Exhibit 10.5
RESTATED
INVESTORS RIGHTS AGREEMENT
THIS RESTATED INVESTORS RIGHTS AGREEMENT, dated as of May 16, 1997,
amends and restates that certain Restated Investors Rights Agreement dated as of
October 18, 1996 (this "Agreement") and is made by and among Restoration
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Hardware, Inc., a California corporation (the "Company"), Xxxxxx Xxxxxxxxxxx and
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Xxxxxxx Xxxxxx (collectively, the "Founders" and each a "Founder"), Xxxx
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Masinter, Xxxxxx Xxxxxxx, Xxxxxxx Xxxx, J. Xxxx Xxxxxxxx and K. Xxxxx Xxxxxxx,
the holders of warrants (the "Warrants") to purchase 18,815 shares of the
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Company's Common Stock (the "Warrantholders"), the holders of warrants (the
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"Series D Warrants") to purchase 3,977 shares of Series D Preferred Stock (the
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"Series D Warrantholders"), XX Xxxxxxx Co., Inc., Xxxxxxx Xxxxxxx, Xxxxxx Xxxx
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and Xxxxxx Xxx (the "Common Holders") and those persons who may execute this
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Agreement from time to time and whose names are thereupon listed on Schedule A
hereto (each an "Investor" and collectively, the "Investors"). For purposes of
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this Agreement, the terms Investor and Investors shall be deemed to include all
assignees and successors thereof.
Certain of the Investors (the "Series A Investors") purchased 376,345
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shares of the Company's Series A Preferred Stock, no par value ("Series A
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Preferred Stock"), pursuant to the terms of that certain Stock Purchase
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Agreement dated as of June 10, 1994 (the "Series A Purchase Agreement"), between
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the Company, such Series A Investors and certain other persons named therein.
Certain of the Investors (the "Series B Investors") purchased 370,975
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shares of the Company's Series B Preferred Stock, no par value (the "Series B
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Preferred Stock"), pursuant to the terms of that certain Series B Preferred
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Stock Purchase Agreement dated as of January 19, 1996 (the "Series B Purchase
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Agreement") between the Company and such Series B Investors.
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Certain of the Investors (the "Series C Investors") purchased 243,094
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shares of Series C Preferred Stock, no par value (the "Series C Preferred
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Stock") pursuant to the Series C Purchase Agreement dated as of October 18, 1996
(the "Series C Agreement") between the Company and such Series C Investors.
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Certain of the Investors (the "Series D Investors") are willing to
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complete the purchase of up to 397,685 shares of Series D Senior Preferred
Stock, no par value (the "Series D Preferred Stock") pursuant to the Series D
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Senior Preferred Stock Purchase Agreement dated as of the date hereof (the
"Series D Purchase Agreement") if the Company, the Series A Investors, the
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Series B Investors, the Series C Investors, the Warrantholders, the Common
Holders and the Founders execute this Agreement.
B-1.
Each of the Founders owns that number of shares, or options to
purchase that number of shares, of the Company's Common Stock, no par value, set
forth opposite his name on Schedule 2.2 of the Disclosure Schedule to the Series
D Purchase Agreement.
As an inducement to the Series D Investors to complete such purchase,
the Founders, the Warrantholders, the Series A Investors, the Series B
Investors, the Series C Investors, the Common Holders and the Company desire to
enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements of the parties contained herein, the parties agree as
follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following
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terms shall have the meanings set forth below:
"Affiliate" of a Person, shall mean any Person which, directly or
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indirectly, controls, is controlled by, or is under common control with, such
Person. The term "control" (including, with correlative meaning, the terms
"controlled by" and "under common control with"), as used with respect to any
Person, means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such Person, whether
through the ownership of voting securities or by contract or otherwise.
"Common Stock" shall mean the Company's Common Stock, no par
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value.
"CVCA" shall mean Chase Venture Capital Associates, L.P.
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"Xxxxx Capital" shall mean Equity-Linked Investors-II, and
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Private Equity Investors III, L.P.
"Equity Securities" shall mean any shares of, or securities
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convertible into or exercisable or exchangeable for any shares of, any class of
the Company's capital stock, including, without limitation, its Common Stock and
Preferred Stock.
"Event of Default" shall mean a default by the Company in the
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payment of any promissory note issued to the holders of the Series D Preferred
Stock upon a redemption of such stock in accordance with the terms of the
Company's Restated Articles of Incorporation.
"Investor Directors" shall mean the directors designated by the
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Series A Investors, the Series B Investors and the Series D Investors pursuant
to Sections 5.1(a)(i), 5.1(a)(ii) and 5.1(a)(iii) hereof.
"Percentage Share" shall mean the percentage that the number of
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shares of Equity Securities (treating the Equity Securities as having been
converted into, exchanged
B-2.
for or exercised for Common Stock) held by such Other Founder or Investor is of
the total number of shares of Equity Securities (treating the Equity Securities
as having been converted into, exchanged for or exercised for Common Stock) held
by all Other Founders and Investors.
"Person" shall mean an individual, a partnership, a joint
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venture, a corporation, a trust, a joint-stock company, a union, a business
association, a firm, an unincorporated organization, a government or any
department or agency thereof, or other entity.
"Preferred Stock" shall mean the Company's Series A Preferred
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Stock, Series B Preferred Stock, Series C Preferred Stock and Series D Preferred
Stock.
"Public Offering" shall mean a firm commitment underwritten
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public offering pursuant to an effective registration statement on Form S-1
under the Securities Act covering the offer and sale of the Company's Common
Stock for its own account where (a) with respect to the Series A Investors, the
Series B Investors and the Series C Investors, (i) the gross proceeds to the
Company are not less than $15,000,000 and (ii) the price per share to the public
of the Common Stock is at least $54.30 (adjusted to reflect any stock split,
dividend, combination, reclassification or similar event) and (b) with respect
to the Series D Investors, (i) the gross proceeds to the Company are not less
than $20,000,000 and (ii) the price per share to the public of the Common Stock
is at least $73.425 (adjusted to reflect any stock split, dividend, combination
or similar event).
"Securities Act" shall mean the Securities Act of 1933, as
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amended.
"Series A Investor Directors" shall mean the directors designated
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by the Series A Investors pursuant to Section 5.1(a)(i) hereof.
"Series B Investor Director" shall mean the director designated
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by the Series B Investors pursuant to Section 5.1(a)(ii) hereof.
"Series D Investor Directors" shall mean the directors designated
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by the Series D Investors pursuant to Section 5.1(a)(iii) hereof.
"Stockholders" shall mean any of the Investors, Founders, the
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Common Holders, and, in the event a Warrant or Series D Warrant is exercised,
the applicable Warrantholder or Series D Warrantholder and, in each case, their
respective successors and assigns.
"Subsidiary" shall have the meaning set forth in the Series D
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Purchase Agreement.
B-3.
"Voting Stock" shall mean any class or classes of the capital
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stock of the Company, the holders of which are entitled to participate generally
in the election of directors of the Company, including, but not limited to, the
Common Stock, the Series A Preferred Stock, the Series B Preferred Stock, the
Series C Preferred Stock and the Series D Preferred Stock.
"1934 Act" shall mean the Securities and Exchange Act of 1934, as
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amended.
2. EFFECTIVENESS OF THIS AGREEMENT; SUPERSEDES ALL PRIOR AGREEMENTS;
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AMENDMENT OF PRIOR AGREEMENTS. This Agreement shall be effective from and after
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the date hereof and shall supersede any and all other agreements by and between
the Founders and among the Founders, the Investors and the Company relating to
the subject matter hereof. Without limiting the foregoing, this Agreement shall
also supersede (i) that certain Shareholders Agreement dated as of June 10, 1994
by and among the Company, the Series A Investors and certain other persons named
therein and (ii) Article VIII (Special Covenants) of the Series A Purchase
Agreement. By executing this Agreement, the parties hereto agree that all such
prior agreements are hereby terminated and shall be of no further force or
effect.
3. RIGHT OF FIRST REFUSAL GRANTED BY FOUNDERS.
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3.1 Until the closing of the Public Offering, and subject
to Section 3.3 hereof, each time a Founder (the "Offering Stockholder") proposes
to offer for sale or otherwise transfer any Equity Securities of the Company
owned by such Founder (the "Offered Stock"), such Offering Stockholder shall
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first make an offering of such Offered Stock to the Company in accordance with
the following provisions:
(a) The Offering Stockholder shall deliver a notice (the
"Offering Notice") to the Company and each of the Investors and the non-selling
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Founders (the "Other Founders") stating (i) the Offering Stockholder's bona fide
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intention to offer such Offered Stock, (ii) the number of shares of such Offered
Stock to be offered for sale and (iii) the price and terms, if any, upon which
the Offering Stockholder proposes to offer such Offered Stock.
