EXHIBIT 4.2
REDENVELOPE, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
REDENVELOPE, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
This Amended and Restated Investors' Rights Agreement (the "Agreement")
is made as of April 17, 2002, by and among RedEnvelope, Inc., a Delaware
corporation (the "Company"), the individuals listed on Exhibit A hereto (each, a
"Founder" and collectively, the "Founders") the prior investors listed on
Exhibit B hereto (the "Prior Investors"), and the new investors listed on
Exhibit C (the "New Investors"). The Prior Investors and the New Investors are
referred to herein collectively as the "Investors" and each individually as an
"Investor".
RECITALS
The Company, the Founders and the Prior Investors entered into an
Amended and Restated Investors' Rights Agreement on July 17, 2000 (the "Existing
Agreement").
The Company and the New Investors have entered into a Series F
Preferred Stock Purchase Agreement (the "Purchase Agreement") of even date
herewith pursuant to which the Company desires to sell to the New Investors and
the New Investors desire to purchase from the Company shares of the Company's
Series F Preferred Stock. A condition to the New Investors' obligations under
the Purchase Agreement is that the Company, the Founders and the Prior Investors
enter into this Agreement in order to provide the New Investors with (i) certain
rights to register shares of the Company's Common Stock issuable upon conversion
of the Series F Preferred Stock held by the New Investors, (ii) certain rights
to receive or inspect information pertaining to the Company, and (iii) a right
of first offer with respect to certain issuances by the Company of its
securities. The Company, the Prior Investors and the Founders each desire to
induce the New Investors to purchase shares of Series F Preferred Stock pursuant
to the Purchase Agreement by agreeing to amend and restate the Existing
Agreement in its entirety as set forth herein.
AGREEMENT
The parties hereby agree as follows:
1. REGISTRATION RIGHTS. The Company and the Investors
covenant and agree as follows:
1.1 DEFINITIONS. For purposes of this
Section 1:
(a) The terms "register," "registered,"
and "registration" refer to a registration effected by preparing and filing a
registration statement or similar document in compliance with the Securities Act
of 1933, as amended (and any successor thereto) and the rules and regulations
promulgated thereunder (the "Act"), and the declaration or ordering of
effectiveness of such registration statement or document;
(b) The term "Registrable Securities"
means (i) the shares of Common Stock issuable or issued upon conversion of the
Company's Series B Preferred Stock,
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(ii) the shares of Common Stock issuable or issued upon conversion of the
Company's Series C Preferred Stock, (iii) the shares of Common Stock issuable or
issued upon conversion of the Company's Series D Preferred Stock, (iv) the
shares of Common Stock issuable or issued upon conversion of the Company's
Series E Preferred Stock, (v) the shares of Common Stock issuable or issued upon
conversion of the Company's Series F Preferred Stock (together with the Series
B, the Series C, the Series D and the Series E Preferred Stock, the "Stock"),
(vi) the shares of Common Stock issuable or issued upon conversion of the
Company's Series A Preferred Stock (the "Founders' Stock"); provided, however,
that for the purposes of Sections 1.2 and 1.12 hereof, the Founders' Stock shall
not be deemed Registrable Securities and the Founders shall not be deemed
Holders, (vii) any other shares of Common Stock of the Company issued as (or
issuable upon the conversion or exercise of any warrant, right or other security
which is issued as) a dividend or other distribution with respect to, or in
exchange for or in replacement of, the Stock or the Founders' Stock, and (viii)
209,104 shares of Common Stock issued or issuable upon exercise of outstanding
warrants held by certain of the Prior Investors, issued in connection with the
Series B Preferred Stock, (ix) 9,282 shares of Common Stock issued or issuable
upon exercise of a warrant held by Comdisco, Inc., (x) 200,000 shares of Common
Stock issued or issuable upon exercise of a warrant held by Lighthouse Capital
Partners, provided, however, that the foregoing definition shall exclude in all
cases any Registrable Securities sold by a person in a transaction in which such
person's rights under this Agreement are not assigned. Notwithstanding the
foregoing, shares of Common Stock or other securities shall only be treated as
Registrable Securities if and so long as (A) they have not been sold to or
through a broker or dealer or underwriter in a public distribution or a public
securities transaction, or (B) they have not been sold in a transaction exempt
from the registration and prospectus delivery requirements of the Act under
Section 4(1) thereof so that all transfer restrictions, and restrictive legends
with respect thereto, if any, are removed upon the consummation of such sale, or
(C) the registration rights with respect to such securities have not terminated
pursuant to Section 1.15;
(c) The number of shares of
"Registrable Securities then outstanding" shall be determined by the number of
shares of Common Stock outstanding which are, and the number of shares of Common
Stock issuable pursuant to then exercisable or convertible securities which are,
Registrable Securities;
(d) The term "Holder" means any person
owning or having the right to acquire Registrable Securities or any assignee
thereof in accordance with Section 1.13 hereof;
(e) The term "Qualified Public
Offering" shall mean the Company's sale of its Common Stock in a firm commitment
underwritten public offering pursuant to a registration statement under the
Securities Act of 1933, as amended, the public offering price of which is not
less than $1.5952 per share (adjusted to reflect subsequent stock dividends,
stock splits, recapitalizations or the like) and which results in aggregate cash
proceeds to the Company of at least $20,000,000 (before deduction of
underwriting discounts and commissions).
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(f) "Initial Public Offering" shall
mean the Company's first firmly underwritten public offering on Registration
Statement Form S-1 or Form SB-2 (or successor form(s)).
(g) The term "Form S-3" means such form
under the Act as in effect on the date hereof or any successor form under the
Act; and
(h) The term "SEC" means the Securities
and Exchange Commission.
1.2 REQUESTED REGISTRATION.
(a) If the Company shall receive at any
time after the earlier of (i) the thirty (30) month anniversary of the date of
this Agreement, or (ii) six (6) months after the effective date of the first
registration statement for a Qualified Public Offering (other than a
registration statement relating either to the sale of securities to employees of
the Company pursuant to a stock option, stock purchase or similar plan or an SEC
Rule 145 transaction), a written request from the Holders of at least 40% of the
Registrable Securities then outstanding that the Company file a registration
statement under the Act covering the registration of the lesser of (x) at least
twenty-five percent (25%) of the Registrable Securities then outstanding or (y)
Registrable Securities having an estimated aggregate public offering price of at
least $15 million, then the Company shall, within ten (10) days of the receipt
thereof, give written notice of such request to all Holders and shall, subject
to the limitations of subsection 1.2(b), use its best efforts to effect as soon
as practicable, and in any event within sixty (60) days of the receipt of such
request, the registration under the Act of all Registrable Securities which the
Holders request to be registered within twenty (20) days of the mailing of such
notice by the Company in accordance with Section 3.5.
(b) If the Holders initiating the
registration request hereunder ("Initiating Holders") intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request made pursuant to
this Section 1.2 and the Company shall include such information in the written
notice referred to in subsection 1.2(a). The underwriter will be selected by the
Company and shall be reasonably acceptable to a majority in interest of the
Initiating Holders. In such event, the right of any Holder to include his
Registrable Securities in such registration shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting (unless otherwise mutually agreed by
a majority in interest of the Initiating Holders and such Holder) to the extent
provided herein. All Holders proposing to distribute their securities through
such underwriting shall (together with the Company as provided in subsection
1.4(e)) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting by the Company.
Notwithstanding any other provision of this Section 1.2, if the underwriter
advises the Initiating Holders in writing that marketing factors require a
limitation of the number of shares to be underwritten, then the Initiating
Holders shall so advise all Holders of Registrable Securities which would
otherwise be underwritten pursuant hereto, and the number of shares of
Registrable Securities that may be included in the underwriting shall be
allocated among all participating Holders thereof, including
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the Initiating Holders, in proportion (as nearly as practicable) to the amount
of Registrable Securities of the Company owned by each participating Holder;
provided, however, that the number of shares of Registrable Securities to be
included in such underwriting shall not be reduced unless all other securities
are first entirely excluded from the underwriting.
(c) 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. The Registrable Securities or other securities so
withdrawn shall also be withdrawn from registration, and such Registrable
Securities shall not be transferred in a public distribution prior to ninety
(90) days (one hundred eighty (180) days in the case of the Company's Initial
Public Offering) after the date of the final prospectus used in such public
offering.
