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EXHIBIT 10.8
RIGHTS AGREEMENT
This Rights Agreement (the "Agreement") is entered into as July 25,
1994 by and among Cascade Systems International, Inc., a Delaware corporation
(the "Company"), the undersigned holders of the Series A Preferred Stock (the
"Series A Shares") of the Company (the "Series A Holders") and the individuals
named in Schedule 1 attached to this Agreement (the "Founders").
RECITAL
The Company, the Series A Holders and the Founders now desire to set
forth the registration rights applicable to the Common Stock owned by the
Founders and the Series A Shares and rights of first refusal among the parties.
AGREEMENT
In consideration of the foregoing and of the mutual promises and
covenants contained herein, the Parties agree as follows:
1. Registration Rights.
1.1. Certain Definitions. As used in this Agreement, the following
terms shall have the following respective meanings:
(a) "Commission" shall mean the Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act.
(b) "Conversion Stock" means the Common Stock issued or
issuable upon conversion of the Series A Shares.
(c) "Holder" means any person or persons to whom Registrable
Securities were originally issued or qualifying transferees under Section 1.11
hereof who hold Registrable Securities.
(d) "Initiating Holders" shall mean any Holder or Holders of
at least fifty percent (50%) of the Registrable Securities (excluding
Registrable Securities owned by the Founders).
(e) "Registrable Securities" means (i) the Conversion Stock;
and (ii) stock issued in respect of the stock referred to in (i) as a result of
a stock split, stock dividend, recapitalization or the like, which have not been
sold to the public. Except for subsections 1.2, 1.4, 1.5 and 1.10, Registrable
Securities shall also mean shares of Common Stock owned by the Founders.
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(f) The terms "register," "registered" and "registration"
refer to a registration effected by preparing and filing a registration
statement in compliance with the Securities Act, and the declaration or ordering
of the effectiveness of such registration statement.
(g) "Registration Expenses" shall mean all expenses, except as
otherwise stated below, incurred by the Company in complying with Sections 1.2,
1.3 and 1.4 hereof, including, without limitation, all registration,
qualification and filing fees, printing expenses, escrow fees, fees and
disbursements of counsel for the Company, blue sky fees and expenses, the
expense of any special audits incident to or required by any such registration
(but excluding the compensation of regular employees of the Company which shall
be paid in any event by the Company) and the reasonable fees and disbursements
of one counsel for all Holders in the event of each registration provided for in
Sections 1.2, 1.3 and 1.4 hereof.
(h) "Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
(i) "Selling Expenses" shall mean all underwriting discounts,
selling commissions and stock transfer taxes applicable to the securities
registered by the Holders and, except as set forth above, all reasonable fees
and disbursements of counsel for the selling Holders.
1.2. Requested Registration.
(a) Request for Registration. If the Company receives from
Initiating Holders a written request that the Company effect a registration
covering either (i) not less than 40% of the Registrable Securities, or (ii)
Registrable Securities having an anticipated aggregate offering price, net of
underwriting discounts and commissions, of at least $5,000,000, the Company
will:
(i) promptly give written notice of the proposed
registration, qualification or compliance to all other Holders; and
(ii) as soon as practicable, use its best efforts to
effect such registration, qualification or compliance (including, without
limitation, appropriate qualification under applicable blue sky or other state
securities laws and appropriate compliance with applicable regulations issued
under the Securities Act and any other governmental requirements or regulations)
as may be so requested and as would permit or facilitate the sale and
distribution of all or such portion of such Registrable Securities as are
specified in such request, together with all or such portion of the Registrable
Securities of any Holder or Holders joining in such request as are specified in
a written request received by the Company within twenty (20) days after
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receipt of such written notice from the Company; provided, however, that the
Company shall not be obligated to take any action to effect any such
registration, qualification or compliance pursuant to this Section 1.2:
(A) Before the earlier of July 1,1997 or 180 days
after the closing of its initial public offering of its Common Stock;
(B) In any particular jurisdiction in which the
Company would be required to execute a general consent to service of process in
effecting such registration, qualification or compliance unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Securities Act;
(C) After the Company has effected two such
registrations pursuant to this Section 1.2(a), and such registrations have been
declared or ordered effective; and
(D) If the Company shall furnish to such Holders a
certificate signed by the President of the Company stating that in the good
faith judgment of the Board of Directors it would be seriously detrimental to
the Company or its shareholders for a registration statement to be filed in the
near future, then the Company's obligation to use its best efforts to register,
qualify or comply under this Section 1.2 shall be deferred for a period not to
exceed sixty (60) days from the date of receipt of written request from the
Initiating Holders, provided that the Company may not use this right more than
once in any twelve month period.
Subject to the foregoing clauses (A) through (D), the Company shall
file a registration statement covering the Registrable Securities so requested
to be registered as soon as practicable, after receipt of the request or
requests of the Initiating Holders.
(b) Underwriting. In the event that a registration pursuant to
Section 1.2 is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as part of the notice given pursuant to
Section 1.2(a)(i). In such event, the right of any Holder to participate in such
registration shall be conditioned upon such Holder's participation in the
underwriting arrangements required by this Section 1.2, and the inclusion of
such Holder's Registrable Securities in the underwriting to the extent requested
shall be limited to the extent provided herein.
The Company shall (together with all Holders proposing to distribute
their securities through such underwriting) enter into an underwriting agreement
in customary form with the managing underwriter selected for such underwriting
by a majority in interest of the Initiating Holders, but subject to the
Company's reasonable approval. Notwithstanding any other provision of this
Section 1.2, if the managing
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underwriter advises the Initiating Holders in writing that marketing factors
require a limitation of the number of shares to be underwritten, then the
Company shall so advise all participating Holders and the number of shares of
Registrable Securities that may be included in the registration and underwriting
shall be allocated among all Holders thereof in proportion, as nearly as
practicable, to the respective amounts of Registrable Securities held by such
Holders at the time of filing the registration statement. No Registrable
Securities excluded from the underwriting by reason of the underwriter's
marketing limitation shall be included in such registration. If the underwriter
has not limited the number of Registrable Securities to be underwritten, the
Company may include securities for its own account (or for the account of other
shareholders) in such registration if the underwriter so agrees and if the
number of Registrable Securities that would otherwise have been included in such
registration and underwriting will not thereby be limited.
If any Holder of Registrable Securities disapproves of the terms of the
underwriting, such person may elect to withdraw therefrom by written notice to
the Company, the managing underwriter and the Initiating Holders.