(b) Within 30 days after the Offering Notice is given, the
Company may elect to purchase from the Offering Stockholder, at the price and on
the terms specified in the Offering Notice, any or all of the shares of Offered
Stock offered in the Offering Notice. Such right shall be exercised by written
notice delivered to the Offering Stockholder by the Company prior to the
expiration of the 30-day exercise period.
(c) The closing of the purchase of any shares of Offered
Stock by the Company shall take place at the principal offices of the Company
(or such other location as the parties may agree on) on the fifth business day
after the expiration of the 30-day period following the giving of the Offering
Notice. At such closing, the Company shall
B-4.
make payment in the appropriate amount by means of a check or by a wire transfer
to the Offering Stockholder against delivery of stock certificates representing
the shares so purchased, duly endorsed in blank by the Person or Persons in
whose name such certificate is registered or accompanied by a duly executed
stock or security assignment separate from the certificate.
(d) In the event the Company does not elect to purchase all
of the shares of Offered Stock offered in the Offering Notice, the Company shall
give written notice to the Investors and the Other Founders (the "Reoffer
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Notice") of its decision not to exercise its rights or of the number of shares
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of Offered Stock available for purchase (the "Reoffered Shares") on or before
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the final day of such 30-day period and the right to purchase such Reoffered
Shares shall pass automatically to each of such Investors and Other Founders.
Each Investor and Other Founder shall initially be entitled to purchase its
Percentage Share. In the event that any Reoffered Shares remain after such
allocation and Investors and Other Founders remain who desire to purchase
additional Reoffered Shares in excess of their Percentage Share all of the
remaining Reoffered Shares which such Investors and Other Founders have elected
to purchase shall be allocated to them pro rata based on the number of shares of
Equity Securities held by them (treating the Equity Securities as having been
converted into, exchanged for or exercised for Common Stock), or as otherwise
agreed to among such remaining Investors and Other Founders. Each Investor and
Other Founder will have 20 days from receipt of such notice from the Company to
exercise its repurchase rights under this Section 3 by written notice to the
Offering Stockholder. The closing of any purchase and sale under this subsection
(d) shall be held on the 5th business day following the expiration of the 20-day
period in accordance with the provisions of subsection (c) above.
3.2 In the event that all of the shares being offered are
not purchased at the closings referred to in Section 3.1(c) or (d), the Offering
Stockholder shall for a period of 45 days thereafter have the right to sell or
otherwise dispose of the remaining number of shares of Offered Stock offered in
the Offering Notice upon terms and conditions (including the price per share) no
more favorable to the third party purchaser than those specified in the Offering
Notice; provided, however, that such sale or disposition shall be subject to,
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and be made in full compliance with, the co-sale rights set forth in Section 4.
In the event that the Offering Stockholder does not sell or otherwise dispose of
such Offered Stock within the specified 45-day period, the right of first
refusal provided for in this Section 3 shall continue to be applicable to any
subsequent disposition of such shares.
3.3 Notwithstanding the terms and provisions of Section 3.1
hereof, the right of first offer provided for in this Section 3 shall not be
applicable to (i) any transfers of Offered Stock by a Founder to immediate
family members or to trusts or other fiduciaries for the benefit of the Founder
or immediate family members, provided that in each such case such transferees
agree in writing to be bound by the terms of this Agreement as if a Founder or
(ii) the sale by a Founder of Offered Stock in the Public Offering. For
purposes of this Section, "immediate family members" shall mean a Founder's
spouse, children and grandchildren.
B-5.
4. CO-SALE PROVISIONS.
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4.1 Until the closing of the Public Offering, in the event
that any Founder after the application of Section 3 hereof continues to propose
to sell or otherwise transfer Equity Securities aggregating in excess of twenty-
five percent of the Equity Securities then owned by such Founder to any Person
(individually a "Third Party" and collectively, "Third Parties") in any one
transaction or any series of transactions, directly or indirectly, such sale or
other disposition shall not be permitted unless such Founder shall offer (or
cause the Third Party to offer) the Other Founders and the Investors the right
to elect to include, at the sole option of the Other Founders and the Investors,
in the sale or other disposition to the Third Party such number of shares of
Equity Securities owned by the Other Founders and the Investors as shall be
determined in accordance with subsection (a) of this Section 4.1 (the "Tag-Along
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Shares"). At any time within 30 days after the giving of the Reoffer Notice
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described in Section 3.1 hereof, each Other Founder and Investor may make an
election to include the Tag-Along Shares in such a sale or other disposition
(the "Inclusion Election") by giving written notice of its Inclusion Election to
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such Founder and delivering to the Company a stock certificate or certificates
representing the Tag-Along Shares, together with a limited power-of-attorney
authorizing such Founder to sell or otherwise dispose of such Tag-Along Shares
pursuant to the terms of such Third Party's offer.
(a) Each Investor and Other Founder shall have the
right to sell, pursuant to the Third Party's offer, that percentage (the "Tag-
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Along Percentage") of the number of shares of Offered Stock to be sold to the
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Third Party equal to the ratio (expressed as a percentage) of (i) the shares of
Equity Securities (treating the Equity Securities as having been converted into,
exchanged for or exercised for Common Stock) held by the Investor or Other
Founder, as compared with (ii) the aggregate number of shares of Offered Stock
owned by the Founder and the Equity Securities held by all Investors and Other
Founders (treating the Equity Securities as having been converted into,
exchanged for or exercised for Common Stock). In the event that (i) the
Investors and Other Founders in the aggregate elect to sell fewer Tag-Along
Shares than they are entitled to sell in the aggregate and (ii) certain
Investors or Other Founders wish to sell an aggregate amount in excess of each
such Person's Tag-Along Percentage, then the excess available Tag-Along Shares
shall be allocated among such Investors and Other Founders pro rata based upon
the number of shares of Equity Securities (treating the Equity Securities as
having been converted into, exchanged for or exercised for Common Stock) owned
by such Investors and Other Founders, or as otherwise agreed among such
Investors and Other Founders.
(b) The purchase from the Investors and Other Founders
pursuant to this Section 4.1 shall be on the same terms and conditions,
including the price per share and the date of sale or other disposition, as are
received by the Founder and stated in the Offering Notice.
B-6.
(c) At the consummation of the sale or other disposition of
shares of Equity Securities of the Founder, the Investors and any Other Founders
to the Third Party pursuant to the Third Party's offer, there shall be remitted
to the Investors and Other Founders the total sales price attributable to the
shares of Equity Securities which the Investors and Other Founders sold or
otherwise disposed of pursuant thereto, and there shall be furnished to such
Investors and Other Founders such other evidence of the completion and time of
completion of such sale or other disposition and the terms thereof as may be
reasonably requested by the Investors and Other Founders.
(d) If within 30 days after the Reoffer Notice is given, a
Investor or Other Founder has not accepted the offer to make an Inclusion
Election, such Investor and Other Founder will be deemed to have waived any and
all of its rights with respect to the sale or other disposition of shares of
Equity Securities described in the Offering Notice. The Founder shall have 45
days after such 30-day period in which to sell or otherwise dispose of the
shares of Founders' Stock to the Third Party at a price and on terms not more
favorable to the Founder than were set forth in the Offering Notice.
(e) If, at the end of such 45-day period, the Founder has
not completed the sale of shares of Founders' Stock in accordance with the terms
of the Third Party's offer, all the restrictions on sale contained in this
Agreement with respect to Founders' Stock owned by the Founder shall again be in
effect.
4.2 The rights provided in this Section 4 shall not be
applicable to any transaction if Section 3.3 makes Section 3 inapplicable
thereto.
4.3 The provisions of Section 3 shall take priority over this
Section 4, and nothing in this Section 4 shall be construed to relieve a Founder
of its obligation to deliver an Offering Notice to the Company and each of the
Investors and Other Founders pursuant to the terms of Section 3 in connection
with such a proposed transaction.
5. GOVERNANCE.
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5.1 Composition of Board. The Stockholders each hereby agree to
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take any and all action necessary (including, without limitation, voting their
shares of Voting Stock, executing and delivering written consents of
shareholders, and calling special shareholders' meetings) to cause the Board of
Directors of the Company (the "Board") to be comprised as follows:
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(a) The number of Directors on the Board shall be not more
than eight, and such Directors shall consist of:
(i) two representatives designated in writing by
holders of a majority of the Series A Preferred Stock voting as a separate class
and on an as-converted basis; provided that so long as the Cardinal Group Voting
Agreement dated as of June 10,
B-7.