(d) Notwithstanding the foregoing, if
the Company shall furnish to Holders requesting a registration statement
pursuant to this Section 1.2, a certificate signed by the President of the
Company stating that in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company and its stockholders
for such registration statement to be filed and it is therefore essential to
defer the filing of such registration statement, the Company shall have the
right to defer such filing for a period of not more than 120 days after receipt
of the request of the Initiating Holders; provided, however, that the Company
may not utilize this right more than once in any twelve-month period.
(e) In addition, the Company shall not
be obligated to effect, or to take any action to effect, any registration
pursuant to this Section 1.2:
(i) After the Company has
effected three (3) registrations pursuant to this Section 1.2 and such
registrations have been declared or ordered effective;
(ii) During the period starting
with the date sixty (60) days prior to the Company's good faith estimate of the
date of filing of, and ending on a date one hundred eighty (180) days after the
effective date of, a registration subject to Section 1.3 hereof; provided that
the Company will use best efforts to cause such registration statement to be
filed and to become effective as expeditiously as shall be reasonably possible;
or
(iii) If the Initiating Holders
propose to dispose of shares of Registrable Securities that may be immediately
registered on Form S-3 pursuant to a request made pursuant to Section 1.12
below.
1.3 COMPANY REGISTRATION.
(a) Request for Registration. If (but
without any obligation to do so) the Company proposes to register (including for
this purpose a registration effected by the Company for stockholders other than
the Holders) any of its stock, either for its own account or the account of a
securityholder, under the Act in connection with the public offering of such
securities solely for cash (other than a registration relating solely to the
sale of securities to
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participants in a Company stock plan or a transaction covered by Rule 145 under
the Act, a registration in which the only stock being registered is Common Stock
issuable upon conversion of debt securities which are also being registered, or
any registration on any form which does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of the Registrable Securities), the Company shall, at such
time, promptly give each Holder written notice of such registration. Upon the
written request of each Holder given within twenty (20) days after mailing of
such notice by the Company in accordance with Section 3.5, the Company shall,
subject to the provisions of Section 1.8, cause to be registered under the Act
all of the Registrable Securities that each such Holder has requested to be
registered.
(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). In such event, the right of any
Holder to registration pursuant to Section 1.3 shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of Registrable
Securities in the underwriting to the extent provided in Section 1.8. If any
Holder or other holder disapproves of the terms of any such underwriting, he or
she may elect to withdraw by written notice to the Company and the managing
underwriter. Any securities excluded or withdrawn from such underwriting shall
be withdrawn from such registration, and shall not be transferred in a public
distribution prior to ninety (90) days (one hundred eighty (180) days in the
case of the Company's Initial Public Offering) after the date of the final
prospectus included in the registration statement relating thereto.
1.4 OBLIGATIONS OF THE COMPANY. Whenever
required under this Section 1 to effect the registration of any Registrable
Securities, the Company shall use its best efforts in good faith to effect
promptly the registration and sale of such Registrable Securities in accordance
with the intended method of distribution thereof and, in connection therewith,
the Company shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a
registration statement with respect to such Registrable Securities and use its
reasonable best efforts to cause such registration statement to become
effective, and, upon the request of the Holders of a majority of the Registrable
Securities registered thereunder, keep such registration statement effective for
a period equal to the lesser of one hundred twenty (120) days or until the
distribution contemplated in the Registration Statement has been completed;
provided, however, that such 120-day period shall be extended for a period of
time equal to the period the Holder refrains from selling any securities
included in such registration at the request of an underwriter of Common Stock
(or other securities) of the Company.
(b) Notify each Holder of Registrable
Securities of the effectiveness of each registration statement filed hereunder
and prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Act with respect to the disposition of all securities covered by such
registration statement for
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up to one hundred twenty (120) days or until the distribution described in such
registration statement is completed, if earlier.
(c) The Company will furnish or make
available to each participating Holder, its counsel and each underwriter, if
any, such number of copies of such registration statement, each amendment and
supplement thereto (in each case including all exhibits thereto and documents
incorporated by reference therein), the prospectus included in such registration
statement (including each preliminary prospectus) and such other documents as
such Holder or underwriter may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by such Holder.
(d) Use its best efforts to register
and qualify the securities covered by such registration statement under such
other securities or blue sky laws of such jurisdictions as shall be reasonably
requested by the Holders, provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business or to
file a general consent to service of process in any such states or
jurisdictions.
(e) In the event of any underwritten
public offering, enter into and perform its obligations under an underwriting
agreement, in usual and customary form, with the managing underwriter of such
offering. The Holders may, at their option, require that any or all of the
representations, warranties and covenants of the Company to or for the benefit
of such underwriters also be made to and for the benefit of such Holders, where
applicable. Each Holder participating in such underwriting shall also enter into
and perform its obligations under such an agreement.
(f) Notify each Holder of Registrable
Securities covered by such registration statement at any time when a prospectus
relating thereto is required to be delivered under the Act of the happening of
any event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing, and at the request of any such Holder, prepare and furnish a
reasonable number of copies of a supplement or an amendment of such prospectus
as may be necessary so that, as thereafter delivered to purchasers of such
shares, such prospectus shall not include an untrue statement of material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading (which supplementation or amendment
may be delayed for such period of time as the Company's Board of Directors
reasonably determine is necessary to protect the interests of the Company and
its stockholders), such obligation to continue for one hundred twenty (120)
days.
(g) Cause all such Registrable
Securities registered pursuant hereunder to be listed on each securities
exchange on which similar securities issued by the Company are then listed.
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(h) Provide a transfer agent and
registrar for all Registrable Securities registered pursuant hereunder and a
CUSIP number for all such Registrable Securities, in each case not later than
the effective date of such registration.
(i) 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 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.
(j) The Company will cause members of
its senior management (including the Chief Executive Officer) to participate on
a reasonable basis in presentations concerning the Company and its securities in
connection with the Company's efforts to market the Registrable Securities
pursuant to Section 1.2 hereof, including, without limitation, participation in
meetings with potential investors and preparation of all reasonably necessary
materials for such investors.
1.5 FURNISH INFORMATION. It shall be a condition
precedent to the obligations of the Company to take any action pursuant to this
Section 1 with respect to the Registrable Securities of any selling Holder that
such Holder shall furnish to the Company such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition of
such securities as shall be required to effect the registration of such Holder's
Registrable Securities.
1.6 EXPENSES OF REQUESTED REGISTRATION. All
expenses other than underwriting discounts and commissions incurred in
connection with registrations, filings or qualifications pursuant to Section 1.2
shall be borne by the Company, including (without limitation) all registration,
filing and qualification fees, printers' and accounting fees, fees and
disbursements of counsel for the Company, and the reasonable fees and
disbursements of one counsel for the selling Holders selected by them; provided,
however, that the Company shall not be required to pay for any expenses of any
registration proceeding begun pursuant to Section 1.2 if the registration
request is subsequently withdrawn at the request of the Holders of a majority of
the Registrable Securities to be registered (in which case all participating
Holders shall bear such expenses), unless the Holders of a majority of the
Registrable Securities agree to forfeit their right to one demand registration
pursuant to Section 1.2; provided further, however, that if at the time of such
withdrawal, the Holders (i) have learned of a material adverse change in the
condition or business of the Company that was not known to the Holders at the
time of their request and (ii) have withdrawn the request with reasonable
promptness following disclosure by
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the Company of such material adverse change, then the Holders shall not be
required to pay any of such expenses and shall not forfeit their rights pursuant
to Section 1.2.
1.7 EXPENSES OF COMPANY REGISTRATION. The
Company shall bear and pay all expenses incurred in connection with any
registration, filing or qualification of Registrable Securities with respect to
the registrations pursuant to Section 1.3 for each Holder (which right may be
assigned as provided in Section 1.13), including (without limitation) all
registration, filing, and qualification fees, printers' and accounting fees
relating or apportionable thereto and the reasonable fees and disbursements of
one counsel for the selling Holders selected by them, but excluding underwriting
discounts and commissions relating to Registrable Securities.
