EX-10.1 3 dex101.htm FIFTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT EXECUTION FIFTH AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT
Exhibit 10.1
EXECUTION
FIFTH AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT
This Fifth Amended and Restated Investors’ Rights Agreement (this “Agreement”) is made and entered into as of February 18, 2011 by and among Zynga Inc., a Delaware corporation (the “Company”), the persons and entities listed on Exhibit A attached hereto (the “Investors”) and Xxxx Xxxxxx.
Agreement, Series A-1 Stock issued under the Series A-1 Agreement, Series B Stock issued under the Series B Agreement, Series B-1 Stock issued under the Series B-1 Agreement, Series B-2 Stock issued under the Series B-2 Agreement, and/or the equivalent number (on an as-converted basis) of shares of Class A Common Stock, issued upon the conversion of such shares of Series A Stock, Series A-1 Stock, Series B Stock, Series B-1 Stock, or Series B-2 Stock, or otherwise issued to or acquired by (or issuable upon conversion or exercise of any warrant, right or other security that is issued to or otherwise acquired by) the Investors on or after the date hereof (the “Conversion Stock”), (ii) for so long as DST Global Limited (“DST”) holds at least 500,000 shares of Series B-1 Stock issued under the Series B-1 Agreement, and/or (iii) for so long as an Investor (x) holds at least 900,000 shares of Series C Preferred Stock, (y) is a Mutual Fund, or (z) is an Advisory Client of a Registered Investment Adviser which serves as the investment adviser set forth on Exhibit A hereto (or is an Advisory Client of a Registered Investment Adviser which is Controlled by or under common Control with such investment adviser) for any 1940 Act Investor(s) (each such Investor described in (i) through (iii), a “Major Investor”), the Company will:
(a) Annual Reports. Furnish to such Major Investor, as soon as practicable, and in any event within one hundred twenty (120) days after the end of each fiscal year of the Company, a consolidated balance sheet as of the end of such fiscal year, a consolidated statement of operations and a consolidated statement of cash flows of the Company and its subsidiaries for such year, setting forth in each case in comparative form the figures from the Company’s previous fiscal year (if any), prepared in accordance with generally accepted accounting principles and audited by a certified public accountant;
(c) Monthly Reports. Use reasonable efforts to provide such Major Investor as soon as practicable after the end of each month (except the last month of the Company’s fiscal year), monthly unaudited financial statements, including a balance sheet, a statement of operations and a statement of cash flows, and such other financial metrics as the Board of Directors of the Company (the “Board”) deems appropriate.
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For the purposes of this Agreement, “1940 Act Investor” means any Series C Investor (other than KPCB Holdings, Inc., as nominee) hereunder constituting (i) an investment company registered as such under the Investment Company Act of 1940, as amended (the “1940 Act”) (“Mutual Fund”) or (ii) an advisory client (“Advisory Client”) of an investment adviser registered as such under the Investment Advisers Act of 1940, as amended (“Registered Investment Adviser”), and “Control” and any derivations thereof shall have the meaning set forth in Section 2(a)(9) of the 1940 Act.
(a) to any of the Investor’s attorneys, accountants, consultants, and other professionals to the extent necessary to obtain their services in connection with monitoring the Investor’s investment in the Company and if such professionals are obligated to maintain the confidentiality of the same;
(b) to any prospective purchaser (to the extent the transfer to such purchaser would be permitted under the terms of the Bylaws of the Company and any applicable agreement between such Investor and the Company and the prospective purchaser would, if the sale were consummated, qualify as a Major Investor under Section 1.1 above) of any Registrable Securities from the Investor, if such prospective purchaser agrees to be bound by the provisions of this Section 1.3;
(c) as may otherwise be required by law, if the Investor promptly notifies the Company of such disclosure and takes reasonable steps to minimize the extent of any such required disclosure; or
(d) if such Investor is a 1940 Act Investor, to its Registered Investment Adviser (if applicable), provided that such Registered Investment Adviser is party to a written non-disclosure agreement which prohibits disclosure of such information.
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(a) the closing of the first sale of securities of the Company to the public for the account of the Company pursuant to an effective registration statement filed by the Company under the Securities Act of 1933, as amended (the “IPO”);
(b) the Company becomes subject to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”); or
(c) the liquidation, dissolution or winding up of the Company or immediately prior to the consummation of an event described in Section 3.6 of Article V of the Company’s Thirteenth Amended and Restated Certificate of Incorporation, as amended from time to time (the “Restated Certificate”).
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proper accruals and reserves as shall be required under generally accepted accounting principles consistently applied.
2.1 Definitions. For purposes of this Section 2:
(b) Registrable Securities. The term “Registrable Securities” means:
(i) any shares of Class A Common Stock issued or issuable upon the conversion of any shares of Series A Stock issued under the Series A Agreement, Series A-1 Stock issued under the Series A-1 Agreement, Series B Stock issued under the Series B Agreement, Series B-1 Stock issued under the Series B-1 Agreement, Series B-2 Stock issued under the Series B-2 Agreement, or Series C Stock issued under the Series C Agreement, as such agreement may hereafter be amended from time to time, that are now owned or may hereafter be acquired by any Investor or any Investor’s permitted successors and assigns;
(ii) any other shares of Class A Common Stock issued to or otherwise acquired by (or issuable upon conversion or exercise of any warrant, right or other security that is issued to or otherwise acquired by) the Investors on or after the date hereof; and
(iii) any shares of Class A Common Stock issued (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, all such shares of Class A Common Stock described in clauses (i) and (ii) of this subsection (b); excluding in all cases, however, any Registrable Securities sold by a person in a transaction in which rights under this Section 2 are not assigned in accordance with this Agreement or any Registrable Securities with respect to which, pursuant to Section 2.11hereof, the holders are no longer entitled to registration rights pursuant to Sections 2.2, 2.3 or 2.4 hereof.
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register shares of Series A Stock, Series A-1 Stock Series B Stock, Series B-1 Stock, and/or Series B-2 Stock or Series C Stock, and that Holders of Registrable Securities will not be required to convert their shares of Series A Stock, Series A-1 Stock, Series B Stock, Series B-1 Stock, and/or Series B-2 Stock or Series C Stock into Class A Common Stock in order to exercise the registration rights granted hereunder until immediately before (but subject to) the closing of the offering to which the registration relates; and provided, further, that for purposes of Sections 2.9 and 3 of this Agreement, the term “Holder” includes Xxxx Xxxxxx and any assignee of record of Xxxx Xxxxxx’x Company Stock (as defined in Section 3.1) to whom his rights under Section 3 hereof have been duly assigned in accordance with this Agreement.
