EXHIBIT 99.2
EXECUTION COPY
STOCKHOLDERS AGREEMENT dated as of April 19, 2001 (this
"Agreement"), among INTERNATIONAL BUSINESS MACHINES
CORPORATION, a New York corporation ("Parent"), and the
individuals and other parties listed on Schedule A attached
hereto (each, a "Stockholder" and, collectively, the
"Stockholders").
WHEREAS Parent, Waterfall Acquisition Corp., a Delaware
corporation and a wholly owned subsidiary of Parent ("Sub"), and
Mainspring, Inc., a Delaware corporation (the "Company"), propose to enter
into an Agreement and Plan of Merger dated as of the date hereof (as the
same may be amended or supplemented, the "Merger Agreement"; terms used but
not defined herein shall have the meanings set forth in the Merger
Agreement) providing for the merger of Sub with and into the Company (the
"Merger") upon the terms and subject to the conditions set forth in the
Merger Agreement;
WHEREAS each Stockholder owns the number of shares of capital
stock of the Company set forth opposite such Stockholder's name on Schedule
A hereto (such shares of capital stock of the Company being referred to
herein as such Stockholder's "Original Shares"; the Original Shares,
together with any other shares of capital stock of the Company or other
voting securities of the Company acquired by such Stockholder after the
date hereof and during the term of this Agreement (including through the
exercise of any warrants, stock options or similar instruments), being
collectively referred to herein as such Stockholder's "Subject Shares");
and
WHEREAS, as a condition to its willingness to enter into the
Merger Agreement, Parent has required that each Stockholder enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements set forth herein and
in the Merger Agreement, the parties hereto agree as follows:
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SECTION 1. Representations and Warranties of Each Stockholder.
Each Stockholder hereby, severally and not jointly, represents and warrants
to Parent as follows:
(a) Organization; Authority; Execution and Delivery;
Enforceability. With respect to each Stockholder that is not a natural
person, such Stockholder (i) is duly organized, validly existing and in
good standing under the laws of its jurisdiction of organization and (ii)
has the requisite corporate, company or partnership power and authority to
execute and deliver this Agreement, to consummate the transactions
contemplated by this Agreement and to comply with the provisions of this
Agreement. The execution and delivery of this Agreement by each
Stockholder that is not a natural person, the consummation by such
Stockholder of the transactions contemplated by this Agreement and the
compliance by such Stockholder with the provisions of this Agreement have
been duly authorized by all necessary corporate or other comparable action
on the part of such Stockholder and no other corporate or other comparable
proceedings on the part of such Stockholder are necessary to authorize this
Agreement or to consummate the transactions contemplated by this Agreement.
This Agreement has been duly executed and delivered by such Stockholder
and, assuming the due authorization, execution and delivery by Parent,
constitutes a valid and binding obligation of such Stockholder, enforceable
against such Stockholder in accordance with its terms. With respect to
each Stockholder that is a natural person and whose Subject Shares
constitute community property or otherwise need spousal or other approval
for this Agreement to be legal, valid and binding, this Agreement has been
duly executed and delivered by, and constitutes a valid and binding
obligation of, such Stockholder's spouse, enforceable against such spouse
in accordance with its terms. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby and compliance
by such Stockholder with the provisions hereof do not and will not conflict
with, or result in any violation or breach of, or default (with or without
notice or lapse of time, or both) under, or give rise to a right of, or
result in, termination, cancelation or acceleration of any obligation or to
loss of a material benefit under, or result in the creation of any Lien in
or upon any of the properties or assets of such Stockholder under, or give
rise to any increased, additional, accelerated or guaranteed rights or
entitlements under, any provision of (i) with respect to each Stockholder
that is not a natural person, the certificate of incorporation or by-laws,
partnership agreement or limited liability company agreement (or similar
organizational documents) of such Stockholder, (ii) any Contract to which
such Stockholder is a party or any of the properties or assets of such
