HYBRID NETWORKS, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
April 30, 1997
TABLE OF CONTENTS PAGE
1. Registration Rights ............................................. 2
1.1 Definitions ............................................... 3
1.2 Company Registration ...................................... 3
1.3 Obligations of the Company ................................ 3
1.4 Furnish Information ....................................... 4
1.5 Expenses of Company Registration .......................... 5
1.6 Underwriting Requirements ................................. 5
1.7 Delay of Registration ..................................... 5
1.8 Indemnification ........................................... 5
1.9 Reports Under Securities Exchange Act of 1934 ............. 7
1.10 Form S-3 Registration ..................................... 8
1.11 Assignment of Registration Rights ......................... 9
1.12 "Market Stand-Off" Agreement .............................. 9
1.13 Termination of Registration Rights ........................ 10
2. Covenants of the Company ........................................ 10
2.1 Delivery of Financial Statements .......................... 10
2.2 Termination and Assignment of Information Covenants ....... 10
2.3 Right of First Offer ...................................... 11
3. Miscellaneous ................................................... 13
3.1 Successors and Assigns .................................... 13
3.2 Governing Law ............................................. 13
3.3 Counterparts .............................................. 14
3.4 Titles and Subtitles ...................................... 14
3.5 Notices ................................................... 14
3.6 Expenses .................................................. 14
3.7 Amendments and Waivers .................................... 14
3.8 Severability .............................................. 14
3.9 Aggregation of Stock ...................................... 14
3.10 Entire Agreement; Amendment; Waiver ....................... 14
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
THIS AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT is entered into as of
April __, 1997 by and among Hybrid Networks, Inc., a Delaware corporation
(the "COMPANY"), the investors listed on Schedule A hereto (each of which is
herein referred to as a "SERIES A INVESTOR"), the investors listed on
Schedule B hereto (each of which is herein referred to as a "SERIES B
INVESTOR"), General Instrument Corporation of Delaware, a Delaware
corporation (the "SERIES C INVESTOR"), the investors listed on Schedule C
hereto (each of which is herein referred to as a "SERIES D INVESTOR"), Intel
Corporation ("INTEL"), Xxxxxx X. Xxxxxxxxx ("XXXXXXXXX"), Xxxxxxx X. Xxxxx
(Xx. Xxxxx and Xxxxxxxxx are referred to collectively as the "FOUNDERS"), the
current holders of the Company's Series G Preferred Stock (each of which is
herein referred to as a "SERIES G INVESTOR"), Alex. Xxxxx & Sons Incorporated
(the "AGENT"), ITOCHU Corporation ("ITOCHU") and London Pacific Life &
Annuity Company ("LONDON").
RECITALS
WHEREAS, the Company, the Series A Investors and the Founders entered into
the Investor Rights Agreement dated as of September 16, 1992 (the "AGREEMENT")
whereby, among other things, the Company granted rights thereunder to the Series
A Investors;
WHEREAS, the Agreement was amended in October and November 1994 whereby,
among other things, the Company granted rights thereunder to the Series B
Investors;
WHEREAS, the Agreement was further amended as of February 28, 1995
whereby, among other things, the Company granted certain registration rights
to the Series C Investor;
WHEREAS, the Agreement was further amended in May and June 1995 whereby,
among other things, the Company granted rights thereunder to the Series D
Investors;
WHEREAS, the Agreement was further amended in December 1995 whereby, among
other things, the Company granted rights thereunder to Intel (concurrently
therewith the Company and Intel entered into the Series E/F Preferred Stock
Purchase Agreement dated in December 1995 -- the "SERIES E/F AGREEMENT");
WHEREAS, the Agreement was further amended in February 1996 whereby, among
other things, the Company granted Xxxxxxxxx certain rights of first offer
thereunder;
WHEREAS, the parties to the Convertible Note and Warrant Purchase Agreement
among the Company and certain Series B Investors and Series D investors dated in
June 1996 (the "CONVERTIBLE NOTE AGREEMENT") and the parties to the Agreement
For Sale of Common Stock among the Company, the Founders and Certain Series D
Investors dated in June 1996 (the "COMMON STOCK AGREEMENT"), which parties
constituted the holders of at least a majority of the then Registrable
Securities (as defined below), acknowledged that the holders of the securities
issued pursuant to the Convertible Note Agreement and the shares of Common Stock
sold by Xxxxxxxxx pursuant to the Common Stock Agreement were entitled to
certain rights under this Agreement with respect to such securities and shares;
WHEREAS, the Agreement was further amended in July 1996 whereby, among
other things, the Company granted rights thereunder to the Series G Investors
and the Agents;
WHEREAS, the Agreement was further amended in February 1997 whereby, among
other things, the Company granted rights thereunder to Itochu;
WHEREAS, the Company and London are parties to a Senior Secured Convertible
Debenture Purchase Agreement (the "DEBENTURE AGREEMENT") pursuant to which the
Company has issued to London the Company's Senior Secured Convertible Debenture
due 2002 (the "DEBENTURE"); and
WHEREAS, pursuant to the Agreement, the holders of a majority of the
Registrable Securities (as defined below) desire to amend the Agreement further
to provide for, among other things, the grant of rights thereunder to London as
required under the terms of the Debenture Agreement and to restate the Agreement
as amended by this amendment and to supersede all prior amendments so that the
Agreement as amended is set forth in its entirety in this Amended and Restated
Investor Rights Agreement, and London desires to obtain such rights and to enter
into this Amended and Restated Investor Rights Agreement.
