherwise
conveyed to any transferee of Shares.
(d) Termination of Information Rights. The information rights set
---------------------------------
forth in this Section 16 shall expire upon the earlier of (i) the IPO or (ii)
the date of a Sale of the Company.
17. Right to Maintain.
-----------------
(a) In the event the Company desires to sell and issue any shares of,
or securities convertible into or exchangeable or exercisable for any shares of,
any class of its capital stock ("New Securities"), then the Company shall first
notify each Holder of the material terms of the proposed sale and shall permit
each such Holder to acquire, at the time of consummation of such proposed
issuance and sale and on such terms as are specified in the Company's notice
pursuant hereto, a certain number of the New Securities (such right, the "Right
to Maintain"). Each Holder shall have thirty (30) days after the date of such
notice to elect by notice to the Company to purchase up to the number of such
New Securities available to them pursuant to Section 17(b) below.
(b) The number of New Securities that each Holder may acquire
hereunder shall be determined by calculating such number as would result in such
Holder maintaining its voting rights in the Company following such proposed
issuance of New Securities, on an as-converted, outstanding percentage basis, at
the level held by it immediately prior to such issuance of New Securities after
giving effect to the anti-dilution protections, if any, set forth in the
Company's Certificate of Incorporation. In addition, each Holder shall have a
right of over-allotment such that if any Holder fails to exercise its rights
hereunder to purchase the maximum number of New Securities which it is entitled
to purchase pursuant to the preceding sentence, the other Holders may purchase
on a proportional basis (determined with respect to the number of shares which
the Holders are entitled to purchase pursuant to the preceding sentence) such
shortfall number of New Securities by notice to the Company within the thirty
day period after the date of the Company notice pursuant to Section 17(a) above.
(c) Notwithstanding anything in this Section 17, New Securities shall
not be deemed to include (and no Right to Maintain shall apply to the issuance
of) any securities issued or
-14-
issuable (i) to employees, consultants or directors of the Company pursuant to
any employee benefit plan; (ii) to banks, building developers or equipment
lessors in connection with commercial credit arrangements, equipment financings
or similar transactions provided such issuances are for other than primarily
equity financing purposes and are approved by the Board of Directors; (iii) in
connection with any stock split, dividend or distribution in respect of the
Company's capital stock; (iv) in the IPO; (v) upon conversion of the Shares; or
(vi) in connection with a Sale of the Company, a business combination, a
strategic partnership, a joint venture or a similar transaction, approved by the
Board of Directors.
(d) The Right to Maintain for all parties shall terminate and be of
no further force or effect upon the earlier of and with respect to (i) the date
of the IPO or (ii) the date of a Sale of the Company.
18. Co-Sale Rights. The sale or transfer of any Shares or Common Stock by
--------------
either Founder to a purchaser other than any Family Member, shall be subject to
the Co-Sale Rights set forth in this Section 18 with respect to such sale or
transfer. The Co-Sale Rights shall not apply to the sale or transfer of Shares
or Common Stock by either of the Founders up to an aggregate of ten percent
(10%) of the aggregate holdings of such Founder immediately following the
closing of the transactions contemplated by the Purchase Agreement.
(a) Rights Granted. In the event that any Founder proposes to sell
--------------
or otherwise transfer (a "Selling Founder") any Shares or Common Stock ("Founder
Shares") to a purchaser other than any Family Member (a "Proposed Founder
Sale"), the Selling Founder shall deliver to each Holder a written notice (a
"Founder Co-Sale Notice") stating: (i) his bona fide intention to sell such
Founder Shares; (ii) the name of each proposed buyer of such Founder Shares
(each a "Proposed Founder Buyer"); (iii) the number of Founder Shares to be
transferred to each Proposed Founder Buyer; and (iv) the bona fide cash price or
other consideration for which he proposes to transfer the Founder Shares. Each
Holder shall have the right, exercisable upon written notice to the Selling
Founder within twenty (20) days after receipt of a Founder Co-Sale Notice, to
participate in the Proposed Founder Sale pursuant to the specified terms and
conditions of such Proposed Founder Sale in the manner described below.