Stockholder is subject or (iii) subject to the governmental filings and
other matters referred to in the following
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sentence, any (A) statute, law, ordinance, rule or regulation or (B)
judgment, order or decree, in each case, applicable to such Stockholder or
its properties or assets, other than, in the case of clauses (ii) and
(iii), any such conflicts, violations, breaches, defaults, rights, losses,
Liens or entitlements that individually or in the aggregate could not
reasonably be expected to impair in any material respect the ability of
such Stockholder to perform its obligations under this Agreement or prevent
or materially impede, interfere with, hinder or delay the consummation of
any of the transactions contemplated by this Agreement. No consent,
approval, order or authorization of, or registration, declaration or filing
with, any Governmental Entity is required by or with respect to such
Stockholder in connection with the execution and delivery of this Agreement
by such Stockholder, the consummation by such Stockholder of the
transactions contemplated by this Agreement or the compliance by such
Stockholder with the provisions of this Agreement, except for (1) filings
under the HSR Act and any other applicable competition, merger control,
antitrust or similar law, (2) filings with the SEC of such reports under
the Exchange Act as may be required in connection with this Agreement and
the transactions contemplated hereby and (3) such other consents,
approvals, orders, authorizations, registrations, declarations and filings
the failure of which to be obtained or made individually or in the
aggregate could not reasonably be expected to impair in any material
respect the ability of such Stockholder to perform its obligations under
this Agreement or prevent or materially impede, interfere with, hinder or
delay the consummation of any of the transactions contemplated by this
Agreement. With respect to each Stockholder that is a trustee under a
trust, no such trust requires any consent that has not been obtained of any
beneficiary to the execution and delivery of this Agreement or to the
consummation of the transactions contemplated hereby.
(b) The Subject Shares. Such Stockholder has good and
marketable title to the Subject Shares of such Stockholder set forth
opposite its name on Schedule A hereto, free and clear of any Liens. Other
than as set forth on Schedule A hereto, such Stockholder does not own (of
record or beneficially) any shares of capital stock of the Company or any
options, warrants, rights or other similar instruments to acquire any
capital stock or other voting securities of the Company. Such Stockholder
has the sole right to vote and Transfer (as defined in Section 3(c)) the
Subject Shares set forth opposite its name on Schedule A hereto, and none
of such Subject Shares is subject to any voting trust or other agreement,
arrangement or restriction with respect to the voting or the Transfer of
such Subject Shares that would in any way limit the ability of such
Stockholder to perform its obligations under this Agreement.
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SECTION 2. Representations and Warranties of Parent. Parent
hereby represents and warrants to the Stockholders as follows: Parent has
the requisite corporate power and authority to execute and deliver this
Agreement, to consummate the transactions contemplated by this Agreement
and to comply with the provisions of this Agreement. The execution and
delivery of this Agreement by Parent, the consummation by Parent of the
transactions contemplated by this Agreement and the compliance by Parent
with the provisions of this Agreement have been duly authorized by all
necessary corporate action on the part of Parent and no other corporate
proceedings on the part of Parent are necessary to authorize this Agreement
or to consummate the transactions contemplated by this Agreement. This
Agreement has been duly executed and delivered by Parent and, assuming the
due authorization (with respect to each Stockholder that is not a natural
person), execution and delivery by each Stockholder, constitutes a valid
and binding obligation of Parent, enforceable against Parent in accordance
with its terms. The execution and delivery of this Agreement and the
consummation of the transactions contemplated by this Agreement and
compliance by Parent with the provisions of this Agreement do not and will
not conflict with, or result in any violation or breach of, or default
(with or without notice or lapse of time, or both) under, or give rise to a
right of, or result in, termination, cancelation or acceleration of any
