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EXHIBIT 4.3
ABOVENET COMMUNICATIONS INC.
AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
SEPTEMBER 4, 1998
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TABLE OF CONTENTS
Page
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1. Registration Rights...................................................... 1
1.1 Definitions...................................................... 1
1.2 Request for Registration......................................... 2
1.3 Company Registration............................................. 4
1.4 Form S-3 Registration............................................ 5
1.5 Obligations of the Company....................................... 6
1.6 Information from Holder.......................................... 7
1.7 Expenses of Registration......................................... 7
1.8 Delay of Registration............................................ 8
1.9 Indemnification.................................................. 8
1.10 Reports Under Securities Exchange Act of 1934.................... 10
1.11 Assignment of Registration Rights................................ 10
1.12 "Market Stand-Off" Agreement..................................... 11
1.13 Termination of Registration Rights............................... 11
2. Covenants of the Company................................................. 11
2.1 Delivery of Financial Statements................................. 11
2.2 Inspection....................................................... 12
2.3 Termination of Information and Inspection Covenants.............. 12
2.4 Right of First Offer............................................. 12
2.5 Directors and Officers Liability Insurance....................... 13
2.6 Board Representation............................................. 13
2.7 Termination of Certain Covenants................................. 13
2.8 Proprietary Information and Inventions Agreement................. 14
2.9 Right to Participate in Initial Public Offering.................. 14
3. Miscellaneous............................................................ 14
3.1 Successors and Assigns........................................... 14
3.2 Governing Law.................................................... 14
3.3 Counterparts..................................................... 14
3.4 Titles and Subtitles............................................. 14
3.5 Notices.......................................................... 14
3.6 Expenses......................................................... 15
3.7 Entire Agreement: Amendments and Waivers......................... 15
3.8 Severability..................................................... 15
3.9 Aggregation of Stock............................................. 15
3.10 Additional Parties............................................... 15
3.11 Prior Agreement.................................................. 15
Schedule A Schedule of Investors
Schedule B Holders of Common Stock/Common Holders
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AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
THIS AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT is made as of
September 4, 1998, by and among AboveNet Communications Inc., a California
corporation (the "Company") the "Investors' Rights Agreement", the investors
listed on Schedule A hereto, each of which is herein referred to individually as
an "Investor" and collectively as the "Investors," and the holders of Common
Stock listed on Schedule B hereto, each of which is herein referred to
individually as a "Common Holder" and collectively as the "Common Holders".
RECITALS
WHEREAS, certain of the Investors (the "Prior Investors") possess certain
rights pursuant to that certain Investors' Rights Agreement (the "Prior
Agreement") dated as of July 15, 1998, by and among the Company, the Common
Holders and the Investors (as defined therein);
WHEREAS, certain of the Investors (the "Series E Investors") are purchasing
from the Company, and the Company is selling to such Investors, shares of the
Company's Series E Preferred Stock (the "Series E Preferred Stock"), pursuant to
the terms and conditions set forth in that certain Series E Preferred Stock
Purchase Agreement of even date herewith (the "Series E Agreement");
WHEREAS, in order to induce the Company to enter into the Series E
Agreement and to induce the Series E Investors to invest funds in the Company
pursuant to the Series E Agreement, the Company, the Prior Investors and the
Common Holders hereby agree to waive their rights under the Prior Agreement, and
the Investors, the Common Holders and the Company hereby agree that this
Agreement shall govern the rights of the Investors and the Common Holders to
cause the Company to register shares of Common Stock issued or issuable to such
persons, and certain other matters or set forth herein;
WHEREAS, the Company is considering an initial underwriting public offering
of it's common stock (the "IPO") and to facilitate such undertaking the
Investors wish to waive all registration rights and notice rights with respect
to the IPO provided the IPO closes by March 31, 1999; and
WHEREAS, the Series E Investors and the Company have agreed, pursuant to
the Series E Agreement, to enter into this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, the parties hereto hereby agree that the Prior Agreement shall be
superseded and replaced in its entirety by this Agreement, and the parties
hereto 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 "Act" means the Securities Act of 1933, as amended.
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(b) 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 SEC that permits inclusion or incorporation of substantial
information by reference to other documents filed by the Company with the SEC.
(c) 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; provided, however, that the Common Holders shall not be
deemed to be Holders for purposes of Section 1.2, 1.4 and 3.7.
(d) The term "Initial Offering" means the Company's first public
offering of its Common Stock under the Act in which all outstanding shares of
the Company's Preferred Stock convert into shares of the Company's Common Stock
pursuant to the Company's Amended and Restated Articles of Incorporation.
(e) The term "1934 Act" means the Securities Exchange Act of
1934, as amended.
(f) 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 Act, and the declaration or ordering of
effectiveness of such registration statement or document.