1.8 UNDERWRITING REQUIREMENTS. In connection
with any offering involving an underwriting of shares of the Company's capital
stock, the Company shall not be required under Section 1.3 to include any of the
Holders' securities in such underwriting unless they accept the terms of the
underwriting (and enter into an underwriting agreement in customary form of the
underwriter or underwriters selected for such underwriting) as agreed upon
between the Company and the underwriters selected by it (or by other persons
entitled to select the underwriters), and then only in such quantity as the
underwriters determine in their sole discretion will not jeopardize the success
of the offering by the Company. If the total amount of securities, including
Registrable Securities, requested by stockholders to be included in such
offering exceeds the amount of securities sold other than by the Company that
the underwriters determine in their sole discretion is compatible with the
success of the offering, then the Company shall be required to include in the
offering only that number of such securities, including Registrable Securities,
which the underwriters determine in their sole discretion will not jeopardize
the success of the offering (the securities so included to be apportioned pro
rata among the selling stockholders according to the total amount of securities
entitled to be included therein owned by each selling stockholder), provided
that (i) the number of shares of Registrable Securities to be included in such
underwriting shall not be reduced unless all other securities held by persons
other than the Holders or the Company are first entirely excluded from the
underwriting, (ii) the amount of securities of the Holders included in the
offering shall not be reduced below twenty-five percent (25%) of the total
amount of securities included in such offering, unless such offering is the
initial public offering of the Company's securities, in which case the Company
shall not be required to include any securities of the Holders so long as all
other securities held by persons other than the Holders or the Company are first
entirely excluded from the underwriting and (iii) no Registrable Securities held
by a Founder shall be included in such underwriting if any Registrable
Securities held by an Investor are excluded therefrom. For purposes of the
preceding parenthetical concerning apportionment, for any selling stockholder
which is a holder of Registrable Securities and which is a partnership or
corporation, the partners, retired partners and stockholders of such holder, or
the estates and family members of any such partners and retired partners and any
trusts for the benefit of any of the foregoing persons shall be deemed to be a
single "selling stockholder," and any pro rata reduction with respect to such
"selling stockholder" shall be based upon the aggregate amount of shares
carrying registration rights owned by all entities and individuals included in
such "selling stockholder," as defined in this sentence.
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1.9 DELAY OF REGISTRATION. No Holder shall have
any right to obtain or seek an injunction restraining or otherwise delaying any
such registration as the result of any controversy that might arise with respect
to the interpretation or implementation of this Section 1.
1.10 INDEMNIFICATION.
(a) The Company will indemnify each
Holder, each of its officers and directors and partners, each underwriter (as
defined in the Act) for such Holder and each person controlling such Holder or
underwriter 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 l, and each underwriter, if any, and each person who controls any
underwriter within the meaning of Section 15 of the 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 any rule or regulation promulgated under the
Securities Act, the Securities Exchange Act of 1934, as amended (the "Exchange
Act") or any state securities laws 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, as such expenses are incurred, provided that the
Company will not be liable in any such case to the extent that any such claim,
loss, damage, liability or expense arises out of or is based on (i) 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 such
Holder, controlling person or underwriter and stated to be specifically for use
therein or (ii) the use or delivery by such Holder, controlling person or
underwriter of a prospectus other than the most current prospectus delivered to
such Holder, controlling person or underwriter by the Company, and provided
further that the indemnity agreement set forth in this Section 1.10(a) shall not
apply to amounts paid in a settlement if such settlement is effected without the
consent of the Company (which consent shall not be unreasonably withheld or
delayed).
(b) Each Holder, severally and not
jointly, 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 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 Act, against all claims, losses, damages and
liabilities (or actions in respect thereof) arising out of or based on (i) any
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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, in
light of the circumstances in which they were made, not misleading (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 such Holder
and stated to be specifically for use therein), or (ii) the use or delivery by
such Holder, controlling person or underwriter of a prospectus other than the
most current prospectus delivered to such Holder, controlling person or
underwriter by the Company; and will reimburse the Company, such Holders, such
directors, officers, persons, underwriters or control persons for any legal or
other expenses reasonably incurred in connection with investigating or defending
any such claim, loss, damage, liability or action, as such expenses are
incurred; provided further that the indemnity agreement set forth in this
Section 1.10(b) shall not apply to amounts paid in a settlement if such
settlement is effected without the consent such Holder (which consent shall not
be unreasonably withheld or delayed) that in no event shall any indemnity under
this Section 1.10(b) exceed the net proceeds from the offering received by such
Holder except in the case of willful fraud by such Holder, provided that such
willful fraud is determined to exist in a final, non-appealable judgment by a
court of law. Further, in no event shall any of the foregoing provisions related
to willful fraud affect any indemnity set forth herein until such final,
non-appealable judgment shall be rendered.
(c) Each party entitled to
indemnification under this Section 1.10 (the "Indemnified Party") shall give
written 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 (at its expense) 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; provided, however, that an Indemnified Party (together with all
other Indemnified Parties which may be represented without conflict by one
counsel) shall have the right to retain one separate counsel, with the fees and
expenses to be paid by the Indemnifying Party, if representation of such
Indemnified Party by the counsel retained by the Indemnifying Party would be
inappropriate due to actual or potential differing interests between such
Indemnified Party and any other party represented by such counsel in such
proceeding. The failure of any Indemnified Party to give notice as provided
herein shall not relieve the Indemnifying Party of its obligations under this
Section 1.10 unless the failure to give such notice is materially prejudicial to
an Indemnifying Party's ability to defend such action. 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 of such claim or litigation.
(d) If the indemnification provided for
in this Section 1.10 is held by a court of competent jurisdiction to be
unavailable to an Indemnified Party with respect
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to any loss, liability, claim, damage or expense referred to therein, then the
Indemnifying Party, in lieu of indemnifying such Indemnified Party hereunder,
shall contribute to the amount paid or payable by such Indemnified Party as a
result of such loss, liability, claim, damage or expense in such proportion as
is appropriate to reflect the relative fault of the Indemnifying Party on the
one hand and of the Indemnified Party on the other in connection with the
statements or omissions that resulted in such loss, liability, claim, damage or
expense as well as any other relevant equitable considerations; provided, that
in no event shall any contribution by a Holder under this subsection 1.10(d)
exceed the net proceeds from the offering received by such Holder, except in the
case of willful fraud by such Holder. The relative fault of the Indemnifying
Party and of the Indemnified Party shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission to state a material fact relates to information supplied by the
Indemnifying Party or by the Indemnified Party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(e) Notwithstanding the foregoing, to
the extent that the provisions on indemnification and contribution contained in
the underwriting agreement entered into in connection with the underwritten
public offering are in conflict with the foregoing provisions, the provisions in
the underwriting agreement shall control.
(f) The obligations of the Company and
Holders under this Section 1.10 shall survive the completion of any offering of
Registrable Securities in a registration statement under this Section 1, and
otherwise.
1.11 REPORTS UNDER SECURITIES EXCHANGE ACT OF
1934. With a view to making available to the Holders the benefits of Rule 144
promulgated under the Act and any other rule or regulation of the SEC that may
at any time permit a Holder to sell securities of the Company to the public
without registration or pursuant to a registration on Form S-3, the Company
agrees to:
(a) make and keep public information
available, as those terms are understood and defined in SEC Rule 144, after the
effective date of the first registration statement filed by the Company for the
offering of its securities to the general public so long as the Company remains
subject to the periodic reporting requirements under Sections 13 or 15(d) of the
Exchange Act;
(b) file with the SEC in a timely
manner all reports and other documents required of the Company under the Act and
the Exchange Act; and
(c) furnish to any Holder, so long as
the Holder owns any Registrable Securities, forthwith upon request (i) a written
statement by the Company that it has complied with the reporting requirements of
SEC Rule 144 (at any time after ninety (90) days after the effective date of the
first registration statement filed by the Company), the Act and the Exchange Act
(at any time after it has become subject to such reporting requirements), or
that it qualifies as a registrant whose securities may be resold pursuant to
Form S-3 (at any time after it so qualifies), (ii) a copy of the most recent
annual or quarterly report of the Company and such
-11-
other reports and documents so filed by the Company, and (iii) such other
information as may be reasonably requested in availing any Holder of any rule or
regulation of the SEC which permits the selling of any such securities without
registration or pursuant to such form.