obligation or to loss of a material benefit under, or result in the
creation of any Lien in or upon any of the properties or assets of Parent
under, or give rise to any increased, additional, accelerated or guaranteed
rights or entitlements under, any provision of (i) the Certificate of
Incorporation or By-laws of Parent, (ii) any Contract to which Parent is a
party or any of its properties or assets is subject or (iii) subject to the
governmental filings and other matters referred to in the following
sentence, any (A) statute, law, ordinance, rule or regulation or (B)
judgment, order or decree, in each case, applicable to Parent or its
properties or assets, other than, in the case of clauses (ii) and (iii),
any such conflicts, violations, breaches, defaults, rights, losses, Liens
or entitlements that individually or in the aggregate could not reasonably
be expected to impair in any material respect the ability of Parent to
perform its obligations under this Agreement or prevent or materially
impede, interfere with, hinder or delay the consummation of any of the
transactions contemplated by this Agreement. No consent, approval, order
or authorization of, or registration, declaration or filing with, any
Governmental Entity is required by or with respect to Parent in connection
with the execution and delivery of this Agreement by Parent, the
consummation by Parent of the transactions contemplated by this Agreement
or the compliance by Parent with the provisions of this Agreement, except
for (1) filings under the HSR Act and any other applicable
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competition, merger control, antitrust or similar law, (2) filings with the
SEC of such reports under the Exchange Act as may be required in connection
with this Agreement and the transactions contemplated hereby and (3) such
other consents, approvals, orders, authorizations, registrations,
declarations and filings the failure of which to be obtained or made
individually or in the aggregate could not reasonably be expected to impair
in any material respect the ability of Parent to perform its obligations
under this Agreement or prevent or materially impede, interfere with,
hinder or delay the consummation of any of the transactions contemplated by
this Agreement. Any Subject Shares purchased by Parent pursuant to this
Agreement will be acquired for investment purposes only and not with a view
to any public distribution thereof, and Parent shall not offer to sell or
otherwise dispose of any Subject Shares so acquired by it in violation of
any of the registration or prospectus delivery requirements of the
Securities Act.
SECTION 3. Covenants of Each Stockholder. Each Stockholder,
severally and not jointly, covenants and agrees as follows:
(a) At any meeting of the stockholders of the Company called to
vote upon the Merger Agreement, the Merger or any of the other transactions
contemplated by the Merger Agreement, or at any adjournment thereof, or in
any other circumstances upon which a vote, consent, adoption or other
approval (including by written consent) with respect to the Merger
Agreement, the Merger or any of the other transactions contemplated by the
Merger Agreement is sought, such Stockholder shall vote (or cause to be
voted) all the Subject Shares of such Stockholder in favor of, and shall
consent to (or cause to be consented to), the adoption of the Merger
Agreement and the approval of the terms thereof and of the Merger and each
of the other transactions contemplated by the Merger Agreement.
(b) At any meeting of the stockholders of the Company or at any
adjournment thereof or in any other circumstances upon which a vote,
consent, adoption or other approval (including by written consent) is
sought, such Stockholder shall vote (or cause to be voted) all the Subject
Shares of such Stockholder against, and shall not consent to (and shall
cause not to be consented to), any of the following: (i) any Takeover
Proposal or (ii) any amendment of the Company's Certificate of
Incorporation or By-laws or other proposal, action or transaction involving
the Company or any of its subsidiaries or any of its stock holders, which
amendment or other proposal, action or transaction would prevent or delay
the consummation of the Merger or the other transactions contemplated by
the Merger Agreement or this Agreement or change in any manner the voting
rights of the Company Common Stock (collectively,
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"Frustrating Transactions"). Such stockholders shall not commit to or agree
to take any action inconsistent with the foregoing or that would otherwise
facilitate a Frustrating Transaction.