(g) The term "Registrable Securities" means (i) the Common Stock
issuable or issued upon conversion of the Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and Series E
Preferred Stock, (ii) the shares of Common Stock issued to the Common Holders as
of the date hereof and issuable upon the exercise of stock options granted as of
the date hereof or in the future; provided, however, that such shares of Common
Stock shall not be deemed Registrable Securities for the purposes of Section
1.2, 1.4 and 3.7, and (iii) 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, the shares referenced in (i) and (ii) above,
excluding in all cases, however, any Registrable Securities sold by a person in
a transaction in which his rights under this Section 1 are not assigned.
(h) The number of shares of "Registrable Securities" outstanding
shall be determined by the number of shares of Common Stock outstanding that
are, and the number of shares of Common Stock issuable pursuant to then
exercisable or convertible securities that are, Registrable Securities.
(i) The term "SEC" shall mean the Securities and Exchange
Commission.
1.2 Request for Registration.
(a) Subject to the conditions of this Section 1.2, if the Company
shall receive at any time after the earlier of (i) November 30, 2002, or (ii)
six (6) months after the effective date of the Initial Offering, a written
request from the Holders of at
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least a majority of the Registrable Securities then outstanding (the "Initiating
Holders") that the Company file a registration statement under the Act covering
the registration of at least fifty-one percent (51%) of the Registrable
Securities then outstanding or a lesser percent if the anticipated aggregate
offering price (net of underwriting discounts and commissions) would be at least
$10,000,000, then the Company shall, within twenty (20) days of the receipt
thereof, give written notice of such request to all Holders, and subject to the
limitations of this Section 1.2, use all reasonable efforts to effect, as soon
as practicable, the registration under the Act of all Registrable Securities
that the Holders request to be registered in a written request received by the
Company within twenty (20) days of the mailing of the Company's notice pursuant
to this Section 1.2(a).
(b) If the 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 Section 1.2(a). In such event the right of any Holder to
include its 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 enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwriting by a majority in interest of the Initiating Holders (which
underwriter or underwriters shall be reasonably acceptable to the Company).
Notwithstanding any other provision of this Section 1.2, if the underwriter
advises the Company that marketing factors require a limitation of the number of
securities underwritten (including Registrable Securities), then the Company
shall so advise all Holders of Registrable Securities that would otherwise be
underwritten pursuant hereto, and the number of shares that may be included in
the underwriting shall be allocated to the Holders of such Registrable
Securities on a pro rata basis based on the number of Registrable Securities
held by all such Holders (including the Initiating Holders). Any Registrable
Securities excluded or withdrawn from such underwriting shall be withdrawn from
the registration.
(c) The Company shall not be required to effect a registration
pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company
would be required to execute a general consent to service of process in
effecting such registration, unless the Company is already subject to service in
such jurisdiction and may be required under the Act; or
(ii) after the Company has effected two (2) registrations
pursuant to this Section 1.2, and such registrations have been declared or
ordered effective; or
(iii) during the period starting with the date sixty (60)
days prior to the Company's good faith estimate of the date of the filing of,
and ending on a date one hundred eighty (180) days following the effective date
of, a Company-initiated registration subject to Section 1.3 below, provided that
the Company is actively employing in good faith all reasonable efforts to cause
such registration statement to become effective and provided further
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that the Company may define the boundaries of such period not more than once in
any twelve (12)-month period; or
(iv) if the Initiating Holders propose to dispose of
Registrable Securities that may be registered on Form S-3 pursuant to a request
made under Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a
registration statement pursuant to this Section 1.2, a certificate signed by the
Company's President 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 shareholders for such registration statement to be effected at such time, in
which event the Company shall have the right to defer such filing for a period
of not more than one hundred twenty (120) days after receipt of the request of
the Initiating Holders, provided that such right to delay a request shall be
exercised by the Company not more than once in any twelve (12)-month period.
1.3 Company Registration.
(a) Subject to Section 1.3(d) below, if (but without any
obligation to do so) the Company proposes to register (including for this
purpose a registration effected by the Company for shareholders other than the
Holders) any of its stock or other securities under the Act in connection with
the public offering of such securities (other than a registration relating
solely to the sale of securities to participants in a Company stock plan, a
registration relating to corporate reorganization or other transaction under
Rule 145 of the Act, a registration on any form that 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 or a
registration in which the only Common Stock being registered is Common Stock
issuable upon conversion of debt securities that are also being registered), 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 1.3(c), use all
reasonable efforts to cause to be registered under the Act all of the
Registrable Securities that each such Holder has requested to be registered.