NOW, THEREFORE, THE PARTIES HEREBY AGREE that this Amended and Restated
Investor Rights Agreement amends the Agreement and restates in its entirety and
supersedes all previous amendments to the Agreement so that the Agreement, as
amended hereby ("this AGREEMENT"), is set forth herein in its entirety, and
further agree as follows:
1. REGISTRATION RIGHTS. The Company covenants and agrees as follows:
1.1 DEFINITIONS. For purposes of this Section 1:
(a) The term "REGISTER," "REGISTERED," and "REGISTRATION" refer to
a registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act of 1933, as amended
(the "ACT"), and the declaration or ordering of effectiveness of such
registration statement or document;
(b) The term "REGISTRABLE SECURITIES" means (1) shares of Common
Stock of the Company issuable or issued upon conversion of the Debenture or
shares of Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock, Series E Preferred Stock, Series F
Preferred Stock, Series G Preferred Stock or Series H Preferred Stock of the
Company (including, without limitation, shares of Series B Preferred Stock or
Series D Preferred Stock issuable or issued upon exercise of any warrants
issued or extended pursuant to the Convertible Note Agreement, the shares of
Series G Preferred Stock issued upon conversion of the convertible notes
issued pursuant to the Convertible Note Agreement, shares of Series B
Preferred Stock issuable or issued upon exercise of any warrants issued
pursuant to the Series E/F Agreement and shares of Series G Preferred Stock
issuable or issued upon exercise of the warrant issued to the Agent pursuant
to the engagement letter between the Company and the Agent relating to the
offer and sale of Series G Preferred Stock), and (2) any Common Stock of the
Company issued as (or issuable upon the conversion or exercise of any
warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of, such
Debenture, Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock, Series E
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Preferred Stock, Series F Preferred Stock, Series G Preferred Stock, Series H
Preferred Stock or Common Stock, excluding in all cases, however, any
Registrable Securities sold, transferred or otherwise assigned by a person or
entity in a transaction in which his rights under this Section 1 are not
assigned;
(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 1.11 hereof; and
(e) The term "FORM S-3" means such form under the Act as in effect
on the date hereof or any registration form under the Act subsequently
adopted by the Securities and Exchange Commission ("SEC") which permits
inclusion of incorporation of substantial information by reference to other
documents filed by the Company with the SEC.
1.2 COMPANY REGISTRATION.
(a) 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 Common Stock
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 participants in a Company stock plan, a registration on Form
S-4 (or any successor form) or a registration on any form which does not
include substantially the same information (other than information as would
be required under Item 507 of Regulation S-K under the Act with respect to
selling stockholders) 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 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 1.6, cause to be
registered under the Act all of the Registrable Securities that each such
Holder has requested to be registered.
(b) Upon any sale by the Company of shares of its Common Stock to
the public in a firmly underwritten public offering, the Founders (and the
Series B Investors and Series D Investors, to the extent they purchased
shares of Common Stock from Xxxxxxxxx), on the date notice is provided to
each Holder pursuant to subsection 1.2(a), shall be entitled to include any
of their shares of Common Stock in any registration by the Company under this
Section 1.2, if such persons agree to be bound by all other provisions of
this Agreement and participate in any such registration on the same basis as
each Holder in accordance with all applicable provisions of this Agreement.
1.3 OBLIGATIONS OF THE COMPANY. Whenever required under this Section 1
to effect the registration of any Registrable Securities, the Company shall,
as expeditiously as reasonably possible:
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(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, upon the request of the
Holders of a majority of the Registrable Securities registered thereunder,
keep such registration statement effective for up to 120 days.