1994, as amended (the "Cardinal Voting Agreement"), is in effect, Xxxxxxxx Xxxxx
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shall be entitled to designate such individuals, or in the event of Xx. Xxxxx'x
death, disability, resignation or replacement pursuant to the terms of the
Cardinal Voting Agreement, then Xxxxxx X. Xxxx III shall be entitled to so
designate; which designees shall initially be Xxxxxxxx Xxxxx and Xxxxxxx Xxxxxx;
and provided further that if at any time (A) subject to subsections 5.1(a)(i)(B)
and 5.1(a)(ii) below, the number of shares of Common Stock into which the Series
A Preferred Stock is then convertible represents less than 20% but more than 5%
of the outstanding shares of the Company's Common Stock (assuming conversion of
all outstanding shares of Preferred Stock into Common Stock), then the holders
of the Series A Preferred Stock, voting as a separate class (and on an as-
converted basis), shall be entitled to select only one director but the holders
of the Series A Preferred Stock and Series B Preferred Stock, voting together as
a class and not as separate series (and on an as-converted basis), shall be
entitled to elect one director, and (B) the number of shares of Common Stock
into which the Series A Preferred Stock is then convertible represents less than
5% of the outstanding shares of the Company's Common Stock (assuming conversion
of all outstanding shares of Preferred Stock into Common Stock), then the
holders of the Series A Preferred Stock, voting as a separate class, shall not
be entitled to select any directors pursuant to any provisions of this
subsection 5.1(a)(i).
(ii) one representative designated in writing by
holders of a majority of the Series B Preferred Stock voting as a separate class
and on an as-converted basis; provided that so long as Weston Presidio Capital
II, L.P. (together with its Affiliates) holds at least 60,000 shares of Common
Stock issuable upon conversion of the Series B Preferred Stock (adjusted to
reflect any stock splits, dividends, recapitalizations or the like occurring
after the date hereof) it shall be entitled to designate such representative,
which designee shall initially be Xxxxxxx Xxxxxxx; and provided further that if
at any time the number of shares of Common Stock into which the Series B
Preferred Stock is then convertible represents less than 5% of the outstanding
shares of the Company's Common Stock (assuming conversion of all outstanding
shares of Preferred Stock into Common Stock), then the holders of the Series B
Preferred Stock, voting as a separate class, shall not be entitled to select any
directors pursuant to the provisions of this subsection 5.1(a)(ii) or pursuant
to subsection 5.1(a)(i).
(iii) two representatives designated in writing by
holders of a majority of the Series D Preferred Stock voting as a separate class
and on an as-converted basis; provided that so long as CVCA (together with its
Affiliates) holds at least 67,000 shares of Common Stock issuable upon
conversion of the Series D Preferred Stock (adjusted to reflect any stock
splits, dividends, recapitalizations or the like occurring after the date
hereof) it shall be entitled to designate one such representative, which
designee shall initially be Xxxxx X. Xxxxxxxx and provided that so long as Xxxxx
Capital (together with its Affiliates) holds at least 63,000 shares of Common
Stock issuable upon conversion of the Series D Preferred Stock (adjusted to
reflect any stock splits, dividends, recapitalizations or the like occurring
after the date hereof) it shall be entitled to designate one such
representative, which designee shall initially be Xxxxx X. Xxxx; provided,
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however, that for
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B-8.
so long as it owns any shares of capital stock of the Company, such designation
shall be made on behalf of Xxxxx Capital by Private Equity Investors III, L.P.
("PEI III") unless and until written notice to the contrary is provided to the
Board of Directors by each of Equity-Linked Investors-II and PEI III, pursuant
to Section 15 hereof; and provided, further that in the event that (i) at any
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time PEI III is not entitled to designate at least one member for election to
the board of directors of the Company, or (ii) the United States Department of
Labor through formal or informal rules, regulations or interpretations provide,
or it is otherwise established through governmental or court action that such
representation does not constitute the exercise of management rights of the kind
necessary to enable PEI III to continue to qualify as a "venture capital
operating company" within the meaning of Section 2510.3-101 of the plan asset
regulations promulgated by the United States Department of Labor (a "VCOC"),
then the Company and PEI III shall in good faith negotiate provisions to enable
PEI III to exercise the minimum amount of such management rights in order to
continue to qualify as a VCOC.
(iv) the remaining individuals designated in writing
by the holders of at least a majority of the Common Stock then outstanding
(voting together as a class); provided, however, that one of such individuals
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shall be the Chief Executive Officer of the Company.
(b) Any Director who is elected to the Board pursuant to a
designation under paragraph (a) of this Section 5.1, may be removed from the
Board only upon the request of the Person(s) who designated such Director by
vote of at least the number of shares required to elect such Director. In the
event that a Director so elected resigns, is removed from, or otherwise ceases
to serve on, the Board, for whatever reason, the vacancy shall be filled, in
accordance with applicable law, with an individual designated in accordance with
paragraph (a) and the Founders and the Investors hereby agree to call a special
shareholders meeting and to vote their shares of Voting Stock at such meeting,
or to execute a written consent of shareholders, upon the request of such
Person(s).
(c) Until the closing of the Public Offering, the Audit
Committee of the Board and the Compensation Committee of the Board shall be
comprised of a majority of Investor Directors. Until the closing of the Public
Offering, the Board shall not make a broad delegation of its authority to any
committee but may establish committees for specific purposes (such as a pricing
committee with respect to a public offering).
(d) The Company agrees to reimburse the directors elected
pursuant to Sections 5.1(a)(i), (ii) and (iii) for reasonable travel and out-of-
pocket expenses incurred in connection with attending Board and Committee
meetings.
(e) Notwithstanding the provisions of this Section 5, in
the event that the Series D Preferred Stock has been redeemed pursuant to the
Company's Restated Articles of Incorporation but the holders thereof have not
received the full redemption price therefor (including all principal, interest
and other amounts due in respect
B-9.
of any related promissory notes), the Stockholders hereby agree to vote their
shares to elect the two Series D Investor Directors as directors of the Company
until such time as such redemption price is paid in full, all as described in
the Company's Restated Articles of Incorporation. In addition, notwithstanding
the provisions of this Section 5, from and after the occurrence of an Event of
Default, the Series D Investor Directors, the Series B Investor Director and one
of the Series A Investor Directors, on behalf of the Investors, shall thereafter
be entitled to designate additional individuals to the Board of Directors so
that the Board of Directors would then consist of a majority of persons selected
by the Investors. In the event that the Investors are entitled to designate
members of the Board pursuant to this Section, such Investors may, and at their
request the Founders shall immediately cause the Company to, call a special
shareholders' meeting to be held as soon as possible, but in any event not later
than 15 days after the date of such Investors' request. At such special share
holders' meeting, the Investors shall be entitled, as described above, to
designate such additional individuals to be elected to the Board of Directors,
and the Founders and the Investors hereby agree that in such event they will
vote any and all shares of Voting Stock they are entitled to vote, and take any
other actions (including, without limitation, appointing proxies or executing
written consents or removing, if necessary, one or more individuals elected to
the Board of Directors pursuant to Section 5.1(a) to create vacancies on the
Board of Directors in order to limit the maximum number of directors to eight so
that the Board of Directors would consist of a majority of members designated by
the Investors), as may be necessary to elect as Directors the individuals
designated by the Investors, as described above. The right to elect a majority
of the Board of Directors set forth in this Section (e) shall terminate upon the
earlier of the closing of the Public Offering or the date on which all of the
shares of Preferred Stock have been redeemed by the Company in accordance with
the terms of the Restated Articles of Incorporation and all principal, interest
and other amounts due in respect of any related promissory notes have been paid
in full.
(f) This Section 5.1 shall terminate in its entirety and be
of no further force or effect upon the earlier to occur of: (i) the sale of
securities pursuant to a registration statement filed by the Company under the
Act in connection with a Public Offering; (ii) the date upon which the Company
first becomes subject to the periodic reporting requirements of Sections 12(g)
or 15(d) of the 1934 Act in respect of its equity securities; or (iii) May 16,
2007 provided that if the Series D Preferred Stock or any notes issued in
connection with the redemption thereof are outstanding as of May 17, 2005, the
May 16, 2007 date shall be extended to May 16, 2012.
5.2 Board and Committee Meetings. The Company shall call, and
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use its best efforts to have, regular Board meetings at least once every other
month unless otherwise agreed to in writing by each of the Investor Directors.
The Compensation and Audit Committees shall meet at least annually. Meetings of
the Board and any committee thereof shall not be held on less than five days
written notice to the Investor Directors. All notices of a Board meeting shall
include an agenda setting forth in reasonable detail any and all matters to be
officially acted upon at such meeting, but such agenda shall not limit any
matters that may be officially acted upon at any such meeting.
B-10.
5.3 Subsidiaries. The Company shall cause the Board of Directors
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of any wholly- or majority-owned subsidiary of the Company to include the same
individuals as the Board.
5.4 Cardinal Voting Agreement. The parties to the Cardinal
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Voting Agreement hereby authorize and instruct the Voting Person (as defined
therein) to vote the shares of Series A Preferred Stock that are subject to the
terms of the Cardinal Voting Agreement in the manner set forth herein to effect
the agreements set forth in this Section 5.