(b) The Company shall have the right to terminate or withdraw any
registration initiated by it under this Section 1.3 prior to the effectiveness
of such registration, whether or not any Holder has elected to include
securities in such registration. The expenses of such withdrawn registration
shall be borne by the Company in accordance with Section 1.7 hereof.
(c) In connection with any offering involving an underwriting of
shares of the Company's capital stock, the Company shall not be required under
this Section 1.3 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 enter into an underwriting agreement in customary
form with an underwriter or underwriters selected by the Company, and then only
in such quantity as the underwriters determine in their reasonable discretion
will not
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jeopardize the success of the offering by the Company. Subject to Section 1.3(d)
below, if the total amount of securities, including Registrable Securities,
requested by shareholders to be included in such offering exceeds the amount of
securities sold other than by the Company that the underwriters determine in
their reasonable 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, that the underwriters
determine in their reasonable discretion will not jeopardize the success of the
offering (the securities so included to be apportioned pro rata among the
selling Holders according to the total amount of securities entitled to be
included therein owned by each selling Holder or in such other proportions as
shall mutually be agreed to by such selling Holders) but in no event shall (i)
the amount of securities of the selling Holders included in the offering 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 selling Holders may be excluded
entirely if the underwriters make the determination described above and no other
shareholder's securities are included, or (ii) notwithstanding (i) above, any
shares being sold by a shareholder exercising a demand registration right
similar to that granted in Section 1.2 be excluded from such offering. For
purposes of the preceding parenthetical concerning apportionment, for any
selling shareholder that is a Holder of Registrable Securities and that is a
partnership, limited liability company or corporation, the partners, retired
partners, members and shareholders of such Holder, or the estates and family
members of any such partners, retired partners, and members and any trusts for
the benefit of any of the foregoing persons shall be deemed to be a single
"selling Holder," and any pro rata reduction with respect to such "selling
Holder" shall be based upon the aggregate amount of Registrable Securities owned
by all such related entities and individuals. Notwithstanding the foregoing, any
determination made by the underwriters for purposes of this section and in
connection with the Company's initial public offering, shall be made by the
underwriters in their full and complete discretion.
(d) The Investors agree to waive their registration rights and
notice rights contained in this Section 1.3 in connection with any IPO
undertaken by the Company which closes on or before March 31, 1999.
1.4 Form S-3 Registration. In case the Company shall receive from the
Holders of at least a majority 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 shall:
(a) promptly give written notice of the proposed registration,
and any related qualification or compliance, to all other Holders; and
(b) use all reasonable efforts to effect, as soon as practicable,
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 Holders' Registrable Securities as are specified in such
request, together with all or such portion of the Registrable Securities of any
other Holders joining in such request as are specified in a written request
given within fifteen (15) days after receipt of such written notice from the
Company,
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provided, however, that the Company shall not be obligated to effect any such
registration, qualification or compliance, pursuant to this Section 1.4:
(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 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 $5,000,000;
(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 shareholders for such Form S-3 Registration
to be effected at such time, in which event the Company shall have the right to
defer the filing of the Form S-3 registration statement for a period of not more
than 120 days after receipt of the request of the Holder or Holders under this
Section 1.4, provided, however, that the Company shall not utilize this right
more than once in any twelve (12) month period;
(iv) if the Company has, within the twelve (12)-month period
preceding the date of such request, already effected one (1) registration on
Form S-3 for the Holders pursuant to this Section 1.4; or
(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.
(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. Registrations effected pursuant to this
Section 1.4 shall not be counted as requests for registration effected pursuant
to Sections 1.2.
1.5 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:
(a) prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use all reasonable 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 of up to one hundred twenty
(120) days or, if earlier, until the distribution contemplated in the
Registration Statement has been completed;
(b) prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection with such
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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 all reasonable 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;
(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 or 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) 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; and
(h) provide a transfer agent and registrar for all Registrable
Securities registered hereunder and a CUSIP number for all such Registrable
Securities, in each case not later than the effective date of such registration.
1.6 Information from Holder. 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.
1.7 Expenses of Registration. All expenses other than underwriting
discounts and commissions incurred in connection with registrations, filings or
qualifications pursuant to Sections 1.2, 1.3 and 1.4, 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 shall
be borne by the Company. Notwithstanding the foregoing, the Company shall not be
required to pay for any expenses of any registration proceeding begun pursuant
to Section 1.2 or Section 1.4 if the registration request is subsequently
withdrawn at the request of the Holders of a majority of
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the Registrable Securities to be registered (in which case all participating
Holders shall bear such expenses pro rata based upon the number of Registrable
Securities that were to be registered in the withdrawn registration), unless, in
the case of a registration requested under Section 1.2, the Holders of a
majority of the Registrable Securities agree to forfeit their right to one
demand registration pursuant to Section 1.2.
1.8 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.