(c) Such Stockholder shall not (i) sell, transfer, pledge,
assign or otherwise dispose of (including by gift) (collectively,
"Transfer"), or consent to or permit any Transfer of, any Subject Shares or
any interest therein, or enter into any Contract, option or other
arrangement with respect to the Transfer (including any profit sharing or
other derivative arrangement) of any Subject Shares or any interest
therein, to any person other than pursuant to this Agreement or the Merger
Agreement, unless prior to any such Transfer the transferee of such Subject
Shares enters into a stockholder agreement with Parent on terms
substantially identical to the terms of this Agreement or (ii) enter into
any voting arrangement, whether by proxy, voting agreement or otherwise,
with respect to its vote, consent or other approval sought in connection
with the adoption by the stockholders of the Company of the Merger
Agreement or the approval of the Merger or the other transactions
contemplated by the Merger Agreement (and if entered into or executed, any
such voting arrangement, voting agreement or other agreement shall not be
effective), and shall not commit or agree to take any of the foregoing
actions, other than pursuant to this Agreement. Such Stockholder shall
not, nor shall such Stockholder permit any entity under such Stockholder's
control to, deposit any Subject Shares in a voting trust.
(d) Each Stockholder hereby grants to Parent an irrevocable
option to purchase any or all the Subject Shares of such Stockholder, at
any time or from time to time after a Takeover Proposal has been made, for
a purchase price equal to $4.00 per share in cash (the "Parent Option
Price").
(e) Such Stockholder shall not, nor shall such Stockholder
permit any of its subsidiaries to, or authorize or permit any director,
officer, employee or general partner of such Stockholder or any of its
subsidiaries, or any investment banker, attorney, accountant or other
advisor or representative of such Stockholder or any of its subsidiaries
to, directly or indirectly, (i) solicit, initiate or encourage, or take any
other action knowingly to facilitate, any Takeover Proposal or other
Frustrating Transaction or any inquiries or the making of any proposal that
constitutes a Takeover Proposal or other Frustrating Transaction, (ii)
enter into any agreement with respect to any Takeover Proposal or other
Frustrating Transaction or (iii) enter into, continue or otherwise
participate in any discussions or negotiations regarding, or furnish to any
person any information with respect to, or otherwise
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cooperate in any way with, or assist or participate in any effort or
attempt by any person with respect to, any Takeover Proposal or other
Frustrating Transaction. Without limiting the foregoing, it is understood
that any violation in any material respect of the restrictions set forth in
the preceding sentence by any director, officer, employee or general
partner of, or any investment banker, attorney, accountant or other advisor
or representative of such Stockholder or any of its subsidiaries, whether
or not such Person is purporting to act on behalf of such Stockholder,
shall be deemed to be a violation of this Section 3(e) by such Stockholder.
Such Stockholder shall promptly advise Parent orally and in writing of any
Takeover Proposal or inquiry made to such Stockholder with respect to any
Takeover Proposal or other Frustrating Transaction.
(f) Such Stockholder shall not, nor shall such Stockholder
permit any of its subsidiaries to, or authorize or permit any director,
officer, employee or general partner of such Stockholder or any of its
subsidiaries or any investment banker, attorney, accountant or other
advisor or representative of such Stockholder or any of its subsidiaries
to, directly or indirectly, issue any press release or make any other
public statement with respect to the Merger Agreement, this Agreement, the
Merger or any of the other transactions contemplated by the Merger
Agreement or this Agreement without the prior written consent of Parent,
except as may be required by applicable law.
(g) Such Stockholder hereby consents to and approves the actions
taken by the Board of Directors of the Company in approving the Merger
Agreement and this Agreement, the Merger and the other transactions
contemplated by the Merger Agreement. Such Stockholder hereby waives, and
agrees not to exercise or assert, any appraisal or similar rights under
Section 262 of the DGCL or other applicable law in connection with the
Merger.
