Exhibit 4.1
ARIBA TECHNOLOGIES, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
APRIL 17, 1998
TABLE OF CONTENTS
Page
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1. Registration Rights . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Request for Registration. . . . . . . . . . . . . . . . . . . . . 3
1.3 Company Registration. . . . . . . . . . . . . . . . . . . . . . . 4
1.4 Obligations of the Company. . . . . . . . . . . . . . . . . . . . 5
1.5 Furnish Information . . . . . . . . . . . . . . . . . . . . . . . 6
1.6 Expenses of Demand Registration . . . . . . . . . . . . . . . . . 6
1.7 Expenses of Company Registration. . . . . . . . . . . . . . . . . 6
1.8 Underwriting Requirements . . . . . . . . . . . . . . . . . . . . 6
1.9 Delay of Registration . . . . . . . . . . . . . . . . . . . . . . 7
1.10 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.11 Reports Under Securities Exchange Act of 1934 . . . . . . . . . . 9
1.12 Form S-3 Registration . . . . . . . . . . . . . . . . . . . . . .10
1.13 Assignment of Registration Rights . . . . . . . . . . . . . . . .11
1.14 Market Stand-Off Agreement Rights . . . . . . . . . . . . . . . .11
1.15 Termination of Registration Rights. . . . . . . . . . . . . . . .12
2. Covenants of the Company. . . . . . . . . . . . . . . . . . . . . . . .12
2.1 Delivery of Financial Statements. . . . . . . . . . . . . . . . .12
2.2 Inspection. . . . . . . . . . . . . . . . . . . . . . . . . . . .13
2.3 Termination of Information and Inspection Covenants . . . . . . .13
2.4 Right of First Offer. . . . . . . . . . . . . . . . . . . . . . .13
2.5 Proprietary Information and Inventions Agreements . . . . . . . .15
2.6 Board Representation. . . . . . . . . . . . . . . . . . . . . . .15
3. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
3.1 Successors and Assigns. . . . . . . . . . . . . . . . . . . . . .15
3.2 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . .16
3.3 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . .16
3.4 Titles and Subtitles. . . . . . . . . . . . . . . . . . . . . . .16
3.5 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
3.6 Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
3.7 Amendments and Waivers. . . . . . . . . . . . . . . . . . . . . .16
3.8 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . .17
3.9 Aggregation of Stock. . . . . . . . . . . . . . . . . . . . . . .17
3.10 Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . .17
3.11 Waiver of Right of First Offer. . . . . . . . . . . . . . . . . .17
3.12 Prior Agreement . . . . . . . . . . . . . . . . . . . . . . . . .17
Schedule A Schedule of Investors
Schedule B Schedule of Founders
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
THIS AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT is made as of
April 17, 1998, by and among Ariba Technologies, Inc., a Delaware corporation
(the "Company"), the investors listed on Schedule A hereto, each of which is
herein referred to as an "Investor", and the founders listed on Schedule B
hereto, each of which is herein referred to as a "Founder".
RECITALS
WHEREAS, certain of the Investors and the Founders possess
registration rights and certain of the Investors possess other investor
rights granted pursuant to that certain Amended and Restated Investors'
Rights Agreement (the "August Agreement"), dated August 15, 1997, among the
Company and the persons listed on the Schedule of Investors attached thereto
(the "Prior Investors"), as amended by that certain Amendment No. 1 of
Amended and Restated Investors' Rights Agreement (the "Amendment") dated as
of February 27, 1998 by and among the Company and the Amending Investors (as
defined therein) (the August Agreement as amended by the Amendment is
referred to herein as the "Prior Agreement");
WHEREAS, one of the Investors has been granted a warrant (the
"Warrant") to purchase shares of the Company's Series B Preferred Stock
pursuant to an equipment leasing transaction and pursuant to such Warrant the
Company agreed to make such Investor a party to this Agreement;
WHEREAS, one of the Investors (the "Series BB Investor") is a party
to the Series BB Preferred Stock Purchase Agreement of even date herewith
(the "Series BB Agreement") among the Company and such Investor, pursuant to
which the Series BB Investor is purchasing shares of Series BB Preferred
Stock of the Company;
WHEREAS, in order to induce the Company to enter into the Series BB
Agreement and to induce the Series BB Investor to invest funds in the Company
pursuant to the Series BB Agreement, the Prior Investors and the Founders
hereby agree to unconditionally waive their rights under the Prior Agreement,
and the Investors, the Founders and the Company hereby agree that this
Agreement shall govern the rights of the Investors and the Founders to cause
the Company to register shares of Common Stock issued or issuable to such
persons, and certain other matters as set forth herein; and
WHEREAS, the Series BB Investors and the Company have agreed,
pursuant to the Series BB Agreement, to enter into this Agreement;
NOW, THEREFORE, in consideration of the promises, covenants, and
conditions set forth herein, the parties hereto hereby agree as follows:
1. REGISTRATION RIGHTS. The Company covenants and agrees as
follows:
1.1 DEFINITIONS. For purposes of this Section 1:
(a) The term "Act" means the Securities Act of 1933, as
amended.
(b) The term "Form S-3" means such form under the Act as
in effect on the date hereof or any registration form under the Act
subsequently adopted by the SEC that permits inclusion or incorporation of
substantial information by reference to other documents filed by the Company
with the SEC.
(c) The term "Holder" means any person owning or having
the right to acquire Registrable Securities or any assignee thereof in
accordance with Section 1.13 hereof.
(d) The term "1934 Act" shall mean the Securities
Exchange Act of 1934, as amended.
(e) The term "register," "registered," and
"registration" refer to a registration effected by preparing and filing a
registration statement or similar document in compliance with the Act, and
the declaration or ordering of effectiveness of such registration statement
or document.
(f) The term "Registrable Securities" means (i) the
Common Stock issuable or issued upon conversion of the Series A Preferred
Stock and the Series B Preferred Stock, (ii) the shares of Common Stock
issued to the Founders; provided, however, that such shares of Common Stock
shall not be deemed Registrable Securities and the aforementioned individuals
shall not be deemed Holders for the purposes of Section 1.2, 1.12 and 3.7
(except as provided therein), and (iii) any Common Stock of the Company
issued as (or issuable upon the conversion or exercise of any warrant, right
or other security that is issued as) a dividend or other distribution with
respect to, or in exchange for, or in replacement of the shares referenced in
(i) and (ii) above, excluding in all cases, however, any Registrable
Securities sold by a person in a transaction in which his rights under this
Section 1 are not assigned.