1.9 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, the partners or officers, directors and
shareholders of each Holder, legal counsel and accountants for 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 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 any state
securities laws, 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 laws or any rule or regulation promulgated under the Act, the
1934 Act or any state securities laws; and the Company will reimburse each such
Holder, underwriter or controlling person for 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 l.9(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
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, legal counsel and
accountants for the Company, 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 any state securities laws, insofar as such
losses, claims, damages, or liabilities (or actions in respect
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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 reimburse
any person intended to be indemnified pursuant to this subsection l.9(b), any
legal or other expenses reasonably incurred by in connection with investigating
or defending any such loss, claim, damage, liability, or action; provided,
however, that the indemnity agreement contained in this subsection l.9(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 l.9(b) exceed the net proceeds
from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 1.9 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 1.9, 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 materially prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party under
this Section 1.9, 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 1.9.
(d) If the indemnification provided for in this Section 1.9 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.
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(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
1.9 shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 1, and otherwise.
1.10 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, at all times after the effective
date of the Initial Offering;
(b) 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
(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 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.
1.11 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 that after such assignment or transfer, holds at
least 100,000 shares of Registrable Securities (subject to appropriate
adjustment for stock splits, stock dividends, combinations and other
recapitalizations), provided: (a) 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; (b) such transferee or assignee agrees
in writing to be bound by and subject to the terms and conditions of this
Agreement, including without limitation the provisions of Section 1.12 below;
and (c) 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.
10
13
1.12 "Market Stand-Off" Agreement. Each Holder hereby agrees that it
will not, without the prior written consent of the representatives of the
underwriters, during the period commencing on the date of the final prospectus
relating to the Company's initial public offering and ending on the date
specified by the Company and the representatives of the underwriters (such
period not to exceed one hundred eighty (180) days) (i) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock that such Holder owns immediately prior to the Company's initial public
offering or any securities convertible into or exercisable or exchangeable for
Common Stock that such Holder owns immediately prior to the Company's initial
public offering or (ii) enter into any swap or other arrangement that transfers
to another, in whole or in part, any of the economic consequences of ownership
of the Common Stock, whether any such transaction described in clause (i) or
(ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise; provided that all of the Company's officers,
directors and 5% shareholders are similarly bound. The underwriters in
connection with the Company's initial public offering are intended third party
beneficiaries of this Section 1.12 and shall have the right, power and authority
to enforce the provisions hereof as though they were a party hereto.
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.
1.13 Termination of Registration Rights. No Holder shall be entitled
to exercise any right provided for in this Section 1 after three (3) years
following the consummation of the Initial Offering or, as to any Holder, such
earlier time at which all Registrable Securities held by such Holder (and any
affiliate of the Holder with whom such Holder must aggregate its sales under
Rule 144) can be sold in any three (3)-month period without registration in
compliance with Rule 144 of the Act.
2. Covenants of the Company.
2.1 Delivery of Financial Statements. The Company shall deliver to
each Investor:
(a) as soon as practicable, but in any event within ninety (90)
days after the end of each fiscal year of the Company, an income statement for
such fiscal year, a balance sheet of the Company and statement of shareholder'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 accounting principles ("GAAP"), and audited
and certified by independent public accountants of nationally recognized
standing selected by the Company;
(b) so long as such Investor holds at least 500,000 shares of
Preferred Stock (either in the form of Series A, Series B, Series C, Series D or
Series E Preferred Stock or Common Stock issued upon conversion thereof, and as
adjusted for subsequent stock
11
14
splits, recontributions or reclassifications), 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 income statement,
statement of cash flows for such fiscal quarter and an unaudited balance sheet
for and as of the end of such fiscal quarter, in reasonable detail; and
(c) such other information relating to the financial condition,
business, prospects or corporate affairs of the Company as the Investor or any
assignee of the Investor may from time to time request, provided, however, that
the Company shall not be obligated under this subsection (c) or any other
subsection of Section 2.1 to provide information which it deems in good faith to
be a trade secret or similar confidential information.
2.2 Inspection. So long as such Investor holds at least 500,000 shares
of Preferred Stock (either in the form of Series A, Series B, Series C, Series D
or Series E Preferred Stock or Common Stock issued upon conversion thereof, and
as adjusted for subsequent stock splits, recontributions or reclassifications),
the Company shall permit each Investor, at such Investor's expense, to visit and
inspect the Company's properties, to examine its books of account and records
and to discuss the Company's affairs, finances and accounts with its officers,
all at such reasonable times as may be requested 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.
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 when the sale of securities pursuant to a registration
statement filed by the Company under the Act in connection with the 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.