1.3. Company Registration.
(a) Notice of Registration. If, at any time prior to the fifth
anniversary of the closing date of the Company's initial public offering of its
Common Stock in a underwritten public offering pursuant to a registration
statement on Form S-1 (or a successor form) under the Securities Act, the
Company shall determine to register any of its securities, either for its own
account or the account of a security holder or holders, other than (i) a
registration relating solely to employee benefit plans, (ii) a registration
relating solely to a transaction under Rule 145 under the Securities Act, or
(iii) a registration effected pursuant to Sections 1.2 or 1.4 hereof, the
Company will:
(i) promptly give to each Holder written notice
thereof; and
(ii) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any underwriting
involved therein, all the Registrable Securities specified in a written request
or requests, made within twenty (20) days after receipt of such written notice
from the Company, by any Holder; provided that the Holder making such request
would have been unable to sell all of its or his Registrable Securities pursuant
to Rule 144 under the Securities Act in the four-week period immediately
preceding the date of such written notice.
(b) Underwriting. If the registration of which the Company
gives notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 1.3(a)(i). In such event the right of any Holder to
registration pursuant to
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Section 1.3 shall be conditioned upon such Holder's participation in such
underwriting to the extent provided herein. All Holders proposing to distribute
their securities through such underwriting shall (together with the Company and
the other holders distributing their securities through such underwriting) enter
into an underwriting agreement in customary form with the managing underwriter
selected for such underwriting by the Company, but subject to the reasonable
approval of Holders holding more than a majority of the Registerable Securities
to be included in such registration. Notwithstanding any other provision of this
Section 1.3, if the managing underwriter determines that marketing factors
require limitation of the number of shares to be underwritten, the managing
underwriter may limit the Registrable Securities to be included in such
registration. The Company shall so advise all Holders and the number of shares
of securities that may be included in the registration and underwriting (other
than in behalf of the Company) shall be allocated among all Holders in
proportion, as nearly as practicable, to the respective amounts of Registrable
Securities held by such Holders; provided, however, in no event shall the amount
of Registrable Securities of the Holders included in the offering be reduced
below twenty percent (20%) 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 Holders may be excluded entirely if the
underwriters make the determination described above. No securities of the
Company held by parties other than the Holders or the Company shall be included
in any registration and underwriting to which this Section applies if the number
of Registrable Securities that would otherwise have been included in such
registration and underwriting will thereby be limited. If any Holder disapproves
of the terms of any such underwriting, he may elect to withdraw therefrom by
written notice to the Company and the managing underwriter.
1.4. Registration on Form S-3.
(a) If any Holder or Holders holding in the aggregate not less
than ten percent (10%) of the then outstanding Registrable Securities request
that the Company file a registration statement on Form S-3 (or any successor
form to Form S-3) for a public offering of shares of the Registrable Securities
the reasonably anticipated aggregate price to the public of which, net of
underwriting discounts and commissions, would exceed $500,000, and the Company
is a registrant entitled to use Form S-3 to register the Registrable Securities
for such an offering, the Company shall use its best efforts to cause such
Registrable Securities to be registered for the offering on such form and to
cause such Registrable Securities to be qualified in such jurisdictions as the
Holder or Holders may reasonably request; provided, however, that the Company
shall not be required to effect more than one (1) registration pursuant to this
Section 1.4 in any six (6) month period. The substantive provisions of Section
1.2(b) shall be applicable to each registration initiated under this Section
1.4.
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(b) Notwithstanding the foregoing, the Company shall not be
obligated to take any action pursuant to this Section 1.4:
(i) in any particular jurisdiction in which the
Company would be required to execute a general consent to service of process in
effecting such registration, qualification or compliance unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Securities Act;
(ii) within one hundred eighty (180) days of the
effective date of any registration referred to in Sections 1.2 and 1.3 above
provided that the Company is actively employing in good faith all reasonable
efforts to cause such registration statement to become effective; or
(iii) if the Company shall furnish to such Holder a
certificate signed by the President of the Company stating that in good faith
judgment of the Board of Directors it would be seriously detrimental to the
Company or its shareholders for registration statements to be filed in the near
future, then the Company's obligation to use its best efforts to file a
registration statement shall be deferred for a period not to exceed sixty (60)
days from the receipt of the request to file such registration by such Holder,
provided that the Company may not use this right more than once in any twelve
month period.
1.5. Limitations on Subsequent Registration Rights. From and after the
date hereof, without the approval of the holders of a majority of the
Registrable Securities the Company shall not enter into any agreement granting
any holder or prospective holder of any securities of the Company registration
rights with respect to such securities unless such new registration rights,
including standoff obligations, are subordinate to the registration rights
granted to Series A Holders hereunder.
1.6. Expenses of Registration. All Registration Expenses incurred in
connection with all registrations pursuant to Sections 1.2 and 1.3 shall be
borne by the Company. All Registration Expenses incurred in connection with all
registrations pursuant to Sections 1.4 shall be borne by the stockholders
participating in that registration pro rata, on the basis of number of shares so
registered. Unless otherwise stated, all Selling Expenses relating to securities
registered on behalf of the Holders shall be borne by the Holders of such
securities pro rata on the basis of the number of shares so registered.
1.7. Registration Procedures. In the case of each registration,
qualification or compliance effected by the Company pursuant to this Section 1,
the Company will keep each Holder advised in writing as to the initiation of
each registration and as to the completion thereof. At its expense the Company
will:
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(a) Prepare and file with the Commission a registration
statement with respect to such securities and use its best efforts to cause such
registration statement to become and remain effective for at least one hundred
eighty (180) days or until the distribution described in the Registration
Statement has been completed;
(b) Furnish to the Holders participating in such registration
and to the underwriters of the securities being registered such reasonable
number of copies of the registration statement, preliminary prospectus, final
prospectus and such other documents as such underwriters may reasonably request
in order to facilitate the public offering of such securities.
(c) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement.
(d) Use its best efforts to register or 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, such
request to be received within twenty (20) days following the initial filing of
the registration statement with the Commission, provided that the Company shall
not be required in connection therewith or as a condition thereto to qualify to
do business where it is not so qualified or to file a general consent to service
of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by
such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
(g) Use its best efforts to furnish, at the request of any
Holder requesting registration of Registrable Securities pursuant to this
Section 1, on the date that such Registrable Securities are delivered to the
underwriters for sale in connection with a registration pursuant to this Section
1, if such securities are being
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sold through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective, (i) an opinion, dated such date, of the counsel
representing the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities and (ii) a letter dated such date, from
the independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and to the Holders requesting registration of Registrable Securities.