(b) Prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection with
such registration statement as may be necessary to comply with the provisions
of the Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of
the Act, and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue
Sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event as a
result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
(g) 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.
1.4 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
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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.
1.5 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 1.2 and Section 1.10 for each Holder (which right may be
assigned as provided in Section 1.11), 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.
1.6 UNDERWRITING REQUIREMENTS. In connection with any offering
involving an underwriting of shares of the Company's Common Stock, the
Company shall not be required under Section 1.2 to include any of the
Holders' securities in such underwriting unless they accept the terms of the
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 first apportioned pro rata among the selling
stockholders other than the Founders according to the total amount of
securities entitled to be included therein owned by each selling stockholder
other than the Founders or in such other proportions as shall mutually be
agreed to by such selling stockholders, and the remaining securities, if any,
to be so apportioned between the Founders). As a result of the immediately
preceding sentence, no securities owned by a Founder shall be entitled to be
included in such offering unless the total amount of securities entitled to
be included therein owned by each selling stockholder other than the Founders
has not been reduced to less than the amount of Registrable Securities
requested by such selling stockholders to be included in such offering in
accordance with Section 1.2. 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.
1.7 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.
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1.8 INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, any underwriter (as defined in the Act) for such
Holder and each person, if any, who controls such Holder or underwriter
within the meaning of the Act or the Securities Exchange Act of 1934, as
amended (the "1934 ACT"), against any losses, claims, damages, or liabilities
(joint or several) to which they may become subject under the Act, the 1934
Act or other federal or state law, insofar as such losses, claims, damages,
or liabilities (or actions in respect thereof) arise out of or are based upon
any of the following statements, omissions or violations (collectively a
"VIOLATION"): (i) any untrue statement or alleged untrue statement of a
material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein. or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Act, the 1934 Act, any state securities law
or any rule or regulation promulgated under the Act, the 1934 Act or any
state securities law; and the Company will pay to each such Holder,
underwriter or controlling person, any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability, or action; provided, however, that the indemnity
agreement contained in this subsection 1.8(a) shall not apply to amounts paid
in settlement of any such loss, claim, damage, liability, or action if such
settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld), nor shall the Company be liable in any
such case for any such loss, claim, damage, liability, or action to the
extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished expressly
for use in connection with such registration by any such Holder, underwriter
or controlling person.
(b) To the extent permitted by law, each selling Holder will
severally indemnify and hold harmless the Company, each of its directors,
each of its officers who has signed the registration statement, each person,
if any, who controls the Company within the meaning of the Act, any
underwriter, any other Holder selling securities in such registration
statement and any controlling person of any such underwriter or other Holder,
against any losses, claims, damages, or liabilities (joint or several) to
which any of the foregoing persons may become subject, under the Act, the
1934 Act or other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereto) arise out of or are
based upon any Violation, in each case to the extent (and only to the extent)
that such Violation occurs in reliance upon and in conformity with written
information furnished by such Holder expressly for use in connection with
such registration; and each such Holder will pay any legal or other expenses
reasonably incurred by any person intended to be indemnified pursuant to this
subsection 1.8(b) in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that the
indemnity agreement contained in this subsection 1.8(b) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or
action if such settlement is effected without the consent of the Holder,
which consent shall not be unreasonably withheld; provided, that, in no event
shall any indemnity under this subsection 1.8(b) exceed the gross proceeds
from the offering received by such Holder.
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(c) Promptly after receipt by an indemnified party under this
Section 1.8 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 1.8,
deliver to the indemnifying party a written notice of the commencement
thereof and the indemnifying party shall have the right to participate in,
and, to the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with
counsel mutually satisfactory to the parties; provided, however, that an
indemnified party (together with all other indemnified parties which may be
represented without conflict by one counsel) shall have the right to retain
one separate counsel, with the fees and expenses to be paid by the
indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to
actual or potential differing interests between such indemnified party and
any other party represented by such counsel in such proceeding. The failure
to deliver written notice to the indemnifying party within a reasonable time
of the commencement of any such action, if prejudicial to its ability to
defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 1.8, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this Section
1.8
(d) If the indemnification provided for in this Section 1.8 is held
by a court of competent jurisdiction to be unavailable to an indemnified
party with respect 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. 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
1.8 shall survive the completion of any offering of Registrable Securities in
a registration statement under this Section 1, and otherwise.