1.12 FORM S-3 REGISTRATION. After its initial
public offering, the Company shall use its best efforts to qualify for
registration on Form S-3 or any comparable or successor form or forms. In case
the Company shall receive from any Holder or Holders of not less than twenty
percent (20%) of the Registrable Securities then outstanding a written request
or requests that the Company effect a registration on Form S-3 and any related
qualification or compliance with respect to all or a part of the Registrable
Securities owned by such Holder or Holders, the Company will:
(a) promptly give written notice of the
proposed registration, and any related qualification or compliance, to all other
Holders; and
(b) as soon as practicable, effect such
registration and all such qualifications and compliances as may be so requested
and as would permit or facilitate the sale and distribution of all or such
portion of such Holder's or Holders' Registrable Securities as are specified in
such request, together with all or such portion of the Registrable Securities of
any other Holder or Holders joining in such request as are specified in a
written request given within twenty (20) days after receipt of such written
notice from the Company; provided, however, that the Company shall not be
obligated to effect any such registration, qualification or compliance, pursuant
to this Section 1.12: (i) if Form S-3 is not available for such offering by the
Holders; (ii) if the Holders, together with the holders of any other securities
of the Company to be included in such registration, propose to sell Registrable
Securities and such other securities (if any) having an aggregate price to the
public (net of any underwriters' discounts or commissions) of less than
$2,000,000; (iii) if the Company shall furnish to the Holders a certificate
signed by the President of the Company stating that in the good faith judgment
of the Board of Directors of the Company, it would be seriously detrimental to
the Company and its stockholders for such Form S-3 Registration to be effected
at such time, in which event the Company shall have the right to defer the
filing of the Form S-3 registration statement for a period of not more than
sixty (60) days after receipt of the request of the Holder or Holders under this
Section 1.12; provided, however, that the Company shall not utilize this right
more than once in any twelve month period; (iv) if the Company has, within the
twelve (12) month period preceding the date of such request, already effected
two registrations on Form S-3 for the Holders pursuant to this Section 1.12; (v)
in any particular jurisdiction in which the Company would be required to qualify
to do business or to execute a general consent to service of process in
effecting such registration, qualification or compliance; (vi) if the Company
has already effected four registrations on Form S-3 for the Holders pursuant to
this Section 1.12 or (vii) during the period ending one hundred eighty (180)
days after the effective date of a registration statement subject to Section
1.3.
(c) Subject to the foregoing, the
Company shall file a registration statement covering the Registrable Securities
and other securities so requested to be registered as soon as practicable after
receipt of the request or requests of the Holders. All expenses incurred in
connection with a registration requested pursuant to this Section 1.12,
-12-
including (without limitation) all registration, filing, qualification,
printers' and accounting fees and the reasonable fees and disbursements of one
special counsel for the selling Holder or Holders selected by them with the
approval of the Company (which approval shall not be unreasonably withheld) and
counsel for the Company, but excluding any underwriters' discounts or
commissions associated with Registrable Securities, shall be borne by the
Company. Registrations effected pursuant to this Section 1.12 shall not be
counted as demands for registration or registrations effected pursuant to
Sections 1.2 or 1.3, respectively.
1.13 ASSIGNMENT OF REGISTRATION RIGHTS. The
rights to cause the Company to register Registrable Securities pursuant to this
Section 1 may be assigned (but only with all related obligations) by a Holder to
a transferee or assignee of such securities provided (i) at least 250,000 shares
of such Registrable Securities (subject to adjustment for stock splits, stock
dividends, reclassification or the like) (or if the transferring Holder owns
less than 250,000 shares of such Registrable Securities, then all Registrable
Securities held by the transferring Holder), and (ii) the Company is, within a
reasonable time after such transfer, furnished with written notice of the name
and address of such transferee or assignee and the securities with respect to
which such registration rights are being assigned; provided that the transferee
or assignee agrees in writing to be bound by all obligations under this
Agreement; and provided, further, that such assignment shall be effective only
if the transferee agrees to be bound by this Agreement and immediately following
such transfer the further disposition of such securities by the transferee or
assignee is restricted under the Act. Notwithstanding anything to the contrary
provided herein, rights to cause the Company to register Registrable Securities
may be assigned by a Holder to any partner, retired partner (including spouses
and ancestors, lineal descendants and siblings of such partners or spouses who
acquire Registrable Securities by gift, will or intestate succession) or
affiliate of such Holder, without regard to the number of shares of Registrable
Securities transferred to such partner, retired partner, member of a limited
liability company, or affiliate; provided that all assignees and transferees who
would not qualify individually for assignment of registration rights shall have
a single attorney-in-fact for the purpose of exercising any rights, receiving
notices or taking any action under Section 1.
1.14 "MARKET STAND-OFF" AGREEMENT. Each Holder
hereby agrees that, during the period of duration (up to, but not exceeding, 180
days) specified by the Company and an underwriter of Common Stock or other
securities of the Company, following the date of the final prospectus
distributed in connection with a registration statement of the Company filed
under the Act, it shall not, to the extent requested by the Company and such
underwriter, directly or indirectly sell, offer to sell, contract to sell
(including, without limitation, any short sale), grant any option to purchase or
otherwise transfer or dispose of (other than to donees who agree to be similarly
bound) any securities of the Company held by it at any time during such period
except Common Stock included in such registration; provided, however, that:
(a) such agreement shall be applicable
only to the first such registration statement of the Company which covers Common
Stock (or other securities) to be sold on its behalf to the public in an
underwritten offering;
(b) all officers, directors and holders
of more than 1% of the outstanding equity securities of the Company and all
other persons with registration rights
-13-
(whether or not pursuant to this Agreement) enter agreements in the same form as
the agreement executed by each Holder; and
(c) such agreement shall not apply to
any shares of the Company's Common Stock purchased by such Holder in the public
securities market following the Company's initial public offering of its Common
Stock pursuant to a registration statement filed under the Act.
In order to enforce the foregoing covenant, the Company may
impose stop-transfer instructions with respect to the Registrable Securities of
each Holder (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period, and each Holder agrees
that, if so requested, such Holder will execute an agreement in the form
provided by the underwriter containing terms which are essentially consistent
with the provisions of this Section 1.14.
Notwithstanding the foregoing, the obligations described in
this Section 1.14 shall not apply to a registration relating solely to employee
benefit plans on Form S-1 or Form S-8 or similar forms which may be promulgated
in the future, or a registration relating solely to an SEC Rule 145 transaction
on Form S-4 or similar forms which may be promulgated in the future.
1.15 TERMINATION OF REGISTRATION RIGHTS. No
Holder shall be entitled to exercise any right provided for in this Section 1
after the earlier of (i) five (5) years following the closing of the initial
Qualified Public Offering, (ii) such time as Rule 144 or another similar
exemption under the Act is available for the sale of all of such Holder's shares
during a three (3)-month period without registration or (iii) upon termination
of the Agreement, as provided in Section 3.11.
1.16 OTHER REGISTRATION RIGHTS. The Company
represents and warrants that there is no outstanding agreement, arrangement or
understanding with respect to its securities which is inconsistent or otherwise
interferes with the rights granted to the holders of Registrable Securities
under this Agreement, and further covenants and agrees that it will not, without
the prior consent of the holders of a majority of the shares of Common Stock
issuable or issued upon conversion of the Series B, Series C, Series D, Series E
and Series F Preferred Stock, grant any registration or other rights which would
permit any other person or entity to participate in any registration effected
pursuant to Section 1.2 hereof.
2. COVENANTS OF THE COMPANY.
2.1 DELIVERY OF FINANCIAL STATEMENTS. The
Company shall deliver to each Investor, and transferees thereof holding at least
250,000 shares of Registrable Securities (as adjusted for stock splits, stock
dividends, recapitalizations and the like):
(i) within ninety (90) days
after the end of each fiscal year of the Company, an income statement for such
fiscal year and statement of stockholder's equity as of the end of such year,
and a statement of cash flows for such year, such year-end financial reports to
be in reasonable detail, prepared in accordance with generally accepted
-14-
accounting principles ("GAAP"), and audited and certified by an independent
public accounting firm of nationally recognized standing selected by the
Company;
(ii) as soon as practicable, but
in any event within forty-five (45) days after the end of each of the first
three (3) quarters of each fiscal year of the Company, an unaudited profit or
loss statement, a statement of cash flows for such fiscal quarter and an
unaudited balance sheet as of the end of such fiscal quarter;
(iii) as soon as practicable
after the end of each month, an unaudited profit or loss statement and statement
of cash flows for such month and an unaudited balance sheet as of the end of
such month; and
(iv) at least thirty (30) days
prior to the end of each fiscal year of the Company, a summary copy of the
Company's annual operating plan for the following fiscal year and, if and when
amended, as soon as practicable, all amendments thereto.