1.8. Indemnification.
(a) To the fullest extent permitted by law, the Company will
indemnify each Holder, each of its officers and directors and partners, and each
person controlling such person within the meaning of Section 15 of the
Securities Act, with respect to which registration, qualification or compliance
has been effected pursuant to this Section 1, and each underwriter for such
Holder, if any, and each person who controls any such underwriter within the
meaning of Section 15 of the Securities Act, against all expenses, claims,
losses, damages or liabilities (or actions in respect thereof), including any of
the foregoing incurred in settlement of any litigation, commenced or threatened,
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any registration statement, prospectus, offering
circular or other document, or any amendment or supplement thereto, incident to
any such registration, qualification or compliance, or based on any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading, or any violation by the Company of the
Securities Act or any rule or regulation promulgated under the Securities Act
applicable to the Company in connection with any such registration,
qualification or compliance, and the Company will reimburse each such Holder,
each of its officers and directors, and each person controlling such Holder,
each such underwriter and each person who controls any such underwriter, for any
legal and any other expenses reasonably incurred in connection with
investigating, preparing or defending any such claim, loss, damage, liability or
action, provided that the Company will not be liable to any such person in any
such case to the extent that any such claim, loss, damage, liability or expense
arises out of or is based on any untrue statement or omission (or alleged untrue
statement or omission), made in reliance upon and in conformity with written
information furnished to the Company by an instrument duly executed by such
Holder, controlling person or underwriter specifically for use therein or the
preparation thereby.
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(b) Each Holder will, if Registrable Securities held by such
Holder are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company, each of
its directors and officers, each underwriter, if any, of the Company's
securities covered by such a registration statement, each person who controls
the Company or such underwriter within the meaning of Section 15 of the
Securities Act, and each other such Holder, each of its officers and directors
and each person controlling such Holder within the meaning of Section 15 of the
Securities Act, against all claims, losses, damages and liabilities (or actions
in respect thereof) arising out of any untrue statement (or alleged untrue
statement) of a material fact contained in any such registration statement,
prospectus, offering circular or other document, or any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse the
Company, such Holders, such directors, officers, persons, underwriters or
control persons for any legal or any other expenses reasonably incurred in
connection with investigating, preparing or defending any such claim, loss,
damage, liability or action, in each case to the extent, but only to the extent,
that such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Company by an instrument duly executed by such Holder
specifically for use therein or the preparation thereby. Notwithstanding the
foregoing, the liability of each Holder under this subSection (b) shall be
limited to an amount equal to the aggregate proceeds received by such Holder
from the sale of Registrable Securities in such registration.
(c) Each party entitled to indemnification under this Section
1.8 (the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not unreasonably be
withheld), and the Indemnified Party may participate in such defense at such
party's expense, and provided further that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party of
its obligations under this Section 1 unless the failure to give such notice is
materially prejudicial to an Indemnifying Party's ability to defend such action
and provided further, that the Indemnifying Party shall not assume the defense
for matters as to which there is a conflict of interest or separate and
different defenses. After notice from the indemnifying party of its election to
assume the defense thereof, the indemnifying party will not be liable to the
indemnified party pursuant to this Section 1.8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
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other than the reasonable costs of investigation. No Indemnifying Party, in the
defense of any such claim or litigation, shall, except with the consent of each
Indemnified Party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnified Party of a release from all liability
in respect to such claim or litigation.
1.9. Information by Holder. The Holders of securities included in any
registration shall furnish to the Company such information regarding such
Holders, the Registrable Securities held by them and the distribution proposed
by such Holders as the Company may request in writing and as shall be required
in connection with any registration, qualification or compliance referred to in
this Section 1.
1.10. Rule 144 Reporting. With a view to making available the benefits
of certain rules and regulations of the Commission which may at any time permit
the sale of the Registrable Securities to the public without registration, after
such time as a public market exists for the Common Stock of the Company, the
Company agrees to use its best efforts to:
(a) Make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act, at all times
after the effective date that the Company becomes subject to the reporting
requirements of the Securities Act or the Securities Exchange Act of 0000 (xxx
"Xxxxxxxx Xxx").
(b) Use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act (at any time after it has become subject to
such reporting requirements);
(c) So long as a Holder owns any Registrable Securities to
furnish to the Holder forthwith upon request a written statement by the Company
as to its compliance with the reporting requirements of said Rule 144 (at any
time after ninety (90) days after the effective date of the first registration
statement filed by the Company for an offering of its securities to the general
public), and of the Securities Act and the Exchange Act (at any time after it
has become subject to such reporting requirements), a copy of the most recent
annual or quarterly report of the Company, and such other reports and documents
of the Company and other information filed by the Company with the Commission or
publicly disclosed by the Company as a Holder may reasonably request in availing
itself of any rule or regulation of the Commission allowing a Holder to sell any
such securities without registration.
1.11. Transfer of Registration Rights. The rights to cause the Company
to register securities granted to Holders under this Agreement may be assigned
to a
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transferee or assignee in connection with any transfer or assignment of
Registrable Securities by a Holder provided that: (i) such assignment or
transfer may otherwise be effected in accordance with applicable securities
laws, (ii) such assignee or transferee agrees to be bound by the terms and
conditions of this Agreement, and (iii) either (A) such assignee or transferee
acquires at least 100,000 shares of Registrable Securities (appropriately
adjusted for stock splits, combinations, dividends, distributions and
recapitalizations) not sold to the public, or (B) such assignee or transferee is
a partner, shareholder, subsidiary, affiliate, family member, family trust or
the estate of the Holder.
1.12. Standoff Agreement. Each Party hereby agrees that in connection
with the Company's public offering of any of the Company's securities (except
pursuant to a registration on Form S-3) that, upon request of the Company or the
underwriters managing any underwritten offering of the Company's securities, a
Holder shall not sell, make any short sale of, loan, grant any option for the
purchase of, or otherwise dispose of any securities of the Company (other than
those included in the registration) without the prior written consent of the
Company or such underwriters, as the case may be, for such period of time (not
to exceed one hundred eighty (180) days) from the effective date of such
registration as may be requested by the underwriters; provided, that the
officers, directors of the Company who own stock of the Company and any
stockholder holding more than two percent (2%) of the outstanding voting
securities of the Company also agree to such restrictions.
2. Right of First Refusal Upon Issuance of Securities by the Company.
2.1. Right of First Refusal. The Company hereby grants to each Founder
who remains an employee of the Company or any of its subsidiaries at the time
rights under this Section 2 would otherwise accrue to such Founder and to each
Series A Holder (the "Rights Holders") the right of first refusal to purchase,
pro rata, in order to maintain the Rights Holder's percentage ownership interest
in the Company, all or any part of New Securities (as defined below) which the
Company may, from time to time, propose to sell and issue.
2.2. "Equity Securities" shall mean any securities having voting rights
in the election of the Board of Directors not contingent upon default, or any
securities evidencing an ownership interest in the Company, or any securities
convertible into or exercisable for any shares of the foregoing, or any
securities issuable pursuant to any agreement or commitment to issue any of the
foregoing.