SECTION 4. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) Each Stockholder, during the term of this Agreement, hereby
irrevocably grants to, and appoints, Parent and Xxxxx X. Xxxxxxxxx, its
Vice President--Assistant General Counsel, Xxxxxx Xxxxxxx, its Assistant
Secretary and Senior Counsel and Xxxxx X. Xxxxxxx, its Vice President of
Corporate Development, in their respective capacities as designees of
Parent, and any individual who shall hereafter succeed to any such office
of Parent, and each of them individually, such Stockholder's proxy and
attorney-in-fact (with full power of substitution), for and in the name,
place and stead of such Stockholder, to vote all of such Stockholder's
Subject Shares, or grant a consent or approval in respect of such Subject
Shares, (i) in favor of adoption of the Merger Agreement and the approval
of the terms thereof and of the Merger and each of the other
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transactions contemplated by the Merger Agreement, (ii) against any
Takeover Proposal or other Frustrating Transaction and (iii) otherwise in
accordance with Section 3 of this Agreement. Such Stockholder understands
and acknowledges that Parent is entering into the Merger Agreement in
reliance upon the Stockholder's execution and delivery of this Agreement.
(b) Each Stockholder represents that any proxies heretofore
given in respect of such Stockholder's Subject Shares are not irrevocable,
and that all such proxies are hereby revoked.
(c) Each Stockholder hereby affirms that the irrevocable proxy
set forth in this Section 4 is given in connection with the execution of
the Merger Agreement, and that such irrevocable proxy is given to secure
the performance of the duties of such Stockholder under this Agreement.
Each Stockholder hereby further affirms that the irrevocable proxy is
coupled with an interest and may under no circumstances be revoked. Each
Stockholder hereby ratifies and confirms all that such irrevocable proxy
may lawfully do or cause to be done by virtue hereof. Each such
irrevocable proxy is executed and intended to be irrevocable in accordance
with the provisions of Section 212(e) of the DGCL.
SECTION 5. Further Assurances. Such Stockholder shall use its
reasonable best efforts to take, or cause to be taken, all actions, and to
do, or cause to be done, and to assist and cooperate with the other parties
in doing, all things necessary, proper or advisable to consummate and make
effective the transactions contemplated by this Agreement and the Merger
Agreement. No Stockholder shall commit or agree to take any action that
would in any way limit the ability of such Stockholder to perform its
obligations under this Agreement. Without limiting the generality of the
foregoing, each Stockholder shall, from time to time, exe cute and deliver,
or cause to be executed and delivered, such additional or further consents,
documents and other instruments as Parent may request for the purpose of
effectuating the matters covered by this Agreement, including with respect
to any purchase of Subject Shares by Parent pursuant in Section 3(d) and
the grant of the proxies set forth in Section 4.
SECTION 6. Certain Events. Each Stockholder agrees that this
Agreement and the obligations hereunder shall attach to such Stockholder's
Subject Shares and shall be binding upon any person or entity to which
legal or beneficial ownership of such Subject Shares shall pass, whether by
operation of law or otherwise, including such Stockholder's heirs,
guardians, administrators or successors. In the event of any stock split,
stock
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dividend, reclassification, merger, reorganization, recapitalization or
other change in the capital structure of the Company affecting the capital
stock of the Company, the number of Original Shares and the number of
Subject Shares listed on Schedule A hereto opposite the name of each
Stockholder and the Parent Option Price shall be adjusted appropriately. In
addition, in the event that any Stockholder acquires any additional shares
of capital stock of the Company or other voting securities of the Company
(including through the exercise of any warrants, stock options or similar
instruments), the number of Subject Shares listed on Schedule A hereto
opposite the name of such Stockholder shall be adjusted appropriately. This
Agreement and the representations, warranties, covenants, agreements and
obligations hereunder shall attach to any additional shares of capital
stock of the Company or other voting securities of the Company issued to or
acquired by any Stockholder (including through the exercise of any
warrants, stock options or similar instruments).