(g) The number of shares of "Registrable Securities then
outstanding" shall be determined by the number of shares of Common Stock
outstanding that are, and the number of shares of Common Stock issuable
pursuant to then exercisable or convertible securities that are, Registrable
Securities.
(h) The term "Series A Preferred Stock" shall refer to
and include the Series A-1 Preferred Stock.
(i) The term "Series B Preferred Stock" shall refer to
and include the Series B-1 Preferred Stock, the Series BB Preferred Stock,
the Series BB-1 Preferred Stock and the Series B Preferred Stock issued upon
exercise of the Warrant.
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(j) The term "SEC" shall mean the Securities and Exchange
Commission.
1.2 REQUEST FOR REGISTRATION.
(a) If the Company shall receive at any time after the
earlier of (i) September 27, 2000, or (ii) six (6) months after the effective
date of the first registration statement for a public offering of securities
of the Company (other than a registration statement relating either to the
sale of securities to employees of the Company pursuant to a stock option,
stock purchase or similar plan or a SEC Rule 145 transaction), a written
request from the Holders of a majority of the Registrable Securities then
outstanding that the Company file a registration statement under the Act
covering the registration of at least fifty percent (50%) of the Registrable
Securities then outstanding (or a lesser percent if the anticipated aggregate
offering price, net of underwriting discounts and commissions, would exceed
$7,500,000), then the Company shall:
(i) within ten (10) days of the receipt thereof,
give written notice of such request to all Holders; and
(ii) effect as soon as practicable, and in any event
within sixty (60) days of the receipt of such request, the registration under
the Act of all Registrable Securities that the Holders request to be
registered, subject to the limitations of subsection 1.2(b), within twenty
(20) days of the mailing of such notice by the Company in accordance with
Section 3.5.
(b) If the Holders initiating the registration request
hereunder ("Initiating Holders") intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall
so advise the Company as a part of their request made pursuant to subsection
1.2(a) and the Company shall include such information in the written notice
referred to in subsection 1.2(a). The underwriter will be selected by the
Company and shall be reasonably acceptable to a majority in interest of the
Initiating Holders. In such event, the right of any Holder to include his
Registrable Securities in such registration shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting (unless otherwise
mutually agreed by a majority in interest of the Initiating Holders and such
Holder) to the extent provided herein. All Holders proposing to distribute
their securities through such underwriting shall (together with the Company
as provided in subsection 1.4(e)) enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwriting. Notwithstanding any other provision of this Section 1.2, if
the underwriter advises the Initiating Holders in writing that marketing
factors require a limitation of the number of shares to be underwritten, then
the Initiating Holders shall so advise all Holders of Registrable Securities
that would otherwise be underwritten pursuant hereto, and the number of
shares of Registrable Securities that may be included in the underwriting
shall be allocated among all Holders thereof, including the Initiating
Holders, in proportion (as nearly as practicable) to the amount of
Registrable Securities of the Company owned by each Holder; provided,
however, that the number of shares of Registrable
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Securities to be included in such underwriting shall not be reduced unless
all other securities are first entirely excluded from the underwriting.
(c) Notwithstanding the foregoing, if the Company shall
furnish to Holders requesting a registration statement pursuant to this
Section 1.2, a certificate signed by the President of the Company stating
that in the good faith judgment of the Board of Directors of the Company, it
would be seriously detrimental to the Company and its stockholders for such
registration statement to be filed and it is therefore essential to defer the
filing of such registration statement, the Company shall have the right to
defer taking action with respect to such filing for a period of not more than
one hundred twenty (120) days after receipt of the request of the Initiating
Holders; provided, however, that the Company may not utilize this right more
than once in any twelve (12) month period.
(d) In addition, the Company shall not be obligated to
effect, or to take any action to effect, any registration pursuant to this
Section 1.2:
(i) After the Company has effected two (2)
registrations pursuant to this Section 1.2 and such registrations have been
declared or ordered effective;
(ii) During the period starting with the date
sixty (60) days prior to the Company's good faith estimate of the date of
filing of, and ending on a date one hundred eighty (180) days after the
effective date of, a registration subject to Section 1.3 hereof; provided
that the Company is actively employing in good faith all reasonable efforts
to cause such registration statement to become effective; or
(iii) If the Initiating Holders propose to
dispose of shares of Registrable Securities that may be immediately
registered on Form S-3 pursuant to a request made pursuant to Section 1.12
below.
1.3 COMPANY REGISTRATION. If (but without any obligation to
do so) the Company proposes to register (including for this purpose a
registration effected by the Company for stockholders other than the Holders)
any of its stock or other securities under the Act in connection with the
public offering of such securities solely for cash (other than a registration
relating solely to the sale of securities to participants in a Company stock
plan, a registration on any form that does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of the Registrable Securities or a registration in which
the only Common Stock being registered is Common Stock issuable upon
conversion of debt securities that are also being registered), the Company
shall, at such time, promptly give each Holder written notice of such
registration. Upon the written request of each Holder given within twenty
(20) days after mailing of such notice by the Company in accordance with
Section 3.5, the Company shall, subject to the provisions of Section 1.8,
cause to be registered under the Act all of the Registrable Securities that
each such Holder has requested to be registered.
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1.4 OBLIGATIONS OF THE COMPANY. Whenever required under this
Section 1 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 a
period of up to one hundred twenty (120) days or until the distribution
contemplated in the Registration Statement has been completed.
(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 Act with respect to the disposition of all
securities covered by such registration statement.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the 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, with the managing underwriter 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 Act of the happening of any event as a
result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
(g) Cause all such Registrable Securities registered
pursuant hereunder to be listed on each securities exchange on which similar
securities issued by the Company are then listed.
(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.
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1.5 FURNISH INFORMATION.