2.3. Except as set forth below, "New Securities" shall mean any Equity
Securities, whether now authorized or not, and rights, options or warrants to
purchase said Equity Securities. Notwithstanding the foregoing, "New Securities"
does not include (i) Common Stock issued to the Founders or employees, officers,
consultants or directors of the Company pursuant to sales or options granted at
any
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time after the effective date of this Agreement up to a total of 513,670 shares
(as adjusted for stock splits, combinations, dividends, distributions or
recapitalizations); (ii) securities offered to the public generally pursuant to
a registration statement under the Securities Act; (iii) securities issued
pursuant to the acquisition of another corporation by the Company by merger,
purchase of substantially all of the assets or other reorganization whereby the
Company or its shareholders own not less than fifty-one (51%) percent of the
voting power of the surviving or successor corporation; (iv) the Conversion
Stock; (v) warrant or warrants for the purchase of shares of capital stock of
the Company (and stock issued upon exercise of such warrant or warrants) which
have been unanimously approved by the Board of Directors of the Company and
issued in connection with an equipment lease, equipment financing or bank line
financing; or (vi) stock issued in connection with any stock split, stock
dividend or recapitalization by the Company.
2.4. In the event the Company proposes to undertake an issuance of New
Securities, it shall give each Rights Holder written notice of its intention,
describing the type of New Securities, and the price and terms upon which the
Company proposes to issue the same. Each Rights Holder shall have fifteen (15)
days from the date of receipt of any such notice (the "Rights Notice Date") to
agree to purchase up to its respective pro rata share of such New Securities for
the price and upon the applicable terms specified in the notice by giving
written notice to the Company and stating therein the quantity of New Securities
to be purchased. Each Rights Holder's pro rata share of the New Securities shall
be a fraction calculated by dividing (i) the number of shares of Common Stock
issued and issuable upon exercise, conversion or exchange of all outstanding
Equity Securities held by the Rights Holder as of the Rights Notice Date by (ii)
the total number of shares of Common Stock issued and issuable upon exercise,
conversion or exchange of all outstanding Equity Securities held by all Rights
Holders as of the Rights Notice Date.
2.5. If, within the fifteen (15) day period after the Rights Notice
Date, a Rights Holder does not notify the Company that it desires to purchase
all or a portion of the New Securities offered to the Rights Holder, then the
Company shall offer, pursuant to written notice delivered promptly and not later
than the twenty-fifth (25th) day after the Rights Notice Date, any such New
Securities not so acquired, at the same price and upon the same terms and
conditions, to those Rights Holders who have elected to purchase New Securities
during the fifteen (15) day period (the "Participating Purchasers"). Each of
these Participating Purchasers shall have until thirty-five (35) days after the
Rights Notice Date to notify the Company in writing that it elects to purchase
some or all of its pro rata share of the New Securities so offered. Each
Participating Purchaser's pro rata share of such New Securities shall be a
fraction calculated by dividing (i) the number of shares of Common Stock issued
and issuable upon exercise, conversion or exchange of all outstanding Equity
Securities held by the Participating Purchaser as of the Rights Notice Date by
(ii) the total number of shares of Common Stock issued and issuable
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upon exercise, conversion or exchange of all outstanding Equity Securities held
by all Participating Purchasers as of the Rights Notice Date.
2.6. If the Rights Holders do not notify the Company within thirty-five
(35) days after the Rights Notice Date that they will purchase all of the New
Securities, the Company shall have ninety (90) days from the Rights Notice Date
to sell or enter into an agreement (pursuant to which the sale of New Securities
covered thereby shall be closed, if at all, within sixty (60) days from the date
of said agreement) to sell the New Securities not elected to be purchased by
Rights Holders at the price and upon the terms no more favorable to the
purchasers of such securities than specified in the Company's notice. In the
event the Company has not sold the New Securities within said ninety (90) day
period (or sold and issued New Securities in accordance with the foregoing
within sixty (60) days from the date of said agreement), the Company shall not
thereafter issue or sell any New Securities, without first offering such
securities in the manner provided above.
2.7. The right of first refusal granted under this Agreement shall
expire on the effective date of the Company's initial public offering pursuant
to an effective registration statement under the Securities Act.
2.8. The right of first refusal hereunder may be assigned to a
transferee or assignee in connection with any transfer or assignment of the
Series A Shares or the Conversion Stock by a Rights Holder provided that: (i)
such assignment or transfer may otherwise be effected in accordance with
applicable securities laws, (ii) such assignee or transferee agrees to be bound
by the terms and conditions of this Agreement, and (iii) either (A) such
assignee or transferee acquires at least 100,000 shares of Registrable
Securities (appropriately adjusted for stock splits, combinations, dividends,
distributions and recapitalizations) not sold to the public, or (B) such
assignee or transferee is a partner, subsidiary, affiliate, family member,
family trust or the estate of the Rights Holder.
3. Right of First Refusal. Before any Equity Securities of the Company
registered in the name of Series A Holder or a Founder may be sold or
transferred (including transfer by operation of law) other than to a partner,
subsidiary, affiliate, family member, family trust or the estate of the Series A
Holder or Founder, which transferees shall agree, as a condition of the
transfer, to be bound by the provisions of this Section 3, such shares shall
first be offered to the Company and to the other Series A Holders and Founders
in the following manner:
3.1. Notice. That Series A Holder or Founder ("Selling Party") shall
first deliver a written notice ("Notice") to the Company and the other Series A
Holders and Founders stating (i) the Selling Party desires to sell or transfer
such Equity Securities, (ii) the number of Equity Securities proposed to be sold
or transferred, and (iii) the price and other terms of the proposed sale or
transfer.
-13-
14
3.2. Company Right. Within ten (10) days after receipt of the Notice,
the Company may elect (by notifying the Selling Party in writing) to purchase
all or any part of the Equity Securities to which the Notice refers, on the same
terms and conditions specified in the Notice.
3.3. Series A Holder and Founder Right. In the event the Company does
not elect to purchase all of the Equity Securities to which the Notice refers
within the ten (10) day period, then the Selling Party shall immediately notify
each Series A Holder and Founder (other than the Selling Party) of this fact and
each such Series A Holder and Founder may elect (by notifying the Selling Party
in writing) within twenty (20) days after receipt of the Notice to purchase its
pro rata share (or any part thereof) of all such Equity Securities not purchased
by the Company on the same terms and conditions specified in the Notice. Each
Series A Holder's and Founder's pro rata share of these Equity Securities shall
be a fraction calculated by dividing (i) the number of shares of Common Stock
issued and issuable upon exercise, conversion or exchange of all outstanding
Equity Securities held by the Series A Holder or Founder as of the date of
delivery of the Notice by (ii) the total number of shares of Common Stock issued
and issuable upon exercise, conversion or exchange of all outstanding Equity
Securities held by the Series A Holders and the Founders (other than the Selling
Party) as of that date.