(e) Form S-3. The term “Form S-3” means such form under the Securities Act as is in effect on the date hereof or any successor registration form under the Securities 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.
(f) SEC. The term “SEC” or “Commission” means the U.S. Securities and Exchange Commission.
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agreed upon between the Company and the underwriters selected by it and enters into an underwriting agreement in customary form with the underwriter or underwriters selected by the Company. Notwithstanding any other provision of this Section 2.2, if the underwriter(s) advise(s) the Company in writing that marketing factors require a limitation of the number of securities to be underwritten then the Company shall so advise all Holders of Registrable Securities that would otherwise be registered and underwritten pursuant hereto, and the number of Registrable Securities that may be included in the underwriting shall be reduced as required by the underwriter(s) and allocated among the Holders of Registrable Securities on a pro rata basis according to the number of Registrable Securities then outstanding held by each Holder requesting registration (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded and withdrawn from such underwriting shall be withdrawn from the registration.
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material adverse change, then the Holders shall not be required to pay any of such expenses and shall retain their demand registration rights pursuant to this Section 2.2.
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Securities proposed to be sold in the offering. If any Holder disapproves of the terms of any such underwriting, such Holder may elect to withdraw therefrom by written notice, given in accordance with Section 6.1 hereof, to the Company and the underwriter, delivered at least twenty (20) days prior to the effective date of the registration statement. Any Registrable Securities excluded or withdrawn from such underwriting shall be excluded and withdrawn from the registration. For any Holder that is a nominee, venture capital or private equity fund, partnership, limited liability company, corporation or 1940 Act Investor, the principal of such Holder, or affiliated venture capital or private equity funds, partners, retired partners, members, retired members, stockholders or 1940 Act Investor (which shall include all 1940 Act Investors advised by a Registered Investment Adviser that is Controlled by or under common Control with such 1940 Act Investor’s Registered Investment Adviser), if applicable) of such Holder or such Holder’s principal, or the estates and family members of any such partners and retired partners or members and retired members and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder,” and any pro rata reduction with respect to such “Holder” shall be based upon the aggregate amount of shares carrying registration rights owned by all entities and individuals included in such “Holder,” as defined in this sentence.
(i) if Form S-3 is not available for such offering;
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(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 of less than $6,000,000;
(iii) if the Company shall furnish to the Holders a certificate signed by the President or Chief Executive Officer of the Company stating that in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such Form S-3 Registration to be effected at such time, in which event the Company shall have the right to defer the filing of the Form S-3 registration statement no more than once during any consecutive twelve (12) month period for a period of not more than one hundred twenty (120) days after receipt of the request of the Holder or Holders under this Section 2.4;
(iv) if the Company has, within the consecutive 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 2.4; 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.
(a) Prepare and file with the SEC a registration statement with respect to such Registrable Securities and use reasonable efforts to cause such registration statement to become effective, and, upon the request of the Holders of a majority of the
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Registrable Securities registered thereunder, keep such registration statement effective for up to one hundred eighty (180) days.
(b) Prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection with such registration statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement and, in connection with any registration on Form S-3 pursuant to Section 2.4 above, use reasonable efforts to timely file all reports required under the Exchange Act in order to maintain the right to continue to use such Form and to maintain such registration in effect.
(c) Furnish to the Holders such number of copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as they may reasonably request in order to facilitate the disposition of the Registrable Securities owned by them that are included in such registration.
(d) Use 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(s) of such offering. Each Holder participating in such underwriting hereby agrees to also enter into and perform its obligations under such an agreement.
(f) Use reasonable efforts to 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 Securities 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 light of the circumstances then existing.
(g) Notwithstanding any other provision of this Agreement, from and after the time a registration statement filed under this Section 2 covering Registrable Securities is declared effective, the Company shall have the right to suspend the registration statement and the related prospectus in order to prevent premature disclosure of any material non-public information related to corporate developments by delivering notice of such suspension to the Holders, provided, however, that the Company may exercise the right to such suspension only once in any consecutive twelve (12) month period and for a period not to exceed ninety (90) days. From and after the date of a notice of suspension under this Section 2.5(g), each Holder agrees not to use the registration statement or the related prospectus for resale of any Registrable Security until the earlier of (1) notice from the Company that such suspension has been lifted or (2) the ninetieth (90) day following the giving of the notice of suspension.
(h) Notify each Holder of Registrable Securities covered by such registration statement at any time when a prospectus relating thereto is required to be delivered
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under the Securities 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. The Company will use reasonable efforts to amend or supplement such prospectus in order to cause such prospectus not to include any untrue statement of a material fact or omit 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.
(i) Use its reasonable efforts to furnish, on the date that such Registrable Securities are delivered to the underwriters for sale, if such securities are being sold through underwriters, (i) an opinion, dated as of such date, of the counsel representing the Company for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering, addressed to the underwriters, if any, and (ii) a letter, dated as of such date, from the independent certified public accountants of the Company, in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering addressed to the underwriters.
(a) By the Company. To the extent permitted by law, the Company will indemnify and hold harmless each Holder, the stockholders, partners, members, managers, officers and directors of each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any losses, claims, damages, or liabilities (joint or several) to which they may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively, the “Violations” and, individually, 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; or
(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
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(iii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any federal or state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any federal or state securities law in connection with the offering covered by such registration statement.
The Company will reimburse each such Holder, partner, member, managers, officer or director, underwriter or controlling person for any legal or other expenses reasonably incurred by them, within three months after a request for reimbursement has been received by the Company, in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the indemnity agreement contained in this Section 2.8(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld), nor shall the Company be liable in any such case for any such loss, claim, damage, liability or action to the extent that it arises out of or is based upon a Violation that occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by such Holder, stockholder, partner, officer, member, manager, director, underwriter or controlling person of such Holder.
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the commencement thereof. 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 shall have the right to retain its own 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 conflict of 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, but only to the extent prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 2.8, but the omission so to deliver written notice to the indemnifying party will not relieve it of any liability that it may have to any indemnified party otherwise than under this Section 2.8.