2.2 INSPECTION. The Company shall permit each
Investor, and transferees thereof, holding at least 250,000 shares of
Registrable Securities (as adjusted for stock splits, stock dividends and the
like), at such Investor's expense, to visit and inspect the Company's
properties, to examine its books of account and records and to discuss the
Company's affairs, finances and accounts with its officers, all at such
reasonable times as may be requested by the Investor; provided, however, that
the Company shall not be obligated pursuant to this Section 2.2 to provide
access to any information which it reasonably considers to be a trade secret or
similar confidential information. The inspection rights referred to in this
Section 2.2 may be assigned (but only with all related obligations) by a Holder
to a transferee or assignee of at least 250,000 shares of such securities (as
adjusted for stock splits, stock dividends, recapitalizations and the like),
provided the Company is, within a reasonable time after such transfer, furnished
with written notice of the name and address of such transferee or assignee and
the securities with respect to which such registration rights are being
assigned; and provided, further, that such assignment shall be effective only if
immediately following such transfer the further disposition of such securities
by the transferee or assignee is restricted under the Act.
2.3 TERMINATION OF INFORMATION AND INSPECTION
COVENANTS. The covenants set forth in Sections 2.1 and 2.2 shall terminate as to
Investors and be of no further force or effect upon (i) the closing of a
Qualified Public Offering; (ii) when the Company first becomes subject to the
periodic reporting requirements of Sections 13 or 15(d) of the Exchange Act;
(iii) when the Company shall consummate a transaction or series of related
transactions deemed to be a liquidation, dissolution or winding up of the
Company pursuant to the Company's Restated Certificate of Incorporation, as such
Restated Certificate of Incorporation may be amended from time to time (a
"Liquidation Transaction").
2.4 RIGHT OF FIRST OFFER. Subject to the terms
and conditions specified in this Section 2.4, the Company hereby grants to each
Investor who holds at least 250,000 shares of the Company's Preferred Stock or
the Common Stock issued upon conversion thereof (subject to adjustment for stock
splits, stock dividends, reclassifications or the like) (each,
-15-
a "Major Investor") a right of first offer with respect to future sales by the
Company of its Shares (as hereinafter defined). A Major Investor who chooses to
exercise the right of first offer may designate as purchasers under such right
itself or its partners or affiliates in such proportions as it deems
appropriate.
Each time the Company proposes to offer any shares of, or
securities convertible into or exercisable for any shares of, any class of its
capital stock ("Shares"), the Company shall first make an offering of such
Shares to each Investor in accordance with the following provisions:
(a) The Company shall deliver a notice
("Notice") to each Investor stating (i) its bona fide intention to offer such
Shares, (ii) the number of such Shares to be offered, and (iii) the price and
terms upon which it proposes to offer such Shares.
(b) Within 20 calendar days after
delivery of the Notice, the Investor may elect to purchase or obtain, at the
price and on the terms specified in the Notice, up to that portion of such
Shares which equals the proportion that the number of shares of the Company's
Common Stock issued and held, or issuable upon conversion of all Company
Preferred Stock then held, by such Investor bears to the total number of shares
of Company Common Stock then outstanding (assuming conversion of any Company
Preferred Stock and exercise of any outstanding options or warrants to purchase
the Company's capital stock (and conversion of any Preferred Stock issuable upon
such exercise)). The Company shall promptly, in writing, inform each Investor
that purchases all the shares available to it (each, a "Fully-Exercising
Investor") of any other Investor's failure to do likewise. During the ten
(10)-day period commencing after receipt of such information, each
Fully-Exercising Investor shall be entitled to obtain that portion of the Shares
for which Investors were entitled to subscribe but which were not subscribed for
by the Investors that is equal to the proportion that the number of shares of
the Company's Common Stock issued and held, or issuable upon conversion of all
Company Preferred Stock then held, by such Fully-Exercising Investor bears to
the total number of shares of Company Common Stock issued and held, or issuable
upon conversion of all Company Preferred Stock then held, by all
Fully-Exercising Investors.
(c) The Company may, during the 45-day
period following the expiration of the period provided in subsection 2.4(b)
hereof, offer the remaining unsubscribed portion of the Shares to any person or
persons at a price not less than, and upon terms no more favorable to the
offeree than those specified in the Notice. If the Company does not enter into
an agreement for the sale of the Shares within such period, or if such agreement
is not consummated within 60 days of the execution thereof, the right provided
hereunder shall be deemed to be revived and such Shares shall not be offered
unless first reoffered to the Investors in accordance herewith.
(d) The right of first offer in this
Section 2.4 shall not be applicable (i) to the issuance or sale of shares of
Common Stock, or options therefor, to employees, consultants and directors of
the Company, pursuant to plans or agreements approved by the Board of Directors
for the primary purpose of soliciting or retaining their services, (ii) to or
after consummation of the sale of securities pursuant to a Qualified Public
Offering, (iii) to the
- 16 -
issuance of securities pursuant to the conversion or exercise of convertible or
exercisable securities, (iv) to the issuance of securities in connection with a
bona fide business acquisition of or by the Company approved by the Board of
Directors, in which the Company shall sell, convey, or otherwise dispose of all
or substantially all of its property or business or merge with or into or
consolidate with any other corporation, limited liability company or other
entity (other than a wholly-owned subsidiary of the Company) (a "Change in
Control Transaction), but excluding: (x) a merger effected exclusively for the
purpose of changing the domicile of the Company, (y) an equity financing in
which the Company is the surviving corporation, or (z) a transaction in which
the stockholders of the Company immediately prior to the transaction own 50% or
more of the voting power of the surviving corporation following the transaction,
(v) to the issuance of securities to financial institutions or lessors in
connection with commercial credit arrangements, equipment financings, commercial
property lease transactions or similar transactions approved by the Board of
Directors, (vi) upon and subsequent to the closing of a Change in Control
Transaction, (vii) to the issuance of additional shares of Series F Preferred
Stock pursuant to Section 1.2(c) of the Purchase Agreement or (viii) to the
issuance of securities pursuant to a Board-approved stock split or stock
dividend.
2.5 INCURRENCE OF DEBT. So long as shares of
Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock or
Series F Preferred Stock of the Company are outstanding, the Company shall not
without first obtaining the approval of at least 50% of the then outstanding
shares of Series C Preferred Stock, Series D Preferred Stock, Series E Preferred
Stock and Series F Preferred Stock, voting together as a single class:
(a) incur, or agree to incur, any
indebtedness for borrowed money in connection with the issuance of debt
securities in excess of $15,000,000;
(b) fundamentally change the nature of
the Company's principal line of business;
(c) acquire or purchase the assets or
stock of any business, corporation, partnership, association or other business
organization or division thereof having an aggregate purchase price exceeding
(i) $5 million (if the consideration is in cash or property other than the
Company's capital stock) or a combination of cash and capital stock exceeding a
value of $5 million; or (ii) five percent (5%) of the Company's fully-diluted
capitalization prior to the closing of such acquisition (if the consideration is
in Company capital stock).
3. MISCELLANEOUS.
3.1 SUCCESSORS AND ASSIGNS. Except as otherwise
provided herein, the terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective successors and assigns of the
parties (including transferees of any of the Preferred Stock or any Common Stock
issued upon conversion thereof). 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.
-17-
3.2 GOVERNING LAW. This Agreement and all acts
and transactions pursuant hereto shall be governed, construed and interpreted in
accordance with the laws of the State of California, without giving effect to
principles of conflicts of laws.
3.3 COUNTERPARTS. This Agreement may be executed
in two or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
3.4 TITLES AND SUBTITLES. The titles and
subtitles used in this Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement.
3.5 NOTICES. Unless otherwise provided, any
notice required or permitted by this Agreement shall be in writing and shall be
deemed sufficient upon delivery, when delivered personally, or 24 hours after
prepaid deposit, by overnight courier or sent by telegram or fax after
confirmation of receipt of such transmission, or as of 5 business days after
being deposited in the U.S. mail, as certified or registered mail, with postage
prepaid, addressed to the party to be notified at such party's address as set
forth below or on Exhibit A hereto, or as subsequently modified by written
notice, if such notice is sent to the Company, with a copy to Xxxxx X. Xxxxxx,
Venture Law Group, 0000 Xxxx Xxxx Xxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000.