3.4. Over-allotment. If, within twenty (20) days after receipt of the
Notice, a Series A Holder or Founder does not notify the Company that it desires
to purchase its pro-rata share (or any part thereof) of the Equity Securities
offered to the Series A Holder or Founder, those Series A Holders and Founders
who have elected to purchase Equity Securities from the Selling Party during the
twenty (20) day period (the "Over-allotment Purchasers") may elect to purchase
their pro-rata share (or any part thereof) of those Equity Securities not so
purchased. The Selling Party shall provide written notice not later than
twenty-five (25) days after receipt of the Notice of the number of shares of
Equity Securities of the Selling Party available for purchase pursuant to this
over-allotment right. Each of these Over-allotment Purchasers shall have until
thirty-five (35) days after receipt of the Notice to notify the Selling Party in
writing that it elects to purchase some or all of its pro rata share of the
Equity Securities so offered. Each Over-allotment Purchaser's pro rata share of
the Equity Securities shall be a fraction calculated by dividing (i) the number
of shares of Common Stock issued and issuable upon exercise, conversion or
exchange of all outstanding Equity Securities held by the Over-allotment
Purchaser as of the date of the Notice by (ii) the total number of shares of
Common Stock issued and issuable upon exercise, conversion or exchange of all
outstanding Equity Securities held by all Over-allotment Purchasers as of the
date of the Notice.
3.5. Company Purchase. In the event the Company elects to acquire
Equity Securities pursuant to Section 3, the Company and the Selling Party shall
complete
-14-
15
the sale and purchase of such Equity Securities shares within thirty (30) days
after the Company receives the Notice.
3.6. Series A Holder and Founder Purchases. In the event the Series A
Holders and the Founders elect to acquire Equity Securities pursuant to Section
3, the Series A Holders and Founders and the Selling Party shall complete the
sale and purchase of such Equity Securities within fifty (50) days after the
Company receives the Notice.
3.7. Selling Party Right. If all of the Equity Securities to which the
Notice refers are not elected to be purchased by the Company or the Series A
Holders and the Founders, the Selling Party may sell such remaining shares at
the price and on the terms specified in the Notice, provided that (i) such sale
or transfer is consummated within ninety (90) days of the date of the Notice,
and (ii) that prior to the transfer, the transferee of such Equity Securities
agrees in writing (in a form satisfactory to the Company) that such transferee
shall receive and hold such securities subject to the provisions of this Section
3.
3.8. Termination. The rights and obligations of the Company, the Series
A Holders and the Founders under this Section 3 shall terminate upon the earlier
to occur of (i) the closing of the Company's first public offering registered
under the Act, or (ii) upon shareholder approval of any merger or consolidation
of the Company with any other corporation in which more than 50% of the voting
control of the Company is transferred to a party or parties not affiliated with
the Company or any shareholder of the Company, provided that, if such merger or
consolidation is not consummated, the rights and obligations of this Section 3
shall be deemed restored and reinstated to full force and effect.
4. Miscellaneous
4.1. Governing Law. This Agreement shall be governed in all respects by
the laws of the State of Delaware.
4.2. Survival. The representations, warranties, covenants and
agreements made herein shall survive any investigation made by any Preferred
Shareholder and the closing of the transactions contemplated hereby.
4.3. Successors and Assigns. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
4.4. Entire Agreement; Amendment. This Agreement constitutes the full
and entire understanding and agreement between the parties with regard to the
subjects hereof, and no party shall be liable or bound to any other party in any
manner by
-15-
16
any warranties, representations or covenants except as specifically set forth
herein. With the written consent of the record or beneficial Holders of at least
two-thirds (2/3) of the Registrable Securities (excluding Registrable Securities
held by the Founders), the obligations of the Company and the rights of the
Holders of the Registrable Securities under this Agreement may be waived (either
generally or in a particular instance, either retroactively or prospectively,
and either for a specified period of time or indefinitely), and with the same
consent the Company, when authorized by resolution of its Board of Directors,
may enter into a supplementary agreement for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement; provided, however, that no such modification, amendment or
waiver shall reduce the aforesaid percentage of Registrable Securities without
the consent of all of the Holders of the Registrable Securities, and, provided
further, that none of the rights of the Founders under this Agreement may be
waived or modified without the written consent of the record or beneficial
Holders of at least two-thirds (2/3) of the Registrable Securities held by the
Founders and qualifying transferees (pursuant to Section 1.11 hereof) of the
Founders. Upon the effectuation of each such waiver, consent, agreement of
amendment or modification, the Company shall promptly give written notice
thereof to the record holders of the Registrable Securities who have not
previously consented thereto in writing. This Agreement or any provision hereof
may be changed, waived, discharged of terminated only by a statement in writing
signed by the party against which enforcement of the change, waiver, discharge
or termination is sought, except to the extent provided in this Section 4.4.
4.5. Notices, etc. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by first class mail,
postage prepaid, certified or registered mail, return receipt requested,
addressed (a) if to any Holder, at such Holder's address as set forth in the
Company's records, or at such other address as such Holder shall have furnished
to the Company in writing, or (b) if to the Company, at Xxx Xxxxxxxxx Xxxxx,
Xxxxxxx, XX 00000 (c/o Cascade Systems, Inc.), or at such other address as the
Company shall have furnished to the Holder in writing.
4.6. Delays or Omissions. Except as expressly provided herein, no delay
or omission to exercise any right, power or remedy accruing to any holder of any
Shares, upon any breach or default of the Company under this Agreement, shall
impair any such right, power or remedy of such holder nor shall it be construed
to be a waiver of any such breach or default, or an acquiescence therein, or of
or in any similar breach or default thereafter occurring; nor shall any waiver
of any single breach or default be deemed a waiver of any other breach or
default theretofore or thereafter occurring. Any waiver, permit, consent or
approval of any kind or character on the part of any holder of any breach or
default under this Agreement, or any waiver on the part of any holder of any
provisions or conditions of this agreement, must be in writing and shall be
effective only to the extent specifically set
-16-
17
forth in such writing. All remedies, either under this Agreement or by law or
otherwise afforded to any holder, shall be cumulative and not alternative.
4.7. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
4.8. Severability. If any provision of this Agreement, or the
application thereof, shall for any reason and to any extent be invalid or
unenforceable the remainder of this Agreement and application of such provision
to persons or circumstances shall be interpreted so as best to reasonably effect
the intent of the parties hereto, the parties further agree to replace such void
or unenforceable provision of this Agreement with a valid and enforceable
provision which will achieve to the extent possible, the economic, business and
other purposes of the void or unenforceable provision.
This Rights Agreement is hereby executed as of the date first above
written.
COMPANY:
CASCADE SYSTEMS INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. XxXxxxx
-------------------------------
Its: Vice President
-------------------------------
HOLDERS:
ADOBE VENTURES L.P.
By: Its General Partner
H&Q Adobe Ventures Management L.P.