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 a
right of first offer with respect to future sales by the Company of its Shares
(as hereinafter defined). An Investor shall be entitled to apportion the right
of first offer hereby granted it among itself and its partners, members and
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 by certified mail
("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) By written notification received by the Company, within
twenty (20) calendar days after giving 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 that equals
12
15
the proportion that the number of shares of Common Stock issued and held, or
issuable upon conversion of the Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock, Series D Preferred Stock and Series E 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, exercise and
exchange of all convertible, exercisable or exchangeable securities).
(c) If all Shares that Investors are entitled to obtain pursuant
to subsection 2.4(b) are not elected to be obtained as provided in subsection
2.4(b) hereof, the Company may, during the ninety (90) day period following the
expiration of the period provided in subsection 2.4(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 sixty (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 shares of Common Stock (or
options therefor) to employees or directors of or consultants to the Company for
the primary purpose of soliciting or retaining their services, (ii) to or after
consummation of a bona fide public offering of shares of Common Stock,
registered under the Act pursuant to a registration statement on Form S-1 or
SB-2, at an offering price of at least $5,000,000 in the aggregate, (iii) the
issuance of securities pursuant to the conversion, exercise or exchange of
convertible, exercisable or exchangeable securities, (iv) the issuance of
securities in connection with a bona fide business acquisition of or by the
Company, whether by merger, consolidation, sale of assets, sale or exchange of
stock or otherwise, (v) to the issuance or sale of shares of stock, warrants or
other securities or rights to persons or entities with which the Company has
business relationships, provided such issuances are for other than primarily
equity financing purposes, (vi) the issuance of additional shares of Series B
Preferred Stock, Series C Preferred Stock and Series D Preferred Stock, or (vii)
the issuance of Series E Preferred Stock pursuant to the terms of the Series E
Agreement.
2.5 Directors and Officers Liability Insurance. The Company shall
purchase a Directors and Officers liability insurance policy covering the
directors and officers of the Company in the amount of at least $1,000,000 and
will increase such coverage immediately prior to the consummation of the sale of
securities pursuant to a bona fide public offering of shares of its common
stock, registered under the Act, at an offering price of at least $5,000,000 in
the aggregate.
2.6 Board Representation So long as the holders of at least two-thirds
(2/3) of the shares of Series D Preferred Stock originally issued remain
outstanding, the Company shall use its best efforts to cause and maintain the
election to the Board of Directors of one (1) representative of the Series D
Preferred Stock, (the "Series D Representative"). The Series D Representative
shall be entitled to be a member of any compensation committee or executive
committee designated by the Board of Directors.
2.7 Termination of Certain Covenants. The covenants set forth in
Sections 2.4, 2.5, 2.6 and 2.8 shall terminate and be of no further force or
effect immediately
13
16
prior to the consummation of the sale of securities pursuant to a bona fide
public offering of shares of common stock, registered under the Act, at an
offering price of at least $5,000,000 in the aggregate.
2.8 Proprietary Information and Inventions Agreement. Unless otherwise
approved by the Company's Board of Directors, the Company shall require all
officers and employees to execute and deliver a Proprietary Information and
Inventions Agreement in the form previously approved by the Company's Board of
Directors.
2.9 Right to Participate in Initial Public Offering. In connection
with the Company's initial public offering (the "IPO"), the Company shall use
reasonable efforts to cause its managing underwriter or underwriters to offer
$5,000,000 of the shares (the "IPO Shares") of the Company's Common Stock to be
sold in the Company's initial public offering to Xxxxx Xxxxxx or its affiliates
on a pro rata basis on the same terms as such shares are being sold to the
public; provided, however, that in no event shall the IPO shares exceed ten
percent (10%) of the shares offered in the IPO and provided further that such
offer shall not be made if in the judgment of the Company's managing underwriter
or underwriters such offer would not be compatible with the success of the IPO.
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). 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 delivery by confirmed facsimile or delivery by nationally
recognized overnight courier service or personal delivery to the party to be
notified or 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 at such other
address as such party may designate by ten (10) days' advance written notice to
the other parties.
14
17
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 Entire Agreement: Amendments and Waivers. This Agreement
constitutes the full and entire understanding and agreement among the parties
with regard to the subjects hereof and thereof. 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; provided, however, that in the event
that such amendment or waiver adversely affects the obligations and/or rights of
the Common Holders in a different manner than the other Holders, such amendment
or waiver shall also require the written consent of the holders of a majority of
the shares of Common Stock held by the Common Holders. Any amendment or waiver
effected in accordance with this paragraph shall be binding upon each holder of
any Registrable Securities 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 the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
3.9 Aggregation of Stock. All shares of Registrable Securities held or
acquired by affiliated entities or persons shall be aggregated together for the
purpose of determining the availability of any rights under this Agreement.
