ARCSIGHT, INC. AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT October 24, 2002
AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT
THIS AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT (the “Agreement”) is made as of
the 24th day of October, 2002, by and among ArcSight, Inc., a Delaware corporation (the
“Company”), the investors listed on
Schedule A hereto (each of which is herein referred to
as an “Investor”), Xxx Xxxxxxx (“Xxxxxxx”) and Xxxx Alpha Limited Partnership
(“Xxxx”).
RECITALS
WHEREAS, certain of the Investors (the “Existing Investors”) hold shares of the
Company’s Preferred Stock and/or shares of Common Stock issued upon conversion thereof (the
“Preferred Stock”) and possess registration rights, information rights, rights of first
offer and other rights pursuant to an Amended and Restated Investors’ Rights Agreement dated as of
October 3, 2002 by and among the Company, Xxxxxxx, Xxxx and such Existing Investors (the “Prior
Agreement”);
WHEREAS,
the Company has authorized 8,000,000 shares of Series C
Preferred Stock (the “Series
C Shares”) and the parties hereto desire that the Common Stock issuable upon conversion of the
Series C Shares be included as “Registrable Securities” hereunder and the holders thereof included
as “Holders” hereunder;
WHEREAS, the Prior Agreement may be amended, and any provision therein waived, with the
consent of (i) the Company, (ii) the Investors who hold 75% of the Registrable Securities and (iii)
the Major Investors who hold 75% of the Registrable Securities then
held by Major Investors (as all
such terms are defined in the Prior Agreement); and
WHEREAS, the parties hereto hold sufficient Registrable Securities to amend and restate the
Prior Agreement and to accept the rights created pursuant hereto in lieu of the rights granted to
them under the Prior Agreement on behalf of all parties thereto;
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parties hereto hereby agree that the Prior Agreement shall be superseded and replaced in its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.
(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;
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provided, however, that Xxxx shall not be deemed a Holder for purposes of Sections 1.12 and
3.7 and shall only be deemed a Holder for purposes of Sections 1.2 and 1.4 if Silicon Valley
Internet Capital, LLC (“SVIC”) is an Initiating Holder under such Sections (but shall
remain a Holder at all times for all other purposes hereunder).
(d) The term “Major Investor” shall mean an Investor (or valid assignee of an Investor
hereunder) that holds at least 6,000,000 shares of Registrable Securities (subject to appropriate
adjustment for stock splits, stock dividends, combinations and other recapitalizations). The term
“Major Investor” shall also, for purposes of Sections 2.1, 2.2 and 2.3 only, include
IN-Q-TEL, INC., a Delaware corporation (“IQT”), provided that IQT has become a party to
this Agreement pursuant to Section 3.8 hereof.
(e) The term “Initial Offering” means the Company’s first firm commitment underwritten
public offering of its Common Stock under the Act.
(f) The term “1934 Act” means the Securities Exchange Act of 1934, as amended.
(g) The terms “register,” “registered,” and “registration” refer to a
registration effected by preparing and filing a registration statement or similar document in
compliance with the Act, and the declaration or ordering of effectiveness of such registration
statement or document.
(h) The term “Preferred Stock” means the Company’s Series A Preferred Stock, Series B
Preferred Stock and Series C Preferred Stock, whether presently outstanding or hereinafter issued;
(i) The term “Registrable Securities” means (i) the Common Stock issuable or issued
upon conversion of the Preferred Stock, (ii) the 5,200,000 shares of Common Stock issued to Xxxxxxx
pursuant to an option held by him, (iii) the Common Stock held by Xxxx, (iv) the Common Stock
issuable or issued upon conversion of the Preferred Stock issuable or issued upon exercise of the
Warrant (assuming for this purpose only as if the Warrant is fully vested) and (iv) any Common
Stock of the Company issued as (or issuable upon the conversion or exercise of any warrant, right
or other security that is issued as) a dividend or other distribution with respect to, or in
exchange for, or in replacement of, the shares referenced in (i), (ii), (iii) and (iv) above,
excluding in all cases, however, any Registrable Securities sold by a stockholder in a transaction
in which such stockholder’s rights under this Section 1 are not assigned.
(j) The number of shares of “Registrable Securities” outstanding shall be determined
with respect to any provision herein 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 for the purposes of such provision.
(k) The
term “Rule 144” shall mean Rule 144 under the Act.
(l) The
term “Rule 144(k)” shall mean subsection (k) of Rule 144 under the Act.
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(m) The term “SEC” shall mean the U.S. Securities and Exchange Commission or any
successor thereto.
(n) The term “Warrant” shall mean the Warrant issued by the Company to IQT on November
1, 2002.
1.2 Request for Registration.
(a) Subject to the conditions of this Section 1.2, if the Company shall receive at any time
after six (6) months after the effective date of the Initial Offering, a written request from the
Holders of thirty percent (30%) or more of the Registrable Securities then outstanding (for
purposes of this Section 1.2, the “Initiating Holders”) that the Company file a
registration statement under the Act covering the registration of Registrable Securities with an
anticipated aggregate offering price of at least $5,000,000, 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 its best 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 of nationally recognized standing).
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). In no event shall any Registrable Securities be excluded from such
underwriting unless all other securities are first excluded. 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
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the Company is already subject to service in such jurisdiction and except as 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 ninety (90) days prior to the Company’s good
faith estimate of the date of the filing of, and ending on a date ninety (90) 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 commercially reasonable efforts to cause such
registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be
registered on Form S-3 pursuant to 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 Chief Executive Officer or Chairman of the
Board stating that in the good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its stockholders for such registration statement to be
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 eighty (180) days after receipt of the request of the
Initiating Holders, provided that such right shall be exercised by the Company not more than once
in any twelve (12)-month period.
1.3 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 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 of participants in
a Company stock plan, a registration relating to a corporate reorganization or transaction under
Rule 145 of the Act, 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 commercially 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) Right to Terminate Registration. 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) Underwriting Requirements. In connection with any offering involving an
underwriting of shares of the Company’s capital stock, the Company shall not be required under
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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 such 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, that the underwriters determine in their sole
discretion will not jeopardize the success of the offering. In no event shall any Registrable
Securities be excluded from such offering unless all other stockholders’ securities are first
excluded. In the event that the underwriters determine that less than all of the Registrable
Securities requested to be registered can be included in such offering, then the Registrable
Securities that are included in such offering shall be apportioned pro rata among the selling
Holders based on the number of Registrable Securities held by all selling Holders or in such other
proportions as shall mutually be agreed to by all such selling Holders. Notwithstanding the
foregoing, in no event shall the amount of securities of the selling Holders included in the
offering be reduced below thirty percent (30%) 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 if the underwriters make the determination described above
and no other stockholder’s securities are included. For purposes of the preceding sentence
concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities
and that is a venture capital fund, partnership, limited liability company (an “LLC”),
trust or corporation, the affiliated venture capital funds, partners, retired partners,
beneficiaries, members, retired members and stockholders of such Holder, or the estates and family
members of any such partners, retired partners, members, retired members, beneficiaries and
stockholders 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.
1.4 Form S-3 Registration. In case the Company shall receive from the Holders of at
least twenty percent (20%) of the Registrable Securities (for purposes of this Section 1.4, the
“Initiating Holders”) 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 commercially 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 Holders requesting a registration statement pursuant to
this Section 1.4, a certificate signed by the Company’s Chief Executive Officer or Chairman of the
Board stating that in the good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its stockholders for such registration statement to be
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 eighty (180) days after receipt of the request of the
Initiating Holders, provided that such right shall be exercised by the Company not 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 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) 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 1.4 and the Company shall include such information in the written
notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such
request (with the substitution of Section 1.4 for references to Section 1.2).
(d) 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 Initiating Holders. Registrations effected pursuant
to this Section 1.4 shall not be counted as requests for registration effected pursuant to Section
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 commercially 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
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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 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 commercially 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 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) cause all such Registrable Securities registered pursuant to this Section 1 to be listed
on a national exchange or trading system and on each securities exchange and trading system on
which similar securities issued by the Company are then listed; and
(h) provide a transfer agent and registrar for all Registrable Securities registered pursuant
hereunder and a CUSIP number for all such Registrable Securities, in each case not later than the
effective date of such registration.
Notwithstanding the provisions of this Section 1, the Company shall be entitled to postpone or
suspend, for a reasonable period of time, the filing, effectiveness or use of, or trading under,
any registration statement if the Company shall determine that any such filing or the sale of any
securities pursuant to such registration statement would:
(i) in the good faith judgment of the Board of Directors of the Company, materially impede,
delay or interfere with any material pending or proposed financing, acquisition, corporate
reorganization or other similar transaction involving the Company for which the Board of Directors
of the Company has authorized negotiations;
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(ii) in the good faith judgment of the Board of Directors of the Company, materially adversely
impair the consummation of any pending or proposed material offering or sale of any class of
securities by the Company; or
(iii) in the good faith judgment of the Board of Directors of the Company, require disclosure
of material nonpublic information that, if disclosed at such time, would be materially harmful to
the interests of the Company and its stockholders; provided, however, that during
any such period all executive officers and directors of the Company are also prohibited from
selling securities of the Company (or any security of any of the Company’s subsidiaries or
affiliates).
In the event of the suspension of effectiveness of any registration statement pursuant to this
Section 1.5, the applicable time period during which such registration statement is to remain
effective shall be extended by that number of days equal to the number of days during which the
effectiveness of such registration statement was suspended.
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 reasonably 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 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 included 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 and provided, however, that if at the time of such withdrawal,
the Holders have learned of a material adverse change in the condition, business, or prospects of
the Company from that known to the Holders at the time of their request and have withdrawn the
request with reasonable promptness following disclosure by the Company of such material adverse
change, then the Holders shall not be required to pay any of such expenses and shall retain their
rights pursuant to Section 1.2 or 1.4.
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.
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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, members, trustees, officers, directors and stockholders 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, any state securities laws or any rule or regulation
promulgated under the Act, the 1934 Act or any state securities 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 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, controlling
person or other aforementioned 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 as
such expenses are incurred; provided, however, that the Company shall not 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 that occurs in reliance upon and in conformity with written information
furnished expressly for use in connection with such registration by any such Holder, underwriter,
controlling person or other aforementioned person; provided further, however, that the foregoing
indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of
any Holder or underwriter or other aforementioned person, or any person controlling such Holder or
underwriter, from whom the person asserting any such losses, claims, damages or liabilities
purchased shares in the offering, if a copy of the most current prospectus was not sent or given by
or on behalf of such Holder or underwriter or other aforementioned person to such person, if
required by law so to have been delivered, at or prior to the written confirmation of the sale of
the shares to such person, and if the prospectus (as so amended or supplemented) would have cured
the defect giving rise to such loss, claim, damage or liability.
(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, 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, any
state securities laws or any rule or regulation promulgated under the Act, the 1934 Act or any
state securities laws, 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
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use in connection with such registration; and each such Holder will reimburse any person
intended to be indemnified pursuant to this subsection 1.9(b) for any legal or other expenses
reasonably incurred by such person in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred.
(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 that 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 liability to the indemnified party under this Section 1.9 to the extent
of such prejudice, 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 herein, 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 1.9 shall survive the
completion of any offering of Registrable Securities in a registration statement under this Section
1, and otherwise.
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1.10 Reports Under the 1934 Act. With a view to making available to the Holders the
benefits of Rule 144 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
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 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 that 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 (i) is a subsidiary,
parent, partner, limited partner, retired partner, member, retired member, stockholder or affiliate
(as such term is defined in Rule 12b-2 of the Securities Act of 1934) of a Holder, (ii) after such
assignment or transfer, holds at least 1,560,598 shares of Registrable Securities (subject to
appropriate adjustment for stock splits, stock dividends, combinations and other recapitalizations)
or (iii) in the case of the Registrable Securities held by Xxxxxxx, the transferee is Xxxxxxx
Xxxxxxx Xxxxxxxx & Xxxxx (“KPCB”) or a permitted transferee of KPCB under this Section
1.11, 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 1.13 below; (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; and (d) such transferee is not a competitor
of the Company (such determination to be made, if at all, in good faith by the Board of Directors
of the Company).
1.12 Limitations on Subsequent Registration Rights. Except as provided in Section 3.8
herein pursuant to which purchasers of Series C Shares (or options, warrants or other rights to
acquire Series C Shares) may become party to this Agreement, from and after the date of this
Agreement, the Company shall not, without the prior written consent of the Holders of a majority of
the Registrable Securities, enter into any agreement with any holder or prospective holder of any
securities of the Company that would allow such holder or prospective holder (a) to include
11
such securities in any registration filed under Section 1.2, Section 1.3 or Section 1.4
hereof, unless under the terms of such agreement, such holder or prospective holder may include
such securities in any such registration only to the extent that the inclusion of such securities
will not reduce the amount of the Registrable Securities of the Holders that are included or (b) to
demand registration of their securities. If, after the date hereof, (1) a majority of the Board of
Directors approves the grant of registration rights substantially identical to the registration
rights contained in this Section 1 to a person (a “Future Party”) in connection with Common
Stock (or stock or other securities convertible into or exerciseable for, either directly or
indirectly, Common Stock) then held or issuable to such Future Party and (2) the Company receives
the written consent of the Holders of a majority of the Registrable Securities related to the grant
of registration rights to such Future Party, then such Future Party shall become a party hereto and
be included within the definition of “Holder” hereof and the Common Stock issued or issuable,
directly or indirectly, to such party shall, to the extent and amounts approved, be included within
the definition of “Registrable Securities” upon the execution of a counterpart signature page
hereto by such Future Party.
1.13 “Market Stand-Off” Agreement. The Holders hereby agree that it will not, without
the prior written consent of the managing underwriter, during the period commencing on the date of
the final prospectus relating to the Company’s Initial Offering and ending on the date specified by
the Company and the managing underwriter (such period not to exceed one hundred eighty (180) days)
(i) lend, 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 or any securities
convertible into or exercisable or exchangeable for Common Stock (whether such shares or any such
securities are then owned by the Holder or are thereafter acquired), 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.
The foregoing provisions of this Section 1.13 shall apply only to the Company’s initial public
offering of equity securities and the first public offering of equity securities, if any, made
within one year of such initial public offering, shall not apply to the sale of any shares to an
underwriter pursuant to an underwriting agreement, to any shares purchased in the public offering
and to any shares purchased in the open market following the public offering and shall only be
applicable to the Holders if all officers and directors and greater than one percent (1%)
stockholders of the Company enter into similar agreements. The underwriters in connection with the
Company’s Initial Offering are intended third party beneficiaries of this Section 1.13 and shall
have the right, power and authority to enforce the provisions hereof as though they were a party
hereto. The Holders each further agree to execute such agreements as may be reasonably requested
by the underwriters in the Company’s Initial Offering that are consistent with this Section 1.13 or
that are necessary to give further effect thereto.
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.
1.14 Termination of Registration Rights. No Holder shall be entitled to exercise any
right provided for in this Section 1 (i) after five (5) years following the consummation of the
12
Initial Offering or (ii) as to any Holder, such earlier time after the Initial Offering at
which such Holder (A) can sell all shares held by it in compliance with Rule 144(k) or (B) holds
one percent (1%) or less of the Company’s outstanding Common Stock (including Common Stock issuable
upon conversion of any convertible security) and all Registrable Securities held by such Holder
(together with 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.
2. Covenants of the Company.
2.1 Delivery of Financial Statements. The Company shall deliver to each Major
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 stockholders’ 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) 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 as of the end of
such fiscal quarter;
(c) within thirty (30) days of the end of each month, an unaudited income statement and
statement of cash flows and balance sheet for and as of the end of such month, in reasonable
detail; and
(d) as soon as practicable, but in any event at least thirty (30) days prior to the end of
each fiscal year, a budget for the next fiscal year, prepared on a monthly basis, including balance
sheets, income statements and statements of cash flows for such months and, as soon as prepared,
any other budgets or revised budgets prepared by the Company.
2.2 Inspection. The Company shall permit each Major Investor, upon reasonable notice
from such Major Investor and at such Major 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
Major Investor; provided, however, that the Company shall not be obligated pursuant to this Section
2.2 to provide access to any information that 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 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.
13
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). Each time the Company proposes
to offer any shares of, or securities convertible into or exchangeable 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 in accordance with Section 3.5
(“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 upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty (20) calendar days after
receipt of the Notice, each 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 the proportion that the
number of shares of Registrable Securities issued and held by such Investor bears to the total
number of shares of Common Stock of the Company then outstanding (assuming full conversion and
exercise of all convertible and exercisable securities then outstanding).
(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
that, 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 to (i) the issuance
or sale of up to 21,280,299 shares of Common Stock (or options therefor) to employees, directors,
consultants and other service providers for the primary purpose of soliciting or retaining their
services pursuant to plans or agreements approved by the Company’s Board of Directors, such number
to be subject to increase upon approval by the Board of Directors, including the approval from at
least one Series A Director and at least one Series B Director (as such terms are defined in the
Company’s Restated Certificate of Incorporation (the “Restated Certificate”)); (ii) the
issuance of securities pursuant to a bona fide, firmly underwritten public offering of shares of
Common Stock, registered under the Act, (iii) the issuance of securities pursuant to the conversion
or exercise of convertible or exercisable 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, the terms of which are approved by the Board of
Directors of the Company, (v) the issuance and sale of Series B Preferred Stock pursuant to the
Series B Preferred Stock Purchase Agreement (the “Series B Agreement”), (vi) the issuance
of warrants to purchase shares of Series B Preferred Stock issued pursuant to Section 6.8 of the
Series B Agreement, (vii) the issuance of stock, warrants or other securities or rights to persons
or entities approved by the Company’s Board of
14
Directors, including the approval from at least one Series B Director and at least one Series
A Director, with which the Company has business relationships, provided such issuances are for
other than primarily equity financing purposes, (viii) the issuance of securities pursuant to that
certain Letter Agreement dated May 17, 2001 by and between the Company and SVIC, as amended, (ix)
the issuance of 3,142,454 shares of capital stock issued to Xxxx Alpha Limited Partnership, (x) the
issuance of a warrant to purchase up to 25,185 shares of capital stock and the shares of capital
stock issuable upon exercise of such warrant issued to Alexander Enterprise Holdings Corp, (xi) the
sale and issuance of Series C Preferred Stock pursuant to the Series C Preferred Stock Purchase
Agreement or (xii) the issuance of a warrant to IQT to purchase up to 4,941,894 shares of Series C
Preferred Stock and the shares of Series C Preferred Stock issuable upon exercise of such warrant.
In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable
with respect to any Investor and any subsequent offering of Shares if (i) at the time of such
offering, the Investor is not an “accredited investor,” as that term is then defined in Rule 501(a)
of the Act and (ii) such offering of Shares is otherwise being offered only to accredited
investors.
(e) The rights provided in this Section 2.4 may not be assigned or transferred by any
Investor; provided, however, that an Investor that is a venture capital fund may assign or transfer
such rights to an affiliated venture capital fund, an Investor that is a limited liability company
may assign or transfer such rights to its members or retired members, Xxxxxxx may assign or
transfer such rights to KPCB and SVIC may assign or transfer such rights to Alexander Enterprise
Holdings Corp. and/or SVIC Investors I, LLC.
(f) The covenants set forth in this Section 2.4 shall terminate and be of no further force or
effect upon the consummation of the sale of securities pursuant to a bona fide, firmly underwritten
public offering of shares of common stock registered under the Act.
2.5 Proprietary Information and Inventions Agreements. The Company shall require all
employees and consultants with access to confidential information to execute and deliver a
Proprietary Information and Inventions Agreement in substantially the form approved by the
Company’s Board of Directors.
2.6 Employee Agreements. Unless approved by the Board of Directors of the Company,
including at least one designee of KPCB for so long as KPCB is entitled to at least one designee on
the Company’s Board of Directors, all employees of the Company receiving grants of options or other
securities of the Company following the date hereof shall be required to execute stock purchase or
option agreements with respect to such options or other securities providing for (i) vesting of
shares over a four-year period with the first 25% of such shares vesting following twelve (12)
months of continued employment or services, and the remaining shares vesting in equal monthly
installments over the following 36 months thereafter (without any provision for the acceleration of
such vesting, except for discretionary acceleration provisions provided for in the Company’s option
plans) and (ii) a 180-day lockup period in connection with the Company’s initial public offering.
The Company shall retain a right of first refusal on transfers until the Company’s initial public
offering and the right to repurchase unvested shares at cost.
15
2.7 Termination of Certain Covenants. The covenants set forth in Sections 2.5 and 2.6
shall terminate and be of no further force or effect upon the consummation of the sale of
securities pursuant to a bona fide, firmly underwritten public offering of shares of common stock
registered under the Act.
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. All notices and other communications given or made pursuant hereto shall
be in writing and shall be deemed effectively given: (i) upon personal delivery to the party to be
notified, (ii) when sent by confirmed electronic mail or facsimile if sent during normal business
hours of the recipient; if not, then on the next business day, (iii) five (5) days after having
been sent by registered or certified mail, return receipt requested, postage prepaid, or (iv) one
(1) day after deposit with a nationally recognized overnight courier, specifying next day delivery,
with written verification of receipt. All communications shall be sent to the respective parties
at the addresses set forth on the signature pages attached hereto (or at such other addresses as
shall be specified by notice given in accordance with this Section 3.5).
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 (including the Exhibits
hereto, if any) constitutes the full and entire understanding and agreement among the parties with
regard to the subjects hereof and thereof. Any term of this Agreement (other than Section 2.1,
Section 2.2 and Section 2.3) 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 75% of the Registrable Securities.
The provisions of Section 2.1, Section 2.2 and Section 2.3 may be amended or waived (either
generally or in a particular instance and either retroactively or
16
prospectively) only with the written consent of the Company and the Holders of 75% of the
Registrable Securities that are held by Major Investors. 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. Notwithstanding anything
to the contrary in this Section 3.7, neither this Agreement nor any provision hereof shall be
amended or waived to the detriment of Xxxx vis-à-vis Silicon Valley Internet Capital, LLC
(“SVIC”) or an SVIC Affiliate, without the prior written consent of Xxxx (“SVIC
Affiliate” is herein defined as a person or entity controlled by, controlling or under common
control with, SVIC or a person or entity controlled by, controlling or under common control with,
such person or entity. For the avoidance of all doubt, Xxxxxx Xxxx is not an SVIC Affiliate). For
the avoidance of all doubt, an amendment of this Agreement or any provision hereof that maintains
the registration rights as currently provided to SVIC and Xxxx shall not be considered to be to the
detriment of Xxxx vis-à-vis SVIC.
3.8 Subsequent Investors. At such time as the Company shall duly and validly issue
Series C Shares (or options, warrants or other rights to acquire Series C Shares) to one or more
third parties approved by the Board of Directors of the Company (a “Series C Holder”), each
such Series C Holder may become a party to this Agreement without the need for any additional
consent, approval, signature or other action of any party hereto by executing a counterpart
signature page to this Agreement, in the form attached hereto as Exhibit A, indicating such
Series C Holder’s agreement to become bound by the provisions hereof and to accept the rights and
obligations hereunder (upon the Company’s receipt of such signature page, such person shall be a
“Subsequent Investor”). A Subsequent Investor shall
be deemed an “Investor” under this
Agreement for any and all purposes and shall be added to Schedule A hereto as such.
3.9 Severability. If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provision(s) shall be excluded from this Agreement and the
balance of the Agreement shall be interpreted as if such provision(s) were so excluded and shall be
enforceable in accordance with its terms.
3.10 Aggregation of Stock. All shares of Registrable Securities held or acquired by
affiliated entities (including, without limitation, affiliated venture capital funds) or persons
shall be aggregated together for the purpose of determining the availability of any rights under
this Agreement.
17
IN WITNESS WHEREOF, the parties have executed this Investors’ Rights Agreement as of the date
first above written.
| ARCSIGHT, INC. | ||||
By: |
/s/ Xxxxxx Xxxx | |||
Name:
|
Xxxxxx Xxxx | |||
Title:
|
President and Chief Executive Officer | |||
Address:
|
0000 Xxxxx Xxxx Xxxxxx | |||
| Xxxxxxxxx, XX 00000 | ||||
Phone:
|
(000) 000-0000 | |||
Fax:
|
(000) 000-0000 | |||
| XXX XXXXXXX | ||||||
| By: | /s/ Xxx Xxxxxxx | |||||
| Name: | ||||||
| Address: | 0000 Xxxx Xxxx Xxxx | |||||
| Xxxxx Xxxx, XX 00000 | ||||||
| Phone: | (000) 000-0000 | |||||
| Fax: | (000) 000-0000 | |||||
| INVESTOR | ||||||
| KPCB HOLDINGS, INC., as nominee | ||||||
| By: | /s/ Xxx Xxxxxxx | |||||
| Title: | ||||||
| Address: | 0000 Xxxx Xxxx Xxxx | |||||
| Xxxxx Xxxx, XX 00000 | ||||||
| Phone: | (000) 000-0000 | |||||
| Fax: | (000) 000-0000 | |||||
| INVESTOR | ||||||
| INTEGRAL CAPITAL PARTNERS V, L.P. | ||||||
| By Integral Capital Management V, LLC its General Partner |
||||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||||
| Name: | ||||||
| Title: | a Manager | |||||
| INTEGRAL CAPITAL PARTNERS V SIDE FUND, L.P. | ||||||
| By ICP Management V, LLC its General Partner | ||||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||||
| Name: | Xxxxxx X. Xxxxxxx | |||||
| Title: | a Manager | |||||
| INTEGRAL CAPITAL PARTNERS V SIDE FUND SLP, LLC | ||||||
| By ICP Management V, LLC its Manager | ||||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||||
| Name: | Xxxxxx X. Xxxxxxx | |||||
| Title: | a Manager | |||||
| Address: | 0000 Xxxx Xxxx Xxxx | |||||
| Xxxxx Xxxx, XX 00000 | ||||||
| Phone: | (000) 000-0000 | |||||
| Fax: | (000) 000-0000 | |||||