3.6 EXPENSES. If any action at law or in equity
is necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees, costs and necessary
disbursements in addition to any other relief to which such party may be
entitled.
3.7 AMENDMENTS AND WAIVERS. Any term of this
Agreement may be amended and the observance of any term of this Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders of
a majority of the shares of Common Stock issuable or issued upon conversion of
the Series B, Series C, Series D, Series E and Series F Preferred Stock;
provided that if such amendment or waiver has the effect of affecting the
Founders' Stock (i) in a manner different than securities issued to the
Investors and (ii) in a manner adverse to the interests of the holders of the
Founders' Stock, then such amendment shall also require the consent of the
holders of a majority of the Founders' Stock. Notwithstanding anything contained
in this Section 3.7, Section 2.5 herein may only be amended or waived with the
written consent of the Company and the holders of a majority of the shares of
Common Stock issuable or issued upon conversion of the Series C, Series D,
Series E and Series F Preferred Stock. Any amendment or waiver effected in
accordance with this paragraph shall be binding upon each holder of any
Registrable Securities then outstanding, each future holder of all such
Registrable Securities, and the Company.
3.8 SEVERABILITY. Any provision of this
Agreement which is held to be invalid or unenforceable in any jurisdiction shall
be ineffective to the extent of such invalidity or unenforceability without
invalidating or rendering unenforceable the remaining provisions hereof, and any
such invalidity or unenforceability in any jurisdiction shall not invalidate or
-18-
render unenforceable such provision in any other jurisdiction. If any provision
is held to be invalid or unenforceable, such provision shall be construed by the
appropriate judicial body by limiting or reducing it to the minimum extent
necessary to make it legally enforceable.
3.9 ENTIRE AGREEMENT. This Agreement constitutes
the entire agreement between the parties hereto pertaining to the subject matter
hereof, and any and all other written or oral agreements relating to the subject
matter hereof existing between the parties hereto are expressly canceled.
3.10 ADDITION OF INVESTORS. Notwithstanding
anything to the contrary contained herein, if the Company shall issue additional
shares of its Series F Preferred Stock pursuant to Section 1.2(c) of the
Purchase Agreement, any acquiror of such shares of Series F Preferred Stock
shall become a party to this Agreement by executing and delivering an additional
counterpart signature page to this Agreement. In such event, such purchaser
shall be deemed an "Investor" and a "Holder", such shares purchased shall be
deemed "Series F Preferred Stock", and the shares of Common Stock issuable or
issued upon conversion of such shares of Series F Preferred Stock shall be
deemed to be "Registrable Securities", for all purposes of this Agreement.
3.11 TERMINATION OF EXISTING AGREEMENT. This
Agreement contains the entire understanding of the parties, and there are no
further or other agreements or understandings, written or oral, in effect
between the parties relating to the subject matter hereof. The signatories to
this Agreement (other than the Company), as the holders of at least 55% of the
Common Stock issuable upon conversion of each of the Series B Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock and Series E Preferred Stock,
hereby agree that the Existing Agreement is hereby amended and restated in its
entirety by this Agreement, and the Existing Agreement shall be of no further
force or effect.
[SIGNATURE PAGES FOLLOW]
-19-
The parties have executed this Amended and Restated Investors'
Rights Agreement as of the date first above written.
COMPANY:
REDENVELOPE, INC.
By: /s/ Xxxxxx X. May
__________________________________
Name: Xxxxxx X. May
________________________________
Title: President & CEO
_______________________________
SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
FOUNDERS:
/s/ R. Xxx Xxxxxxx
_____________________________________
R. XXX XXXXXXX
/s/ Xxxxx Xxxxxxxx
_____________________________________
XXXXX XXXXXXXX
/s/ Xxxx Xxxxxxx
_____________________________________
XXXX XXXXXXX
INVESTOR:
MOUSSENVELOPE, L.L.C.
By: Moussescapade, L.P., Managing Member
By: Moussescribe, its General Partner
By: /s/ Xxxxxxx Xxxxxxxxx
_____________________
Xxxxxxx Xxxxxxxxx
President
Address: c/o Mousse Partners Limited
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
WESTON PRESIDIO CAPITAL III, L.P.
By: /s/ Xxxxx X. XxXxxxx
_________________________________
Name: Xxxxx X. XxXxxxx
_______________________________
Title: General Partner
______________________________
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
WPC ENTREPRENEUR FUND, L.P.
By: /s/ Xxxxx X. XxXxxxx
_________________________________
Name: Xxxxx X. XxXxxxx
_______________________________
Title: General Partner
______________________________
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
SIGNATURE PAGE TO SERIES F PREFERRED STOCK
INVESTORS' RIGHTS AGREEMENT
SEQUOIA CAPITAL IX
SEQUOIA CAPITAL ENTREPRENEURS FUND
SEQUOIA CAPITAL IX PRINCIPALS FUND
By: SC IX Management, LLC
A Delaware Limited Liability Company
General Partner of Each
By: /s/ (Illegible)
_____________________
Managing Member
Address:
SEQUOIA CAPITAL FRANCHISE
FUND
SEQUOIA CAPITAL FRANCHISE
PARTNERS
By: SCFF Management, LLC
A Delaware Limited Liability Company
General Partner of Each
By: /s/ (Illegible)
_____________________
Managing Member
Address:
ATRIUM VENTURE PARTNERS, L.P.
By Atrium Ventures LLC, General Partner
By: /s/ Xxxxxxxx X. Xxxxxxx
_________________________________
Name: Xxxxxxxx X. Xxxxxxx
_______________________________
Title: Chief Operating Officer
______________________________
Address: 0000 Xxxx Xxxx Xx #0-000
Xxxxx Xxxx, XX 00000
CAMELOT VENTURES LLC
By: /s/ Xxxxxxxx Xxxxx
_________________________________
Name: Xxxxxxxx Xxxxx
_______________________________
Title: CFO
______________________________
Address:
SIPPL XXXXXXXXX VENTURES II, L.P.
By: /s/ Xxxxx X. Xxxxx
_________________________________
Name: Xxxxx X. Xxxxx
_______________________________
Title: CFO
______________________________
Address: 0000 XX XXXXXX XXXX
XXXXX XXXX, XX 00000
SIPPL XXXXXXXXX VENTURES III, L.P.
By: Xxxxx X. Xxxxx
_________________________________
Name: Xxxxx X. Xxxxx
_______________________________
Title: CFO
______________________________
Address:
SIGNATURE PAGE TO SERIES F PREFERRED STOCK
INVESTORS' RIGHTS AGREEMENT
/s/ Xxxxxxx Xxxxxxxx
______________________________________
XXXXXXX XXXXXXXX
Address:
/s/ Xxxxx Xxxxxxx
______________________________________
XXXXX XXXXXXX
Address:
/s/ Xxxxxxx Xxxxxxxx
______________________________________
XXXXXXX XXXXXXXX
Address:
/s/ Xxxxxxx X. Xxxxxxx
______________________________________
XXXXXXX X. XXXXXXX
Address:
/s/ Xxxxx Xxxxxxx
______________________________________
XXXXX XXXXXXX
Address:
/s/ Xxxxxxx X. Xxxxxxx
______________________________________
XXXXXXX X. XXXXXXX
Address: 0000 Xxxxxxxxx Xx.
Xxx Xxxxxxxxx, XX 00000
SIGNATURE PAGE TO SERIES F PREFERRED STOCK
INVESTORS' RIGHTS AGREEMENT
CAPITAL RESEARCH & MANAGEMENT
COMPANY, ON BEHALF OF SMALL CAP
WORLD FUND, INC.
By: /s/ [Signature illegible]
_________________________________
Name:
_______________________________
Title:
______________________________
Address:
GCC REDENVELOPE
By: /s/ R. Xxx Xxxxxxx
_________________________________
Name: R. Xxx Xxxxxxx
_______________________________
Title: Partner
______________________________
Address: 000 Xx Xxxxxx Xx.