By: Its General Partner
H&Q Adobe Ventures Management Corporation
By: /s/ Xxxxxx Xxxxxxxxxxxx
-------------------------------
Title: Attorney-in-Fact
---------------------------
-17-
18
JARROLD & SONS LTD.
By: /s/ Xxxxx Xxxxxxx
-------------------------------
Titled: Chairman
--------------------------
-18-
19
CASCADE SYSTEMS INTERNATIONAL, INC.
RIGHTS AGREEMENT
Counterpart Signature Agreement
FOUNDERS:
Xxxxxxx Xxxxxxxxx, Xxxx Xxxxx, Xxx Xxxxx, Xxxxx Xxxxx, Xxx Xxxxx, Xxxxxxx
Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx Xxxxxxxx, Xxx Xxxxxxxxx, Xxxx Xxxxxx, Xxxxx
Xxxxxxxx, Xxxxxxx Xxxxxx, Xxxxxx Xxxxxxxx, Xxxx Xxxxxx, Xxxxxx Xxxx, Xxxx
Xxxxxxx, Xxxxxx Xxxx, Xxxxxxx Xxxx, Xxxxxxxx Xxxxx, Xxxxxxxx Xxxxxx, Xxxx Xxxx,
Xxxxxxxx Xxxxxxx, Xxx Xxxxxxxx, Xxxxx Xxxxxxx, Xxxx Xxxxxx and Nigel Lubbock.
By: /s/ Xxxxxxx Xxxxxxxxx, /s/ Xxxxxxx Xxxxxxxxx 7-25-94
---------------------------------------------- -------
Xxxxxxx Xxxxxxxxx, their attorney in fact Date
Xxxxxx Xxxxxx, Xxxxx Xxxxxxxxx, Xxx Xxxxxxxx, Xxxxxxx XxXxxxx, Xxxx Xxxxxxx,
Xxxxx Xxxxxxxx, Xxxxx XxXxxxxx, Xxxxxx Xxxx, Xxxx Xxxxxx, Xxxxx Xxxxxx, Xxxx
Xxxxxxx and Xxxxx Xxxxx.
By: /s/ Xxxxxxx X. XxXxxxx, /s/ Xxxxxx X. XxXxxxx 7-25-94
---------------------------------------------- -------
Xxxxxxx XxXxxxx, their attorney in fact Date
-19-
20
SCHEDULE 1
FOUNDERS
Xxxxx Xxxxx, Xxxx Xxxxx, Xxxxxxx Xxxxxxxxx, Xxx Xxxxx, Xxxxx Xxxxx, Xxx Xxxxx,
Xxxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx Xxxxxxxx, Xxx Xxxxxxxxx, Xxxx Xxxxxx,
Xxxxx Xxxxxxxx, Xxxxxxx Xxxxxx, Xxxxxx Xxxxxxxx, Xxxx Xxxxxx, Xxxxxx Xxxx, Xxxx
Xxxxxxx, Xxxxxx Xxxx, Xxxxxxx Xxxx, Xxxxxxxx Xxxxx, Xxxxxxxx Xxxxxx, Xxxx Xxxx,
Xxxxxxxx Xxxxxxx, Xxx Xxxxxxxx, Xxxxx Xxxxxxx, Xxxx Xxxxxx, Nigel Lubbock,
Xxxxxx Xxxxxx, Xxxxx Xxxxxxxxx, Xxx Xxxxxxxx, Xxxxxxx XxXxxxxxx, Xxxx Xxxxxxx,
Xxxxx Xxxxxxxx, Xxxxx XxXxxxxx, Xxxxxx Xxxx, Xxxx Xxxxxx, Xxxxx Xxxxxx, Xxx
Xxxxxxx
-20-
21
AMENDMENT NO. 1
TO
RIGHTS AGREEMENT
This Amendment No. 1 to the Rights Agreement (the "Amendment") is
entered into as of March 28, 1996 by and among Cascade Systems International,
Inc., a Delaware corporation (the "Company"), the undersigned holders of the
Series A Preferred Stock (the "Series A Shares") of the Company (the "Series A
Holders"), the undersigned holders of the Series B Preferred Stock (the "Series
B Shares") of the Company (the "Series B Holders") and the individuals named in
Schedule 1 attached to this Agreement (the "Founders").
RECITALS
WHEREAS, the Company, the Series A Holders and the Founders are parties
to that certain Rights Agreement (the "Rights Agreement") dated as of July 25,
1994, pursuant to which the Company granted to the Series A Holders and the
Founders certain registration rights applicable to the Common Stock and the
Series A Shares and the parties agreed to certain rights of first refusal, all
as set forth in the Rights Agreement;
WHEREAS, the Company and the Series B Holders have entered into a
Series B Preferred Stock Purchase Agreement (the "Purchase Agreement") of even
date herewith pursuant to which the Company has agreed to issue and sell to the
Series B Holders, and the Series B Holders have agreed to purchase from the
Company, an aggregate of 400,000 shares of the Company's Series B Preferred
Stock, par value $.001 per share, on the terms and conditions set forth therein;
and
WHEREAS, the execution and delivery of this Amendment is a condition to
the closing of the transactions contemplated under the Purchase Agreement.
NOW THEREFORE, in consideration of the foregoing and of the mutual
promises and covenants contained herein, the parties agree as follows:
1. Amendment to Section 1.1. Section 1.1(b) of the Rights Agreement is
hereby amended in its entirety to read as follows:
"(b) "Conversion Stock" means the Common Stock issued or issuable
upon conversion of the Series A Shares or the Series B Shares."
2. Amendment to Section 2.1. Section 2.1 of the Rights Agreement is
hereby amended to include the Series B Holders in the definition of "Rights
Holders" therein, for all purposes.
22
3. Amendment to Section 2.3. Section 2.3 of the Rights Agreement is
hereby amended to change the number 513,670 therein to 1,215,720.
4. Amendment to Section 2.8. Section 2.8 of the Rights Agreement is
hereby amended to insert the words ", Series B Shares" after the words "Series A
Shares" therein.
5. Amendment to Section 3. Section 3 of the Rights Agreement is hereby
amended to subject the Series B Holders to the same rights of first refusal that
are applicable to the Series A Holders.
6. Treatment of Series A Shares and Series B Shares. Notwithstanding
anything to the contrary contained herein or in the Rights Agreement, for all
purposes of the Rights Agreement, the Series B Holders and the Series B Shares
shall be entitled to the same rights and subject to the same obligations as the
Series A Holders and the Series A Shares.
7. Miscellaneous
7.1 Governing Law. This Amendment shall be governed in all
respects by the laws of the State of Delaware.
7.2 Successors and Assigns. Except as otherwise provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
7.3 Remaining Agreement. Except as amended hereby, the Rights
Agreement shall remain in full force and effect in all respects.
7.4 Counterparts. This Amendment may be executed in any number
of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
This Amendment No. 1 to the Rights Agreement is hereby executed as of
the date first above written.