5.5 Regulatory Compliance Cooperation. In the event that there
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is a Regulatory Problem (as defined in Section 7.2 of the series D Purchase
Agreement) which, consistent with the Company's undertakings and obligations set
forth in such Series D Purchase Agreement, would require a vote of shareholders
of the Company at that time to approve a new non-voting class or series of
capital stock of the Company for which some or all of the Series D Preferred
Stock then owned by CVCA or any of its Affiliates could be exchanged (such
security, it is anticipated, would be non-voting but would otherwise have all
the same rights, privileges and preferences as the Series D Preferred Stock), or
other shareholder action, the parties to this Agreement agree to vote all Voting
Stock and otherwise to use their respective best efforts as shareholders or
directors of the Company (i) to authorize such new class or series of capital
stock, (ii) to approve the exchange of CVCA's Series D Preferred Stock for
shares of such new capital stock, to the extent the Company is required to
effectuate such exchange, and (iii) to approve any ancillary agreements or
amendments provided for under such Section 7.2.
6. REGISTRATION RIGHTS. The Company covenants and agrees as
-------------------
follows:
6.1 Definitions. For purposes of this Section 6:
-----------
(a) 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 Securities Act, and the
declaration or ordering of effectiveness of such registration statement or
document;
(b) The term "Registrable Securities" means a registration
related to the resale of (1) the Common Stock issuable or issued upon conversion
of the Series A Preferred Stock, (2) the Common Stock issuable or issued upon
conversion of the Series B Preferred Stock, (3) the Common Stock issuable upon
conversion of the Series C Preferred Stock, (4) the Common Stock issuable upon
conversion of the Series D Preferred Stock, (5) the Common Stock issuable or
issued upon exercise of the Warrants or Series D Warrants and (6) any Common
Stock of the Company issued as (or issuable upon the conversion or exercise of
any warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of, such
Series A
B-11.
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock, Warrants, Series D Warrants or Common Stock;
(c) The number of shares of "Registrable Securities then
outstanding" shall be determined by the number of shares of Common Stock
outstanding which are, and the number of shares of Common Stock issuable
pursuant to then exercisable or convertible securities which are, Registrable
Securities;
(d) The term "Holder" means any person owning or having the
right to acquire Registrable Securities or any assignee thereof in accordance
with Section 6.13 hereof. In addition, to the extent that any Founder or Common
Holder participates in a registration pursuant to its rights under Section 6.3,
such Founder or Common Holder shall be considered a "Holder" with respect to
Sections 6.5, 6.6, 6.8, 6.11 and 6.12 hereof and the Common Stock held by such
Founder or Common Holder shall be considered "Registrable Securities" for
purposes of such Sections (such shares are sometimes referred to herein as
"Other Shares"; and
-------------
(e) The term "Form S-3" means such form under the
Securities Act as in effect on the date hereof or any registration form under
the Securities Act subsequently adopted by the Securities and Exchange
Commission ("SEC") which permits inclusion or incorporation of substantial
---
information by reference to other documents filed by the Company with the SEC.
6.2 Request for Registration.
------------------------
(a) If the Company shall receive at any time after the
earlier of (i) May 9, 2000, or (ii) six months after the effective date of the
first registration statement for a public offering of securities of the
Company, a written request from (A) the Holders of at least 40% of Registrable
Securities then outstanding or (B) any Holder who purchased at least $10,000,000
of the Series D Preferred Stock issued pursuant to the Series D Purchase
Agreement (or any Affiliate thereof), that the Company file a registration
statement under the Securities Act covering the registration of all or a portion
of the Registrable Securities then outstanding (provided that the anticipated
aggregate offering price to the public would exceed $10,000,000), then the
Company shall, within ten (10) days of the receipt thereof, give written notice
of such request to all Holders and shall, subject to the limitations of
subsections 6.2(b) and 6.2(c), use its best efforts to effect as soon as
practicable, and in any event shall use its best efforts to effect within 90
days of the receipt of such request, the registration under the Securities Act
of all Registrable Securities which the Holders request to be registered within
twenty (20) days of the mailing of such notice by the Company in accordance with
Section 15 hereof.
(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
B-12.
made pursuant to this Section 6 and the Company shall include such information
in the written notice referred to in subsection 6.2(a). 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 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 6.5(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 6, 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 which 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 Securities to be included in such underwriting shall not be
reduced unless all other securities are first entirely excluded from the
underwriting.
(c) The Company is obligated to effect only three (3) such
registrations pursuant to this Section 6.2.
(d) The Company shall not be obligated to effect a
registration pursuant to this Section 6.2 (i) 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
detrimental to the Company and its shareholders for such registration to be
effected at such time, in which event the Company shall have the right to defer
the filing of the registration statement for a period of not more than 90 days
after receipt of the request of the Holder or Holders under this Section 6.2;
provided, however, that the Company shall not utilize this right more than once
in any twelve month period; and (ii) if at the time of any request to register
Registrable Securities pursuant to this Section 6.2 the Company is engaged in,
or has fixed plans to file a registration statement within sixty (60) days of
the time of the request for, a registered public offering, other than a
registration statement on Form S-8 or other comparable form, then the Company
may at its option direct that such request be delayed until the first to occur
of (x) six (6) months from the effective date of such registered offering and
(y) the decision of the Board of Directors to abandon such offering.
6.3 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 shareholders other than the Holders) any of its
stock or other securities under the Securities 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 or a
registration relating solely to an SEC Rule 145 transaction), the Company
B-13.
shall, at such time, promptly give each Holder, each Founder and each Common
Holder written notice of such registration. Upon the written request of each
such person given within twenty (20) days after mailing of such notice by the
Company in accordance with Section 15, the Company shall, subject to the
provisions of Section 6.9, cause to be registered under the Securities Act all
of the securities that each such Holder, Founder and Common Holder has requested
to be registered.
6.4 Form S-3 Registration. In case the Company shall receive
---------------------
from (a) any Holder or Holders of at least 40% of the Registrable Securities
then outstanding or (b) any Holder who purchased at least $10,000,000 of the
Series D Preferred Stock pursuant to the Series D Purchase Agreement (or any
Affiliate thereof), 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 (provided that the anticipated aggregate offering
price to the public would exceed $500,000):
(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 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 6.4: (i) if
Form S-3 is not available for such offering by the Holders; (ii) 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 detrimental to the Company and its shareholders 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 90 days after receipt of the request of the Holder
or Holders under this Section 6.4; provided, however, that the Company shall not
utilize this right more than once in any twelve month period; (iii) if the
Company has, within the twelve (12) month period preceding the date of such
request, already effected two such registrations on Form S-3 for the Holders
pursuant to this Section 6.4; (iv) in any particular jurisdiction in which the
Company would be required to qualify to do business or to execute a general
consent to service of process in effecting such registration, qualification or
compliance or (v) within six months of the effective date of any other
registration statement relating to an underwritten public offering filed by the
Company, pursuant to which the Holders were given the opportunity to
participate.
B-14.
(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 the Holders. All expenses incurred in connection with the
first two registrations requested pursuant to this Section 6.4, including
(without limitation) all registration, filing, qualification, printer's and
accounting fees, the reasonable fees and 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 underwriters' discounts or commissions
associated with Registrable Securities shall not be borne by the Company, but
shall be borne by the applicable Holder or Holders of such Registrable
Securities. Registrations effected pursuant to this Section 6.4 shall not be
counted as demands for registration or registrations effected pursuant to
Sections 6.2 or 6.3, respectively.
6.5 Obligations of the Company. Whenever required under this
--------------------------
Section 6 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its best efforts to cause
such registration statement to become effective, and, upon the request of the
Holders of a majority of the Registrable Securities registered thereunder, keep
such registration statement effective for up to 90 days.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in usual and
customary form and consistent in all material respects with this Section 6, with
the managing underwriter of such offering, and to the extent required by the
underwriter, participate in a road show arranged by the underwriters with
investors, provided that only two officers shall
B-15.
be required to participate and such road show shall be conducted in such manner
and for such number of days as the underwriters deem necessary for the success
of the 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 and, as
promptly as practicable, provide a supplement or post-effective amendment in
accordance with Subparagraph (b) to cure such misstatement or omission.
6.6 Furnish Information. It shall be a condition precedent to
-------------------
the obligations of the Company to take any action pursuant to this Section 6
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 under applicable law to effect the
registration of such Holder's Registrable Securities.
6.7 Expenses of Demand Registration. All expenses other than
-------------------------------
underwriting discounts and commissions incurred in connection with
registrations, filings or qualifications pursuant to Section 6.2, including
(without limitation) all registration, filing and qualification fees, printers'
and accounting fees, reasonable fees and disbursements of counsel for the
Company, and up to $25,000 of 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 6.2 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 as are actually incurred by the Company on an
out-of-pocket basis), unless the Holders of a majority of the Registrable
Securities agree to forfeit their right to one demand registration pursuant to
Section 6.2; provided, further however, that if at the time of such withdrawal,
-------- -------
the Holders have learned of a material adverse change in the condition,
business, or prospects of the Company from that known to the Holders at the time
of their request and have withdrawn the request with reasonable promptness
following disclosure by the Company or discovery by the Holders of such material
adverse change, then the Holders shall not be required to pay any of such
expenses and shall retain their rights pursuant to Section 6.2.