(a) It shall be a condition precedent to the obligations
of the Company to take any action pursuant to this Section 1 with respect to
the Registrable Securities of any selling Holder that such Holder shall
furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such
securities as shall be required to effect the registration of such Holder's
Registrable Securities.
(b) The Company shall have no obligation with respect to
any registration requested pursuant to Section 1.2 or Section 1.12 if, due to
the operation of subsection 1.5(a), the number of shares or the anticipated
aggregate offering price of the Registrable Securities to be included in the
registration does not equal or exceed the number of shares or the anticipated
aggregate offering price required to originally trigger the Company's
obligation to initiate such registration as specified in subsection 1.2(a) or
subsection 1.12(b)(2), whichever is applicable.
1.6 EXPENSES OF DEMAND REGISTRATION. All expenses other than
underwriting discounts and commissions incurred in connection with
registrations, filings or qualifications pursuant to Section 1.2, including
(without limitation) all registration, filing and qualification fees,
printers' and accounting fees, fees and disbursements of counsel for the
Company and the reasonable fees and disbursements of one counsel for the
selling Holders shall be borne by the Company; provided, however, that the
Company shall not be required to pay for any expenses of any registration
proceeding begun pursuant to Section 1.2 if the registration request is
subsequently withdrawn at the request of the Holders of a majority of the
Registrable Securities to be registered (in which case all participating
Holders shall bear such expenses), unless the Holders of a majority of the
Registrable Securities agree to forfeit their right to one demand
registration pursuant to Section 1.2.
1.7 EXPENSES OF COMPANY REGISTRATION. The Company shall bear
and pay all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
pursuant to Section 1.3 for each Holder (which right may be assigned as
provided in Section 1.13), including (without limitation) all registration,
filing, and qualification fees, printer's and accounting fees relating or
apportionable thereto and the fees and disbursements of one counsel for the
selling Holders selected by them, but excluding underwriting discounts and
commissions relating to Registrable Securities.
1.8 UNDERWRITING REQUIREMENTS In connection with any
offering involving an underwriting of shares of the Company's capital stock,
the Company shall not be required under Section 1.3 to include any of the
Holders' securities in such underwriting unless they accept the terms of the
underwriting as agreed upon between the Company and the underwriters selected
by it (or by other persons entitled to select the underwriters), and then
only in such quantity as the underwriters determine in their sole discretion
will not jeopardize the success of the offering by the Company. If the total
amount of securities, including Registrable Securities, requested by
stockholders to be included in such offering exceeds the amount of securities
sold other than by the Company that the underwriters determine in their sole
discretion
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is compatible with the success of the offering, then the Company shall be
required to include in the offering only that number of such securities,
including Registrable Securities, that the underwriters determine in their
sole discretion will not jeopardize the success of the offering (the
securities so included to be apportioned pro rata among the selling
stockholders according to the total amount of securities entitled to be
included therein owned by each selling stockholder or in such other
proportions as shall mutually be agreed to by such selling stockholders) but
in no event shall (i) the amount of securities of the selling Holders
included in the offering be reduced below twenty-five percent (25%) of the
total amount of securities included in such offering, unless such offering is
the initial public offering of the Company's securities, in which case the
selling stockholders may be excluded if the underwriters make the
determination described above and no other stockholder's securities are
included or (ii) notwithstanding (i) above, any shares being sold by a
stockholder exercising a demand registration right similar to that granted in
Section 1.2 be excluded from such offering. For purposes of the preceding
parenthetical concerning apportionment, for any selling stockholder that is a
holder of Registrable Securities and that is a partnership or corporation,
the partners, retired partners and stockholders of such holder, or the
estates and family members of any such partners and retired partners and any
trusts for the benefit of any of the foregoing persons shall be deemed to be
a single "selling stockholder," and any pro-rata reduction with respect to
such "selling stockholder" shall be based upon the aggregate amount of shares
carrying registration rights owned by all entities and individuals included
in such "selling stockholder," as defined in this sentence.
1.9 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 1.
1.10 INDEMNIFICATION. In the event any Registrable Securities
are included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless each Holder, any underwriter (as defined in the
Act) for such Holder, and each person, if any, who controls such Holder or
underwriter within the meaning of the Act or the 1934 Act, against any
losses, claims, damages, or liabilities (joint or several) to which they may
become subject under the Act, the 1934 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"): (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
Act, the 1934 Act, any state securities law or any rule or regulation
promulgated under the Act, the 1934 Act or any state securities law; and the
Company will pay to each such Holder, underwriter or controlling person, as
incurred, 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,
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that the indemnity agreement contained in this subsection 1.10(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 that occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration
by any such Holder, underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder
will indemnify and hold harmless the Company, each of its directors, each of
its officers who has signed the registration statement, each person, if any,
who controls the Company within the meaning of the Act, any underwriter, any
other Holder selling securities in such registration statement and any
controlling person of any such underwriter or other Holder, against any
losses, claims, damages or liabilities (joint or several) to which any of the
foregoing persons may become subject under the Act, the 1934 Act or other
federal or state law, insofar as such losses, claims, damages or liabilities
(or actions in respect thereto) arise out of or are based upon any Violation,
in each case to the extent (and only to the extent) that such Violation
occurs in reliance upon and in conformity with written information furnished
by such Holder expressly for use in connection with such registration; and
each such Holder will pay, as incurred, any legal or other expenses
reasonably incurred by any person intended to be indemnified pursuant to this
subsection 1.10(b) in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that the
indemnity agreement contained in this subsection 1.10(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 that, in no event
shall any indemnity under this subsection 1.10(b) exceed the gross proceeds
from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under
this Section 1.10 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 1.10,
deliver to the indemnifying party a written notice of the commencement
thereof and the indemnifying party shall have the right to participate in,
and, to the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with
counsel mutually satisfactory to the parties; provided, however, that an
indemnified party (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. The failure
to deliver written notice to the indemnifying party within a reasonable time
of the commencement of any such action, if prejudicial to its ability to
defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 1.10, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this Section
1.10.
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(d) If the indemnification provided for in this Section
1.10 is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, liability, claim, damage or
expense referred to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party hereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such loss,
liability, claim, damage or expense 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 statements or
omissions that resulted in such loss, liability, claim, damage or expense as
well as any other relevant equitable considerations. The relative fault of
the indemnifying party and of the indemnified party shall be determined 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.