1.9 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:
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(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times after 90 days after the
effective date of the first registration statement filed by the Company for
the offering of its securities to the general public;
(b) take such action, including the voluntary registration of its
Common Stock under Section 12 of the 1934 Act, as is necessary to enable the
Holders to utilize Form S-3 for the sale of their Registrable Securities,
such action to be taken as soon as practicable after the end of the fiscal
year in which the first registration statement filed by the Company for the
offering of its securities to the general public is declared effective:
(c) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the 1934 Act; and
(d) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of SEC Rule 144
(at any time after 90 days after the effective date of the first registration
statement filed by the Company), the Act and the 1934 Act (at any time after
it has become subject to such reporting requirements), or that it qualifies
as a registrant whose securities may be resold pursuant to Form S-3 (at any
time after it so qualifies), (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed
by the Company, and (iii) such other information as may be reasonably
requested in availing any Holder of any rule or regulation of the SEC which
permits the selling of any such securities without registration or pursuant
to such form.
1.10 FORM S-3 REGISTRATION. In case the Company shall receive from any
Holder or Holders who own, in the aggregate, at least 30% of the outstanding
shares of Registrable Securities, 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 l 5 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 1.10:
(1) if Form S-3 is not available for such offering by the Holders; (2) if the
Holders, together with the holders of any other securities of the Company
entitled to inclusion in such registration, propose to sell Registrable
Securities and such other securities (if any) at an aggregate price to the
public (net of any underwriters' discounts or commissions) of less than
$500,000; (3) 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
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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 120 days after receipt of the request
of the Holder or Holders under this Section 1.10; provided, however, that
the Company shall not utilize this right more than once in any l2-month
period; (4) if the Company has, within the 12-month period preceding the
date of such request, already effected one registration on Form S-3 for the
Holders pursuant to this Section 1.10: (5) 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.
(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.
Notwithstanding anything to the contrary in this Section 1.10, the Series
C Investor will have rights under this Section 1.10, and any Holder of any
shares of Series C Preferred Stock or any Registrable Securities issued with
respect thereto will have rights under this Section 1.10 with respect to such
shares or Registrable Securities, only for so long as the Series A Investors
and the Series B Investor have rights under this Section 1.10.
1.11 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 who, (i) after such assignment or transfer,
holds at least 50,000 shares of Registrable Securities (subject to
appropriate adjustment for stock splits, stock dividends, combinations and
other recapitalizations), and (ii) is not a person or entity deemed by the
Board of Directors of the Company in its best judgment, to be a competitor or
potential competitor of the Company; 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. For the purposes of
determining the number of shares of Registrable Securities held by a
transferee or assignee, the holdings of transferees and assignees of a
partnership who are partners or retired partners of such partnership
(including spouses and ancestors, lineal descendants and siblings of such
partners or spouses who acquire Registrable Securities by gift, will or
interstate succession) shall be aggregated together and with the partnership;
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 this Section 1.
1.12 "MARKET STAND-OFF" AGREEMENT. Each signatory to this Amended
Investor Rights Agreement or any other amendment to the Agreement or hereto
hereby agrees that, during the period of duration specified by the Company
and an underwriter of Common Stock of the Company not to exceed 180 days
following the effective date of a registration statement of the Company filed
under the Act (unless otherwise required by an underwriter), such signatory
shall not, 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
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such period except Common Stock included in such registration and except to
the extent otherwise consented to by the Company and such underwriter. To the
extent that any officer or director of the Company has not entered into a
market stand-off agreement of equivalent duration and effect with respect to
any Company securities beneficially owned by such officer or director, the
Company shall use best efforts to require each officer and director of the
Company to enter into such an agreement.
In order to enforce the foregoing covenant, the Company may impose
stop-instructions with respect to the Registrable Securities of each Investor
(and the shares or securities of every other person subject to the foregoing
restriction) until the end of such period.
1.13 TERMINATION OF REGISTRATION RIGHTS. No Holder shall be entitled to
exercise any right provided for in this Section 1 after 6 years following the
consummation of the sale of securities pursuant to a registration statement
filed by the Company under the Act in connection with the initial firm
commitment underwritten offering of its securities to the general public.
Notwithstanding anything to the contrary in this Section 1, no Holder shall
be entitled to cause the Company to register the sale or other transfer of
Restricted Securities if and so long as the intended sale or other transfer
may then be effectuated by such Holder in compliance with Rule 144 under the
Act without violating the holding period, volume limitations or other
restrictions of Rule 144.