6.8 Expenses of Company Registration. The Company shall bear
--------------------------------
and pay all expenses incurred in connection with any registration, filing or
qualification of securities with respect to registrations pursuant to Section
6.3 for each Holder, including (without limitation) all registration, filing,
and qualification fees, printers and accounting fees
B-16.
and fees and expenses of counsel to the Company relating or apportionable
thereto and up to $25,000 of the reasonable fees and disbursements of one
counsel for the selling Holders selected by them, but excluding underwriting
discounts and commissions relating to such registered securities.
6.9 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 6.3 to include any securities in such
underwriting unless the selling stockholder accepts the terms of the
underwriting as agreed upon between the Company and the underwriters selected by
the 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 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 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, which the
underwriters determine in their sole discretion will not jeopardize the success
of the offering, but in no event shall the amount of the securities of selling
Holders included in the offering be reduced below thirty percent (30%) 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
Holders may be excluded if the underwriters make the determination described
above and no other shareholder's securities are included. In any circumstance
in which all of the Registrable Securities requested to be included in a
registration on behalf of Holders or other selling stockholders cannot be so
included as a result of the above-described limitation, the number of shares of
Registrable Securities that may be included shall be allocated among the Holders
and other selling stockholders as follows: first all Other Shares shall be
excluded so that all other Registrable Securities requested to be included in
such registration shall be included first (the securities so included to be
apportioned pro rata among all Holders according to the total amount of
securities owned by such Holder or in such other proportions as shall mutually
be agreed to by such Holder or Holders); second, after all other Registrable
Securities have been included, the remaining portion of the allocation shall be
allocated among the holders of the Other Shares (pro rata among such holders).
For purposes of the preceding parentheticals concerning apportionment, for any
selling stockholder which is a Holder of Registrable Securities and which 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 owned by all entities and individuals included in such "selling
stockholder," as defined in this sentence.
6.10 Delay of Registration. No Holder, Founder or Common 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
B-17.
interpretation or implementation of this Section 6, it being understood that
this Section 6.10 shall not in any way limit the right of any such person to
bring an action for damages in respect of any breach hereof.
6.11 Indemnification. In the event any Registrable Securities
---------------
are included in a registration statement under this Section 6:
(a) To the fullest 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 Securities Act or the Securities Exchange Act of 1934,
as amended (the "1934 Act"), against any losses, claims, damages, or liabilities
--------
(joint or several) to which they may become subject under the Act, or 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 Securities Act, the 1934 Act, any state securities law or any
rule or regulation promulgated under the Securities Act, or 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 one law firm retained by them (or such additional law firms retained
by a Holder or Holders if such Holder or Holders reasonably believe there exists
a conflict of interest among them) in connection with investigating or defending
any such loss, claim, damage, liability, or action; provided, however, that the
-------- -------
indemnity agreement contained in this subsection 6.11(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability, or action
if such settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld), nor shall the Company be liable in any such
case for any such loss, claim, damage, liability, or action to the extent (and
only to the extent) that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by any such Holder,
underwriter or controlling person.
(b) To the fullest 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 Securities 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 Securities Act, or 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
B-18.
(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 6.11(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
-------- -------
6.11(b) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of the Holder, which consent shall not be unreasonably withheld; and provided,
--------
further that in no event shall any indemnity under this subsection 6.11(b)
-------
exceed the net proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under
this Section 6.11 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 6.11, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
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(together with all other indemnified parties which 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 to the extent
thereof relieve such indemnifying party of any liability to the indemnified
party under this Section 6.11, 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 6.11.
(d) Notwithstanding the foregoing, to the extent the
provisions on indemnification 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.
(e) The obligations of the Company and Holders under this
Section 6.11 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 6, and otherwise.
6.12 Reports Under Securities Exchange Act of 1934. With a view
---------------------------------------------
to making available to the Holders the benefits of Rule 144 promulgated under
the Securities Act and any other rule or regulation of the SEC that may at any
time permit a Holder to sell
B-19.
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) use its best efforts, including voluntarily registering
its Common Stock under Section 12 of the 1934 Act, to qualify for registration
on Form S-3 for the sale of their Registrable Securities, such action to be
taken no later than 120 days 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 and use its best efforts to maintain
its eligibility thereafter to qualify for use of that Form;
(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 after the effective date of the first
registration statement filed by the Company), the Securities 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 which
permits the selling of any such securities without registration or pursuant to
such form.
6.13 Assignment of Registration Rights. The rights to cause the
---------------------------------
Company to register securities pursuant to this Section 6 may be assigned (but
only with all related obligations) by a person who is at such time a Holder to a
purchaser, assignee or transferee of the underlying Registrable Securities (or
in the case of the Common Holders and Founders, the underlying securities);
provided that such purchaser, assignee or transferee agrees in writing to be
bound by and subject to the terms and conditions of this Agreement, including
without limitation the provisions of Section 6.18 below, and further provided
that 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.
6.14 Limitations on Subsequent Registration Rights. From and
---------------------------------------------
after the date of this Agreement, the Company shall not, without the prior
written consent of the Holders of at least 66% of the outstanding Registrable
Securities, enter into any agreement with any holder or prospective holder of
any securities of the Company which would allow
B-20.
such holder or prospective holder (a) to include such securities in any
registration filed under Section 6.2 or 6.3 hereof, unless under the terms of
such agreement, such holder or prospective holder may include such securities in
any such registration only to the extent that the inclusion of his securities
will not reduce the amount of the Registrable Securities of the Holders which is
included or, (b) to make a demand registration which could result in such
registration statement being declared effective prior to the earlier of either
of the dates set forth in subsection 6.2(a) or within one hundred eighty (180)
days of the effective date of any registration effected pursuant to Section 6.2.
6.15 Amendment of Registration Rights. Any provision of this
--------------------------------
Section 6 may be amended and the observance thereof may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders of
at least 66% of the Registrable Securities then outstanding. 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, the Founders, the Common Holders, and the Company.
6.16 Selection of Underwriter. The selection of the underwriter
------------------------
for the Company's initial public offering shall require the approval of the
Board of Directors of the Company and the approval of the Series B Investor
Director, at least one of the Series A Investor Directors and at least one of
the Series D Investor Directors.
6.17 Termination of Registration Rights. No Holder, Common
----------------------------------
Holders or Founder shall be entitled to exercise any right provided for in this
Section 6 at such time as all Registrable Securities held by such Holder (or in
the case of a Common Holder or a Founder, the Common Stock held by such Common
Holder or Founder) can be sold within a given three-month period, without
compliance with the registration requirements of the Securities Act, pursuant to
Rule 144 thereunder (in the case of Holders of Series D Preferred Stock (or
Common Stock issued upon conversion thereof), without regard to Rule 144(k)).
In addition, these registration rights shall terminate, in any event, on the
date that is four (4) years after the date of the closing of the Public
Offering.
6.18 "Market Stand-Off" Agreement.
----------------------------
(a) Each Investor, Founder and Common Holder hereby agrees that
for seven days prior to and up to 180 days following the effective date of the
first registration statement of the Company covering Common Stock filed on Form
S-1 under the Securities Act, it shall not, to the extent reasonably 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 at any
time during such period except Common Stock included in such registration;
provided, however, that 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;
B-21.
and provided, further all Holders are treated similarly with respect to any
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release prior to the termination of the 180-day period.
(b) Each Holder hereby agrees that for up to 90 days following
the effective date of any registration statement (other than the first) of the
Company covering Common Stock filed on Form S-1 or Form S-3 under the Securities
Act, it shall not, to the extent reasonably 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 at any time during such period
except Common Stock included in such registration, except that such agreement
shall not apply (i) to any Holder who owns less than five percent (5%) of the
then outstanding Common Stock, (ii) to any shares distributed by a Holder that
is a corporation or partnership to its shareholders or partners, respectively
and (iii) to any Holder that is not provided the opportunity to include shares
in the secondary offering on a pro rata basis with all Holders according to the
total amount of Registerable Securities then owned by such Holder.
(c) In order to enforce the foregoing covenants, the Company may
impose stop-transfer instructions with respect to the Registrable Securities of
each Investor, Founder and Common Holder (and the shares of securities of every
other person subject to the foregoing restriction) until the end of such period.
6.19 Additional Deliveries. In the case of any registration
---------------------
effected on Form S-3 pursuant to Section 6.4 hereof where securities are offered
on a continuous or delayed basis pursuant to Rule 415 (or any successor rule) of
the Securities Act, the Company will provide not more than three times during
the period in which such registration statement is effective to a financial
intermediary who reasonably advises the Company in writing, after a good faith
review, that it is entitled to establish a due diligence defense under the
Securities Act with respect to the sale of the securities covered by such
registration statement an opinion of counsel to the Company and a comfort letter
of its independent accountants in customary form; but the out-of-pocket costs of
such deliveries shall be borne by the Holder requesting the same if the Company
has already borne the expenses of two registrations on Form S-3.