(b) Participation. Each Holder may sell all or any part of that
-------------
number of Shares (including Common Stock issuable upon conversion thereof),
equal to the product obtained by multiplying (i) the number of Founder Shares
specified in the Founder Co-Sale Notice by (ii) a fraction, the numerator of
which is the number of shares of Registrable Securities held by such Holder
immediately prior to the Proposed Founder Sale, and the denominator of which is
the total number of shares of Common Stock (including shares of Common Stock
issuable upon conversion of shares of Preferred Stock and upon exercise of any
option to purchase Common Stock) owned by the Selling Founder, and all of the
Existing Holders and Purchasers in the aggregate on the date of the Founder Co-
Sale Notice.
(c) Delivery. Each Holder shall effect its participation in the
--------
Proposed Founder Sale, if any, by delivering to the Selling Founder for transfer
to the Proposed Founder Buyer(s) one
-15-
or more certificates, properly endorsed for transfer, which represent the number
of Shares (including shares of Common Stock issuable upon conversion thereof)
that such Holder elects to sell pursuant to this Section 18.
(d) Price; Payment. The consideration for the Shares transferred
--------------
to the Selling Founder pursuant to this Section 18 shall be equal to the per
share price specified in the Founder Co-Sale Notice or such higher price as the
Selling Founder may be paid for such shares. The Selling Founder shall, no later
than five (5) days after the closing of the Proposed Founder Sale, remit to each
participating Holder the consideration described in the preceding sentence for
the Shares transferred pursuant to this Section 18.
(e) Termination. The Co-Sale Rights set forth in this Section 18
-----------
shall terminate and be of no further force or effect immediately upon the
closing of an IPO which results in aggregate gross proceeds to the Company equal
to or in excess of $20,000,000, prior to deduction of underwriting commissions
and offering expenses.
(f) If, from time to time during the term of this Agreement, there is
any consolidation or merger immediately following which stockholders of the
Company hold more than 50% of the voting equity securities of the surviving
corporation, then, in such event, any and all new, substituted or additional
securities to which any Founder is entitled by reason of his or her ownership of
the Founder Shares shall be immediately subject to the provisions of this
Agreement and be included in the term "Founder Shares" for all purposes of this
Agreement with the same force and effect as the Founder Shares presently subject
to this Agreement and with respect to which such securities were distributed.
(g) In the event a Founder sells any Founder Shares in contravention
of the Co-Sale Rights of a Holder under this Agreement (a "Prohibited
Transfer"), such Holder, in addition to such other remedies as may be available
at law, in equity or hereunder, shall have the put option provided in Section
18(h) below, and such Founder shall be bound by the applicable provisions of
such put option.
(h) In the event of a Prohibited Transfer, such Holder shall have the
right to sell to the Founder who effected the Prohibited Transfer, and, if such
right is exercised, the Founder shall have the obligation to purchase from such
Holder, a number of Shares (including Common Stock issuable upon conversion
thereof) equal to the number of Shares (including Common Stock issuable upon
conversion thereof) such Holder would have been entitled to transfer to the
purchaser in the Prohibited Transfer pursuant to the terms hereof. Such sale
shall be made on the following terms and conditions:
(i) The price per share at which the Shares (including Common
Stock issuable upon conversion thereof) are to be sold to the Founder shall be
equal to the price per share paid by the purchaser to the Founder in the
Prohibited Transfer.
(ii) Within twenty (20) days after the later of the dates on
which the Holder (i) received notice from the Founder of the Prohibited Transfer
or (ii) otherwise became
-16-
aware of the Prohibited Transfer, the Holder shall, if exercising the put option
created hereby, deliver to Founder the certificate(s), properly endorsed for
transfer, which represent the Shares (including shares of Common Stock issuable
upon conversion thereof) to be sold.
(iii) The Founder shall, within ten (10) days of its receipt of
the certificate(s) for the Shares to be sold by a Holder pursuant to this
Section 18(h), pay the aggregate purchase price therefor by certified check or
bank draft or by wire transfer made payable to the order of such Holder.