(e) Notwithstanding the foregoing, to the extent that
the provisions on indemnification and contribution contained in the
underwriting agreement entered into in connection with the underwritten
public offering are in conflict with the foregoing provisions, the provisions
in the underwriting agreement shall control.
(f) The obligations of the Company and Holders under
this Section 1.10 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and otherwise.
1.11 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a
view to making available to the Holders the benefits of Rule 144 promulgated
under the Act and any other rule or regulation of the SEC that may at any
time permit a Holder to sell securities of the Company to the public without
registration or pursuant to a registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as those
terms are understood and defined in SEC Rule 144, at all times after the
effective date of the first registration statement filed by the Company for
the offering of its securities to the general public;
(b) take such action, including the voluntary
registration of its Common Stock under Section 12 of the 1934 Act, as is
necessary to enable the Holders to utilize Form S-3 for the sale of their
Registrable Securities, such action to be taken as soon as practicable after
the end of the fiscal year in which the first registration statement filed by
the Company for the offering of its securities to the general public is
declared effective;
(c) file with the SEC in a timely manner all reports and
other documents required of the Company under the Act and the 1934 Act; and
(d) furnish to any Holder, so long as the Holder owns
any Registrable Securities, forthwith upon request (i) a written statement by
the Company that it has complied with the reporting requirements of SEC Rule
144 (at any time after ninety (90) days
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after the effective date of the first registration statement filed by
the Company), the Act and the 1934 Act (at any time after it has become
subject to such reporting requirements), or that it qualifies as a registrant
whose securities may be resold pursuant to Form S-3 (at any time after it so
qualifies), (ii) a copy of the most recent annual or quarterly report of the
Company and such other reports and documents so filed by the Company, and
(iii) such other information as may be reasonably requested in availing any
Holder of any rule or regulation of the SEC that permits the selling of any
such securities without registration or pursuant to such form.
1.12 FORM S-3 REGISTRATION. In case the Company shall receive
from the Holders of a majority of the Registrable Securities then outstanding
a written request or requests that the Company effect a registration on Form
S-3 and any related qualification or compliance with respect to all or a part
of the Registrable Securities owned by such Holder or Holders, the Company
will:
(a) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all other
Holders; and
(b) as soon as practicable, effect such registration and
all such qualifications and compliances as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion of such
Holder's or Holders' Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any other
Holder or Holders joining in such request as are specified in a written
request given within fifteen (15) days after receipt of such written notice
from the Company; provided, however, that the Company shall not be obligated
to effect any such registration, qualification or compliance, pursuant to
this section 1.12: (1) if Form S-3 is not available for such offering by the
Holders; (2) if the Holders, together with the holders of any other
securities of the Company entitled to inclusion in such registration, propose
to sell Registrable Securities and such other securities (if any) at an
aggregate price to the public (net of any underwriters' discounts or
commissions) of less than $1,000,000; (3) if the Company shall furnish to the
Holders a certificate signed by the President 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 one hundred twenty (120) days after receipt of the
request of the Holder or Holders under this Section 1.12; provided, however,
that the Company shall not utilize this right more than once in any twelve
(12) month period; or (4) 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
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 a majority of the Holders. All expenses other
than underwriting discounts and commissions incurred in connection with a
registration requested pursuant to Section 1.12, including (without
limitation) all registration, filing, qualification, printer's and accounting
fees and the reasonable fees and
10
disbursements of one counsel for the selling Holder or Holders and counsel
for the Company shall be borne by the Company; provided, however, that the
Company shall not be required to pay for any expenses of any registration
proceeding begun pursuant to this Section 1.12 if the registration request is
subsequently withdrawn at the request of the Holders of a majority of the
Registrable Securities to be registered (in which case all participating
Holders shall bear such expenses). Registrations effected pursuant to this
Section 1.12 shall not be counted as demands for registration or
registrations effected pursuant to Sections 1.2 or 1.3, respectively.
1.13 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause
the Company to register Registrable Securities pursuant to this Section 1 may
be assigned (but only with all related obligations) by a Holder to a
transferee or assignee of such securities who, after such assignment or
transfer, holds at least 92,197 shares of Registrable Securities (subject to
appropriate adjustment for stock splits, stock dividends, combinations and
other recapitalizations), provided: (a) the Company is, within a reasonable
time after such transfer, furnished with 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; (b) such transferee or
assignee agrees in writing to be bound by and subject to the terms and
conditions of this Agreement, including without limitation the provisions of
Section 1.14 below; and (c) such assignment shall be effective only if
immediately following such transfer the further disposition of such
securities by the transferee or assignee is restricted under the Act. For
the purposes of determining the number of shares of Registrable Securities
held by a transferee or assignee, the holdings of transferees and assignees
of a partnership who are partners or retired partners of such partnership
(including spouses and ancestors, lineal descendants and siblings of such
partners or spouses who acquire Registrable Securities by gift, will or
intestate succession) shall be aggregated together and with the partnership;
provided that all assignees and transferees who would not qualify
individually for assignment of registration rights shall have a single
attorney-in-fact for the purpose of exercising any rights, receiving notices
or taking any action under this Section 1.
1.14 "MARKET STAND-OFF" AGREEMENT RIGHTS. Each Investor
hereby agrees that, during the period of duration specified by the Company
and an underwriter of Common Stock or other securities of the Company,
following the effective date of a registration statement of the Company filed
under the Act, it shall not, to the extent requested by the Company and such
underwriter, directly or indirectly sell, offer to sell, contract to sell
(including, without limitation, any short sale), grant any option to purchase
or otherwise transfer or dispose of (other than to donees who agree to be
similarly bound) any securities of the Company held by it immediately prior
to the effective date of such registration statement, except Common Stock
included in such registration; provided, however, that:
(a) such agreement shall be applicable only to the first
such registration statement of the Company that covers Common Stock (or other
securities) to be sold on its behalf to the public in an underwritten
offering;
11
(b) all officers and directors of the Company and all
other persons with registration rights (whether or not pursuant to this
Agreement) enter into similar agreements; and
(c) such market stand-off time period shall not exceed
one hundred eighty (180) days.