Xx Xxxxx, XX 00000
By: /s/ Xxxxx Xxxxx
_________________________________
Name: Xxxxx Xxxxx
_______________________________
Address: 00 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
XXXXXXX VENTURES
By: /s/ Xxxx X. Xxxxxxx
_________________________________
Name:
_______________________________
Title: Trustee
______________________________
Address:
XXXX X. XXXXXXX AND
XXXXXXX X. XXXXXXX, TRUSTEES FOR THE
XXXXXXX REVOCABLE TRUST
By: /s/ Xxxx X. Xxxxxxx
_________________________________
Name: Xxxxxxx X. Xxxxxxx
_______________________________
Title: Trustee
______________________________
Address:
XXXX X. XXXXXXX, TRUSTEE FOR THE
XXXX X. XXXXXXX XX. TRUST
By: /s/ Xxxx X. Xxxxxxx
_________________________________
Name:
_______________________________
Title: Trustee
______________________________
Address:
SIGNATURE PAGE TO SERIES F PREFERRED STOCK
INVESTORS' RIGHTS AGREEMENT
XXXX X. XXXXXXX, TRUSTEE FOR THE
XXXXXXX XXX XXXXXXX TRUST
By: /s/ Xxxx X. Xxxxxxx
_________________________________
Name:
_______________________________
Title: Trustee
______________________________
Address:
XXXX X. XXXXXXX, TRUSTEE FOR THE
XXXXXXX XXXXXXX TRUST
By: /s/ Xxxx X. Xxxxxxx
_________________________________
Name:
_______________________________
Title: Trustee
______________________________
Address:
XXXXXXX X. XXXXXXX, TRUSTEE FOR THE
XXXXXXX X. XXXXXXX
SEPARATE PROPERTY TRUST
By: /s/ Xxxxxxx X. Xxxxxxx
_________________________________
Name:
_______________________________
Title: Trustee
______________________________
Address:
XXXXXXX X. XXXXXXX, TRUSTEE OF THE
ROLAPP TRUST
By: /s/ Xxxxxxx X. Xxxxxxx
_________________________________
Name:
_______________________________
Title: Trustee
______________________________
Address:
/s/ Xxxxx Xxxxx
_____________________________________
Xxxxx Xxxxx
Address: XXXXX
0 XXXXXX XXXX
XXXXXXXXXX, XX 00000
/s/ XXXXXXX X. XXXXXXX
_____________________________________
XXXXXXX X. XXXXXXX
Address: Crosslink Capital
#0 Xxxxxxxxxxx Xxxxxx
Xxx. 0000
Xxx Xxxxxxxxx, XX 00000
SIGNATURE PAGE TO SERIES F PREFERRED STOCK
INVESTORS' RIGHTS AGREEMENT
THE XXXX AND XXXXXXX XXXXXXX TRUST,
XXXX AND XXXXXXX XXXXXXX AS TTEE
U/A/T DATED 5/12/99
By: /s/ Xxxx Xxxxxxx
_________________________________
Name: Xxxx Xxxxxxx
_______________________________
Title: Trustee
______________________________
Address:
XXXXXXX X. XXXXX LIVING TRUST
By: /s/ Xxxxxxx X. Xxxxx
_________________________________
Name: Xxxxxxx X. Xxxxx Living Trust
_______________________________
Title: Trustee
______________________________
Address: 0000 Xxxxx Xxx
Xxxxxx Xxxxx, XX 00000
W. XXXXXX XXXXX, III AND
XXXXX X. XXXXX, TRUSTEES OF
XXXXX FAMILY TRUST, UDT
DATED 10/13/94, AS AMENDED
By: Xxxxx Family Trust
_________________________________
Name: Illegible
_______________________________
Title: Trustee
______________________________
Address:
/s/ Xxxxxxx X. Xxxxxxxxx
_____________________________________
Xxxxxxx X. Xxxxxxxxx
Address:
/s/ Xxxxx Xxxxx
_____________________________________
Xxxxx Xxxxx
Address:
XXXXXXXX-XXXXX SPECIALTY RETAIL
GROUP III, L.P.
By: Xxxxxxxx-Xxxxx Management
Company, L.P., its General Partner
By: Xxxx Xxxxx
_________________________________
Name: Xxxx Xxxxx
_______________________________
Title: Managing General Partner
______________________________
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx 000 Xxxx
Xxxxxxx, XX 00000
SIGNATURE PAGE TO SERIES F PREFERRED STOCK
INVESTORS' RIGHTS AGREEMENT
/s/ Xxxx Xxxxx
_____________________________________
Xxxx Xxxxx
Address: 0 Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
SENIORTRAK, INC.
By: /s/ Xxx X. Xxxxxxx
_________________________________
Name: Xxx X. Xxxxxxx
_______________________________
Title: President
______________________________
Address: 0000 Xxxxxxxx Xx., #00X
Xxx Xxxxxxxxx, XX 00000
/s/ Xxxxxxx Xxxxx
_____________________________________
Xxxxxxx Xxxxx
Address: CROSSLINK CAPITAL
Xxx Xxxxxxxxxxx Xxxxxx,
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
/s/ Xxxxx X. Xxxxxxxxxx
_____________________________________
Xxxxx X. Xxxxxxxxxx
Address:
XXXXX X. XXXXXXXXXX
FAMILY SPRAY TRUST I
By: /s/ Xxxxx X. Xxxxxxxxxx
_________________________________
Name:
_______________________________
Title:
______________________________
Address:
XXXXX X. XXXXXXXXXX
FAMILY SPRAY TRUST II
By: /s/ Xxxxx X. Xxxxxxxxxx
_________________________________
Name:
_______________________________
Title:
______________________________
Address:
XXXXX X. XXXXXXXXXX
FAMILY SPRAY TRUST III
By: /s/ Xxxxx X. Xxxxxxxxxx
_________________________________
Name:
_______________________________
Title:
______________________________
Address:
SIGNATURE PAGE TO SERIES F PREFERRED STOCK
INVESTORS' RIGHTS AGREEMENT
/s/ Xxxxxx Xxxxxx
_____________________________________
Address: 00 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
XXXXXXX XXXXXXXXX, TRUSTEE OF THE
XXXXXX FAMILY FUND
DATED APRIL 5, 1999
By: /s/ Xxxxxxx Xxxxxxxxx
_________________________________
Name: Xxxxxxx Xxxxxxxxx
_______________________________
Title: Trustee, Xxxxxx Family Fund
______________________________
Address: 000 Xxxxxxx Xxx., #0000
Xxxx Xxxxxx, XX 00000
/s/ Xxxxx X. Xxxxxx
______________________________________
Xxxxx X. Xxxxxx
Address:
DIRECT EQUITY PARTNERS, L.P.
By: /s/ Claire Gruppo
_________________________________
Name: Claire Gruppo
_______________________________
Title: President
______________________________
Address: Attn: Claire Gruppo
Direct Equity Partners
00 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
/s/ Xxxxxx XxXxxxxx
_____________________________________
Xxxxxx XxXxxxxx
Address: 000 0xx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Address: 0000 00xx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
SIGNATURE PAGE TO SERIES F PREFERRED STOCK
INVESTORS' RIGHTS AGREEMENT
EXHIBIT A
LIST OF FOUNDERS
R. Xxx Xxxxxxx
000 Xx Xxxxxx
Xx Xxxxx, XX 00000
Xxxxx Xxxxxxxx
0000 00xx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxx Xxxxxxx
0000 Xxxxxxxx Xxxxxx, Xxx. 000
Xxx Xxxxxxxxx, XX 00000
A-1
EXHIBIT B
SCHEDULE OF PRIOR INVESTORS
SERIES B, SERIES C, SERIES D AND SERIES E PREFERRED STOCK
Xxxxx X. X. Xxxxxx
0000 Xxxxx Xxxx
Xxxxxxxx, XX 00000
Sippl Xxxxxxxxx Ventures II, L.P.