2. COVENANTS OF THE COMPANY.
2.1 DELIVERY OF FINANCIAL STATEMENTS. The Company shall deliver to each
Series A investor. Series B Investor, Series C Investor, Series D Investor,
Intel, Series G Investor, Itochu and London (each, for the purposes of this
Section 2.1, an "INVESTOR"):
(a) as soon as practicable, but in any event within 90 days after
the end of each fiscal year of the Company, an income statement and statement
of cash flows for such fiscal year, a balance sheet of the Company, and a
statement of stockholder's equity as of the end of such year, such year-end
financial reports to be in reasonable detail, prepared in accordance with
generally accepted accounting principles ("GAAP"), and audited and certified
by independent public accountants selected by the Company;
(b) as soon as practicable, but in any event within 45 days after
the end of each of the first 3 quarters of each fiscal year of the Company,
an unaudited profit or loss statement, statement of cash flows for such
fiscal quarter and an unaudited balance sheet as of the end of such fiscal
quarter;
(c) only to Investors who hold more than 350,000 shares of
Registrable Securities, within 30 days of the end of each month, an unaudited
income statement, a statement of cash flows and an unaudited balance sheet
for and as of the end of such month, prepared internally, in reasonable
detail;
(d) only to Investors who hold more than 350,000 shares of
Registrable Securities, as soon as practicable, but in any event 90 days
after the end of each fiscal year, a budget for the then current fiscal year,
prepared on a monthly basis, including balance sheets and statements of cash
flows for such months;
10
(e) with respect to the financial statements called for in
subsections (b) and (c) of this Section 2.1, an instrument executed by the
Chief Financial Officer or President of the Company certifying that such
financials fairly present the financial condition of the Company and its
results of operation for the period specified, subject to year-end audit
adjustment.
2.2 TERMINATION AND ASSIGNMENT OF INFORMATION COVENANTS. The covenants
set forth in Section 2.1 shall terminate and be of no further force or effect
when the sale of securities pursuant to a registration statement filed by the
Company under the Act in connection with the firm commitment underwritten
offering of its securities to the general public is consummated or when the
Company first becomes subject to the periodic reporting requirements of
Sections 12(g) or 15(d) of the 1934 Act, whichever event shall first occur.
The information rights set forth in Section 2.1 may be assigned (but only
with all related obligations) by an Investor to a transferee or assignee of
Registrable Securities who, (a) after such assignment or transfer, holds at
least 350,000 shares of Registrable Securities (subject to appropriate
adjustment for stock splits, stock dividends, combinations and other
recapitalizations), and (b) is not a person or entity deemed by the Board of
Directors of the Company in its best judgment, to be a competitor or
potential competitor of the Company; 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 information 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. For the purposes of
determining the number of shares of Registrable Securities held by a
transferee or assignee, the holdings of transferees and assignees of a
partnership who are partners or retired partners of such partnership
(including spouses and ancestors, lineal descendants and siblings of such
partners or spouses who acquire Registrable Securities by gift, will or
interstate succession) shall be aggregated together and with the partnership.
2.3 RIGHT OF FIRST OFFER. Subject to the terms and conditions specified
in this Section 2.3, the company hereby grants to each Series A Investor,
each Series B Investor, Intel, each Series D Investor, each Series G
Investor, Itochu, London and Xxxxxxxxx a right of first offer with respect to
future sales by the Company of its Shares (as hereinafter defined). For
purposes of this Section 2.3, the term "INVESTOR" includes each Series A
Investor, each Series B Investor, Intel, each Series D Investor, each Series
G Investor, Itochu, London, Xxxxxxxxx, and any general or limited partners
and affiliates of any Series A Investor, any Series B Investor, Intel or any
Series D Investor. Each Series A Investor. each Series B Investor, Intel,
each Series D Investor shall be entitled to apportion the right of first
offer hereby granted to such Investor among itself and its general or limited
partners and affiliates in such proportions as such Investor 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:
11
(a) The Company shall deliver a written notice ("Notice") to the
Investors 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, if any,
upon which it proposes to offer such Shares.