| INVESTOR | ||||||
| SILICON VALLEY INTERNET CAPITAL, LLC | ||||||
| By: | /s/ Xxxxxxxxx X. Xxxx | |||||
| Name: | ||||||
| Title: | Executive Vice President | |||||
| Address: | 000 Xxxxxxxxxx Xxxxxx | |||||
| Xxxx Xxxx, XX 00000 | ||||||
| Phone: | (000) 000-0000 | |||||
| Fax: | (000) 000-0000 | |||||
| INVESTOR | ||||||
| INSTITUTIONAL VENTURE PARTNERS X, L.P. | ||||||
| By: | /s/ Xxxxxx X. Xxxxxxxxx | |||||
| Name: | ||||||
| Title: | Managing Director | |||||
| Address: | c/o Institutional Venture Partners | |||||
| 0000 Xxxx Xxxx Xxxx | ||||||
| Xxxxxxxx Xxx, Xxxxx 000 | ||||||
| Xxxxx Xxxx, XX 00000 | ||||||
| INVESTOR | ||||||
| INSTITUTIONAL VENTURE PARTNERS X, GmbH & Co. Beteiligungs KG. | ||||||
| By: | /s/ Xxxxxx X. Xxxxxxxxx | |||||
| Name: | ||||||
| Title: | Managing Director | |||||
| Address: | c/o Institutional Venture Partners | |||||
| 0000 Xxxx Xxxx Xxxx | ||||||
| Xxxxxxxx Xxx, Xxxxx 000 | ||||||
| Xxxxx Xxxx, XX 00000 | ||||||
| INVESTOR | ||||||
| PRESIDIO VENTURE PARTNERS LLC | ||||||
| By: | /s/ Xxxxxxxx Xxxxx | |||||
| Name: | ||||||
| Title: | President and Chief Executive Officer | |||||
| Address: | 0000 Xx Xxxxxx Xxxx, Xxxxx X00 | |||||
| Xxx Xxxxx, XX 00000 | ||||||
| Phone: | (000) 000-0000 | |||||
| Fax: | (000) 000-0000 | |||||
| INVESTOR | ||||||
| SUMITOMO CORPORATION | ||||||
| By: | /s/ Xxxxxx Xxxxx | |||||
| Name: | ||||||
| Title: | General Manager | |||||
| Network Systems Department | ||||||
| Address: | 0-0-00 Xxxxxx | |||||
| Xxxx-xx, Xxxxx 000-0000 | ||||||
| Phone: | 00-0-0000-0000 | |||||
| Fax: | 00-0-0000-0000 | |||||
| INVESTOR | ||||||
| G&H PARTNERS | ||||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||||
| Address: | 000 Xxxxxxxxxxxx Xxxxx | |||||
| Xxxxx Xxxx, XX 00000 | ||||||
| Phone: | (000) 000-0000 | |||||
| Fax: | (000) 000-0000 | |||||
SCHEDULE A
LIST OF INVESTORS
KPCB Holdings, Inc., as nominee
Integral Capital Partners V, L.P.
Integral Capital Partners V Side Fund, L.P.
Integral Capital Partners V Side Fund SLP, LLC
Silicon Valley Internet Capital, LLC
SVIC Investors I, LLC
Alexander Enterprise Holdings Corp.
Institutional Venture Partners X, L.P.
Institutional Venture Partners X, GmbH & Co. Beteiligungs KG
Presidio Venture Partners LLC
Sumitomo Corporation
G&H Partners
Exhibit A
Counterpart Signature Page
[See next page.]
IN WITNESS WHEREOF, in connection with the undersigned’s purchase of shares of Series C
Preferred Stock of the Company (or options, warrants or other rights to acquire the same) the
undersigned has executed this counterpart signature page to the Amended and Restated Investors’
Rights Agreement of ArcSight, Inc. dated October 24, 2002 (the “Agreement”) pursuant to
Section 3.8 of the Agreement as of the date written below. The undersigned hereby acknowledges and
agrees to be bound by the provisions of the Agreement and to accept the rights and obligations
thereunder.
| Dated: November 1, 2002 | SUBSEQUENT INVESTOR | |||||
| By: | /s/ Xxxxxx X. Xxxxx | |||||
| Name: | ||||||
| Title: | Chief Executive Officer | |||||
| Address: | In-Q-Tel, Inc. | |||||
| 0000 Xxxxxx Xxxxxxxxx, Xxxxx 0000 | ||||||
| Xxxxxxxxx, XX 00000 | ||||||