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 period.
1.15 TERMINATION OF REGISTRATION RIGHTS. No Holder shall be
entitled to exercise any right provided for in this Section 1 after seven (7)
years following the consummation of the sale of securities pursuant to a
registration statement filed by the Company under the Act in connection with
the initial firm commitment underwritten offering of its securities to the
general public or, as to any Holder, such earlier time at which all
Registrable Securities held by such Holder can be sold in any three (3) month
period without registration in compliance with Rule 144 of the Act.
2. COVENANTS OF THE COMPANY.
2.1 DELIVERY OF FINANCIAL STATEMENTS. The Company shall
deliver to each Investor:
(a) so long as such Investor holds at least 160,000
shares of Series A and/or Series B Preferred Stock (either in the form of
Series A and/or Series B Preferred Stock or Common Stock issued upon
conversion thereof, and as adjusted for subsequent stock splits,
recombinations or reclassifications), as soon as practicable, but in any
event within ninety (90) days after the end of each fiscal year of the
Company, 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 independent
public accountants of nationally recognized standing selected by the Company;
(b) so long as such Investor holds at least 160,000
shares of Series A and/or Series B Preferred Stock (either in the form of
Series A and/or Series B Preferred Stock or Common Stock issued upon
conversion thereof, and as adjusted for subsequent stock splits,
recombinations or reclassifications), as soon as practicable, but in any
event within forty-five (45) days after the end of each of the first three
(3) quarters of each fiscal year of the Company, an unaudited income
statement, statement of cash flows for such fiscal quarter and an unaudited
balance sheet and a statement of stockholder's equity as of the end of such
fiscal quarter;
12
(c) so long as such Investor holds at least 160,000
shares of Series A and/or Series B Preferred Stock (either in the form of
Series A and/or Series B Preferred Stock or Common Stock issued upon
conversion thereof, and as adjusted for subsequent stock splits,
recombinations or reclassifications), within thirty (30) days of the end of
each month, an unaudited income statement and statement of cash flows and
balance sheet for and as of the end of such month, in reasonable detail;
(d) so long as such Investor holds at least 160,000
shares of Series A and/or Series B Preferred Stock (either in the form of
Series A and/or Series B Preferred Stock or Common Stock issued upon
conversion thereof, and as adjusted for subsequent stock splits,
recombinations or reclassifications), as soon as practicable, but in any
event thirty (30) days prior to the end of each fiscal year, (i) a budget for
the next fiscal year, and (ii) a business plan with respect to such next
fiscal year; and
(e) with respect to the financial statements called for
in subsections (b) and (c) of this Section 2.1, an instrument executed by the
Chief Financial Officer or President of the Company certifying that such
financials were prepared in accordance with gaap consistently applied with
prior practice for earlier periods (with the exception of footnotes that may
be required by gaap) and fairly present the financial condition of the
Company and its results of operation for the period specified, subject to
year-end audit adjustment.
2.2 INSPECTION. So long as such Investor holds at least
160,000 shares of Series A and/or Series B Preferred Stock (either in the
form of Series A and/or Series B Preferred Stock or Common Stock issued upon
conversion thereof, and as adjusted for subsequent stock splits,
recombinations or reclassifications), the Company shall permit each Investor,
at such Investor's expense, to visit and inspect the Company's properties, to
examine its books of account and records and to discuss the Company's
affairs, finances and accounts with its officers, all at such reasonable
times as may be requested by the Investor; provided, however, that the
Company shall not be obligated pursuant to this Section 2.2 to provide access
to any information that it reasonably considers to be a trade secret or
similar confidential information.
2.3 TERMINATION OF INFORMATION AND INSPECTION COVENANTS. The
covenants set forth in Section 2.1, Section 2.2, Section 2.4, Section 2.5 and
Section 2.6 shall terminate as to the Investors and the Founders and be of no
further force or effect when the sale of securities pursuant to a
registration statement filed by the Company under the Act in connection with
the firm commitment underwritten offering of its securities to the general
public is consummated or when the Company first becomes subject to the
periodic reporting requirements of Sections 12(g) or 15(d) of the 1934 Act,
whichever event shall first occur.
2.4 RIGHT OF FIRST OFFER. Subject to the terms and
conditions specified in this paragraph 2.4, the Company hereby grants to each
Investor a right of first offer with respect to future sales by the Company
of its Shares (as hereinafter defined). An Investor shall be entitled to
apportion the right of first offer hereby granted it among itself and its
partners and affiliates in such proportions as it deems appropriate.
13
Each time the Company proposes to offer any shares of, or
securities convertible into or exercisable for, any shares of any class of
its capital stock ("Shares"), the Company shall first make an offering of
such Shares to each Investor in accordance with the following provisions:
(a) The Company shall deliver a notice by certified mail
("Notice") to the Investors stating (i) its bona fide intention to offer such
Shares, (ii) the number of such Shares to be offered, and (iii) the price and
terms, if any, upon which it proposes to offer such Shares.
(b) By written notification received by the Company,
within twenty (20) calendar days after giving of the Notice, the Investor may
elect to purchase or obtain, at the price and on the terms specified in the
Notice, up to that portion of such Shares that equals the proportion that the
number of shares of Common Stock issued and held, or issuable upon conversion
of the Series A and/or Series B Preferred Stock then held, by such Investor
bears to the total number of shares of Common Stock of the Company then
outstanding (assuming full conversion, exercise and exchange of all
convertible, exercisable or exchangeable securities) (such Investor's "Pro
Rata Share").
(c) If all Shares that Investors are entitled to obtain
pursuant to subsection 2.4(b) are not elected to be obtained as provided in
subsection 2.4(b) hereof, the Company may, during the ninety (90) day period
following the expiration of the period provided in subsection 2.4(b) hereof,
offer the remaining unsubscribed portion of such Shares to any person or
persons at a price not less than, and upon terms no more favorable to the
offeree than those specified in the Notice. If the Company does not enter
into an agreement for the sale of the Shares within such period, or if such
agreement is not consummated within sixty (60) days of the execution thereof,
the right provided hereunder shall be deemed to be revived and such Shares
shall not be offered unless first reoffered to the Investors in accordance
herewith.