CASCADE SYSTEMS INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. XxXxxxx
----------------------------
Title: President
----------------------------
-2-
23
SERIES A HOLDERS:
ADOBE VENTURES L.P.
By: Its General Partner
H&Q Adobe Ventures Management L.P.
By: Its General Partner
H&Q Adobe Ventures Management Corporation
By: /s/ Xxxxxx Xxxxxxxxxxxx
----------------------------
Title: Attorney-in-Fact
----------------------------
JARROLD & SONS LTD.
By: /s/ Xxxxx Xxxxxxx
----------------------------
Title: Chairman
----------------------------
SERIES B HOLDERS:
ADOBE VENTURES L.P.
By: Its General Partner
H&Q Adobe Ventures Management L.P.
By: Its General Partner
H&Q Adobe Ventures Management Corporation
By: /s/ Xxxxxx Xxxxxxxxxxxx
----------------------------
Title: Attorney-in-Fact
----------------------------
FOUNDERS:
/s/ Xxxxxxx x. Xxxxxxxx
----------------------------
XXX XXXXXXXX
-3-
24
/s/ Xxxx Xxxxxxx
-------------------------
XXXX XXXXXXX
/s/ Xxxxx Xxxxxx
-------------------------
XXXXX XXXXXX
/s/ Xxxxx Xxxxx
-------------------------
XXXXX XXXXX
/s/ Xxxxxx X. XxXxxxx
-------------------------
XXXXXXX XXXXXXX
/s/ Xxxxx Xxxxxxxxx
-------------------------
XXXXX XXXXXXXXX
/s/ Xxxxxx Xxxxxx
-------------------------
XXXXXX XXXXXX
/s/ Xxxxx XxXxxxxx
-------------------------
XXXXX XXXXXXXX
/s/ Xxxxx Xxxxxxxx
-------------------------
XXXXX XXXXXXXX
/s/ Xxxxxx X. Xxxx
-------------------------
XXXXXX XXXX
/s/ Xxx Xxxxxxxxx
-------------------------
XXX XXXXXXXXX
/s/ Xxxxxxx Xxxxxxxxx
-------------------------
XXXXXXX XXXXXXXXX
/s/ Xxxx Xxxxxx
-------------------------
XXXX XXXXXX
/s/ Xxxxxxx Xxxxxx
-------------------------
XXXXXXX XXXXXX
/s/ Xxxxxx Xxxx
-------------------------
XXXXXX XXXX
/s/ Xxxxxxx Xxxxxx
-------------------------
XXXXXXX XXXXXX
-4-
25
AMENDMENT NO. 2
DATED AS OF MAY 16, 1997
TO THE RIGHTS AGREEMENT
This Amendment No. 2 (the "Amendment") to that certain Rights Agreement
(the "Rights Agreement") dated as of July 25, 1994 and as amended by Amendment
No. 1 thereto dated as of March 28, 1996, by and among Cascade Systems
Incorporated, a Delaware corporation (formerly Cascade Systems International,
Inc., the "Company"), the undersigned holders of the Series A Preferred Stock,
par value $.001 per share (the "Series A Shares") of the Company (the "Series A
Holders"), the undersigned holders of the Series B Preferred Stock, par value
$.001 per share (the "Series B Shares") of the Company (the "Series B Holders")
and the individuals named in Schedule 1 attached to the Rights Agreement (the
"Founders"), is made as of May 16, 1997. All capitalized terms used herein and
not otherwise defined shall have the meanings ascribed to such terms in the
Rights Agreement.
RECITALS
WHEREAS, Section 2 of the Rights Agreement provides to each Founder who
remains an employee of the Company or any of its subsidiaries and to each Series
A Holder and Series B Holder a right of first refusal with respect to the
issuance by the Company of certain securities as set forth therein; and
WHEREAS, Section 2.3 of the Rights Agreement excludes from such right
of first refusal the issuance by the Company of certain shares of Common Stock
to the Founders or employees, officers, consultants or directors of the Company
pursuant to sales or options; and
WHEREAS, the parties hereto wish to amend the Rights Agreement to
exclude from the right of first refusal the issuance of any and all shares of
Common Stock, or options exercisable therefor, to the Founders or employees,
officers, consultants or directors of the Company.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, receipt of which is hereby acknowledged, the parties
agree as follows:
1. Amendment to Section 2.3. Clause (i) of the second sentence of
Section 2.3 of the Rights Agreement is hereby amended in its entirety to read as
follows:
"(i) Common Stock, or options exercisable therefor, issued or
granted to the Founders or employees, officers, consultants or
directors of the Company at any time after the effective date of this
Agreement;".
-1-
26
2. Miscellaneous
2.1 Governing Law. This Amendment shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware.
2.2 Successors and Assigns. Except as otherwise provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
2.3 Remaining Agreement. Except as amended hereby, the Rights
Agreement shall remain in full force and effect in all respects.
2.4 Counterparts. This Amendment may be executed in any number
of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
IN WITNESS WHEREOF, this Amendment No. 2 to the Rights Agreement is
hereby executed as of the date first above written pursuant to Section 4.4 of
the Rights Agreement by the Company, the Holders of at least two-thirds of the
Registrable Securities (excluding Registrable Securities held by the Founders)
and the Holders of at least two-thirds of the Registrable Securities held by the
Founders and qualifying transferees of the Founders.
CASCADE SYSTEMS INCORPORATED
By: /s/ Xxxxxxx X. XxXxxxx
-------------------------
Name: Xxxxxxx XxXxxxx
Title: President
SERIES A HOLDERS:
ADOBE VENTURES L.P.
By: Its General Partner
H&Q Adobe Ventures Management L.P.
By: Its General Partner
H&Q Adobe Ventures Management Corporation
By: /s/ Xxxxxxxx X'Xxxxx
-------------------------
Name: Xxxxxxxx X'Xxxxx
Title:
-2-
27
JARROLD & SONS LTD.
By: /s/ Xxxxx Xxxxxxx
---------------------------
Name: Xxxxx Xxxxxxx
Title: Chairman
SERIES B HOLDER:
ADOBE VENTURES L.P.
By: Its General Partner
H&Q Adobe Ventures Management L.P.