(iv) NOTWITHSTANDING THE FOREGOING, ANY ATTEMPT TO TRANSFER
SHARES OF THE COMPANY IN VIOLATION OF SECTION 18 HEREOF SHALL BE DEEMED NULL AND
VOID 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 HOLDERS. THE COMPANY AND THE FOUNDERS AGREE
THAT ANY AND ALL CERTIFICATES REPRESENTING ANY FOUNDER SHARES HELD FROM TIME TO
TIME DURING THE TERM OF THIS AGREEMENT SHALL BEAR A LEGEND REFERRING TO THE
RESTRICTIONS IMPOSED BY THIS AGREEMENT.
(v) Each Founder agrees that the Company may instruct its
transfer agent to impose transfer restrictions on the Founder Shares represented
by certificates bearing the legend referred to in Section 18(h)(iv) to enforce
the provisions of this Agreement. The legend shall be removed upon termination
of the Co-Sale Rights herein.
19. Governing Law. This Agreement and the legal relations between the
-------------
parties arising hereunder shall be governed by and interpreted in accordance
with the laws of the State of California. The parties hereto agree to submit to
the exclusive jurisdiction and venue of the United States District Court for the
Northern District of California with respect to the breach or interpretation of
this Agreement or the enforcement of any and all rights, duties, liabilities,
obligations, powers, and other relations between the parties arising under this
Agreement.
20. Entire Agreement. This Agreement constitutes the full and entire
----------------
understanding and agreement between the parties regarding rights to
registration. 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.
21. Notices, etc. All notices and other communications required or
-------------
permitted hereunder shall be in writing and shall be deemed effectively given
upon delivery to the party to be notified in person or by courier service, by
facsimile upon proper confirmation of receipt, or five (5) days after deposit
with the United States mail, by registered or certified mail, postage prepaid,
addressed (a) if to a Holder, to such holder's address or addresses set forth
below or at such other address as such holder shall have furnished to the
Company in writing, (b) if to any other holder of any Registrable Securities, to
such address as such holder shall have furnished the Company in writing, or,
until any such holder so furnishes an address to the Company, then to the
address of the last holder of such
-17-
securities who has so furnished an address to the Company, or (c) if to the
Company, to its address set forth below, to the attention of the Corporate
Secretary, or at such other address as the Company shall have furnished to the
Holders.
22. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which may be executed by less than all of the parties
hereto, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one and
the same instrument.
23. Amendment. Any provision of this Agreement may be amended, waived or
---------
modified only upon the written consent of each of the following (i) the Company;
and (ii) the holders of 50% or more of the Registrable Securities. Any
amendment or waiver effected in accordance with this Section 23 shall be binding
upon each Holder, the Founders and the Company; provided, however, that with
respect to the amendment of any provision hereunder that solely affects the
rights of a specific class of stockholders, only the consent of the Company and
the holders of not less than a majority of the then outstanding shares of such
class or group, as the case may be, shall be required to amend such provision.
Any Holder may waive any of his or her rights or the Company's obligations
hereunder without obtaining the consent of any other person.
24. Successors and Assigns. Except as otherwise 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.
25. Severability. In the event that any provision of this Agreement
------------
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; provided that no such severability shall be effective if
it materially changes the economic benefit of this Agreement to any party.
26. Aggregation of Stock. All shares of Registrable Securities held or
--------------------
acquired by affiliated entities or affiliated persons shall be aggregated
together for the purpose of determining the availability of any rights under
this Agreement.
-18-
IN WITNESS WHEREOF, the undersigned have executed this Amended and Restated
Stockholders' Rights Agreement as of the date set forth above.