(d) The right of first offer in this paragraph 2.4 shall
not be applicable (i) to the issuance or sale of shares of Common Stock (or
options therefor) to employees or directors of or consultants to the Company
for the primary purpose of soliciting or retaining their services, (ii) to or
after consummation of a bona fide, firmly underwritten public offering of
shares of Common Stock, registered under the Act pursuant to a registration
statement on Form S-1 or SB-2, at an offering price equal to (A) on a per
share basis, the sum of $12.50 (appropriately adjusted for any stock split,
dividend, combination or other recapitalization) (the "Series B Purchase
Price") plus an amount equal to the product of 10% of the Series B Purchase
Price multiplied by a fraction, the numerator of which shall be the number of
days elapsed from the date of this Agreement and the denominator of which
shall be 365, and (B) $7,500,000 in the aggregate, (iii) the issuance of
securities pursuant to the conversion, exercise or exchange of convertible,
exercisable or exchangeable securities, (iv) the issuance of securities in
connection with a bona fide business acquisition of or by the Company,
whether by merger, consolidation, sale of assets, sale or exchange of stock
or otherwise, or (v) the issuance of stock, warrants or other securities or
rights to persons or entities with which the Company has
14
business relationships, provided such issuances are for other than primarily
equity financing purposes.
2.5 PROPRIETARY INFORMATION AND INVENTIONS AGREEMENTS. The
Company will cause each person with access to confidential information now or
hereafter employed by it or any subsidiary to enter into a proprietary
information and inventions agreement substantially in the form approved by
the Board of Directors.
2.6 BOARD REPRESENTATION.
(a) As long as Benchmark Capital Partners, L.P. or any
affiliate thereof ("Benchmark") owns not less than fifty percent (50%) of the
shares of Series A and Series B Preferred Stock it holds immediately after
the Closing (as defined in the Series BB Agreement) (or an equivalent amount
of Common Stock issued upon conversion thereof), it shall be entitled to
designate one (1) of the two (2) representatives which the holders of the
Series A and Series B Preferred Stock, voting separately as a single class
and not as separate series, are entitled to elect to the Company's Board of
Directors ("Board") pursuant to the Company's Amended and Restated
Certificate of Incorporation ("Restated Certificate"). As long as Crosspoint
Venture Partners 1996 or any affiliate thereof owns not less than fifty
percent (50%) of the shares of Series A and Series B Preferred Stock they
hold immediately after the Closing (or an equivalent amount of Common Stock
issued upon conversion thereof), they shall be entitled to designate one (1)
of the two (2) such representatives which the holders of the Series A and
Series B Preferred Stock, voting separately as a single class and not as
separate series, are entitled to elect to the Board pursuant to the Restated
Certificate. Each Investor (including any successor and assign of the rights
and obligations of such Investor under this Agreement) shall vote a
sufficient number of shares of Series A and Series B Preferred Stock (or
shares of Common Stock issued upon conversion thereof), to elect to the Board
the representatives designated pursuant to this Section 2.6.
(b) Each Founder agrees that he shall not vote to elect
to the Board any of the three (3) representatives that holders of Common
Stock, voting separately as a class, are entitled to elect to the Board
pursuant to the Restated Certificate without obtaining the prior approval of
the holders of a majority of the Series A and Series B Preferred Stock and
Common Stock issued upon conversion thereof (calculated on an as converted
basis), which approval shall not be unreasonably withheld. The foregoing
shall not apply to the election to the Board of the Company's chief executive
officer.
3. MISCELLANEOUS.
3.1 SUCCESSORS AND ASSIGNS. Except as otherwise provided
herein, the terms and conditions of this Agreement shall inure to the benefit
of and be binding upon the respective successors and assigns of the parties
(including transferees of any shares of Registrable Securities). Nothing in
this Agreement, express or implied, is intended to confer upon any party
other than the parties hereto or their respective successors and assigns any
rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
15
3.2 GOVERNING LAW. This Agreement shall be governed by and
construed under the laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely within
California; notwithstanding the foregoing, Section 2.6 shall be governed by
and construed under the laws of the State of Delaware as applied to
agreements among Delaware residents entered into and to be performed entirely
within Delaware.
3.3 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
3.4 TITLES AND SUBTITLES. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
3.5 NOTICES. Unless otherwise provided, any notice required
or permitted under this Agreement shall be given in writing and shall be
deemed effectively given (i) upon personal delivery to the party to be
notified, (ii) upon deposit with the United States Post Office, by registered
or certified mail, postage prepaid and addressed to the party to be notified
at the address indicated for such party on the signature page hereof, or at
such other address as such party may designate by ten (10) days' advance
written notice to the other parties, or (iii) upon delivery by facsimile
transmission to the party to be notified at the facsimile number indicated
for such party on the signature page hereof, or at such other facsimile
number as such party may designate by ten (10) days' advance written notice
to the other parties.
3.6 EXPENSES. If any action at law or in equity is necessary
to enforce or interpret the terms of this Agreement, the prevailing party
shall be entitled to reasonable attorneys' fees, costs and necessary
disbursements in addition to any other relief to which such party may be
entitled.
3.7 AMENDMENTS AND WAIVERS. Any term of this Agreement may
be amended and the observance of any term of this Agreement 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 a majority of the Registrable Securities then outstanding; provided,
however, (i) that in the event such amendment or waiver adversely affects the
rights and/or obligations of the Founders under this Agreement in a different
manner than the other Holders, such amendment or waiver shall also require
the written consent of a majority of the Common Stock held by the Founders
and (ii) that in the event such amendment or waiver adversely affects the
rights and/or obligations of the holders of Series B Preferred Stock under
this Agreement in a different manner than the other Holders, such amendment
or waiver shall also require the written consent of the holders of a majority
of the shares of Series B Preferred Stock (or shares of Common Stock issued
upon conversion thereof) then outstanding (calculated on an as-converted
basis). Any amendment or waiver effected in accordance with this paragraph
shall be binding upon each holder of any Registrable Securities then
outstanding, each future holder of all such Registrable Securities, and the
Company.
16
3.8 SEVERABILITY. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provision
shall be excluded from this Agreement and the balance of the Agreement shall
be interpreted as if such provision were so excluded and shall be enforceable
in accordance with its terms.