SECTION 7. Assignment. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement shall be assigned, in
whole or in part, by operation of law or otherwise, by any of the parties
hereto without the prior written consent of the other parties hereto,
except that (x) Parent may, in its sole discretion, assign any of or all
its rights, interests and obligations under this Agreement to any direct or
indirect wholly owned subsidiary of Parent and (y) if Parent reasonably
believes that it is impracticable or financially disadvantageous as a
result of circumstances arising after the date of this Agreement for Parent
to exercise the option to purchase Subject Shares granted in Section 3(d)
(including as a result of any stockholders' rights plan or similar
arrangement), Parent may assign any of or all its rights, interests and
obligations under Section 3(d) to the extent necessary to eliminate such
impracticability or financial disadvantage, but no such assignment shall
relieve Parent of any of its obligations under this Agreement. Any
purported assignment in violation of this Section 7 shall be void. Subject
to the preceding sentences of this Section 7, this Agreement shall be
binding upon, inure to the benefit of and be enforceable by, the parties
hereto and their respective successors and assigns.
SECTION 8. Termination. This Agreement shall terminate upon (x)
the Effective Time, (y) the termination of the Merger Agreement (if
terminated by Parent) or (z) 45 days after the termination of the Merger
Agreement if the Merger Agreement is otherwise terminated (other than with
respect to Sections 3(a), (b), (e), (f), (g) and 4, which will terminate if
the Merger Agreement terminates). No termination of this Agreement shall
relieve any party hereto
9
from any liability for any breach of any provision of this Agreement prior
to termination.
SECTION 9. General Provisions. (a) Amendments. This Agreement
may not be amended except by an instrument in writing signed by all of the
parties hereto.
(b) Notices. All notices, requests, clauses, demands and other
communications under this Agreement shall be in writing and shall be deemed
given if delivered personally, telecopied (with confirmation) or sent by
overnight or same-day courier (providing proof of delivery) to Parent in
accordance with Section 8.02 of the Merger Agreement and to the
Stockholders (including the Representative) at their respective addresses
set forth on Schedule A hereto (or at such other address for a party as
shall be specified by like notice).
(c) Interpretation. When a reference is made in this Agreement
to a Section or a Schedule, such reference shall be to a Section of, or a
Schedule to, this Agreement unless otherwise indicated. The headings
contained in this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement.
Whenever the words "include", "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation". The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as
a whole and not to any particular provision of this Agreement. The term
"or" is not exclusive. The definitions contained in this Agreement are
applicable to the singular as well as the plural forms of such terms. Any
agreement or instrument defined or referred to herein or in any agreement
or instrument that is referred to herein means such agreement or instrument
as from time to time amended, modified or supplemented. References to a
person are also to its permitted successors and assigns.
(d) Counterparts; Effectiveness. This Agreement may be executed
in one or more counterparts, all of which shall be considered one and the
same agreement and shall become effective when one or more counterparts
have been signed by each of the parties hereto and delivered to the other
party. The effectiveness of this Agreement shall be conditioned upon the
execution and delivery of the Merger Agreement by each of the parties
thereto.
(e) Entire Agreement; No Third-Party Beneficiaries. This
Agreement (including the documents and instruments referred to herein) (i)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties hereto with
respect to the subject matter of this Agreement
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and (ii) is not intended to confer upon any person other than the parties
hereto (and the persons specified as proxies in Section 4) any rights or
remedies.
(f) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REGARD TO ANY PRINCIPLES OF CONFLICTS OF LAWS OF SUCH STATE.
(g) Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of
law or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect. Upon such
determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible to the fullest extent permitted by
applicable law in an acceptable manner and to the end that the transactions
contemplated hereby are fulfilled to the extent possible.
SECTION 10. Enforcement. The parties agree that irreparable
damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or
were otherwise breached. It is accordingly agreed that the parties shall
be entitled to an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions of this
Agreement in any court of the United States located in the State of
Delaware or in any Delaware state court, this being in addition to any
other remedy to which they are entitled at law or in equity. In addition,
each of the parties hereto (a) consents to submit itself to the personal
jurisdiction of any court of the United States located in the State of
Delaware or of any Delaware state court in the event any dispute arises out
of this Agreement or the transactions contemplated by this Agreement, (b)
agrees that it will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court and
(c) agrees that it will not bring any action relating to this Agreement or
the transactions contemplated by this Agreement in any court other than a
court of the United States located in the State of Delaware or a Delaware
state court.