"COMPANY" "FOUNDERS"
XXXXXXX.XXX, INC.
a Delaware Corporation
By:___________________________ By:____________________________
Name:_________________________ Name:__________________________
Title:________________________ Title:_________________________
SERIES A PREFERRED HOLDERS
XXXXXXX X. XXXX and XXXXX X. XXXXXX, Xxxxxx Xxxxxxxx
tees XXXX/XXXXXX T/A dtd 8/29/95
By:___________________________ _________________________
Name:_________________________
Title:________________________
Xxxxxx X. Xxxxxxx and Louisa X.X. Xx Xxxxx, Xxxxxxx Xxxxxx
Community Property
By:___________________________ _________________________
Name:_________________________
Title:________________________
WS Investment Company 97B
By:___________________________
Name:_________________________
Title:________________________
SERIES B PREFERRED HOLDERS
Institutional Venture Partners VIII, L.P., by its General Partner
Institutional Venture Management VIII, LLC
_____________________________________
Name:________________________________
IVM Investment Fund VIII, LLC, by its Manager
Institutional Venture Management VIII, LLC
_____________________________________
Name:________________________________
IVM Investment Fund VIII-A, LLC, by its Manager
Institutional Venture Management VIII, LLC
_____________________________________
Name:________________________________
IVP Founders Fund I, L.P., by its General Partner
Institutional Venture Management VI, L.P.
_____________________________________
Name:________________________________
WS Investment Company 98A
By: _________________________________
Name: _______________________________
Title: ______________________________
Xxxx Xxxx Box, Trustee of the MARKBOX Xxxxxx Xxxxxxxx
LIVING TRUST U/A dated December 5, 1995,
as amended ___________________________________
By:__________________________________
Xxxx and Xxx Xxxxxxxx
Name:________________________________
___________________________________
Title:_______________________________
XXXXXXX X. XXXX and XXXXX X. XXXXXX Xxxxxxxxxxx XxXxxx and Xxxxxxx Xxxx
tees XXXX/XXXXXX T/A dtd 8/29/95
___________________________________
By:__________________________________
Name:________________________________
Title:_______________________________
Xxxxxx X. Xxxxxxx and Louisa X.X. Xx Xxxxx,
Community Property
By:__________________________________
Name:________________________________
Title:_______________________________
Xxxxx X. Xxxxxxx
___________________________________
SERIES C PREFERRED HOLDERS
Foundation Capital II, L.P.
By: Foundation Capital Management II, LLC
Its: Manager
By: ______________________________________
Name:
Title:
Foundation Capital II Entrepreneurs Fund, LLC
By: Foundation Capital Management II, LLC
Its: Manager
By: ______________________________________
Name:
Title:
Foundation Capital II Principals Fund, LLC
By: Foundation Capital Management II, LLC
Its: Manager
By: ______________________________________
Name:
Title:
TCV II, V.O.F.
a Netherlands Antilles General Partnership
By: Technology Crossover Management II, L.L.C.
Its: Investment General Partner
By: _______________________________________
Name: Xxxxx X. Xxxxxx
Title: Attorney-In-Fact
Technology Crossover Ventures II, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II, L.L.C.
Its: General Partner
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Attorney-In-Fact
TCV II (Q), L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II, L.L.C.
Its: General Partner
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Attorney-In-Fact
TCV II Strategic Partners, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II, L.L.C.
Its: General Partner
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Attorney-In-Fact
Technology Crossover Ventures II, C.V.
a Netherlands Antilles Limited Partnership
By: Technology Crossover Management II, L.L.C.
Its: Investment General Partner
By: ___________________________________
Name: Xxxxx X. Xxxxxx
Title: Attorney-In-Fact
Institutional Venture Partners VIII, L.P.
By: Institutional Venture Management VIII, LLC
Its: General Partner
By: __________________________________
Name:
Title: Managing Director
IVM Investment Fund VIII, LLC
By: Institutional Venture Management VIII, LLC
Its: General Partner
By: __________________________________
Name:
Title: Managing Director
Xxxx Xxxxxxxx
_______________________________________
Xxxxxx Xxxxxxxx
_______________________________________
Xxxx Xxxxxxxx
_______________________________________
Xxx Xxxxxxxx
_______________________________________
Xxxxxx X. Xxxxxxx
_______________________________________
XXXXXXX X. XXXX and XXXXX X.
XXXXXX, tees XXXX/XXXXXX T/A
dtd 8/29/95
_______________________________________
By
_______________________________________
Name
_______________________________________
Title
Hastings 1996 Irrevocable Trust
_______________________________________
By
_______________________________________
Name
_______________________________________
Title
WS Investment Company 99A
_______________________________________
By:
_______________________________________
Name:
_______________________________________
Title:
Comdisco, Inc.