3.10 Additional Parties. In the event of a subsequent closing with an
investor as provided for in Section 1.3 of the Series E Agreement, such investor
shall become a party to this Agreement as an "Investor" upon receipt from such
investor of a fully executed signature page hereto.
3.11 Prior Agreement. The Prior Agreement is hereby terminated and
superseded in its entirety and shall be of no further force or effect.
Notwithstanding the foregoing, it is expressly agreed and understood that this
Agreement shall not amend or modify in any respect any provisions of the Xxxxxx
Agreement (as defined in the Prior Agreement), except as specifically set forth
in the Prior Agreement.
15
18
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
ABOVENET COMMUNICATIONS INC.
By:_________________________________
Xxxxxxx Xxxx
Chief Executive Officer
Address: 00 X. Xxx Xxxxxxxx Xx.
Xxx Xxxx, Xxxxxxxxxx 00000
19
COMMON HOLDER:
------------------------------------
Xxxxxxx Xxxx
------------------------------------
Yu-Xxx Xxxxx
------------------------------------
Xxxxxx Xxxxx
------------------------------------
Xxxxxx Xxxx
------------------------------------
Xxxxx Xxxx
------------------------------------
Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx X. Xxxxxx
------------------------------------
Xxxx X. Xxxxxx
------------------------------------
Xxxxx XxXxxxx
------------------------------------
Alexis Geranois
SIGNATURE PAGE TO ABOVENET COMMUNICATION, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
20
------------------------------------
Xxxx Xxxxxxxx
------------------------------------
Xxxxx Xxxxx
------------------------------------
Xxxxxxx Xxx
------------------------------------
Xxxxx Xxxxxxxx
------------------------------------
Xxxxx Xxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxx
------------------------------------
Xxxx Xxxxxx
------------------------------------
Xxxxxxx Xxxxxx
------------------------------------
Xxxxx Xxxxxx
SIGNATURE PAGE TO ABOVENET COMMUNICATION, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
21
SERIES A PREFERRED STOCK HOLDERS:
------------------------------------
Xxxxx Xxxx
------------------------------------
Xxx Xxxx
------------------------------------
Xxxx X. Xxxx
------------------------------------
Xxxxx X. Xxxx
------------------------------------
Xxxxx Xxxx
------------------------------------
En-Xxx Xxxx
------------------------------------
Ta-Xxx Xxxx
------------------------------------
Yi-Xxxx Xxxxx
------------------------------------
Xxxxxxx Xxx
SIGNATURE PAGE TO ABOVENET COMMUNICATION, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
22
SERIES B PREFERRED STOCK HOLDERS:
XXXXX XXXX & XXX XX-XXX LIVING TRUST
------------------------------------
------------------------------------
Xxxx X. Xxxx
------------------------------------
Xxxxx X. Xxxx
------------------------------------
Xxxxx Te-Xxx Xxxx
------------------------------------
Xxxxxx Xxxx
------------------------------------
Xxxxx Xxxxx
------------------------------------
Xxxxxx Xx-Xx Xxxxx
TU-TING & TE-XXXX XXXXX LIVING TRUST
------------------------------------
------------------------------------
Xxxxx Xxxx
------------------------------------
Xxxxx Xxx
SIGNATURE PAGE TO ABOVENET COMMUNICATION, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
23
------------------------------------
Xxxxxxx Xxx
------------------------------------
Ta-Xxx Xxxx
------------------------------------
Yi-Xxxx Xxxxx
------------------------------------
Wen-Xxx Xxxxx
------------------------------------
Koulai Xxx
XXXXXXX W. & XXXXX X. SMALL 1988
LIVING TRUST
-----------------------------------
------------------------------------
Xxxxxxx X. Xxxxxx
------------------------------------
Xxxxx X. Small
------------------------------------
Xxxxx Xxxxxxx
------------------------------------
Xxxx Xxxxxxxxx
------------------------------------
Mei-Ya Xxxxx
SIGNATURE PAGE TO ABOVENET COMMUNICATION, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
24
------------------------------------
Hui-Lien Chuan
------------------------------------
Xxxxx Xxx Xx Xxxx
------------------------------------
Hui-Tzu Hu
SIGNATURE PAGE TO ABOVENET COMMUNICATION, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
25
SERIES C PREFERRED STOCK HOLDERS:
VIRTUOSO ENTERPRISE CORP.
-----------------------------------
------------------------------------
Hui-Tzu Hu
------------------------------------
Ching-Xxxx Xxxxx
------------------------------------
Yang-Xxxx Xxxx
------------------------------------
Pi-Xxx Xxx Chen
------------------------------------
Wan Xxxx Xxx
PROSPERITY CAPITAL HOLDINGS CORP.
-----------------------------------
TECHNOLOGY ASSOCIATES MANAGEMENT CO.
-----------------------------------
TECH GAINS CORP.
-----------------------------------
SIGNATURE PAGE TO ABOVENET COMMUNICATION, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
26
SCF INVESTMENTS
-----------------------------------
------------------------------------
Ram Xxxx Xxxxx
GREENFIELD TECHNOLOGY VENTURES
-----------------------------------
------------------------------------
Xxxxx Xxxxxxx
KG ASSOCIATES
-----------------------------------
------------------------------------
Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx X. Xxxxxx
SIGNATURE PAGE TO ABOVENET COMMUNICATION, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
27
SERIES D PREFERRED STOCK HOLDERS:
XXXXX XXXXXX CALIFORNIA SBIC, L.P.
By: Xxxxx Xxxxxx California SBIC General
Partner, L.P.,
its general partner
By: Xxxxx Xxxxxx Management SBIC, L.P.,
its general partner
By: __________________________________________
Xxxxx X. Xxxxx
Its: Chairman
Address: 00000 Xxx Xxxxxxx Xxxx.
Xxxxx 000
Xxx Xxxxxxx, XX 00000
ATTN: Xxx Xxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
PRIMUS TECHNOLOGY FUND
By: __________________________________________
Xxxxxxxx Xxxx
Title: Project Manager
Address: 16th Floor, 35, Sec. 0,
Xxx Xxxxx X. Xxxx
Xxxxxx, Xxxxxx, R.O.C.
ATTN: Xxxxxxxx Xxxx
Phone: 000-0-000-0000
Facsimile: 886-2-250-4367
TECHGAINS CORP.
SIGNATURE PAGE TO ABOVENET COMMUNICATION, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
28
By: __________________________________________
Xxxxxx Xxxx
Title: Managing Director
Address: 0000 Xxxxxx Xxxxx Xxxxx
Xxxxx, XX 00000
ATTN: Xxxxxx Xxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
SPRING CREEK INVESTMENT L.P.
By: __________________________________________
Xxxxx Sha
Title: _______________________________________
Address: 00 Xxxxxx Xxx
Xxxxxxx Xxxxxx, XX 00000
ATTN: Xxxxx Sha
Phone: (000) 000-0000
Facsimile: (000) 000-0000
KUMMEL INVESTMENTS LIMITED
SIGNATURE PAGE TO ABOVENET COMMUNICATION, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
29
By: __________________________________________
HO Xxxx Xxx
Title: Director
By: __________________________________________
XX Xxxx Xxx, Xxxxx
Title: Officer
Address: Suite 922C, Europort
Gibraltar
ATTN: Ho Xxxx Xxx
Phone: (+350) 73440
Facsimile: (+350) 73625
SILICON VALLEY EQUITY FUND LP
Its General Partner
Asia Tech Management LLC
By: __________________________________________
Xxxxxxxxx Xxx
Title: Managing Partner
Address: 0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx 000
Xxxxx Xxxxx, XX 00000
ATTN: Xxxxxxxxx Jen
Phone: (000) 000-0000
Facsimile: (000) 000-0000
SIGNATURE PAGE TO ABOVENET COMMUNICATION, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
30
TECHNOLOGY PARTNERS VENTURE CAPITAL CORP.
By: __________________________________________
Xxxx Xxx
Title: _______________________________________
Address: 2F-2, 000, Xxx-Xxx Xxxx,
Xxxxxxx, Xxxxxx
ATTN: Xxxx Xxx
Phone: 000-0-0000000
Facsimile: 886-3-5257930
HUI-TZU HU
______________________________________________
Address: x/x Xxx Xxx
X-Xxxx
0X, Xx. 000-0
Xxx-Xxxxx Xxxx Xxxx-Xxxx
Xxxxxx, Xxxxxx R.O.C.
ATTN: Hui-Tzu Hu
Phone: 000-0-0000-0000
Facsimile: 886-2-2914-6299
SIGNATURE PAGE TO ABOVENET COMMUNICATION, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
00
XXXXX XXXXXXX VENTURE FUND L.P.
Its General Partner
CDC North America Venture Management, L.D.C.