c/o Xxxxxxxxxx X. Xxxxxxxxx
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Xxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxxx, Trustees for the
Xxxxxxx Revocable Trust
c/o Xxxx X. Xxxxxxx
Xxxxxxx Ventures
000 Xxxxx Xxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxxxx Ventures, LLC
c/o Xxxx X. Xxxxxxx
Xxxxxxx Ventures, LLC
000 Xxxxx Xxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxx X. Xxxxxxx, Trustee for the Xxxxxxx Xxxxxxx Trust
c/o Xxxx X. Xxxxxxx
Xxxxxxx Ventures
000 Xxxxx Xxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxx X. Xxxxxxx, Trustee for the Xxxx X. Xxxxxxx, Xx.
Trust
c/o Xxxx X. Xxxxxxx
Xxxxxxx Ventures
000 Xxxxx Xxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxx X. Xxxxxxx, Trustee for the Xxxxxxx Xxx Xxxxxxx
Trust
c/o Xxxx X. Xxxxxxx
Xxxxxxx Ventures
000 Xxxxx Xxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
B-1
Xxxxxxx X. Xxxxxxx, Trustee for the Xxxxxxx X. Xxxxxxx
Separate Property Trust
c/o Xxxx X. Xxxxxxx
Xxxxxxx Ventures
000 Xxxxx Xxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx, Trustee of the Rolapp Trust
c/o Xxxx X. Xxxxxxx
Xxxxxxx Ventures
000 Xxxxx Xxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxx Living Trust
c/o Xxxxxxx X. Xxxxx
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Xxxxxx Xxxxxxx
Xxxxxxx & Xxxxxxxx
Xxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxxxx
Director, Business Development
911Gifts, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
5 S Ventures LLC
c/o K. B. Xxxxxxxxxxxxx
00000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
M. Xxxxxx Xxxxxxxx
00 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxx Xxxxxxx
President and CEO
Exodus Communications
0000 Xxxxxxx Xxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, XX 00000
Xxxxxx X. Xxxxx and Xxx X. Xxxxx,
As the Trustees of the Rekhi Family Trust Dated 12/15/89
00000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
Xxx Xxxxxxxx
Xxxxxxxx Sonoma, Inc.
0000 Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
B-2
Xxxxxx Xxx
0000 00xx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxx Xxxxxxx
Green Street Advisors
000 Xxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Xxxxx Xxxxxxx
0000 Xxxx Xxxxxxx Xxxxx Xxxxxxxxx
Xxxxx X
Xxxxxxxx, XX 00000
Xxxx Xxxxx
Akamai Technologies, Inc.
000 Xxxxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx and Xxxxx Xxxxxx Xxxxxxx
Xxxxxxxxx Partners
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
W. Xxxxxx Xxxxx, III and Xxxxx X. Xxxxx, Trustees of Xxxxx
Family Trust, UDT dated October 13, 1994, as amended
c/o Fox, Xxxxx & Company
000 Xxxxx Xxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
VLG INVESTMENTS 1999
Xxxxx X. Xxxxxx
c/o Venture Law Group
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
The Community Trust Under the Green Family Trust
U/T/A Dated November 6, 1995, Trustee Xxxxxx X. Xxxxx
c/o Xxxxxx X. Xxxxx
00 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Xxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxx, Trustees
U/T/A dated 7/6/98
c/o RS Investment Management
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxxx X. Xxxxx TTEE FBO P. Xxxx Xxxxxxxx UTA dated
12/22/83
c/o RS Investment Management
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
B-3
Xxxxxx X. Xxxxx TTEE FBO W. Xxxx Xxxxxxxx UTA
dated 12/22/83
c/o RS Investment Management
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Sequoia Capital IX
Sequoia Capital Angel Fund
Sequoia Capital IX Partners Fund
Sequoia Capital Franchise Fund
Sequoia Capital Franchise Partners
c/o Xxxxxxx Xxxxxx
Sequoia Capital
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
AMB Property, L.P.
000 Xxxxxxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Angel (Q) Investors, L.P.
c/o Xxxxx XxXxxxx
Xxxxxx Xxxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Xxxxx Xxxxxxxxxx
Starwood Hotels & Resorts Worldwide
000 Xxxxxxxxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx
Omega Venture Partners, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx
Omega Venture Partners, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxxxx Xxxxx
Omega Venture Partners, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
B-4
Xxx Xxxxxx
Omega Venture Partners, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxx Xxxx
Omega Venture Partners, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxx Xxxxxxx
Omega Venture Partners, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxx Xxxxxxxxx
Omega Venture Partners, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxx Xxxx
Omega Venture Partners, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxx X. Xxxxxxx
Omega Venture Partners, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxx X. XxXxxxx
Weston Presidio Capital
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000-0000
Xxxxxxx X. Xxxxxxx
Xxxxxx Presidio Capital
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000-0000
Xxxxx X. Xxxxxxxxxx Family Spray Trust I
Xxxxx X. Xxxxxxxxxx Family Spray Trust II
Xxxxx X. Xxxxxxxxxx Family Spray Trust III
Xxxxxxxx-Xxxxx Specialty Retail Group III, L.P.
B-5
Xxxxx X. Xxxxx
Weston Presidio Capital III, L.P.
WPC Entrepreneur Fund, L.P.
Xxxxxxx X. Xxxxxxxx
Xxxx X. Xxxxxxx
RE General Partnership
Tsakopoulos Family Partnership
Xxxxxxxx & Xxxxxxx Capital
Sippl Xxxxxxxxx Ventures III, L.P.
Angel (Q) Investors II, L.P.
Angel Investors II, L.P.
The K.B. and Xxxxxxx
Xxxxxxxxxxxxx Living Trust dated
August 26, 1998
Xxxxxxx Xxxxxxx
Xxxx X. Xxxxxxxx Trust
Sequoia Capital Entrepreneurs Fund
Sequoia Capital IX Principals Fund
Hybrid Venture Partners, L.P.
Direct Equity Partners I, L.P.
SMALLCAP World Fund, Inc.
Atrium Venture Partners L.P.
Xxxxxx Xxxxxx
Crown Technologies Partners
Camelot Ventures, LLC
B-6
EXHIBIT C
LIST OF NEW INVESTORS
Moussenvelope, L.L.C.
Weston Presidio Capital III, L.P.
WPC Entrepreneur Fund, L.P.
Sequoia Capital Entrepreneurs Fund
Sequoia Capital Franchise Fund
Sequoia Capital Franchise Partners
Sequoia Capital IX
Sequoia Capital IX Principals Fund
Atrium Venture Partners, L.P.
Camelot Ventures LLC
Sippl Xxxxxxxxx Ventures II, X.X.
Xxxxx Xxxxxxxxx Ventures III, L.P.
Xxxxx Xxxxxxx
Xxxxxxx Xxxxxxxx
Xxxxxxx X. Xxxxxxx
Clipperbay & Co., Nominee for SMALLCAP World Fund, Inc.
Xxxxxxx Xxxxxxxx
GCC RedEnvelope
Xxxxx Xxxxx
Xxxxxxx Ventures
Xxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxxx, Trustees for the Xxxxxxx Revocable Trust
Xxxx X. Xxxxxxx, Trustee for the Xxxx X. Xxxxxxx Xx. Trust
C-1
Xxxx X. Xxxxxxx, Trustee for the Xxxxxxx Xxx Xxxxxxx Trust
Xxxx X. Xxxxxxx, Trustee for the Xxxxxxx Xxxxxxx Trust
Xxxxxxx X. Xxxxxxx, Trustee for the Xxxxxxx X. Xxxxxxx Separate Property Trust
Xxxxxxx X. Xxxxxxx, Trustee of the Rolapp Trust
Xxxxx Xxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
The Xxxx and Xxxxxxx Xxxxxxx Trust, Xxxx and Xxxxxxx Xxxxxxx as TTEE U/A/T dated
5/12/99
Xxxxx Xxxxxxx
Xxxxxxx X. Xxxxx Living Trust
Xxxxxxx X. Xxxxxxxxx
W. Xxxxxx Xxxxx, III and Xxxxx X. Xxxxx, Trustees of Xxxxx Family Trust, UDT
dated 10/13/94, as amended
Xxxxxxxx-Xxxxx Specialty Retail Group III, L.P.
Xxxx Xxxxx
SeniorTrak, Inc.
Xxxxx Xxxxx
Xxxxxxx Xxxxx
Xxxxx X. Xxxxxxxxxx
Xxxxx X. Xxxxxxxxxx Family Spray Trust I
Xxxxx X. Xxxxxxxxxx Family Spray Trust II
Xxxxx X. Xxxxxxxxxx Family Spray Trust III
Xxxxxx Xxxxxx
Xxxxx X. Xxxxxx
C-2
Xxxxxxx Xxxxxxxxx, Trustee of the Xxxxxx Family Fund dated April 5, 1999
Direct Equity Partners, L.P.
Xxxxxx XxXxxxxx
Xxxxxx Xxx
C-3