_______________________________________
By:
_______________________________________
Name:
_______________________________________
Title:
SERIES D PREFERRED HOLDERS
TCV II, V.O.F.
a Netherlands Antilles General Partnership
By: Technology Crossover Management II, L.L.C.
Its: Investment General Partner
By: __________________________________
Name: Xxxxx X. Xxxxxx
Title: Attorney-In-Fact
Technology Crossover Ventures II, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II, L.L.C.
Its: General Partner
By: __________________________________
Name: Xxxxx X. Xxxxxx
Title: Attorney-In-Fact
TCV II (Q), L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II, L.L.C.
Its: General Partner
By: __________________________________
Name: Xxxxx X. Xxxxxx
Title: Attorney-In-Fact
TCV II Strategic Partners, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II, L.L.C.
Its: Investment General Partner
By: __________________________________
Name: Xxxxx X. Xxxxxx
Title: Attorney-In-Fact
Technology Crossover Ventures II, C.V. Xxxxxxx Xxxxxxx
a Netherlands Antilles Limited Partnership
By: Technology Crossover Management II, L.L.C. __________________________
Its: Investment General Partner
By: __________________________________
Name: Xxxxx X. Xxxxxx
Title: Attorney-In-Fact
Foundation Capital II, L.P.
By: Foundation Capital Management II, LLC
Its: Manager
By: __________________________________
Name:
Title:
Foundation Capital II Entrepreneurs Fund, LLC
By: Foundation Capital Management II, LLC
Its: Manager
By: __________________________________
Name:
Title:
Foundation Capital II Principals Fund, LLC
By: Foundation Capital Management II, LLC
Its: Manager
By: __________________________________
Name:
Title:
Europe@web B.V.
By: __________________________________
Name:
Title:
SERIES E PREFERRED HOLDERS
TCV II, V.O.F.
a Netherlands Antilles General Partnership
By: Technology Crossover Management II, L.L.C.
Its: Investment General Partner
By: __________________________________
Name: Xxxxx X. Xxxxxx
Title: Attorney-In-Fact
Technology Crossover Ventures II, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II, L.L.C.
Its: General Partner
By: __________________________________
Name: Xxxxx X. Xxxxxx
Title: Attorney-In-Fact
TCV II (Q), L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II, L.L.C.
Its: General Partner
By: __________________________________
Name: Xxxxx X. Xxxxxx
Title: Attorney-In-Fact
TCV II Strategic Partners, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II, L.L.C.
Its: Investment General Partner
By: __________________________________
Name: Xxxxx X. Xxxxxx
Title: Attorney-In-Fact
Technology Crossover Ventures II, C.V.
a Netherlands Antilles Limited Partnership
By: Technology Crossover Management II, L.L.C.
Its: Investment General Partner
By: __________________________________
Name: Xxxxx X. Xxxxxx
Title: Attorney-In-Fact
Xxxxxxxx X. Xxxxxxxx
_______________________________________
Xxxxxx Xxxxxxxx
_______________________________________
TCV IV, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management IV, L.L.C.,
Its: General Partner
By: __________________________________
Name: Xxxxx X. Xxxxxx
Title: Attorney in Fact
Institutional Venture Partners VIII, L.P.
By: Institutional Venture Management VIII, LLC
Its: General Partner
By: __________________________________
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
IVM Investment Fund VIII, LLC
By: Institutional Venture Management VIII, LLC
Its: Manager
By: __________________________________
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
Foundation Capital II, L.P.
By: Foundation Capital Management II, LLC
Its: Manager
By: __________________________________
Name:
Title:
Foundation Capital II Entrepreneurs Fund, LLC
By: Foundation Capital Management II, LLC
Its: Manager
By: __________________________________
Name:
Title:
Foundation Capital II Principals Fund, LLC
By: Foundation Capital Management II, LLC
Its: Manager
By: __________________________________
Name:
Title:
TCV Franchise Fund, L.P.
a Delaware Limited Partnership
By:
Its:
By: __________________________________
Name:
Title:
