EXHIBIT E
INVESTOR RIGHTS AGREEMENT
This Investor Rights Agreement (the "Agreement") is made and entered into
as of this 14th day of June, 2004 by and among VitalStream Holdings, Inc., a
Nevada corporation (the "Company"), the "Stockholders" listed on the Schedule of
Stockholders attached hereto (the "Stockholders") and the Investors listed on
the Schedule of Investors attached hereto (each, an "Investor"; collectively,
the "Investors") in connection with the closing of the transactions described in
that certain Purchase Agreement dated as of the date hereof by and among the
Company, the Major Investor and certain other investors (the "Purchase
Agreement"). The Stockholders, the Investors, and any permitted transferees of
the Stockholders and Investors who are party (or required to be a party) to this
Agreement are hereinafter referred to separately as a "Party" and collectively
as the "Parties."
The Parties hereby agree as follows:
1. Certain Definitions.
As used in this Agreement, the following terms shall have the following
meanings:
"Affiliate" means, with respect to any person, any other person which
directly or indirectly Controls, is Controlled by, or is under common Control
with, such person.
"Board of Directors" means the Board of Directors of the Company.
"Common Stock" shall mean the Company's common stock, par value $0.001 per
share, and any securities into which such shares may hereinafter be
reclassified.
"Control" (including the terms "controlling," "controlled by" or "under
common control with") means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
"Major Investor" means WaldenVC II, L.P.
"Major Investor's Director" has the meaning set forth in Section 2 of this
Agreement.
"Major Investor Shares" shall mean the Shares and Warrant Shares and any
other securities issued or issuable with respect to or in exchange for Major
Investor Shares.
"Observer" has the meaning set forth in Section 3 of this Agreement.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization or any other similar entity or
organization or a governmental entity or any department, agency or political
subdivision thereof.
"Preferred Stock" means the Series A Preferred Stock and the Series B
Preferred Stock.
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"Regulation" means all constitutions, statutes, laws, treaties, codes,
ordinances, regulations, rules, orders, judgments, writs, injunctions, acts,
determinations, directions or decrees of any governmental entity with
jurisdiction over the respective Party or any stock exchange or market on which
any securities of the Company are listed.
"Series A Preferred Stock" shall mean the Company's 2003 Series A
Preferred Stock, par value $0.001 per share, and any securities into which such
shares may hereinafter be reclassified.
"Series B Preferred Stock" shall mean the Company's 2003 Series B
Preferred Stock, par value $0.001 per share, and any securities into which such
shares may hereinafter be reclassified.
"Shares" means the shares of Common Stock issued to the Major Investor
pursuant to the Purchase Agreement.
"Transfer" means a sale, assignment, transfer, pledge, encumbrance or
other disposition.
"Voting Shares" shall mean shares of Common Stock, shares of Series A
Preferred Stock, shares of Series B Preferred Stock, any other equity securities
issued by the Company with rights to vote with respect to the election of
directors and any securities into which any of the foregoing may hereinafter be
reclassified (each to the extent issued and outstanding).
"Warrants" means the warrants to purchase shares of Common Stock issued to
the Major Investor pursuant to the Purchase Agreement.
"Warrant Shares" means the shares of Common Stock issuable upon the
exercise of the Warrants.
2. Board of Directors.
(a) Election Rights. At any time following June 30, 2004 and from
time to time until the date that the Major Investor Shares constitute no more
than five (5) percent of the Company's outstanding Common Stock (on a fully
diluted basis assuming exercise or conversion of all options, warrants,
conversion rights and other rights exercisable for or convertible into Common
Stock), each Party shall vote all of its Voting Shares now or hereafter owned by
such Party or over which such Party has voting control, and shall take all other
necessary actions within its control (whether in its capacity as a stockholder,
director, member of the Board of Directors or any committee thereof, officer of
the Company or otherwise (except to the extent such actions, upon advice of
counsel, would be a breach of, contrary to or otherwise in conflict with any
applicable Regulation or fiduciary duty imposed thereby)), and including,
without limitation (except to the extent such actions, upon advice of counsel,
would be a breach of, contrary to or otherwise in conflict with any applicable
Regulation or fiduciary duty imposed thereby), attendance at meetings in person
or by proxy for purposes of obtaining a quorum and execution of written consents
in lieu of meetings, and the Company shall take all necessary or desirable
actions within its control, including without limitation calling special Board
of Directors and stockholder meetings, so that:
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(i) one individual (who initially will be ▇▇▇▇ ▇▇▇▇▇▇▇▇▇)
designated by the Major Investor (the "Major Investor's Director") shall be
nominated for election and elected to the Board of Directors;
(ii) to the extent permitted under applicable Regulation, the
removal from the Board of Directors (with or without cause) of the Major
Investor's Director shall be at the written request of the Major Investor but
only upon such written request and under no other circumstances; and
(iii) in the event that the Major Investor's Director ceases
to serve as a member of the Board of Directors during his term of office
(whether by death, resignation or removal), the resulting vacancy on the Board
of Directors shall be filled by an individual designated by the Major Investor.
(b) Expenses and Board Compensation. The Company shall pay the
reasonable out-of-pocket expenses incurred by the Major Investor's Director and
the Observer in connection with attending the meetings of the Board of Directors
and other travel requested by the Company associated with the Major Investor's
investment in the Company to the extent the Company receives reasonable
documentation evidencing the amount and purposes of such expenditures. In
addition, the Company shall pay the reasonable out-of-pocket expenses, up to an
aggregate of $8,000 per annum, incurred by the Major Investor's Director, the
Observer and Persons designated by either of them in connection with travel
reasonably associated with the business of the Company to the extent the Company
receives reasonable documentation of the amount and purposes of such
expenditures. The Company also agrees to provide compensation to the Major
Investor's Director and each other director of the Company affiliated with any
stockholders that beneficially own more than 5% of the outstanding Common Stock
of the Company that shall be not less than the compensation (if any) provided to
any other director of the Company affiliated with greater than 5% stockholders
of the Company.
(c) Failure to Designate Major Investor's Director. If the Major
Investor fails to designate an individual to fill the Major Investor's
Directorship pursuant to the terms of this Section 2, the individual previously
holding such directorship shall be elected to such position, or if such
individual fails or declines to serve, the election of an individual to such
directorship shall be accomplished in accordance with the Company's Bylaws and
applicable Regulation; provided that each Party shall vote all Voting Shares now
or hereafter owned by such Party or over which such Party has voting control to
remove such individual at that time when the Major Investor desires to designate
an individual to fill the Major Investor's Directorship.
(d) Failure to Vote.
(i) With Respect to a Scheduled Meeting. In the event that any
Party shall fail to vote all shares of Voting Shares now or hereafter owned by
such Party or over which such Party has voting control at a duly noticed meeting
of shareholders of the Company with respect to which the election or removal of
directors is included in the notice of meeting so as to achieve any election or
removal of a Major Investor's Director, as set forth in this Section 2, such
Party shall be deemed immediately upon the existence of such breach to have
granted to the Chairman of the Board of Directors (or, if no Chairman of the
Board of Directors has been
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elected, the Chief Executive Officer of the Company), a proxy to all shares of
Voting Shares now or hereafter owned by such Party or over which such Party has
voting control to solely ensure (and only to the extent required to ensure) that
all such shares or other securities will be voted as prescribed in this Section
2, of this Agreement. Each Party acknowledges that each proxy granted hereby,
including any successive proxy, is coupled with an interest and is given to
secure the performance of a duty and shall be irrevocable until the duty is
performed.
(ii) With Respect to Consent or Other Meeting. In the event
that any Party shall fail to vote all shares of Voting Shares now or hereafter
owned by such Party or over which such Party has voting control with respect to
a written consent or at any meeting of shareholders other than a duly noticed
meeting of shareholders of the Company with respect to which the election or
removal of directors is included in the notice of meeting so as to achieve any
election or removal of a Major Investor's Director, as set forth in this Section
2, such Party shall be deemed (if such breach is not cured within five business
days of such Party's receipt of notice of such breach) to have granted to the
Chairman of the Board of Directors (or, if no Chairman of the Board of Directors
has been elected, the Chief Executive Officer of the Company), a proxy to all
shares of Voting Shares now or hereafter owned by such Party or over which such
Party has voting control to solely ensure (and only to the extent required to
ensure) that all such shares or other securities will be voted as prescribed in
this Section 2, of this Agreement. Each Party acknowledges that each proxy
granted hereby, including any successive proxy, is coupled with an interest and
is given to secure the performance of a duty and shall be irrevocable until the
duty is performed.
3. Board of Director Observation Rights. At any time until the date
that the Major Investor Shares constitute no more than five (5) percent of the
Company's outstanding Common Stock (on a fully diluted basis assuming exercise
or conversion of all options, warrants, conversion rights and other rights
exercisable for or convertible into Common Stock), the Company shall give the
Major Investor written notice of each meeting of the Board of Directors, at the
same time and in the same manner as notice is given to the directors of the
Board of Directors, and the Company shall permit one representative selected by
the Major Investor (the "Observer") to attend, as an observer, all such
meetings. The Observer shall be entitled to receive all written materials and
other information (including, without limitation, copies of meeting minutes)
given to directors of the Board of Directors in connection with such meetings at
the same time such materials and information are given to such directors. The
Company shall provide a copy of any proposed action by written consent in lieu
of a meeting of directors of the Company to the Observer prior to the effective
date upon delivery to the members of the Board of Directors of such consent
describing in reasonable detail the nature and substance of such action. In
connection with the attendance of any meeting, or the receipt of any materials
and other information by the Observer, to the extent required by Regulation FD
promulgated under the Securities Act of 1933, as amended, or any other
applicable securities law or Regulation that would, absent such confidentiality
agreement, require public disclosure of the information learned by the Observer
at such meeting or through the receipt of such information or materials, the
Observer shall sign a confidentiality agreement in form and substance reasonably
satisfactory to the Observer and the Company. Notwithstanding anything in this
Section 3 to the contrary, at any time the Major Investor's Director is serving
on the Board of Directors, any notice, consent, explanation, written material or
other information delivered to the Major Investor's Director shall be deemed to
have been delivered to the Observer.
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4. Legend. Each instrument evidencing the Voting Shares held by a
Person who is a signatory to this Agreement, and each instrument issued in
exchange for or upon the Transfer of any Voting Shares held by a Person who is a
signatory to this Agreement shall be stamped or otherwise imprinted with a
legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE
SUBJECT TO AN INVESTOR RIGHTS AGREEMENT, DATED AS OF JUNE 14,
2004, AMONG THE ISSUER OF SUCH SECURITIES (THE "COMPANY"), THE
STOCKHOLDERS OF THE COMPANY, AND THE MAJOR INVESTOR REFERRED
TO THEREIN, AS AMENDED, RESTATED AND MODIFIED FROM TIME TO
TIME. A COPY OF SUCH INVESTOR RIGHTS AGREEMENT SHALL BE
FURNISHED WITHOUT CHARGE BY THE COMPANY TO THE HOLDER HEREOF
UPON WRITTEN REQUEST."
5. Miscellaneous.
(a) Amendments and Waivers. This Agreement may be amended only by
a writing signed by the Company, the Major Investor and the holders of a
majority of the votes of Voting Shares (excluding any Major Investor Shares)
held by the Investors, and the holders of a majority of the votes of the Voting
Shares held by the Stockholders.
(b) Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given as hereinafter described (i) if given by personal delivery,
then such notice shall be deemed given upon such delivery, (ii) if given by
e-mail or telecopier, then such notice shall be deemed given upon receipt of
confirmation of complete transmittal, (iii) if given by mail, then such notice
shall be deemed given upon the earlier of (A) receipt of such notice by the
recipient or (B) three days after such notice is deposited in first class mail,
postage prepaid and (iv) if given by an internationally recognized overnight air
courier, then such notice shall be deemed given one business day after delivery
to such carrier. All notices shall be addressed to the Party to be notified at
the address as follows, or at such other address as such Party may designate by
ten days' advance written notice to the other Parties:
If to the Company or the Major Investor:
to the addresses set forth on the signature pages
hereto.
If to the Stockholders:
to the addresses set forth on the Schedule of
Stockholders attached hereto.
(c) Assignments and Transfers by Parties. The provisions of this
Agreement shall be binding upon and inure to the benefit of the Parties and
their respective successors and
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assigns. Except as provided in the following sentence, a Party may not Transfer,
in whole or in part, its Voting Shares unless such Party complies with all
Regulations applicable thereto, such party provides written notice of the
assignment to the Company promptly after such assignment is effected and the
assignee executes a counterpart to this Agreement assuming all rights and
obligations of a Party hereunder. Notwithstanding the foregoing, any Party may
Transfer its Voting Shares (but not its rights hereunder) to a Person that is
not an Affiliate of the Transferring Party pursuant to Rule 144 promulgated
under the Securities Act of 1933, as amended, or in an offering registered under
the Securities Act of 1933, as amended, without complying with the requirements
set forth in the preceding sentence.
(d) Assignments and Transfers by the Company. This Agreement may
not be assigned by the Company (whether by operation of law or otherwise)
without the prior written consent of the Major Investor and the holders of a
majority of the votes of Voting Shares (excluding any Major Investor Shares)
held by the Stockholders, provided, however, that the Company may assign its
rights and delegate its duties hereunder to any surviving or successor
corporation in connection with a merger or consolidation of the Company with
another corporation, or a sale, transfer or other disposition of all or
substantially all of the Company's assets or Voting Shares to another Person
without the prior written consent of the Major Investor and the holders of a
majority of the votes of Voting Shares held by the Stockholders, after notice
duly given by the Company to each Party; provided that such Person or successor
corporation assumes the Company's obligations under this Agreement.
(e) Benefits of the Agreement. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
permitted successors and assigns of the parties. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
(f) Counterparts; Faxes. 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. This Agreement may also
be executed via facsimile, which shall be deemed an original.
(g) 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.
(h) Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof but shall be interpreted as if it
were written so as to be enforceable to the maximum extent permitted by
applicable Regulation, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable Regulation, the
parties hereby waive any provision of Regulation which renders any provisions
hereof prohibited or unenforceable in any respect.
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(i) Further Assurances. The parties shall execute and deliver all
such further instruments and documents and take all such other actions as may
reasonably be required to carry out the transactions contemplated hereby and to
evidence the fulfillment of the agreements herein contained.
(j) Entire Agreement. This Agreement is intended by the parties as
a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter; provided, however, this Agreement shall not supersede,
terminate, amend or affect the Amended and Restated Investor Rights Agreement
dated September 30, 2003 among the Company and the parties thereto.
(k) Governing Law; Consent to Jurisdiction; Waiver of Jury Trial.
This Agreement shall be governed by, and construed in accordance with, the
internal laws of the State of California without regard to the choice of law
principles thereof. Each of the parties hereto irrevocably submits to the
exclusive jurisdiction of the state and federal courts of the State of
California for the purpose of any suit, action, proceeding or judgment relating
to or arising out of this Agreement and the transactions contemplated hereby.
Service of process in connection with any such suit, action or proceeding may be
served on each party hereto anywhere in the world by the same methods as are
specified for the giving of notices under this Agreement. Each of the parties
hereto irrevocably consents to the jurisdiction of any such court in any such
suit, action or proceeding and to the laying of venue in such court. Each party
hereto irrevocably waives any objection to the laying of venue of any such suit,
action or proceeding brought in such courts and irrevocably waives any claim
that any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO
REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND
REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.
[signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement or caused
their duly authorized officers to execute this Agreement as of the date first
above written.
The Company: VITALSTREAM HOLDINGS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
VitalStream Holdings, Inc.
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▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Operating Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
The Stockholders:
Epoch Hosting, Inc.
By: /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: CFO
DOLPHIN COMMUNICATIONS FUND II, L.P.
By: Dolphin Communications II, L.P.,
Its General Partner
By: Dolphin Communications, L.L.C.,
Its General Partner
By: /s/ ▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
Title:
DOLPHIN COMMUNICATIONS PARALLEL
FUND II (NETHERLANDS), L.P.
By: Dolphin Communications II, L.P.,
Its General Partner
By: Dolphin Communications, L.L.C.,
Its General Partner
By: /s/ ▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
Title:
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
Stockholders (cont.) /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇, an individual
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, an individual
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, an individual
/s/ ▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇, an individual
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
Investor: WALDENVC II, L.P.
By: WaldenVC LLC,
Its General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: General Partner
Address:
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▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
Investor: ThinkEquity Investment Partners IV LLC
By: ThinkEquity Holdings, LLC, Manager
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: CFO
Address for Notice:
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▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
with a copy to:
Att: ▇▇▇▇▇ ▇▇▇▇▇▇
ThinkEquity Partners LLC
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▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
Investor: Newlight Associates II, L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: General Partner
Address for Notice: Newlight Associates II, LP
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▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
with a copy to:
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[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
Investor: Newlight Associates II, (BVI), L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: General Partner
Address for Notice: Newlight Associates II, (BVI), LP
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▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
with a copy to:
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[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
Investor: Newlight Associates II-E, L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: General Partner
Address for Notice: Newlight Associates II-E, LP
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▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
with a copy to:
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[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
Investor: NanoCap Fund, LP
By: /s/ P. ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: P. ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Partner
Address for Notice:
▇▇▇▇▇▇▇▇ Investment Management
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▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
with a copy to:
▇▇▇ ▇▇▇▇
Hedgeworks, LLC
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Attn: SIM file
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
Investor: Nanocap Qualified Fund, LP
By: /s/ P. ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: P. ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Partner
Address for Notice:
▇▇▇▇▇▇▇▇ Investment Management
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
with a copy to:
▇▇▇ ▇▇▇▇
Hedgeworks, LLC
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Attn: SIM file
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
Investor: RS Orphan Fund, LP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Investment Advisory General
Partner
Address for Notice:
c/o RS Investments
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
with a copy to:
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[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
Investor: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Address:
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Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
The Investor: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
The Investors: ▇▇▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇
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Address:
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Attention:
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax:
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
The Investors: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Address:
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Attention:
Telephone:
Fax:
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
SCHEDULE OF STOCKHOLDERS
NUMBER OF SHARES OF
COMMON STOCK AND 2003
SERIES A PREFERRED STOCK
NAME AND ADDRESS PRIOR TO CONVERSION
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(1) Epoch Hosting, Inc. 3,848,760 Common
c/o Dolphin Equity Partners
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Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(2) Dolphin Communications Fund II, L.P. 95,889 Common
Dolphin Communications Parallel Fund 9,650 Common
II (Netherlands), L.P.
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16th Floor 495 Preferred
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ 55 Preferred
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(3) ▇▇▇▇ ▇▇▇▇▇▇▇ (held in trust) 3,804,444 Common
5 Running ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
(4) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 3,804,444 Common
7 Cavaillon 50 Preferred
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
(5) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 568,944 Common
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ No Preferred
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
(6) ▇▇▇▇▇ ▇▇▇▇▇ 534,786 Common
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
SCHEDULE OF INVESTORS
NUMBER OF SHARES OF
NAME AND ADDRESS COMMON STOCK
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(1) WaldenVC II, L.P. 9,782,821
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Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(2) Dolphin Communications Fund II, L.P. 3,078,165
Dolphin Communications Parallel Fund 345,823
II (Netherlands), L.P.
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Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(3) ThinkEquity Investment Partners IV LLC 751,647
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(4) NewLight Associates II, L.P. 1,078,393
NewLight Associates II, (BVI), L.P. 378,595
NewLight Associates II-E, L.P. 173,482
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(5) NanoCap Fund LP 472,836
Nanocap Qualified Fund LP 342,399
c/o Stephens Investment Management
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
NUMBER OF SHARES OF
NAME AND ADDRESS COMMON STOCK
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(6) RS Orphan Fund, LP. 815,236
c/o RS Investments
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(7) ▇▇▇▇▇▇▇ ▇▇▇▇▇ 329,355
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(8) ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 195,656
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
(9) ▇▇▇▇▇▇ ▇▇▇▇ 40,762
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
(10) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 150,003
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