2.9 “Market Stand-Off” Agreement. Each Holder hereby agrees that it shall not, to the extent requested by the Company or an underwriter of securities of the Company, sell or otherwise transfer or dispose of any Registrable Securities or other shares of stock of the Company then owned by such Holder (other than to donees or partners of the Holder who agree to be similarly bound) for up to one hundred eighty (180) days following the effective date of any registration statement of the Company filed under the Securities Act; provided, however,
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that, if during the last seventeen (17) days of the restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs, or prior to the expiration of the restricted period the Company announces that it will release earnings results during the sixteen-day period beginning on the last day of the restricted period, and if the Company’s securities are listed on the Nasdaq Stock Market and Rule 2711 thereof applies, then the restrictions imposed by this Section 2.9 shall continue to apply until the expiration of the eighteen-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event. In no event shall the restricted period extend beyond two hundred fifteen (215) days after the effective date of the registration statement and the restrictions imposed by this Section 2.9 shall not apply unless all stockholders then holding more than one percent (1%) of the total equity of the Company on a fully diluted basis and all of the Company’s then-current executive officers and directors enter into similar agreements. Notwithstanding the foregoing, a Holder that is a 1940 Act Investor or one of its permitted transferees shall not be prohibited from selling, transferring or disposing of shares of stock purchased in connection with, or on the open market subsequent to, the IPO, nor shall any such holder be subject to the foregoing restrictions in a registered offering subsequent to the IPO.
For purposes of this Section 2.9, the term “Company” shall include any wholly owned subsidiary of the Company into which the Company merges or consolidates. In order to enforce the foregoing covenant, the Company shall have the right to place restrictive legends on the certificates representing the shares subject to this Section and to impose stop transfer instructions with respect to the Registrable Securities and such other shares of stock of each Holder (and the shares or securities of every other person subject to the foregoing restriction) until the end of such period. Each Holder further agrees to enter into any agreement reasonably required by the underwriters to implement the foregoing within any reasonable timeframe so requested.
(a) Use reasonable efforts to make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act, at all times after the effective date of the first registration under the Securities Act filed by the Company for an offering of its securities to the general public;
(b) Use reasonable efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act (at any time after it has become subject to such reporting requirements); and
(c) So long as a Holder owns any Registrable Securities, use reasonable efforts to furnish to the Holder forthwith upon request a written statement by the Company as to its compliance with the reporting requirements of said Rule 144 (at any time after ninety (90) days after the effective date of the first registration statement filed by the Company for an offering of its securities to the general public), and of the Securities Act and the Exchange Act (at any time after it has become subject to the reporting requirements of the Exchange Act), a copy of the most recent annual or quarterly report of the Company, and such other reports and documents of the Company as a Holder may reasonably request in availing itself of any rule or
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regulation of the SEC allowing a Holder to sell any such securities without registration (at any time after the Company has become subject to the reporting requirements of the Exchange Act).
(d) Use reasonable efforts to furnish to Holder forthwith, but in any event within five (5) business days following the receipt of a supportable request therefor, (i) unlegended stock certificates in connection with sales of Registrable Securities by a Holder pursuant to said Rule 144, or (ii) in the event that such request is made after the IPO, shall furnish to the Company’s transfer agent an opinion of counsel that such unlegended stock certificates may be issued.
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by Xxxx Xxxxxx and (ii) with respect to Rights Holders other than Xxxx Xxxxxx, such Rights Holder’s Registrable Securities. Notwithstanding anything herein to the contrary, if the Company issues New Securities that are, or represent the right to receive, shares of Common Stock at a per-share purchase price of more than $0.112875 (as adjusted for any stock splits, combinations, stock dividends, recapitalizations or the like), then Xxxx Xxxxxx’x Pro Rata Share of such New Securities shall equal the ratio of (a) one half (1/2) of the number of shares of Company Stock as to which he is the Holder (and/or is deemed to be the Holder), to (b) a number of shares of Class A Common Stock equal to the sum of (1) the total number of shares of Class A Common Stock then outstanding plus (2) the total number of shares of Class A Common Stock into which all then-outstanding shares of Preferred Stock are then convertible plus (3) the total number of shares of Class A Common Stock into which all then outstanding shares of Class B Common Stock are then convertible plus (4) the number of shares of Class A Common Stock reserved for issuance upon the exercise or vesting of outstanding stock options, restricted stock units, warrants or other stock rights and/or the conversion of securities issuable upon the exercise or vesting of outstanding stock options, restricted stock units, warrants or other stock rights.
(a) any shares of Series C Stock issued under the Series C Agreement, as such agreement may be amended from time to time;
(b) shares of Class A Common Stock issued or issuable upon conversion of shares of Preferred Stock and/or Class B Common Stock that are currently outstanding or issued hereafter;
(c) 9,580,000 shares of Class A Common Stock (and/or warrants or other rights therefore) issued to KPCB Holdings, Inc, as nominee, or its designee;
(d) 3,884,120 shares of Class A Common Stock (and the warrant or other rights therefor) issuable upon the exercise of a warrant to purchase shares of Class A Common Stock issuable to a strategic partner of the Corporation.
(e) 86,856 shares of Class A Common Stock (and/or warrants or other rights therefor) issued to Xxxxx & Company or its designee;
(f) shares of Common Stock (and/or options, restricted stock units, warrants or rights therefor) granted or issued hereafter to employees, officers, directors, contractors, consultants, or advisors of the Company or any Subsidiary pursuant to incentive agreements, stock purchase or stock option plans, stock bonuses or awards, warrants, contracts or other compensatory arrangements that are approved by the Board;
(g) shares of Common Stock or Preferred Stock (and/or options, restricted stock units, warrants or rights therefor) issued pursuant to any strategic transaction (other than any transaction described in (i) below) entered into for primarily non-equity financing purposes, provided that any such arrangement is approved by the Board and by the
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vote of holders of a majority of the then-outstanding Preferred Stock, voting together as a single class on an as-converted to Class A Common Stock basis;
(h) shares of Common Stock or Preferred Stock (and/or options, restricted stock units, warrants or rights therefor) issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement or debt financing from a bank or similar financial institution, provided that any such arrangement is approved by the Board;
(i) shares of Common Stock or Preferred Stock (and/or options, restricted stock units, warrants or rights therefore) issued for consideration other than cash pursuant to any merger, consolidation, acquisition, joint venture or similar business combination, provided that any such arrangement is approved by the Board;
(j) shares of Common Stock or Preferred Stock issuable upon exercise or settlement of any options, restricted stock units, warrants or rights to purchase any securities of the Company outstanding as of the date of this Agreement and any securities issuable upon the conversion thereof;
(k) shares of the Company’s capital stock issued in connection with any stock split, stock dividend, recapitalization or similar event;
(l) shares of Common Stock issued or issuable in a public offering prior to or in connection with which all outstanding shares of Preferred Stock will be converted to Common Stock pursuant to the terms of the Restated Certificate; and
(m) shares of Common Stock or Preferred Stock (and/or options, restricted stock units, warrants or rights therefor) issued or issuable hereafter that are approved by the vote of holders of a majority of the then-outstanding Preferred Stock, voting together as a single class, as being excluded from the definition of “New Securities” under this Section 3.2.
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agree to purchase a portion of the Nonpurchasing Holders’ unpurchased Pro Rata Shares of such offering on a pro rata basis according to the relative Pro Rata Shares of the Purchasing Rights Holders, at any time within five (5) business days after receiving the Overallotment Notice.
(a) immediately prior to but subject to the closing of the IPO;
(b) the liquidation, dissolution or winding up of the Company or immediately prior to the consummation of an event described in Section 3.6 of Article V of the Restated Certificate;
(c) with respect to Xxxx Xxxxxx, on the first date he (i) no longer holds at least 2,000,000 shares of Class B Common Stock and/or the equivalent number (accounting for the Class B Common Stock on an as-converted basis) of shares of Class A Common Stock and (ii) does not serve as an employee of the Company or a director of the Company; or
(d) with respect to Rights Holders other than Xxxx Xxxxxx, on the date that such Rights Holder is no longer a Major Investor.
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4.1 The Company covenants and agrees that, so long as at least eight million (8,000,000) shares of Preferred Stock remain outstanding, the Company shall not, except (i) in connection with any any merger, consolidation, acquisition, joint venture or similar business combination, or (ii) with the unanimous approval of the Board, grant shares of restricted Common Stock (and/or options, restricted stock units, warrants or rights for the purchase of Common Stock) to any employee, officer, director, consultant or other service provider to the Company that vest, or could vest upon the occurrence of one or more events, at a rate faster than the following: twenty-five percent (25%) of the shares vest on the one-year anniversary of the date on which vesting commenced and the remainder vests in equal monthly installments over the following thirty-six (36) months. Furthermore, all such shares of restricted Common Stock granted to any employee, officer, director, consultant or other service provider to the Company (including all shares issuable on exercise of any such options, restricted stock units, warrants and rights for the purchase of Common Stock) that are unvested shall be subject to a repurchase option in favor of the Company, which repurchase option shall provide that, upon termination of the employment of the stockholder, with or without cause, the Company or its assignees (to the extent permissible under applicable securities laws) retains the right to repurchase at cost any such unvested shares.
4.2 The Company covenants that it will use commercially reasonable efforts to ensure that, at all times on or after the date of this Agreement, all outstanding shares of Common Stock and Preferred Stock, and all shares of Common Stock and Preferred Stock issuable upon the exercise or conversion of outstanding options, restricted stock units, warrants or other exercisable or convertible securities are subject to a market standoff or “lockup” agreement of not less than 180 days following the Company’s initial public offering, with customary extensions of the lockup period.
4.3 The Company will not grant accelerated vesting of any shares of restricted Common Stock (or any options, restricted stock units, warrants or rights for the purchase of Common Stock) held by any employee, officer, director, consultant or other service provider to the Company without the express approval of the Board, including at least one of the directors elected solely by the holders of Preferred Stock (each such director, a “Preferred Director”), set forth in the minutes of the Board or a written consent of the Board; provided, however, that, without any such consent of a Preferred Director, the Board may grant accelerated vesting (i) to those persons who are entitled to acceleration of (a) 25% of the then-unvested shares held by each such holder on the consummation of an event described in Section 3.6 of Article V of the Restated Certificate and/or (b) an additional 25% of the then-unvested shares held by each such
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holder on involuntary termination without “cause” or voluntary termination for “good reason” within 12 months after an event described in Section 3.6 of Article V of the Restated Certificate ((a) and (b) together, the “Standard Acceleration Terms”) pursuant to agreements between them and the Company outstanding as of the date of this Agreement and (ii) those persons who may execute agreements with the Company containing the Standard Acceleration Terms after the date hereof, provided that such agreements are approved by the Board.
For purposes of this Section 4.3, (i) “cause” means an employee’s termination because of (A) any willful, material violation by such employee of any law or regulation applicable to the business of the Company, such employee’s conviction for, or guilty plea to, a felony or a crime involving moral turpitude, or any willful perpetration by such employee of a common law fraud; (B) such employee’s commission of an act of personal dishonesty that involves personal profit in connection with the Company or any other entity having a business relationship with the Company; (C) any material breach by such employee of any provision of any agreement or understanding between the Company and such employee regarding the terms of such employee’s service as an employee, officer, director or consultant to the Company, including without limitation, the willful and continued failure or refusal of such employee to perform the material duties required of such employee as an employee, officer, director or consultant of the Company, other than as a result of having a disability, or a breach of any applicable invention assignment and confidentiality agreement or similar agreement between the Company and such employee; (D) such employee’s disregard of the policies of the Company so as to cause loss, damage or injury to the property, reputation or employees of the Company; or (E) any other misconduct by such employee that is materially injurious to the financial condition or business reputation of, or is otherwise materially injurious to, the Company; and (ii) “good reason” for an employee’s voluntary termination shall be deemed to exist as the result of (A) a reduction in such employee’s annual base salary or a material reduction by the Company in such employee’s medical, dental, insurance, short- and long-term disability insurance and 401(k) retirement plan benefits (collectively, the “Employee Benefits”) to which such employee is entitled immediately prior to such reduction with the result that such employee’s overall Employee Benefits package is significantly reduced (other than (1) in connection with a general decrease in the salary or Employee Benefits of all similarly situated employees and (2) in connection with an event described in Section 3.6 of Article V of the Restated Certificate to the extent necessary to make such employee’s salary or Employee Benefits commensurate with those of other employees of the Company or its successor entity or parent entity who are similarly situated with such employee following such event); or (B) the requirement by the Company that such employee relocate his or her principal place of employment to a location that has the effect of increasing such employee’s commute to more than fifty (50) miles. All references to the Company in the foregoing definitions of “cause” and “good reason” shall include parent, subsidiary, affiliate and successor entities of the Company.
4.4 The Company will cause each person now or hereafter employed by it or by any subsidiary with access to confidential information and/or trade secrets to enter into a customary invention assignment and confidentiality agreement or an employment or consulting agreement containing substantially similar terms. In addition, the Company shall not amend, modify, terminate, waive, or otherwise alter, in whole or in part, any such agreement between the Company and any employee to make such agreement materially less favorable to the Company, without the consent of the Board.