By: __________________________________________
Xxxxxxx Xxx
Title: Senior Director
Address: 0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, XX 00000
ATTN: Xxxxx X. Xxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
SIGNATURE PAGE TO ABOVENET COMMUNICATION, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
32
INVESTORS:
1400 Hill Capital
By: ___________________________
Name: ___________________________
Title: ___________________________
Address: ________________________
________________________
Telephone: ________________________
Facsimile: ________________________
SIGNATURE PAGE TO ABOVENET COMMUNICATION, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
33
Xxxxxxx Xxxxx Xxxx 1993 Trust
By: ________________________________
Xxxxxxx Xxxxx Xxxx, Trustee
Address: ________________________
________________________
Telephone: ________________________
Facsimile: ________________________
SIGNATURE PAGE TO ABOVENET COMMUNICATION, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
34
Boston Millenia Partners
By: ___________________________
Name: ___________________________
Title: ___________________________
Address: ________________________
________________________
Telephone: ________________________
Facsimile: ________________________
SIGNATURE PAGE TO ABOVENET COMMUNICATION, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
35
E*Trade
By: ___________________________
Name: ___________________________
Title: ___________________________
Address: ________________________
________________________
Telephone: ________________________
Facsimile: ________________________
SIGNATURE PAGE TO ABOVENET COMMUNICATION, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
36
J. & X. Xxxxxxxx
By: ___________________________
Name: ___________________________
Title: ___________________________
Address: ________________________
________________________
Telephone: ________________________
Facsimile: ________________________
SIGNATURE PAGE TO ABOVENET COMMUNICATION, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
37
Xxxxx Xxxxxx California SBIC, L.P.
By: ___________________________
Name: ___________________________
Title: ___________________________
Address: ________________________
________________________
Telephone: ________________________
Facsimile: ________________________
SIGNATURE PAGE TO ABOVENET COMMUNICATION, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
38
________________________
Xxxxxxx Xxxx
Address: ________________________
________________________
Telephone: ________________________
Facsimile: ________________________
SIGNATURE PAGE TO ABOVENET COMMUNICATION, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
39
Lodestone Capital
By: ___________________________
Name: ___________________________
Title: ___________________________
Address: ________________________
________________________
Telephone: ________________________
Facsimile: ________________________
SIGNATURE PAGE TO ABOVENET COMMUNICATION, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
40
NIF Ventures USA, Inc.
By: ___________________________
Name: ___________________________
Title: ___________________________
Address: ________________________
________________________
Telephone: ________________________
Facsimile: ________________________
SIGNATURE PAGE TO ABOVENET COMMUNICATION, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
41
Primus Technology Fund
By: ___________________________
Name: ___________________________
Title: ___________________________
Address: ________________________
________________________
Telephone: ________________________
Facsimile: ________________________
SIGNATURE PAGE TO ABOVENET COMMUNICATION, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
42
________________________
Xxxxxx Xxxxxx
Address: ________________________
________________________
Telephone: ________________________
Facsimile: ________________________
SIGNATURE PAGE TO ABOVENET COMMUNICATION, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
43
________________________
Xxxxxxx X. Xxxxxxxx
Address: ________________________
________________________
Telephone: ________________________
Facsimile: ________________________
SIGNATURE PAGE TO ABOVENET COMMUNICATION, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
44
SCHEDULE A
SCHEDULE OF INVESTORS
NUMBER OF TOTAL PURCHASE
NAME AND ADDRESS SHARES PURCHASED PRICE OF SHARES
---------------- ---------------- ---------------
45
SCHEDULE B
HOLDERS OF COMMON STOCK/ COMMON HOLDERS
NAME NUMBER OF SHARES PRICE PER SHARE
---- ---------------- ---------------
Xxxxxxx Xxxx 500,000 $ 0.01
Yu-Xxx Xxxxx 250,000 $ 0.01
Xxxxxx Xxxxx 62,500 $ 0.01
Xxxxxx Xxxx 30,000 $ 0.01
Xxxxx Xxxx 140,625 $ 0.01
Xxxxxx X. & Xxxxxx X. Xxxxxx 36,667 $ 0.05
Xxxxxx X. & Xxxxxx X. Xxxxxx 40,000 $ 0.10
Xxxxxx X. Xxxxxx 36,667 $ 0.05
Xxxxxx X. Xxxxxx 167,000 $ 0.10
Xxxxxx X. Xxxxxx 50,000 $ 0.10
Xxxxxx X. Xxxxxx 15,000 $ 0.10
Xxxx X. Xxxxxx 15,000 $ 0.10
Xxxxx XxXxxxx 2,000 $ 0.10
Alexis Geranois 1,000 $ 0.10
Xxxx Xxxxxxxx 2,000 $ 0.05
Xxxxx Xxxxx 1,732 $ 0.05
Xxxxxxx Xxx 125,000 $ 0.01
Xxxxx Xxxxxxxx 50,000 $ 0.10
Xxxxx Xxxxxxx 2,000 $ 0.05
Xxxxxxx Xxxxxx 208 $ 0.03
Xxxx Xxxxxx 10,000 $ 0.03
Xxxxxxx Xxxxxx 10,000 $ 0.03
Xxxxx Xxxxxx 625 $ 0.03
Xxxxx Xxxxxx 9,375 $ 0.10
---------
TOTAL: 1,557,399 ------