3.9 AGGREGATION OF STOCK. All shares of Registrable
Securities held or acquired by affiliated entities or persons shall be
aggregated together for the purpose of determining the availability of any
rights under this Agreement.
3.10 ENTIRE AGREEMENT. This Agreement (including the Exhibits
hereto, if any) constitutes the full and entire understanding and agreement
between the parties with regard to the subjects hereof and thereof.
3.11 WAIVER OF RIGHT OF FIRST OFFER. The Prior Investors
hereby unconditionally waive that certain right to notice and right of first
offer set forth in Section 2.4 of the Prior Agreement, with respect to the
sale and issuance of the Series BB Preferred Stock pursuant to the Series BB
Agreement.
3.12 PRIOR AGREEMENT. The Prior Agreement is hereby superseded
in its entirety and shall be of no further force or effect.
17
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
ARIBA TECHNOLOGIES, INC.
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Xxxxx X. Xxxxx
President and Chief Executive
Officer
Address: 0000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
INVESTORS:
AMERINDO TECHNOLOGY GROWTH FUND II, INC.
By: /s/ [ILLEGIBLE]
-----------------------------------------
Print Name:
---------------------------------
Title: Director
--------------------------------------
Address: 00 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxx X0X 0XX
Telephone:
----------------------------------
Facsimile:
----------------------------------
BENCHMARK CAPITAL PARTNERS, L.P.
By: Benchmark Capital Management Co., L.L.C.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Member
BENCHMARK FOUNDERS' FUND, L.P.
By: Benchmark Capital Management Co., L.L.C.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Member
Address: 0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
/s/ Xxxxxxx Xxxxxx
--------------------------------------------
Xxxxxxx Xxxxxx
Address: 0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
CROSSPOINT VENTURE PARTNERS 1996
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------
Print Name:
---------------------------------
Title:
--------------------------------------
Address: Xxx Xxxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Telephone:
----------------------------------
Facsimile: (000) 000-0000
DMG TECHNOLOGY VENTURES, L.L.C.
By: /s/ [ILLEGIBLE]
-----------------------------------------
Print Name:
---------------------------------
Title:
--------------------------------------
Address: 0000 Xx Xxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
XXXX X. XXXXXX SEPARATE PROPERTY TRUST
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxx, Trustee
Address: 000 Xxxxxx Xxxxxx, Xxxxxx Xxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
G & H PARTNERS
By: /s/ [ILLEGIBLE]
-----------------------------------------
Partner
Address: 000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
/s/ Xxxxxxx X. Xxxxxx-Xxxxxxx
--------------------------------------------
Xxxxxxx X. Xxxxxx-Xxxxxxx
Address: 00000 Xxxxxxxxx 000xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile:
----------------------------------
INTEL CORPORATION
By: /s/ [ILLEGIBLE]
-----------------------------------------
Print Name:
---------------------------------
Title:
--------------------------------------
Address: 0000 Xxxxxxx Xxxxxxx Xxxxxxxxx
Mail Stop SC 0-000
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Telephone:
---------------------------------
Facsimile:
---------------------------------
THE XXXXXXX X. & XXXXXXX X. XXXXXX
REVOCABLE TRUST DATED 1/19/90
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxx, Trustee
Address: 0000 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxxxx, Xxxxxxxxxx 00000
Telephone:
----------------------------------
Facsimile: (000) 000-0000
/s/ Xxxxx X. Xxxxx
--------------------------------------------
Xxxxx X. Xxxxx
Address: 00000 Xxxxx Xxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Telephone:
----------------------------------
Facsimile: (000) 000-0000
LIGHTHOUSE CAPITAL PARTNERS II, L.P.
By: Lighthouse Management Partners II,
L.P., its g.p.
By: Lighthouse Capital Partners, Inc.,
its g.p.
By: /s/ [ILLEGIBLE]
-----------------------------------------
Print Name:
---------------------------------
Title:
--------------------------------------
Address: 000 Xxxxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
XXXXXX MASTER TRUST
By: Amerindo Investment Advisors Inc.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Xxxxxxx X. Xxxxx
Attorney-in-Fact for Xxxxxx Master
Trust
Address: Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telephone:
----------------------------------
Facsimile:
----------------------------------
/s/ Xxxxxx X. XxXxxxxx
--------------------------------------------
Xxxxxx X. XxXxxxxx
Address: X.X. Xxx 0000
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
/s/ Xxxx XxXxxxx
--------------------------------------------
Xxxx XxXxxxx
Address: 0000 Xxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Telephone:
----------------------------------
Facsimile: (000) 000-0000
PEOPLESOFT VENTURES, INC.,
a California corporation
By: /s/ [ILLEGIBLE]
-----------------------------------------
Print Name:
---------------------------------
Title:
--------------------------------------
Address: 0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
Telephone:
----------------------------------
Facsimile: (000) 000-0000
/s/ Xxxxxx Xxxxxxxx
--------------------------------------------
Xxxxxx Xxxxxxxx
Address: 000 Xxxx Xxxxx Xxxxxx, #000
Xxxxxxxxxx, Xxxxxxxx 00000
Telephone:
----------------------------------
Facsimile: (000) 000-0000
THE PIDWELL FAMILY LIVING TRUST
DATED 6/25/87
By: /s/ [ILLEGIBLE]
-----------------------------------------
Trustee
Address: 00000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Telephone:
----------------------------------
Facsimile: (000) 000-0000
PRAISE THE LORD FOUNDATION
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxx
Chief Financial Officer
Address: 0000 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
/s/ A. Xxxxxx Xxxxxxx
--------------------------------------------
A. Xxxxxx Xxxxxxx
Address: 0000 Xxx Xxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Telephone:
----------------------------------
Facsimile: (000) 000-0000
TCV II, V.O.F.
a Netherlands Antilles General Partnership
By: Technology Crossover Management II,
L.L.C.,
Its: Investment General Partner
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxx, Chief Financial Officer
Technology Crossover Ventures II, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II,
L.L.C.,
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxx, Chief Financial Officer
TCV II (Q), L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II,
L.L.C.,
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxx, Chief Financial Officer
TCV II Strategic Partners, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II,
L.L.C.,
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxx, Chief Financial Officer
Technology Crossover Ventures II, C.V.