SECTION 11. Stockholder Capacity. No person executing this
Agreement who is or becomes during the term hereof a director or officer of
the Company makes any agreement or understanding herein in his or her
capacity as such director or officer. Each Stockholder signs solely in his
or her capacity as the record holder and beneficial owner of, or the
trustee of a trust whose beneficiaries are the beneficial owners of, such
Stockholder's Subject Shares and nothing herein shall limit or affect any
actions taken by a Stockholder in his or her capacity as an officer or
director of the Company in exercising his or her rights under the Merger
Agreement.
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IN WITNESS WHEREOF, Parent has caused this Agreement to be signed by
its officer thereunto duly authorized and each Stockholder has signed this
Agreement, all as of the date first written above.
INTERNATIONAL BUSINESS MACHINES CORPORATION,
by /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President, Corporate Development
STOCKHOLDERS:
Xxxx & Company, Inc.
/s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Representative
/s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
/s/ Xxxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxxx X. Xxxxxx
Chase Venture Capital Associates L.P.
/s/ Xxxxxxx Xxxxxx
----------------------------
Name: Xxxxxxx Xxxxxx
Title: Authorized Representative
/s/ Xxxx X. Xxxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxxx
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Crosslink Crossover Fund III, L.P.
By: Crossover Fund III Management, L.L.C., Its
General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxx, Managing Member
Offshore Crosslink Crossover Fund III Unit Trust
By: Crossover Fund III Management, L.L.C., Its
Managing Member
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxx, Managing Member
Crosslink Omega Ventures III, L.L.C.
By: Crosslink Omega III Holdings, L.L.C.,
Authorized Signatory
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxx, Managing Member
Crosslink Offshore Omega Ventures III (a Cayman
Islands Unit Trust)
By: Crosslink Omega III Holdings, L.L.C., Authorized
Signatory
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxx, Managing Member
Delta Growth Fund, L.P,
By: Delta Growth Management, Inc.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Xxxxxxx X. Xxxxx, Managing Member
/s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
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E-Squam Investors I, L.P.
By: E-GPI, Inc., its General Partner
/s/ Xxxxx Xxxxxx
------------------------------
Name: Xxxxx Xxxxxx
Title: Authorized Representative
The Flatiron Fund LLC
/s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Member
Flatiron Fund 1998/1999 LLC
/s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Member
Flatiron Associates, LLC
/s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Member
Greylock Equity Limited Partnership
By: Greylock Equity GP Limited Partnership, its
General Partner
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Representative
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Highland Capital Partners II Limited Partnership
By: Highland Management Partners II Limited
Partnership, its General Partner
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: General Partner
/s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Xxxx Elsevier Inc.
By: /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
Title: Executive Vice President
/s/ Xxxx X. Xxxxx
---------------------------------
Name: Xxxx X. Xxxxx
/s/ Xxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxx Xxxxx
/s/ Alei Verdi
---------------------------------
Name: Alei Verdi
/s/ Xxxx Xxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxx
/s/ Xxxx Xxxxxxxx, Minor by Xxxx Xxxxxxxx
-------------------------------------------
Name: Xxxx Xxxxxxxx, Minor by Xxxx Xxxxxxxx
/s/ Jordan Vanwezel, Minor by Xxxx Xxxxxxxx
---------------------------------------------
Name: Jordan Vanwezel, Minor by Xxxx Xxxxxxxx
/s/ Xxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxx
15
/s/ Xxx Xxxxxx
-----------------------------------
Name: Xxx Xxxxxx
/s/ Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx
/s/ Xxxx Xxxxx
-----------------------------------
Name: Xxxx Xxxxx
/s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
/s/ Xxxx Xxxx
------------------------------------
Name: Xxxx Xxxx
/s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Massachusetts Institute of Technology
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Treasurer
16