(b) Within 20 calendar days after receipt 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 Common Stock issued and held, or
issuable upon conversion of the Debenture, Series A Preferred Stock, the
Series B Preferred Stock, the Series D Preferred Stock, the Series E
Preferred Stock, the Series F Preferred Stock, the Series G Preferred Stock
or the Series H Preferred Stock then held, by such Investor bears to the
total number of shares of Common Stock of the Company then outstanding
(assuming full conversion of all convertible securities). The Company shall
promptly, in writing, inform each Investor which purchases all the shares
available to it ("FULLY-EXERCISING INVESTOR") of any other Investor's failure
to do likewise. During the 5-day period commencing after delivery of such
information to such Fully-Exercising Investor(s), each Fully-Exercising
Investor shall be entitled to obtain that portion of the Shares not
subscribed for by the Investors which is equal to the proportion that the
number of shares of Common Stock issued and held, or issuable upon
conversion of the Debenture, Series A Preferred Stock, Series B Preferred
Stock, Series D Preferred Stock, Series E Preferred Stock, Series F Preferred
Stock, Series G Preferred Stock or Series H Preferred Stock, as the case may
be, then held, by such Fully-Exercising Investor bears to the total number of
shares of Common Stock issued and held, or issuable upon conversion of the
Debenture. Series A Preferred Stock, the Series B Preferred Stock, the Series
D Preferred Stock, the Series E Preferred Stock, the Series F Preferred
Stock, the Series G Preferred Stock or the Series H Preferred Stock, as the
case may be, then held, by all Fully-Exercising Investors who wish to
purchase some of the unsubscribed Shares.
(c) If all Shares which Investors are entitled to obtain pursuant to
subsection 2.3(b) are not elected to be obtained as provided in subsection
2.3(b) hereof, the Company may, during the 120-day period following the
expiration of the period provided in subsection 2.3(b) hereof, offer the
remaining unsubscribed portion of such 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 120 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 rights of first offer in this Section 2.3 shall not be
applicable:
(i) to the issuance or sale of shares of the Company's Common
Stock (or options therefor) to service providers for the primary purpose of
soliciting or retaining their services as approved by the vote or written
consent of a majority of the Board of Directors.
(ii) to consummation of a bona fide, firmly underwritten public
offering of shares of common stock, registered under the Act pursuant to a
registration statement on Form S-l;
(iii) to the issuance of securities pursuant to the conversion or
exercise of convertible or exercisable securities;
12
(iv) to securities of the Company issued pursuant to the
acquisition of (A) another corporation by the Company by merger or other
reorganization whereby the Company owns more than 50% of the voting power of
such other corporation, or (B) substantially all the assets of another
corporation;
(v) to the issuance of securities pursuant to transactions
involving technology licensing, research and development activities,
distribution or manufacture of the company's products, lease of equipment by
the Company, or any transactions with corporate partners, provided that each
of the foregoing transactions is primarily for non-equity financing purposes
and is approved by the Company's Board of Directors;
(vi) to shares of the Company's Common Stock or Preferred Stock
issued in connection with any stock split, stock dividend, recapitalization
and the like by the Company following approval by the Board of Directors; or
(vii) to the issuance of up to 255,000 shares of Common Stock to
service providers for services performed for the benefit of the Company,
which services were performed prior to the first issuance of the Series A
Preferred Stock.
(e) The rights of first offer in this Section 2.3 shall terminate
and be of no further force or effect when the sale of securities pursuant to
a registration statement filed by the Company under the Act in connection
with the firm commitment underwritten offering of its securities to the
general public is consummated or when the Company first becomes subject to
the periodic reporting requirements of Sections 12(g) or 15(d) of the 1934
Act, whichever shall first occur.
(f) The rights of first offer in this Section 2.3 and/or the right
to register Registrable Securities pursuant to this Agreement or to register
shares of Common Stock subject to registration rights pursuant to Section
1.2(b) ("1.2(b) SHARES") may be assigned (but only with all related
obligations) by any Series A Investor, any Series B Investor, Intel, any
Series D Investor, Xxxxxxxxx, any Series G Investor, ltochu or London to a
transferee or assignee from such person of Registrable Securities or Section
1.2(b) Shares who, (i) after such assignment or transfer, holds at least
350,000 shares of Registrable Securities or Section 1.2(b) Shares (subject in
each case to appropriate adjustment for stock splits, stock dividends,
combinations and other recapitalizations), and (ii) is not a person or entity
deemed by the Board of Directors of the Company in its best judgment, to be a
competitor or potential competitor of the Company; 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 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. For the purposes of determining the
number of Registrable Securities or Section 1.2 Shares held by a transferee
or assignee for the purposes of this Section 2.3(f), the holdings of
transferees and assignees of a partnership who are partners or retired
partners of such partnership (including spouses and ancestors, lineal
descendants and siblings of such partners or spouses who acquire Registrable
Securities or Section 1.2 Shares by gift, will or interstate succession)
shall be aggregated together and with the partnership.
13
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 shares of Registrable Securities or Section 1.2(b)
Shares). 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.
3.2 GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of California as applied to agreements among
California residents entered into and to be performed entirely within
California.