a Netherlands Antilles Limited Partnership
By: Technology Crossover Management II,
L.L.C.,
Its: Investment General Partner
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxx, Chief Financial Officer
Address: 00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxx Xxxxxx 00000
Telephone:
----------------------------------
Facsimile: (000) 000-0000
/s/ Xxxxx X. Xxxxxx
--------------------------------------------
Xxxxx X. Xxxxxx
Address: c/o VeriFone
0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
XXX XXXXXXX CAPITAL MANAGEMENT
By: /s/ Xxxxxxx Xxx Xxxxxxx
-----------------------------------------
Print Name: Xxxxxxx Xxx Xxxxxxx
---------------------------------
Title: President
--------------------------------------
Address: 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
VISA INTERNATIONAL SERVICE ASSOCIATION
By: /s/ Xxxx Xxxxxxx
-----------------------------------------
Xxxx Xxxxxxx
Title:
--------------------------------------
Address: 000 Xxxxx Xxxxxx Xxxxxxxxx
X/X X0-00xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
VISA U.S.A. INC.
By: /s/ [Illegible]
-----------------------------------------
Print Name: [Illegible]
---------------------------------
Title:
--------------------------------------
Address: 000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
/s/ Xxxxx X. Xxxxxx Wild
--------------------------------------------
Xxxxx X. Xxxxxx Wild
Address: 00 Xxxx 00xx Xxxxxx, #0
Xxx Xxxx, Xxx Xxxx 00000
Telephone:
----------------------------------
Facsimile:
----------------------------------
FOUNDERS:
/s/ Xxx XxXxxxxx
--------------------------------------------
Xxx XxXxxxxx
Address: 000 Xxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
/s/ Xxxx Xxxxxxx
--------------------------------------------
Xxxx Xxxxxxx
Address: 000 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile:
----------------------------------
/s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxx
Address: 000 Xxxxxx Xxxx
Xxx Xxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
/s/ Xxxxx X. Xxxxx
--------------------------------------------
Xxxxx X. Xxxxx
Address: 00000 Xxxxx Xxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Telephone:
----------------------------------
Facsimile:
----------------------------------
/s/ Xxxxxx Xxxx
--------------------------------------------
Xxxxxx Xxxx
Address: 0000 Xxxxxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
/s/ Xxxxx Putanec
--------------------------------------------
Xxxxx Putanec
Address: 0000 Xxxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Telephone:
----------------------------------
Facsimile: (000) 000-0000
/s/ Xxxx Xxxx
--------------------------------------------
Xxxx Xxxx
Address: 000 Xxxxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile:
----------------------------------
SCHEDULE A
SCHEDULE OF INVESTORS
NAME AND ADDRESS OF INVESTOR
Amerindo Technology Growth Fund II, Inc.
00 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxx X0X 0XX
Benchmark Capital Partners, L.P.
Benchmark Founders' Fund, L.P.
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Xxxxxxx Xxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Crosspoint Venture Partners 0000
Xxx Xxxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
DMG Technology Ventures, L.L.C.
0000 Xx Xxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
Xxxx X. Xxxxxx Separate Property Trust
c/o Xxxxxx X. Xxxxxx, Trustee
000 Xxxxxx Xxxxxx, Xxxxxx Xxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
G & H Partners
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Xxxxxxx X. Xxxxxx-Xxxxxxx
00000 Xxxxxxxxx 000xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Intel Corporation
0000 Xxxxxxx Xxxxxxx Xxxxxxxxx, Mail Stop SC 0-000
Xxxxx Xxxxx, Xxxxxxxxxx 00000
S-1
NAME AND ADDRESS OF INVESTOR
The Xxxxxxx X. and Xxxxxxx X. Xxxxxx Revocable Trust dated 1/19/90
c/o Xxxxxxx X. Xxxxxx, Trustee
0000 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxxxx, Xxxxxxxxxx 00000
Xxxxx X. Xxxxx
00000 Xxxxx Xxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Lighthouse Capital Partners
000 Xxxxx'x Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Xxxxxx Master Trust
c/o Amerindo Investment Advisors Inc.
Attention: Xxxxxxx X. Xxxxx, Attorney-in-Fact
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Xxxxxx X. XxXxxxxx
X.X. Xxx 0000
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Xxxx XxXxxxx
0000 Xxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
PeopleSoft Ventures, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
Xxxxxx Xxxxxxxx
000 Xxxx Xxxxx Xxxxxx, #000
Xxxxxxxxxx, Xxxxxxxx 00000
The Pidwell Family Living Trust dated 6/25/87
00000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Praise the Lord Foundation
c/o Xxxxxxx X. Xxxxxx, CFO
0000 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxxxx, Xxxxxxxxxx 00000
S-2
NAME AND ADDRESS OF INVESTOR
A. Xxxxxx Xxxxxxx
0000 Xxx Xxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
TCV II, V.O.F.
Technology Crossover Ventures II, L.P.
TCV II (Q), L.P.
TCV II Strategic Partners, L.P.
Technology Crossover Ventures II, C.V.
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, CFO
Xxxxx X. Xxxxxx
c/o VeriFone
0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000-0000
Xxx Xxxxxxx Capital Management
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Visa International Service Association
000 Xxxxx Xxxxxx Xxxxxxxxx
M/S X0-00xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxx
Visa U.S.A. Inc.
000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxx, Vice President, Finance
Xxxxx X. Xxxxxx Wild
00 Xxxx 00xx Xxxxxx, #0
Xxx Xxxx, Xxx Xxxx 00000
S-3
SCHEDULE B
SCHEDULE OF FOUNDERS
Xxx XxXxxxxx
000 Xxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Xxxx Xxxxxxx
000 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Xxxxxx X. Xxxxxx
000 Xxxxxx Xxxx
Xxx Xxxxxx, Xxxxxxxxxx 00000
Xxxxx X. Xxxxx
00000 Xxxxx Xxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Xxxxxx Xxxx
0000 Xxxxxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
Xxxxx Putanec
0000 Xxxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Xxxx Xxxx
000 Xxxxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
S-4