7. DELIVERY OF FINANCIAL STATEMENTS. Until the closing of the
--------------------------------
Public Offering, the Company shall either deliver to each Investor or make
available to each Investor for review and inspection at the Company's offices:
(a) 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 schedule as to the
sources and applications of funds for such year, such year-end financial reports
to be in reasonable detail, prepared in accordance with
B-22.
generally accepted accounting principles ("gaap"), and audited and certified by
----
independent public accountants approved by the Board of Directors of the
Company;
(b) as soon as practicable, but in any event within thirty
(30) days of the end of each month, an unaudited income statement (showing
actual, budget and prior month) and schedule as to the sources and application
of funds and balance sheet for and as of the end of such month, in reasonable
detail;
(c) as soon as practicable, but in any event within forty-
five (45) days of the end of each fiscal quarter, an unaudited income statement,
schedule as to the sources and applications of funds and balance sheet for and
as of the end of each such quarter, in reasonable detail;
(d) as soon as practicable, but in any event thirty (30)
days prior to the end of each fiscal year, a budget for the next fiscal year,
prepared on a monthly basis, including income statements, balance sheets and
sources and applications of funds statements for such months and, as soon as
practicable after the adoption thereof, any revisions to such annual budget;
(e) as soon as is practicable after delivery or occurrence,
but in no event later than 10 days following such delivery or occurrence, other
reports, including any notices or reports to stockholders or members of the
financial community, the Company's accountants or business consultants,
governmental agencies and authorities, any reports filed by the Company or its
officers, directors and representatives with any securities exchange or the SEC
and notice of any event which might have a material effect on the Company's
business prospects or financial condition or on the Investor's investments in
the Company.
8. INSPECTION RIGHTS. So long as an Investor (together with any
-----------------
partners or other affiliates thereof) holds any shares of Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred
Stock or Common Stock (including any Common Stock issued upon conversion of the
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or
Series D Preferred Stock), the Company shall permit such 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
upon reasonable notice by the Investor; provided, however, that the Company
shall not be obligated to provide access to any information which it reasonably
believes is a trade secret or similar confidential information.
9. RIGHT OF FIRST OFFER. Subject to the terms and conditions
--------------------
specified in this Section 9, the Company hereby grants to each Investor a right
of first offer with respect to future sales by the Company of its Equity
Securities. For purposes of this Section 9, Investor includes any partners and
other Affiliates of an Investor. An Investor
B-23.
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.
Each time the Company proposes to offer any Equity Securities, the
Company shall first make an offering of such Equity Securities to each Investor
in accordance with the following provisions:
(a) The Company shall deliver a written notice ("Notice")
------
to the Investors stating (i) its bona fide intention to offer such Equity
Securities, (ii) the number of such Equity Securities to be offered, and (iii)
the price and terms, upon which it proposes to offer such Equity Securities.
(b) Within 30 calendar days after receipt of the Notice, an
Investor may elect to purchase or obtain, at the price and on the terms
specified in the Notice, up to that portion of such Equity Securities which
equals the proportion that the number of shares of Common Stock issued and held,
or issuable upon conversion of the Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock and Series D Preferred Stock then held, by such
Investor bears to the total number of shares of Common Stock issued and held, or
issuable upon conversion of the Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock and Series D Preferred Stock then held by all
Investors.
(c) The Company shall, during the 10-day period following
the expiration of the period provided in subsection 9(b) hereof, offer the
remaining unsubscribed portion of such Equity Securities which any Investor has
not elected to purchase under subsection 9(b) hereof to the other Investors.
During the 90-day period following the expiration of such 10-day period, the
Company may offer the remaining unsubscribed portion of such shares which the
Investors have not elected to purchase to any person or persons at a price not
less than, and upon the same terms and conditions as those specified in the
Notice. If the Company does not enter into an agreement for the sale of the
Equity Securities within such period, or if such agreement is not consummated
within 90 days following the expiration of the period provided in this Section
9(c), the right provided hereunder shall be deemed to be revived and such Equity
Securities shall not be offered unless first reoffered to the Investors in
accordance herewith.
(d) The right of first offer in this Section 9 shall not be
applicable (i) to the issuance or sale of shares of Common Stock reserved for
issuance to employees and directors pursuant to stock plans approved by the
Company's Board of Directors, (ii) to or after consummation of the Public
Offering, (iii) to any Common Stock issued upon conversion of the Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D
Preferred Stock or upon exercise of outstanding warrants, including the Warrants
and the Series D Warrants or (iv) to the issuance of shares of Common Stock in
connection with the acquisition of a business by the Company in a transaction or
series of related transactions valued at less than $2 million or in a
transaction
B-24.
approved by (i) the Series D Investor Directors and (ii) at least one of the
Series A Investor Directors and the Series B Investor.
(e) To the extent that CVCA or Xxxxx Capital purchases
additional Equity Securities from the Company, the Company shall (i) if such
person purchases Equity Securities for consideration of $2,500,000 or more, make
any filing required under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act ("HSR
Act") in connection with such a purchase and pay any associated filing fees and
reasonable costs of preparation thereof (including any filing fee and reasonable
preparation costs required to be paid by such person), or (ii) offer to sell to
such person non-voting Equity Securities on the same terms as the other
Investors. The Company shall not enter into any more favorable agreements
regarding reimbursement of HSR costs with any Stockholder or prospective
Stockholder without treating CVCA and Xxxxx Capital similarly.
10. KEY-MAN INSURANCE. The Company shall use its best efforts to
-----------------
obtain within 30 days following the date of this Agreement and shall maintain,
with a carrier acceptable to the Investors, in full force and effect, key-man
life insurance policies in the amount of at least $1,000,000 each on the lives
of Xxxxxxx Xxxxxx and Xxxxxx Xxxxxxxxxxx, with proceeds payable to the Company.
11. POSITIVE COVENANTS. The Company agrees as follows:
------------------
(a) The Company will promptly pay and discharge, or cause
to be paid and discharged, when due and payable, all lawful taxes, assessments,
and governmental charges or levies imposed upon the income, profits, property,
or business of the Company or any Subsidiary; provided, however, that any such
tax, assessment, charge, or levy need not be paid if the validity thereof shall
currently be contested in good faith by appropriate proceedings and if the
Company shall have set aside on its books adequate reserves with respect
thereof, and provided further, that the Company will pay all such taxes,
assessments, charges, or levies forthwith upon the commencement of proceedings
to foreclose any lien that may have attached as security therefor. The Company
will promptly pay or cause to be paid when due, or in conformance with customary
trade terms, all other indebtedness incident to the operations of the Company
and any Subsidiary;
(b) The Company will keep its properties and those of its
Subsidiaries in good repair, working order, and condition, reasonable wear and
tear excepted, and from time to time make all necessary and proper repairs,
renewals, replace ments, additions, and improvements thereto; and the Company
and its Subsidiaries will at all times comply with the provisions of all
material leases to which any of them is a party or under which any of them
occupies property so as to prevent any material adverse effect to the business,
assets or property of the Company and its Subsidiaries;
(c) The Company will keep true records and books of account
in which full, true, and correct entries will be made of all dealings or
transactions in
B-25.
relation to its business and affairs in accordance with generally accepted
accounting principles applied on a consistent basis;
(d) The Company and all its Subsidiaries shall duly observe
and conform to all valid requirements of governmental authorities which are
material to the conduct of their businesses or to their property or assets; and
(e) The Company shall maintain in full force and effect its
corporate existence, rights, and franchises and all material licenses and other
material rights to use processes, licenses, trademarks, trade names, or
copyrights owned or possessed by it or any subsidiary and deemed by the Company
to be necessary to the conduct of its business.
12. GOVERNING LAW. This Agreement shall be governed by and con-
-------------
strued under the laws of the State of California as applied to agreements made
and to be performed in the State of California without regard to the conflict of
laws principles thereof.
13. 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.
14. 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.
15. NOTICES. Any notice, request, instruction or other document to
-------
be given hereunder by any party hereto to another party hereto shall be in
writing, shall be deemed to have been duly given or delivered when delivered
personally or telecopied (receipt confirmed, with a copy sent by certified or
registered mail as set forth herein) or sent by certified or registered mail,
postage prepaid, return receipt requested, or by Federal Express or other
overnight delivery service or by courier, to the address of the party set forth
below such person's signature on this Agreement or to such address as the party
to whom notice is to be given may provide in a written notice to each of the
other parties to this Agreement, a copy of which written notice shall be on file
with the Secretary of the Company.
16. LEGEND.
------
(a) Each certificate representing shares of Common Stock,
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and
Series D Preferred Stock subject to this Agreement shall be endorsed with the
following legend:
"THE SALE, PLEDGE, HYPOTHECATION OR TRANSFER OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE
TERMS AND CONDITIONS OF A CERTAIN RESTATED INVESTORS
B-26.