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
under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or
facsimile transmission to such party to the facsimile number for such party
on the signature page hereof (or, for parties not executing this Agreement,
the facsimile number of such party on the stock records of the Company) or
upon deposit with the United States Post Office, by registered or certified
mail, postage prepaid and addressed to the party to be notified at the
address indicated for such party on the signature page hereof (or, for
parties not executing this Agreement, the address of such party on the stock
records of the Company), or at such other facsimile number or address as such
party may designate by ten days' advance written notice to the other parties.
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 Registrable Securities then outstanding. Any amendment
or waiver effected in accordance with this paragraph shall be binding upon
each holder of any Registrable Securities then outstanding, each future
holder of all such Registrable Securities, and the Company.
3.8 SEVERABILITY. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and
14
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
COMPANY:
HYBRID NETWORKS, INC.
By: /s/ Xxxx X. Xxxxxxxxx
------------------------------------------
Xxxx X. Xxxxxxxxx, Chief Executive Officer
Address: 00000 Xxxx Xxxx
Xxxxxxxxx, XX 00000-0000
Facsimile Number: (000) 000-0000
INVESTORS:
---------------------------------------------
Xxxxxxxxx X. Xxxxxxxx
(Executing this Agreement as a Series A
Investor)
Address: 0000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Facsimile Number: (000) 000-0000
X.X. XXXX CO., INC.,
(executing this Agreement as a Series A
Investor, Series B Investor, Series D
Investor and Series G Investor
By:
------------------------------------------
Xxxxxx Xxxx, Xx.
Address: 000 Xxxx Xxxxxx Xxxx
X.X. Xxx 000
Xxxxxx, XX 00000-0000
Facsimile Number: (000) 000-0000
15
OSCCO III, L.P.
(executing this Agreement as a Series A
Investor, Series B Investor, Series D
Investor and Series G Investor)
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Xxxxxxx X. Xxxxxxx
Address: 0000 Xxxx Xxxx Xxxx 0-00
Xxxxx Xxxx, XX 00000
Facsimile Number: (000) 000-0000
/s/ Xxxx X. Xxxxxx
---------------------------------------------
Xxxx X. Xxxxxx
(Executing this Agreement as a Series B
Investor and as a Series G Investor)
Address: 00 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Facsimile Number: (000) 000-0000
AT&T VENTURE COMPANY, L.P.
(Executing this Agreement as a Series D
Investor and a Series G Investor)
By: AT&T Venture Partners
Its: General Partner
By: /s/ Company Officer
-------------------------------------
Its: General Partner
------------------------------------
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Facsimile Number: (000) 000-0000
16
SEQUOIA CAPITAL VI
(Executing this Agreement as a Series D
Investor and a Series G Investor)
By: /s/ Company Officer
------------------------------------------
Its:
-----------------------------------------
Address: 0000 Xxxx Xxxx Xxxx.
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Facsimile Number: (000) 000-0000
SEQUOIA TECHNOLOGY PARTNERS VI
(Executing this Agreement as a Series D
Investor and a Series G Investor)
By: /s/ Company Officer
------------------------------------------
Its:
-----------------------------------------
Address: 0000 Xxxx Xxxx Xxxx.
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Facsimile Number: (000) 000-0000
SEQUOIA 1995
(Executing this Agreement as a Series D
Investor and a Series G Investor)
By: /s/ Company Officer
------------------------------------------
Its:
-----------------------------------------
Address: 0000 Xxxx Xxxx Xxxx.
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Facsimile Number: (000) 000-0000
17
ACCEL IV L.P. ACCEL KEIRETSU L.P.
(Executing this Agreement as a Series (Executing this Agreement as a Series
D Investor and a Series G Investor) D Investor and a Series G Investor)
By: Accel IV Associates L.P. By: Accel Partners & Co., Inc.