By: Its General Partner
H&Q Adobe Ventures Management Corporation
By: /s/ Xxxxxxxx X'Xxxxx
---------------------------
Name: Xxxxxxxx X'Xxxxx
Title:
FOUNDERS:
/s/ Xxx Xxxxx
----------------------------------
XXX XXXXX
/s/ Xxxx Xxxxx (As Guardian)
----------------------------------
XXXXXX XXXXXX XXXXX
/s/ Xxxx Xxxxx (As Guardian)
----------------------------------
EMMELYN XXXX XXXXX
/s/ Xxxx Xxxxx (As Guardian)
----------------------------------
XXXXXX XXXXXXX XXXXX XXXXX
/s/ Xxxx Xxxxx
----------------------------------
AUL XXXXX
-3-
28
/s/ Xxxx Xxxxx /s/ Xxx Xxxxx
----------------------------------------------
XXXX AND XXX XXXXX, AS TRUSTEES
----------------------------------------------
XXXXXXXX XXXXXX
----------------------------------------------
XXXX XXXXXX
----------------------------------------------
XXXXX XXXXXXX XXXXXX
----------------------------------------------
XXXXXXXX XXXXXXX
----------------------------------------------
XXXXX XXXXXXXX
-----------------------------------------------
XXXX XXXXXXXX
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------------
XXX XXXXXXXX
-----------------------------------------------
XXXX XXXXXXX
/s/ Xxxx Xxxxxx
-----------------------------------------------
XXXX XXXXXX
-----------------------------------------------
XXX XXXXXXXX
/s/ Xxx Xxxxxxxxx
-----------------------------------------------
XXX XXXXXXXXX
------------------------------------------------
XXXXXX XXXXXXXXX
as guardian, /s/ Xxx Xxxxxxxxx
------------------------------------------------
XXX XXXXXXXXX, XXXXXX XXXXXXXXX
AND XXXX XXXXXX, AS TRUSTEES
-4-
29
/s/ Xxxxxxx Xxxxxx
-------------------------------------------------
XXXXXXX XXXXXX AND
XXXXXXXXX XXXXXX, AS TRUSTEES
/s/ Xxxx Xxxx
-------------------------------------------------
XXXX XXXX
/s/ Xxxxxx Xxxx
-------------------------------------------------
XXXXXX XXXX
-------------------------------------------------
XXXXX XXXXXXXX
-------------------------------------------------
XXXXXXX XXXXXX
-------------------------------------------------
XXXXXXX XXXXXXXXX
-------------------------------------------------
XXXXX XXXXXXXXX
-------------------------------------------------
XXXXXXXXX XXXXXXXXX
-------------------------------------------------
XXXXXXX XXXXXXXXX
-------------------------------------------------
XXXXXXX XXXXXXXX
-------------------------------------------------
XXXXXX XXXXXXXX
/s/ Xxxxx Xxxxxxxx
-------------------------------------------------
XXXXX XXXXXXXX
/s/ Xxxxxxx Xxxxxx (as Guardian)
-------------------------------------------------
XXXXXX XXXXXX
/s/ Xxxxxxx Xxxxxx
-------------------------------------------------
XXXXXXX XXXXXX
-5-
30
-------------------------------------------------
XXXXX XXXXX
/s/ Xxxxx Xxxxxxx
-------------------------------------------------
XXXXX XXXXXXX
/s/ Xxxxx Xxxxxx
-------------------------------------------------
XXXXX XXXXXX
As Guardian, /s/ Xxxxx Xxxxxx
-------------------------------------------------
XXXXXXXXX XXXXXX
As Guardian, /s/ Xxxxx Xxxxxx
-------------------------------------------------
XXXXXX XXXXXX
As Guardian, /s/ Xxxxx Xxxxxx
-------------------------------------------------
XXXXX XXXXXX
/s/ Xxxxx Xxxxx
-------------------------------------------------
XXXXX XXXXX
-------------------------------------------------
XXXXX XXXXXXXXX
/s/ X. X. Xxxx
-------------------------------------------------
XXXXXX XXXX
--------------------------------------------------
XXXXXXX XXXX
/s/ Xxxxxx X. Xxxx
-------------------------------------------------
XXXXXX XXXX
/s/ Xxxxxxx Xxxxxx
-------------------------------------------------
XXXXXXX XXXXXX
/s/ Xxxxxxx Xxxxxx as guardian
-------------------------------------------------
XXXX XXXXXX XXXXX XXXXXX
/s/ Xxxxxxx Xxxxxx as guardian
-------------------------------------------------
XXXXXXX XXXXXX AND XXXX XXXXXX
XXXXX XXXXXX, AS TRUSTEES
-6-
31
--------------------------------------------------
XXXXXXXX XXXXX
/s/ Xxxx XxXxxx
-------------------------------------------------
XXXX XXXXXX
--------------------------------------------------
XXXXXXX XXXXXX
--------------------------------------------------
XXXX LUBBOCK
--------------------------------------------------
XXXXXX XXXXXXXXX LUBBOCK
--------------------------------------------------
NIGEL LUBBOCK
--------------------------------------------------
XXXXX XXXX LUBBOCK
--------------------------------------------------
XXXXXX XXXXXX LUBBOCK
--------------------------------------------------
XXXXX XXXXXXXX
--------------------------------------------------
XXXXXXX XXX XXXXXXXX
as guardian, /s/ Xxxxxxx X. XxXxxxx
-------------------------------------------------
XXXXXX XXXXXXX
as guardian, /s/ Xxxxxxx X. XxXxxxx
-------------------------------------------------
XXXXXXX XXXXXXX
as guardian, /s/ Xxxxxxx X. XxXxxxx
-------------------------------------------------
XXXXX XXXXXXX
as guardian, /s/ Xxxxxxx X. XxXxxxx
-------------------------------------------------
XXXXXXX XXXXXXX
-7-
32
/s/ Xxxxxxx X. XxXxxxx
-------------------------------------------------
XXXXXXX XXXXXXX
/s/ Xxxxxx Xxxxxxxx
-------------------------------------------------
XXXXXX XXXXXXXX
-------------------------------------------------
XXXXXX XXXXXX
-------------------------------------------------
XXXXXXXXX XXXXXXXXX
-------------------------------------------------
XXXXXXX XXXXXXXXX
-------------------------------------------------
XXXXX XXXXXXXXX
-------------------------------------------------
XXXXXXX XXXXXXXXX
-------------------------------------------------
XXXXXX XXXXXXXXX
--------------------------------------------------
XXXX XXXXXX
--------------------------------------------------
XXXX XXXXXX
--------------------------------------------------
XXXXXX XXXXXXXXX
/s/ Xxxxx Xxxxxxxxx
--------------------------------------------------
XXXXX XXXXXXXXX
/s/ Xxx Xxxxx
--------------------------------------------------
XXX XXXXX
--------------------------------------------------
XXXXXXX XXXXX
-8-
33
/s/ Xxxxx X. Xxxxxxxx, Xx.
--------------------------------------------------
XXXXX XXXXXXXX
/s/ Xxxx Xxxxxxx
--------------------------------------------------
XXXX XXXXXXX
-------------------------------------------------
XXXXXXXXX XXXXXXXXX XXXXXXXX
--------------------------------------------------
XXXXXX XXXXXXXX
/s/ Xxxxxx Xxxxxx
--------------------------------------------------
XXXXXX XXXXXX
-9-