RIGHTS AGREEMENT BY AND AMONG THE CORPORATION AND CERTAIN
HOLDERS OF STOCK OF THE CORPORATION. COPIES OF SUCH
AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE
SECRETARY OF THE CORPORATION."
(b) Each party to this Agreement agrees that the Company
may instruct the transfer agent to impose transfer restrictions on the shares
represented by certificates bearing the legend referred to in Section 17(a)
above to enforce the provisions of this Agreement. The legend shall be removed
upon termination of this Agreement.
17. AMENDMENTS AND WAIVERS. Except as otherwise provided in Section
----------------------
6.15, 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 at least (i) a majority of the Common Stock issued or
issuable upon conversion of the Series A Preferred Stock, (ii) 60% of the Common
Stock issued or issuable upon conversion of the Series B Preferred Stock, (iii)
60% of the Common Stock issued or issuable upon conversion of the Series C
Preferred Stock, (iv) a majority of the Common Stock issued or issuable upon
conversion of the Series D Preferred Stock, and (v) if such amendment or waiver
would adversely affect the rights of the Founders or Common Holders set forth
herein, at least a majority of the Common Stock held by the Founders or Common
Holders, respectively. 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.
18. 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 to the fullest extent permitted by law.
19. FURTHER ASSURANCES. Each of the parties shall, without further
------------------
consideration, use reasonable efforts to execute and deliver such additional
documents and take such other action, as the other parties, or any of them may
reasonably request to carry out the intent of this Agreement and the
transactions contemplated hereby.
20. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
----------------------
all rights hereto shall inure to the benefit of the respective successors and
assigns of the parties hereto, including, without limitation, transferees of any
shares of Series A Preferred Stock, the Series B Preferred Stock, the Series C
Preferred Stock, the Series D Preferred Stock or Common Stock issued upon
conversion thereof.
B-27.
21. ENTIRE AGREEMENT. This Agreement, together with the Company's
----------------
Restated Articles of Incorporation and bylaws, embodies the entire agreement and
understanding of the parties hereto in respect of the actions and transactions
contemplated by this Agreement. There are no restrictions, promises,
inducements, representations, warranties, covenants or undertakings, other than
those expressly set forth or referred to herein, in the Restated Articles of
Incorporation or bylaws.
22. SPECIFIC PERFORMANCE. Each of the Stockholders acknowledges and
--------------------
agrees that in the event of any breach of this Agreement, the non-breaching
party or parties would be irreparably harmed and could not be made whole by
monetary damages. It is accordingly agreed that the Stockholders will waive the
defense in any action for specific performance that a remedy at law would be
adequate and that the Stockholders, in addition to any other remedy to which
they may be entitled at law or in equity, shall be entitled to compel specific
performance of this Agreement in any action instituted in any state court of the
State of California or any United States District Court located in California
or, in the event said Courts would not have jurisdiction for such action, in any
court of the United States or any state thereof having jurisdiction for such
action.
B-28.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective duly authorized officers as of the date first
above written.
RESTORATION HARDWARE, INC.
/s/ Xxxxxx Xxx
--------------------------------------------------
By: Xxxxxx Xxx
Its: Vice President and Chief Financial Officer
Address: 00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
FOUNDERS:
/s/ Xxxxxxx Xxxxxx
--------------------------------------------------
Xxxxxxx Xxxxxx
Address: 00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
/s/ Xxxxxx Xxxxxxxxxxx
--------------------------------------------------
Xxxxxx Xxxxxxxxxxx (ALSO SIGNING IN THE CAPACITY
OF AN INVESTOR)
Address: 00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
/s/ Xxxxxx X. Xxxxxxxxxxx
--------------------------------------------------
Xxxxxx X. Xxxxxxxxxxx as Trustee for the Xxxxxx X.
Xxxxxxxxxxx 1997 Qualified Grantor Annuity Trust
dtd 5/1/97
/s/ Xxxxxxx X. Xxxxxxxxxxx
--------------------------------------------------
Xxxxxxx X. Xxxxxxxxxxx as Trustee for the Xxxxxxx
Xxxxxxxxxxx 1997 Qualified Grantor Retained
Annuity Trust dtd 5/1/97
28
SPOUSAL CONSENT
I, the undersigned, being the spouse of Xxxxxx Xxxxxxxxxxx, hereby
acknowledge that I have read and understand the foregoing Investors Rights
Agreement and I agree to be bound by the terms thereof.
/s/ Xxxxxxx X. Xxxxxxxxxxx
----------------------------------------
COMMON HOLDERS:
X.X. XXXXXXX CO., INC. (ALSO SIGNING IN THE
CAPACITY OF AN INVESTOR)
By: /s/ Xxxxxxx X. Xxxxxx Pres
----------------------------------
Address: 000 X. Xxxx Xx
----------------------------------
Canajoharie N.Y. 13317
----------------------------------
/s/ Xxxxxxx Xxxxxxx
-------------------------------------------
Xxxxxxx Xxxxxxx (ALSO SIGNING IN THE CAPACITY OF
AN INVESTOR)
Address:___________________________________
___________________________________
/s/ Xxxxxx Xxxx
-------------------------------------------
Xxxxxx Xxxx (ALSO SIGNING IN THE CAPACITY OF AN
INVESTOR)
Address:___________________________________
___________________________________
WARRANTHOLDERS:
/s/ Xxxx Xxxxxxxx
-------------------------------------------
Xxxx Xxxxxxxx (ALSO SIGNING IN THE CAPACITY OF
AN INVESTOR)
Address: The Xxxxxxx Masinter Company
10,000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
/s/ Xxxxxx Xxxxxxx
-------------------------------------------
Xxxxxx Xxxxxxx (ALSO SIGNING IN THE CAPACITY OF
AN INVESTOR)
Address: The Xxxxxxx Xxxxxxxx Company
10,000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
/s/ Xxxxxxx Xxxx
-------------------------------------------
Xxxxxxx Xxxx (ALSO SIGNING IN THE CAPACITY OF AN
INVESTOR)
Address: The Xxxxxxx Masinter Company
10,000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
/s/ J. Xxxx Xxxxxxxx
-------------------------------------------
J. Xxxx Xxxxxxxx (ALSO SIGNING IN THE CAPACITY OF
AN INVESTOR)
Address: The Xxxxxxx Xxxxxxxx Company
10,000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
/s/ K. Xxxxx Xxxxxxx
-------------------------------------------
K. Xxxxx Xxxxxxx
Address: The Xxxxxxx Masinter Company
10,000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
INVESTORS:
/s/ Xxxxxxxx Xxxxxx
----------------------------------
Xxxxxxxx Xxxxxx
Address: 000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
/s/ Xxxxxx Xxxxx
----------------------------------
Xxxxxx Xxxxx
Address: 000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
/s/ Xxxx Xxxxxx
---------------------------------
Xxxx Xxxxxx
Address: 000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
/s/ Xxx X. Xxxxxxxx
---------------------------------
Xxx Xxxxxxxx
Address: 000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
/s/ Xxxxxx Xxxxxx
---------------------------------
Xxxxxx Xxxxxx
Address: 000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
_________________________________
Xxx Xxxxxx
Address: 000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
/s/ Xxx Xxxxxxxx
---------------------------------
Xxx Xxxxxxxx
Address: 000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
/s/ Xxxxx Xxxx Xxxxxx
---------------------------------
Xxxxx Xxxx Xxxxxx
Address: 000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
/s/ Xxxxx Xxxxx
---------------------------------
Xxxxx Xxxxx
Address: 000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
/s/ Xxxxxxxx X. Xxxxx
---------------------------------
Xxxxxxxx X. Xxxxx
Address: 000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
SCOUT VENTURES
By: /s/ Xxxxxxxx X. Xxxxx
----------------------------------------
Xxxxxxxx X. Xxxxx
Address: 000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
/s/ X.X. Xxxx III
------------------------------------------------
X.X. Xxxx III
Address: 000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
/s/ Xxxx Xxxxxx
------------------------------------------------
Xxxx Xxxxxx
Address: 000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
see above signature
------------------------------------------------
Xxx Xxxxxxx (ALSO SIGNING IN THE CAPACITY OF A
WARRANTHOLDER)
Address: 0000 Xxxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxxxx, XX 00000
see above signature
------------------------------------------------
J. Xxxx Xxxxxxxx (ALSO SIGNING IN THE CAPACITY OF
A WARRANTHOLDER)
Address: 0000 Xxxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxxxx, XX 00000
see above signature
------------------------------------------------
Xxxx Xxxxxxxx (ALSO SIGNING IN THE CAPACITY OF A
WARRANTHOLDER)
Address: 0000 Xxxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxxxx, XX 00000
XXXX INVESTMENTS
By: /s/ Xxxxxxx X. Xxxx
--------------------------------------
Xxxxxxx X. Xxxx,
its General Partner
Address: 0000 Xxxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxxxx, XX 00000
WESTON PRESIDIO CAPITAL II, L.P.,
By: WESTON PRESIDIO CAPITAL
MANAGEMENT II, L.P.,
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------------
Xxxxxxx X. Xxxxxxx
General Partner
Address:
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxxx
See above signature
----------------------------------------------------
Xxxxxx Xxxxxxxxxxx (ALSO SIGNING IN THE CAPACITY OF A
FOUNDER)
Address: c/o Restoration Hardware
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
See above signature
----------------------------------------------------
Xxxxxx Xxxx (ALSO SIGNING IN THE CAPACITY OF A
COMMONHOLDER)
Address:RR #1
Xxx 000
Xxxxx Xxxx, Xxxxxxx 00000
RS & CO. IV, L.P.