Its: General Partner Its: General Partner
By: /s/ X. Xxxxxx Sednaoui By: /s/ X. Xxxxxx Sednaoui
----------------------------- -----------------------------
X. XXXXXX SEDNAOUI X. XXXXXX SEDNAOUI
Its: GENERAL PARTNER Its:
---------------------------- ----------------------------
CHIEF FINANCIAL OFFICER
Address: One Xxxxxx Square Address: Xxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Facsimile Number: (000) 000-0000 Facsimile Number: (000) 000-0000
ACCEL INVESTORS '95 X.X. XXXXXXX X. XXXXXXXXX PARTNERS
(Executing this Agreement as a Series (Executing this Agreement as a Series
D Investor and a Series G Investor) D Investor and a Series G Investor)
By: /s/ X. Xxxxxx Sednaoui By: /s/ Company Officer
----------------------------- -----------------------------
Its: GENERAL PARTNER Its: GENERAL PARTNER
---------------------------- ----------------------------
Address: One Xxxxxx Square Address: Xxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Facsimile Number: (000) 000-0000 Facsimile Number: (000) 000-0000
18
AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT
INTEL CORPORATION
By: /s/ Company Officer
------------------------------------------
Its:
-----------------------------------------
Address: 0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, XX 00000-0000
Facsimile Number: (000) 000-0000
/s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------------
Xxxxxx X. Xxxxxxxxx
Address: 00000 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Facsimile Number: (000) 000-0000
---------------------------------------------
Xxxxxxx X. Xxxxx
Address: 00000 Xxxx Xxxx
Xxxxxxxxx, XX 00000-0000
Facsimile Number: (000) 000-0000
ALEX. XXXXX & SONS INCORPORATED
By:
------------------------------------------
Xxxxxx X. Xxxxxxxx, Principal
Address: 000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Facsimile Number: (000) 000-0000
ITOCHU CORPORATION
By:
------------------------------------------
Its:
-----------------------------------------
Address: 5-1, Kita Aoyama 2 chome
Xxxxxx-xx, Xxxxxx 000-00
Xxxxx
Facsimile Number: 011 81-3 3497-3131
19
LONDON PACIFIC LIFE & ANNUITY COMPANY
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------------
Its: V.P. & Treasurer
-----------------------------------------
Address: 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Facsimile Number: (000) 000-0000
20
SCHEDULE A
HYBRID NETWORKS, INC.
SERIES A INVESTORS
Name # of Shares of Series A Preferred Stock
---- ---------------------------------------
Xxxxxxxxx X. Xxxxxxxx 63,090
X.X. Xxxx Co., Inc. 378,541
Xxxxxxx Xxx 25,236
Xxxxxxx X. Xxxxxxxxxx 63,090
Xxxxx Xxxxxx 25,236
Xxxxxx Xxxxxxxxxxx 63,090
The Cypress Fund
Xxxxxxxxx Xxxxxxx 63,090
Krivonos Fmly Lv Tst 50,472
XXX FBO Xxxxx Xxxxxx Neithold 62,926
OSCCO III, L.P. 752,404
TOTAL 1,547,175
SCHEDULE B
HYBRID NETWORKS, INC.
SERIES B PREFERRED INVESTORS
# of Shares of Series B Preferred Stock
---------------------------------------
Subject to Issuance on
Name Issued Exercise of Warrants
---- ------ -----------------------
Xxxx X. Xxxxxx 442,857 171,429
OSCCO III, L.P. 72,426 16,213
X.X. Xxxx Co., Inc. 36,438 18,219
Intel 248,187 --
TOTAL 799,908 205,861
SCHEDULE C
HYBRID NETWORKS, INC.
SERIES D INVESTORS
# of Shares of Series D Preferred Stock
----------------------------------------------
Subject to
Subject to Issuance Issuance on # of Shares
on Exercise of Exercise of of Series G # of
Issued Original Warrants New Warrants Preferred Stock* 1.2(b) Shares
------ ------------------- ------------ ---------------- -------------
AT&T Venture Company, L.P. 571,428 285,714 71,355 130,548 58,015
Sequoia Capital VI 1,040,001 520,000 129,866 237,598 105,587
Sequoia Technology Partners VI 57,143 28,572 7,136 13,055 5,802
Sequoia 1995 45,714 22,857 5,708 10,444 4,641
Accel Investors '95 L.P. 49,153 24,571 6,137 11,227 4,989
Accel IV L.P. 1,046,858 523,429 130,722 239,164 106,283
Accel Keiretsu L.P. 21,714 10,857 2,711 4,961 2,205
Xxxxxxx X. Xxxxxxxxx Partners 25,143 12,572 3,140 5,744 2,553
OSCCO III, L.P. 223,444 111,722 31,951 58,456 22,685
X.X. Xxxx Co., Inc. 112,414 56,207 18,587 34,007 11,413
Xxxxx Xxxxxx Niethold 7,000 3,500 874 1,599 710
Xxxx X. Xxxxxx -- -- 42,813 78,329 --
TOTALS 3,200,002 1,600,001 451,000 825,132 324,883
-------------------------
* Issued upon conversion of convertible notes at the closing of the sale
of shares of Series G Preferred Stock to the purchasers pursuant to
the Series G Agreement.