21
5.1 Assignment. Notwithstanding anything herein to the contrary:
22
No party may be assigned any of the foregoing rights unless the Company is given written notice by the assigning party at the time of such assignment stating the name and address of the assignee and identifying the securities of the Company as to which the rights in question are being assigned; provided, further, that any such assignee of such rights is not deemed by the Board, in its reasonable judgment, to be a direct competitor of the Company; and provided, further, that any such assignee shall receive such assigned rights subject to all the terms and conditions of this Agreement, including without limitation the provisions of this Section 5 and must execute and deliver a counterpart or addendum to this Agreement manifesting their consent to be bound by the terms of this Agreement prior to any transfer of rights hereunder.
23
(i) at the time of personal delivery, if delivery is in person; (ii) when sent by electronic mail or facsimile if sent during normal business hours of the recipient, if not, then on the next business day; (iii) one (1) business day after deposit with an express overnight courier for United States deliveries, or two (2) business days after such deposit for deliveries outside of the United States, with proof of delivery from the courier requested; or (iv) five (5) business days after deposit in the United States mail by certified mail (return receipt requested) for United States deliveries. All notices for delivery outside the United States will be sent by facsimile or by express courier. All notices not delivered personally or by facsimile will be sent with postage and/or other charges prepaid and properly addressed to the party to be notified at the address or facsimile number as follows, or at such other address, electronic mail address or facsimile number as such other party may designate by one of the indicated means of notice herein to the other parties hereto as follows or as such party may designate by ten (10) days’ advance written notice to the other parties hereto:
(a) if to an Investor or Xxxx Xxxxxx, at such party’s address as set forth on Exhibit A
(b) if to the Company, marked “Attention: General Counsel” at:
Zynga Inc.
000 Xx Xxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Email: xxxxx@xxxxx.xxx
with a copy (which shall not constitute notice) to
Xxxxx Day
0000 Xxxxxxxxxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxx, Esq.
Facsimile: (000) 000-0000
Email: xxxxxx@xxxxxxxx.xxx
(c) if to Xxxx Xxxxxx, to:
Xxxx Xxxxxx
c/o Zynga Inc.
000 Xx Xxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
24
6.3 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California, without giving effect to that body of laws pertaining to conflict of laws.
25
automatically be proportionally adjusted to reflect the effect on the outstanding shares of such class or series of stock by such subdivision, combination, or stock dividend.
6.15 Massachusetts Business Trust.
(a) A copy of the Agreement and Declaration of Trust of Fidelity Contrafund and Fidelity Advisor New Insights Fund (collectively, the “Fidelity Investors”) is on file with the Secretary of State of the Commonwealth of Massachusetts and notice is hereby given that this Agreement is executed on behalf of the trustees of the Fidelity Investors or any affiliate thereof as trustees and not individually and that the obligations of this Agreement are not binding on any of the trustees, officers or stockholders of the Fidelity Investors or any affiliate thereof individually but are binding only upon such Investor or any affiliate thereof and its assets and property.
(b) Certain other Investors are also Massachusetts Business Trusts. A copy of the Agreement and Declaration of Trust of each such Investor is on file with the Secretary of State of the Commonwealth of Massachusetts and notice is hereby given that this Agreement is executed on behalf of the trustees of each such Investor as trustees and not individually and that the obligations of this Agreement are not binding on any of the trustees, officers or stockholders of any such Investor individually but are binding only upon each such Investor and its assets and property.
26
[SIGNATURE PAGES FOLLOW]
27
COMPANY: | ||
ZYNGA INC. | ||
By: | /s/ Xxxx Xxxxxx | |
Name: | Xxxx Xxxxxx | |
Title: | President and Chief Executive Officer |
[SIGNATURE PAGE TO ZYNGA INC.
FIFTH AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT]
HOLDER: |
/s/ Xxxx Xxxxxx |
XXXX XXXXXX |
[SIGNATURE PAGE TO ZYNGA INC.
FIFTH AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT]
INVESTOR: | ||
AVALON VENTURES VIII, LP | ||
By: | Avalon Ventures VIII GP, LLC | |
Its: | General Partner | |
By: | /s/ Xxxx Xxxxxxxx | |
Name: | Xxxx Xxxxxxxx | |
Title: | Managing Member |
[SIGNATURE PAGE TO ZYNGA INC.
FIFTH AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT]
INVESTORS: | ||
DST GLOBAL LIMITED | ||
By: | /s/ Xxxx Xxxxx | |
Name: | Xxxx Xxxxx | |
Title: | Director |
DIGITAL SKY TECHNOLOGIES LTD. | ||
By: | ||
Name: | ||
Title: |
[SIGNATURE PAGE TO ZYNGA INC.
FIFTH AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT]
INVESTORS: | ||
DST GLOBAL LIMITED | ||
By: | ||
Name: | ||
Title: |
DIGITAL SKY TECHNOLOGIES LTD. | ||
By: | /s/ Xxxxxxxxx Xxxxx | |
Name: | Xxxxxxxxx Xxxxx | |
Title: | Managing Director |
[SIGNATURE PAGE TO ZYNGA INC.
FIFTH AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT]
INVESTOR: | ||
FOUNDRY VENTURE CAPITAL 2007 L.P. | ||
By: | Foundry Venture 2007, LLC, its general partner |
By: | /s/ Xxxxxxx X. Xxxx | |
Name: | Xxxxxxx X. Xxxx | |
Title: | Manager |
[SIGNATURE PAGE TO ZYNGA INC.
FIFTH AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT]
INVESTOR: | ||
INSTITUTIONAL VENTURE PARTNERS XII, L.P. | ||
By: | Institutional Venture Management XII LLC | |
Its: | General Partner | |
By: | /s/ J. Xxxxxxx Xxxxxx | |
Managing Director | ||
J. Xxxxxxx Xxxxxx |
[SIGNATURE PAGE TO ZYNGA INC.
FIFTH AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT]
INVESTORS: | ||
UNION SQUARE VENTURES 2004, L.P. | ||
By: Xxxxx Xxxxxx XX 0000, L.L.C. | ||
By: | /s/ Xxxx Xxxxxx | |
Name: | Xxxx Xxxxxx | |
Title: | Managing Member |
UNION SQUARE PRINCIPALS 2004, L.L.C. | ||
By: | /s/ Xxxx Xxxxxx | |
Name: | Xxxx Xxxxxx | |
Title: | Managing Member. |
[SIGNATURE PAGE TO ZYNGA INC.
FIFTH AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT]
INVESTOR: | ||
KPCB HOLDINGS, INC., AS NOMINEE | ||
By: | /s/ Xxxx X. Xxxxxx | |
Name: | Xxxx X. Xxxxxx | |
Title: | President |
[SIGNATURE PAGE TO ZYNGA INC.
FIFTH AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT]
INVESTOR: X. XXXX PRICE ASSOCIATES, INC., INVESTMENT ADVISER, FOR AND ON BEHALF OF THE ADVISORY CLIENTS ON ATTACHMENT A, LISTED BELOW: | ||
X. Xxxx Price New America Growth Fund; | ||
X. Xxxx Price New America Growth Portfolio; | ||
(each such advisory client, an “Investor”) | ||
By: | /s/ Xxxx X. Xxxxxxx | |
Name: | Xxxx Xxxxxxx | |
Title: | Vice President | |
INVESTOR: X. XXXX PRICE ASSOCIATES, INC., INVESTMENT ADVISER, FOR AND ON BEHALF OF THE ADVISORY CLIENTS ON ATTACHMENT A, LISTED BELOW: | ||
X. Xxxx Price Global Technology Fund, Inc.; TD Mutual Funds – TD Science & Technology Fund; | ||
(each such advisory client, an “Investor”) | ||
By: | /s/ Xxxxx X. Xxxxxxxxxx | |
Name: | Xxxxx X. Xxxxxxxxxx | |
Title: | Vice President |
[SIGNATURE PAGE TO ZYNGA INC.
FIFTH AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT]
INVESTOR: X. XXXX PRICE ASSOCIATES, INC., INVESTMENT ADVISER, FOR AND ON BEHALF OF THE ADVISORY CLIENTS ON ATTACHMENT A, LISTED BELOW: | ||
X. Xxxx Price Growth Stock Fund, Inc.; JNL Series Trust – JNL/X. Xxxx Price Established Growth Fund; ING Partners, Inc. – ING X. Xxxx Price Growth Equity Portfolio; Metropolitan Series Fund, Inc. – X. Xxxx Price Large Cap Growth Portfolio; Lincoln Variable Insurance Products Trust – LVIP — X. Xxxx Price Growth Stock Fund; Conagra Foods, Inc. – Large Cap Diversified Growth; X. Xxxx Price Growth Stock Trust; East Bay Municipal Utility District – Domestic; Advantus – Minnesota Life Insurance Co. Growth Stock; NFL Player Second Career Savings Plan; Prudential Retirement Insurance & Annuity Co.; | ||
(each such advisory client, an “Investor”) | ||
By: | /s/ Xxxx X. Xxxxxxx | |
Name: | Xxxx X. Xxxxxxx | |
Title: | VP |
[SIGNATURE PAGE TO ZYNGA INC.
FIFTH AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT]
INVESTOR: X. XXXX PRICE ASSOCIATES, INC., INVESTMENT ADVISER, FOR AND ON BEHALF OF THE ADVISORY CLIENTS ON ATTACHMENT A, LISTED BELOW: | ||
X. Xxxx Price Institutional Large-Cap Growth Fund; Operating Engineers Local #18 – LCG; Caterpillar Master Pension Trust; Caterpillar, Inc. Veba Trust; Caterpillar Investment Trust; Invensys, Inc. 401K Plan; Union Pacific Corporation; Xxxxxx Corporation – Large Cap Growth; Sears 401K Savings Plan; Xerox Corporation; Nextera Energy Inc. Employee Pension Plan – LCG; Nextera Energy Inc. Bargaining Unit Employee Savings Plan; BAE Systems; Lyondell Petrochemical Company; National Rural Electric Cooperative Association; USG Corporation Retirement Plan Trust; Monsanto Company Savings and Investment Plan; X. Xxxx Price U.S. Equities Trust; | ||
(each such advisory client, an “Investor”) | ||
By: | /s/ Xxxxxx X. Xxxxxx | |
Name: | Xxxxxx X. Xxxxxx | |
Title: | Vice President |
[SIGNATURE PAGE TO ZYNGA INC.
FIFTH AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT]
INVESTOR: THE UNIVERSAL INSTITUTIONAL FUNDS, INC. – MID CAP GROWTH PORTFOLIO | ||
By: | Xxxxxx Xxxxxxx Investment Management Inc. | |
Its: | Investment Manager | |
By: | /s/ Xxxxxxx Xxxxxxxx | |
Name: | Xxxxxxx Xxxxxxxx | |
Title: | MD |
INVESTOR: XXXXXX XXXXXXX MID CAP GROWTH FUND | ||
By: | Xxxxxx Xxxxxxx Investment Advisors Inc. | |
Its: | Investment Adviser | |
By: | /s/ Xxxxxxx Xxxxxxxx | |
Name: | Xxxxxxx Xxxxxxxx | |
Title: | MD |
[SIGNATURE PAGE TO ZYNGA INC.
FIFTH AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT]
INVESTOR: XXXXXX XXXXXXX SELECT DIMENSIONS INVESTMENT SERIES – MID CAP GROWTH PORTFOLIO | ||
By: | Xxxxxx Xxxxxxx Investment Advisors Inc. | |
Its: | Investment Adviser | |
By: | /s/ Xxxxxxx Xxxxxxxx | |
Name: | Xxxxxxx Xxxxxxxx | |
Title: | MD |
INVESTOR: XXXXXX XXXXXXX INSTITUTIONAL FUND TRUST - MID CAP GROWTH PORTFOLIO | ||
By: | Xxxxxx Xxxxxxx Investment Management Inc. | |
Its: | Investment Adviser | |
By: | /s/ Xxxxxxx Xxxxxxxx | |
Name: | Xxxxxxx Xxxxxxxx | |
Title: | MD |
[SIGNATURE PAGE TO ZYNGA INC.
FIFTH AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT]
INVESTOR: ALLIANZ VARIABLE INSURANCE TRUST – AZL XXXXXX XXXXXXX MID CAP GROWTH FUND | ||
By: | Xxxxxx Xxxxxxx Investment Management Inc. | |
Its: | Sub-Adviser | |
By: | /s/ Xxxxxxx Xxxxxxxx | |
Name: | Xxxxxxx Xxxxxxxx | |
Title: | MD |
INVESTOR: EQUITABLE ADVISORS TRUST – EQ/XXXXXX XXXXXXX MID-CAP GROWTH PORTFOLIO | ||
By: | Xxxxxx Xxxxxxx Investment Management Inc. | |
Its: | Sub-Adviser | |
By: | /s/ Xxxxxxx Xxxxxxxx | |
Name: | Xxxxxxx Xxxxxxxx | |
Title: | MD |
[SIGNATURE PAGE TO ZYNGA INC.
FIFTH AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT]
INVESTOR: TRANSAMERICA FUNDS – TRANSAMERICA XXXXXX XXXXXXX MID-CAP GROWTH | ||
By: | Xxxxxx Xxxxxxx Investment Management Inc. | |
Its: | Sub-Adviser | |
By: | /s/ Xxxxxxx Xxxxxxxx | |
Name: | Xxxxxxx Xxxxxxxx | |
Title: | MD |
INVESTOR: LAWRENCIUM ATOLL INVESTMENTS LTD | ||
By: | Xxxxxx Xxxxxxx Investment Management Inc. | |
Its: | Investment Manager | |
By: | /s/ Xxxxxxx Xxxxxxxx | |
Name: | Xxxxxxx Xxxxxxxx | |
Title: | MD |
[SIGNATURE PAGE TO ZYNGA INC.
FIFTH AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT]
INVESTOR: MET INVESTOR SERIES TRUST- XXXXXX XXXXXXX MID CAP GROWTH PORTFOLIO | ||
By: | Xxxxxx Xxxxxxx Investment Management Inc. | |
Its: | Sub-Adviser | |
By: | /s/ Xxxxxxx Xxxxxxxx | |
Name: | Xxxxxxx Xxxxxxxx | |
Title: | MD |
INVESTOR: TRANSAMERICA SERIES TRUST – TRANSAMERICA XXXXXX XXXXXXX MID-CAP GROWTH VP | ||
By: | Xxxxxx Xxxxxxx Investment Management Inc. | |
Its: | Sub-Adviser | |
By: | /s/ Xxxxxxx Xxxxxxxx | |
Name: | Xxxxxxx Xxxxxxxx | |
Title: | MD |
[SIGNATURE PAGE TO ZYNGA INC.
FIFTH AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT]
INVESTOR: VALIC COMPANY I – MID CAP STRATEGIC GROWTH FUND | ||
By: | Xxxxxx Xxxxxxx Investment Management Inc. | |
Its: | Sub-Adviser | |
By: | /s/ Xxxxxxx Xxxxxxxx | |
Name: | Xxxxxxx Xxxxxxxx | |
Title: | MD |
[SIGNATURE PAGE TO ZYNGA INC.
FIFTH AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT]
INVESTOR: | ||
FIDELITY CONTRAFUND: FIDELITY CONTRAFUND | ||
By: | /s/ Xxxxxxx Xxxxxxxxx | |
Name: | Xxxxxxx Xxxxxxxxx | |
Xxxxx: | Deputy Treasurer |
[SIGNATURE PAGE TO ZYNGA INC.
FIFTH AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT]
INVESTOR: | ||
FIDELITY CONTRAFUND: FIDELITY ADVISOR NEW INSIGHTS FUND | ||
By: | /s/ Xxxxxxx Xxxxxxxxx | |
Name: | Xxxxxxx Xxxxxxxxx | |
Xxxxx: | Deputy Treasurer |
[SIGNATURE PAGE TO ZYNGA INC.
FIFTH AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT]
INVESTOR: JANUS INVESTMENT FUND ON BEHALF OF ITS SERIES, JANUS TWENTY FUND | ||
By: | Janus Capital Management LLC | |
Its: | Investment Adviser | |
By: | /s/ Xxx Xxxxx | |
Name: | Xxx Xxxxx | |
Title: | Vice President |
INVESTOR: JANUS INVESTMENT FUND ON BEHALF OF ITS SERIES, JANUS FUND | ||
By: | Janus Capital Management LLC | |
Its: | Investment Adviser | |
By: | /s/ Xxxxxxxx Xxxxxxx | |
Name: | Xxxxxxxx Xxxxxx Xxxxxxx | |
Title: | Executive Vice President, Co-Chief Investment Officer |
[SIGNATURE PAGE TO ZYNGA INC.
FIFTH AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT]
INVESTOR: JANUS INVESTMENT FUND ON BEHALF OF ITS SERIES, JANUS FORTY FUND | ||
By: | Janus Capital Management LLC | |
Its: | Investment Adviser | |
By: | /s/ Xxx Xxxxx | |
Name: | Xxx Xxxxx | |
Title: | Vice President |
[SIGNATURE PAGE TO ZYNGA INC.
FIFTH AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT]
INVESTOR:
CAPITAL WORLD INVESTORS on behalf of :
The Growth Fund of America, Inc.; New Perspective Fund, Inc. ; American Funds Insurance Series - Growth Fund;
(each such fund, an “Investor” | ||
By: | /s/ Xxxxxxx X. Xxxxxx | |
Name: | Xxxxxxx X. Xxxxxx | |
Title: | Senior Vice President and Secretary, Capital Research and Management Company |
[SIGNATURE PAGE TO ZYNGA INC.
FIFTH AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT]
EXHIBIT A
Schedule of Investors
Google Inc.
0000 Xxxxxxxxxxxx Xxxxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
SOFTBANK CORP.
0-0-0 Xxxxxxx-Xxxxxxxxxx
Xxxxxx-xx, Xxxxx 000-0000
Xxxxx
DAG Ventures Limited
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
SB Asia Pacific Investments Limited
Xxxxxx House, P.O. Box 309
Xxxxxx Town, Grand Cayman
Cayman Islands
With a copy (which shall not constitute notice) to
Xxxxxxxx & Xxxxxxxx LLP
0000 Xxxxxxxxxxx Xxxx
Xxxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxx
Fax: (000) 000-0000
Digital Sky Technologies Limited
c/o Tulloch & Co - Attn: Xxxxxxxx Xxxxxxx
0 Xxxx Xxxxxx
Xxxxxx, X0X 0XX
Xxxxxx Xxxxxxx
DST Global Limited
c/o Tulloch & Co - Attn: Xxxxxxxx Xxxxxxx
0 Xxxx Xxxxxx
Xxxxxx, X0X 0XX
Xxxxxx Xxxxxxx
KPCB Holdings, Inc., as nominee
c/o Kleiner Xxxxxxx Xxxxxxxx & Xxxxx
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
With a copy to (which shall not constitute the giving of notice):
Xxxxx X. Xxxxxxx
Xxxxxxx & West LLP
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Institutional Venture Partners XII, L.P.
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Union Square Ventures 0000, XX
Xxxxx Xxxxxx Principals 2004, LLC
000 Xxxxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
PG Ventures, Inc.
00 Xxxxxxxxxxx Xxxxx – 00xx Xxxxx
Xxx Xxxx, XX 00000
Foundry Venture Capital 2007, L.P.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
F&W Investments LLC-Series 2007
c/o Fenwick & West LLP
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, III
Xxxxxxxx X. Xxxxxx Declaration of
Trust Dated June 10, 1992
c/o Xxxxxxxx X. Xxxxxx
000 Xxxx Xxxx Xxxxxx, Xxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Archimedes Capital
000 Xxxx Xxxxxxxx Xxxxx
Xxxx Xxxx, XX 00000
Xxxx Xxxxxxx
000 Xxxxxxxxxx Xxx #000
Xxxxxxxx Xxxx, XX 00000
Xxxx Xxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
The D’Anconia Trust
c/o Xxxxxxx Xxxxxxxx
XX Xxx 000000
Xxx Xxxxxxxxx, XX 00000-0000
Xxxxx Xxxxx
0 Xxxxxxxxx Xxxxx
Xxxx. X, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Avalon Ventures VIII, LP
000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xx Xxxxx, XX 00000
Xxxx Xxxx
0000 X. Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
European Founders Fund GmbH & Co.
Beteiligungs KG Nr.1
c/o Pöllath und Partners
Kardinal–Xxxxxxxxx–Xxxxxxx 00
00000 Xxxxxx, Xxxxxxx
With a copy to:
Xxxxxx X. Xxxxxxxx
Xxxxxxxx Legal Advisory
000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxxxxxxx, XX 00000
Fax (000) 000-0000
The Universal Institutional Funds, Inc. – Mid Cap Growth Portfolio;
Xxxxxx Xxxxxxx Institutional Fund Trust–Mid Cap Growth Portfolio;
Allianz Variable Insurance Trust – AZL Xxxxxx Xxxxxxx Mid Cap Growth Fund;
Equitable Advisors Trust – EQ/Xxxxxx Xxxxxxx Mid-Cap Growth Portfolio;
Transamerica Funds – Transamerica Xxxxxx Xxxxxxx Mid-Cap Growth;
Lawrencium Atoll Investments Ltd.;
Met Investor Series Trust- Xxxxxx Xxxxxxx Mid Cap Growth Portfolio;
Transamerica Series Trust – Transamerica Xxxxxx Xxxxxxx Mid-Cap Growth VP;
Valic Company I – Mid Cap Strategic Growth Fund;
c/o Morgan Xxxxxxx Investment Management Inc.
000 Xxxxx Xxxxxx (investment adviser to such Investors)
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Copy to Xxxxxx Xxxxxxxxx
Xxxxxx Xxxxxxx Mid Cap Growth Fund;
Xxxxxx Xxxxxxx Select Dimensions Investment Series – Mid Cap Growth Portfolio;
c/o Morgan Xxxxxxx Investment Advisors Inc.
(investment adviser to such Investors)
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Copy to Xxxxxx Xxxxxxxxx
Xxxxx Twenty Fund;
Janus Fund;
Janus Forty Fund;
c/o Janus Capital Management LLC (investment adviser to such Investors)
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: General Counsel
Fidelity Contrafund: Fidelity Contrafund
c/o Fidelity Investments
82 Devonshire Street, VI3H
Xxxxxx, XX 00000
Attn: Xxxxxx Xxxx
With a copy to:
H. Xxxxx Xxxxxx, Esq.
Xxxxxxx Procter LLP
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Fidelity Contrafund: Fidelity Advisor New
Insights Fund
c/o Fidelity Investments
82 Devonshire Street, V13H
Xxxxxx, XX 00000
Attn: Xxxxxx Xxxx
With a copy to:
H. Xxxxx Xxxxxx, Esq.
Xxxxxxx Procter LLP
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Fidelity Management and Research Company
serves as the investment adviser to both Fidelity
Contrafunds listed above.
The Growth Fund of America, Inc.;
New Perspective Fund, Inc.;
American Funds Insurance Series-Growth Fund;
c/o Capital World Investors, a division of Capital
Research and Management Company (investment adviser to such Investors)
000 Xxxxx Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx / Xxx Xxxxx
X. Xxxx Price New America Growth Fund;
X. Xxxx Price New America Growth Portfolio;
X. Xxxx Price Growth Stock Fund, Inc.;
JNL Series Trust – JNL/X. Xxxx Price Established Growth Fund;
ING Partners, Inc. – ING X. Xxxx Price Growth
Equity Portfolio;
Metropolitan Series Fund, Inc. – X. Xxxx Price
Large Cap Growth Portfolio;
Lincoln Variable Insurance Products Trust – LVIP — X. Xxxx Price Growth Stock Fund;
Conagra Foods, Inc. – Large Cap Diversified Growth;
X. Xxxx Price Growth Stock Trust;
East Bay Municipal Utility District – Domestic;
Advantus – Minnesota Life Insurance Co. Growth Stock;
NFL Player Second Career Savings Plan;
Prudential Retirement Insurance & Annuity Co.;
X. Xxxx Price Institutional Large-Cap Growth Fund;
Operating Engineers Local #18 – LCG;
Caterpillar Master Pension Trust;
Caterpillar, Inc. Veba Trust;
Caterpillar Investment Trust;
Invensys, Inc. 401K Plan;
Union Pacific Corporation;
Xxxxxx Corporation – Large Cap Growth;
Sears 401K Savings Plan;
Xerox Corporation;
Nextera Energy Inc. Employee Pension Plan – LCG;
Nextera Energy Inc. Bargaining Unit Employee
Savings Plan;
BAE Systems;
Lyondell Petrochemical Company;
National Rural Electric Cooperative Association;
USG Corporation Retirement Plan Trust;
Monsanto Company Savings and Investment Plan;
X. Xxxx Price U.S. Equities Trust;
X. Xxxx Price Global Technology Fund, Inc.;
TD Mutual Funds – TD Science & Technology Fund;
c/o X. Xxxx Price Associates, Inc. (as investment adviser to such Investors)
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxx, Vice President and Senior
Legal Counsel
Phone: 000-000-0000
Email: xxxxxx_xxxx@xxxxxxxxxx.xxx
Schedule 1.1(d)
LAWRENCIUM ATOLL INVESTMENTS LTD
X. XXXX PRICE GROWTH STOCK TRUST
X. XXXX PRICE U.S. EQUITIES TRUST
TD MUTUAL FUNDS-TD SCIENCE & TECHNOLOGY FUND