By: RS & Co. Venture Partners IV, L.P.,
its General Partner
By: /s/ Xxxxx Xxxxxxx
---------------------------------------------
General Partner
Authorized Signatory
Address: 000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
BAYVIEW INVESTORS, LTD.
By: Xxxxxxxxx, Xxxxxxxx & Company Private Equity
Group, L.L.C.,
its General Partner
By: /s/ Xxxxx Xxxxxxx
--------------------------------------------
Authorized Signatory
Address: 000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
/s/ Xxxx Xxxxxxx
---------------------------------------------------
Xxxx Xxxxxxx
Address: __________________________________________
__________________________________________
__________________________________________
U.S. VENTURE PARTNERS IV, L.P.
By: Presidio Management Group IV, L.P.,
its General Partner
By: /s/ Xxxx X. Xxxxx
--------------------------------------------
Name: Xxxx X. Xxxxx
Title: General Partner
Address: U.S. Venture Partners
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
SECOND VENTURES II, L.P.
By: Presidio Management Group IV, L.P.,
its General Partner
By: /s/ Xxxx X. Xxxxx
---------------------------------------------
Name: Xxxx X. Xxxxx
Title: General Partner
Address: U.S. Venture Partners
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
USVP ENTREPRENEUR PARTNERS II, L.P.
A Delaware Limited Partnership
By: Presidio Management Group IV, L.P.,
its General Partner
By: /s/ Xxxx X. Xxxxx
---------------------------------------------
Name: Xxxx X. Xxxxx
Title: General Partner
Address: U.S. Venture Partners
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
2180 ASSOCIATES FUND
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------------
Xxxxxxx X. Xxxxx, Attorney in Fact
Address: U.S. Venture Partners
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
/s/ Xxxx Westmont
----------------------------------------------------
Xxxx Westmont
Address: Alex. Xxxxx & Sons Incorporated
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
/s/ Xxxxxx Xxxxx
----------------------------------------------------
Xxxxxx Xxxxx
Address: Alex. Xxxxx & Sons Incorporated
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
/s/ Xxxx Xxxxxxx
----------------------------------------------------
Xxxx Xxxxxxx
Address: Alex. Xxxxx & Sons Incorporated
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
/s/ Xxxxx X. Xxxxx
----------------------------------------------------
Xxxxx Xxxxx
Address: Alex. Xxxxx & Sons Incorporated
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
PRIVATE EQUITY INVESTORS III, L.P.
By: Xxxxx X. Xxxxx Associates III, its General Partner
By: /s/ Xxxxx X. Xxxxx
-------------------------------------------------
Name: Xxxxx X. Xxxxx
Title: General Partner
EQUITY-LINKED INVESTORS-II
By: Xxxxx X. Xxxxx Associates II, its General Partner
By: /s/ Xxxxx X. Xxxxx
-------------------------------------------------
Name: Xxxxx X. Xxxxx
Title: General Partner
____________________________________________________
Xxxx Xxxx
Address: 000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
____________________________________________________
Xxxx Xxxxx
Address: __________________________________________
_____________________________________________
_____________________________________________
PRIVATE EQUITY INVESTORS III, L.P.
By: Xxxxx X. Xxxxx Associates III, its General Partner
By:
_________________________________________________
Name: Xxxxx X. Xxxxx
Title: General Partner
EQUITY-LINKED INVESTORS-II
By: Xxxxx X. Xxxxx Associates II, its General Partner
By:
_________________________________________________
Name: Xxxxx X. Xxxxx
Title: General Partner
BAYVIEW INVESTORS, LTD.
By: Xxxxxxxxx, Xxxxxxxx & Company Private
Equity Group, L.L.C. its General Partner
By: ________________________________________________
Name:
Title: Managing Director
/s/ Xxxx Xxxx
----------------------------------------------------
Xxxx Xxxx
Address: 000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
/s/ Xxxx Xxxxx
----------------------------------------------------
Xxxx Xxxxx
B-39.
/s/ Xxx Xxxxxxx
----------------------------------------------------
Xxx Xxxxxxx
Address: Alex. Xxxxx & Sons Incorporated
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
/s/ Xxxx Xxxxxxxxxx
----------------------------------------------------
Xxxx Xxxxxxxxxx
Address: Alex. Xxxxx & Sons Incorporated
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
/s/ Xx Xxxxxxxxxx
----------------------------------------------------
Xx Xxxxxxxxxx
Address: Alex. Xxxxx & Sons Incorporated
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
/s/ Xxxxxx Xxx
----------------------------------------------------
Xxxxxx Xxx
Address: 00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
CHASE VENTURE CAPITAL ASSOCIATES, L.P.
a CALIFORNIA LIMITED PARTNERSHIP
By: Chase Capital Partners, its General Partner
____________________________________________________
By: Xxxxx X. Xxxxxxxx, a General Partner
Address: 000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Chief Administrative Officer
____________________________________________________
Xxx Xxxxxxx
Address: Alex. Xxxxx & Sons Incorporated
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
____________________________________________________
Xxxx Xxxxxxxxxx
Address: Alex. Xxxxx & Sons Incorporated
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
____________________________________________________
Xx Xxxxxxxxxx
Address: Alex. Xxxxx & Sons Incorporated
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
____________________________________________________
Xxxxxx Xxx
Address: 00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
CHASE VENTURE CAPITAL ASSOCIATES, L.P.
By: Chase Capital Partners, its General Partner
/s/ Xxxxx X. Xxxxxxxx
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By: Xxxxx X. Xxxxxxxx, a General Partner
Address: 000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Chief Administrative Officer
/s/ Xxxxxx Xxxxxxx
----------------------------------------------------
Xxxxxx Xxxxxxx
SPITFIRE CAPITAL PARTNERS, L.P.
By: MS SPITFIRE LLC,
a Delaware limited liability company
Its: General Partner
By: ________________________________________________
Name: Xxxxx Xxxxx-xxx Xxxxx
Title: Chairman
B-40.
SPOUSAL CONSENT
I, the undersigned, being the spouse of Xxxxxx Xxxxxxx, hereby
acknowledge that I have read and understood the foregoing Investors Rights
Agreement and I agree to be bound by the terms thereof.
/s/ Xxxxxxxx X. Xxxxxxx
----------------------------------------------------
____________________________________________________
Xxxxxx Xxxxxxx
Address: ___________________________________________
______________________________________________
______________________________________________
SPITFIRE CAPITAL PARTNERS, L.P.
By: MS SPITFIRE LLC,
a Delaware limited liability company
Its: General Partner
By: /s/ Xxxxx Xxxxx-xxx Xxxxx
----------------------------------------------------
Name: Xxxxx Xxxxx-xxx Xxxxx
Title: Chairman
Address: ___________________________________________
______________________________________________
______________________________________________
NATIO VIE DEVELOPMENT II
By: /s/ X. Xxxxxxxxx
-------------------------------------------------
X. Xxxxxxxxx - Fund Manager
NATIO NOUVEAUX MARCHE EUROPE
By: /s/ X. Xxxxxxxxx
-------------------------------------------------
X. Xxxxxxxxx - Fund Manager
B-41.
/s/ Xxxxxxxx Xxxxxxx, M.D.
----------------------------------------------------
Xxxxxxxx Xxxxxxx, M.D.
Address: ___________________________________________
______________________________________________
______________________________________________
/s/ Xxxxxxxx Xxxxxxx, Xx.
----------------------------------------------------
Xxxxxxxx Xxxxxxx, Xx.
Address:
/s/ Xxxxx Xxxxxxxx
----------------------------------------------------
Xxxxx Xxxxxxxx
Address: ___________________________________________
______________________________________________
______________________________________________
/s/ Xxxxxxxx Xxxxxxx, Xx. Partner
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HLH McAllen Ventures
Address: ___________________________________________
______________________________________________
______________________________________________
SERIES D WARRANTHOLDER:
XXXXXXXXXX SECURITIES
By: /s/ Xxxxx Xxxxx-xxx Xxxxx
-------------------------------------------------
Managing Director
