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EXHIBIT 4.3
XXXXX.XXX NETWORKS
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
This AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT (the "AGREEMENT")
is entered into as of May 7, 1999, by and among XXXXX.XXX NETWORKS, a California
corporation (the "COMPANY"), XXXXX PACK and XXXXXXX XXXXXXXX (each referred to
herein as a "FOUNDER") and those persons and entities set forth on the schedule
of investors and warrant holders attached hereto as EXHIBIT A who hold the
Company's Series A Preferred Stock (the "SERIES A INVESTORS"), Series B
Preferred Stock (the "SERIES B INVESTORS"), Series C Preferred Stock (the
"SERIES C INVESTORS"), Series D Preferred Stock (the "SERIES D INVESTORS")
and/or Series E Preferred Stock (the "SERIES E INVESTORS") (collectively, the
"INVESTORS") or warrants to purchase stock of the Company (the "WARRANT
HOLDERS").
RECITALS
WHEREAS, the Company, the Founders, the Investors and the Warrant
Holders are parties to that Amended and Restated Investors' Rights Agreement
dated as of March 31, 1999 (the "PRIOR AGREEMENT");
WHEREAS, the parties to the Prior Agreement desire to terminate the
Prior Agreement and to accept the rights and obligations created pursuant hereto
in lieu of the rights granted to them under the Prior Agreement;
WHEREAS, the Company proposes to sell and issue shares of its Series E
Preferred Stock pursuant to the Series E Preferred Stock Purchase Agreement of
even date herewith (the "PURCHASE AGREEMENT"); and
WHEREAS, as a condition of entering into the Purchase Agreement, the
purchasers of Series E Preferred Stock have requested that the Company extend to
them registration rights, information rights and other rights as set forth
below;
WHEREAS, the parties to the Prior Agreement wish to amend and restate
such agreement as provided herein.
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in this
Agreement, the parties mutually agree as follows:
AGREEMENT
SECTION 1. AMENDMENT AND RESTATEMENT OF PRIOR AGREEMENT.
1.1 AMENDMENT AND RESTATEMENT. The Prior Agreement is terminated in
its entirety and restated herein. Such termination and restatement is effective
upon execution of this Agreement by the Company, each of the Founders and
holders of at least a majority in interest of the Shares (as such term is
defined in the Prior Agreement). Upon such execution, all provisions of, rights
granted and covenants made in the Prior Agreement are hereby waived, released
and terminated in their entirety and shall have no further force or effect. The
rights and covenants contained in this Agreement set forth the sole
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and entire agreement among the Company, the Founders, the Warrant Holders and
the Investors on the subject matter hereof and supersede any and all rights
granted and covenants made under any prior agreements.
SECTION 2. GENERAL.
2.1 DEFINITIONS. As used in this Agreement the following terms shall
have the following respective meanings:
"FORM S-3" means such form under the Securities Act (as
hereinafter defined) as in effect on the date hereof or any successor
registration form under the Securities Act subsequently adopted by the SEC (as
hereinafter defined) which permits inclusion or incorporation of substantial
information by reference to other documents filed by the Company with the SEC.
"HOLDER" means any person owning or having the right to acquire
Registrable Securities (as hereinafter defined) or any assignee of record
thereof in accordance with Section 3.10 hereof.
"REGISTER," "REGISTERED," and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act, and the declaration or
ordering of effectiveness of such registration statement or document.
"REGISTRABLE SECURITIES" means (i) common stock of the Company
acquired from the Company by a Founder, (ii) common stock of the Company issued
or issuable upon conversion of the Shares; (iii) any common stock of the Company
issued as (or issuable upon the conversion or exercise of any warrant, right or
other security which is issued as) a dividend or other distribution with respect
to, or in exchange for or in replacement of, such above-described securities;
and (iv) solely for purposes of Sections 3.1, 3.3, 3.7, 3.8, 3.9, 3.10, 3.11,
3.13 and 8 only, any common stock of the Company issued (or issuable) upon the
conversion or exercise of the warrant to purchase up to 8,224 shares of Series D
Preferred Stock held by Imperial Bank dated April 9, 1998 and the warrant issued
to BT Alex. Xxxxx Incorporated dated as of July 24, 1998. Notwithstanding the
foregoing, Registrable Securities shall not include any securities sold by a
person to the public either pursuant to a registration statement or Rule 144 or
sold in a private transaction in which the transferror's rights under Section 3
of this Agreement are not assigned.
"REGISTRABLE SECURITIES THEN OUTSTANDING" shall be the number of
shares determined by calculating the total number of shares of the Company's
common stock that are Registrable Securities and either (i) are then issued and
outstanding or (ii) are issuable pursuant to then exercisable or convertible
securities.
"REGISTRATION EXPENSES" shall mean all expenses incurred by the
Company in complying with Sections 3.2, 3.3 and 3.4 hereof, including, without
limitation, all registration, filing and qualification fees, printing expenses,
fees and disbursements of counsel and accountants for the Company, reasonable
fees and disbursements not to exceed twenty-five thousand dollars ($25,000) of a
single special counsel for the Holders, blue sky fees and expenses and the
expense of any special audits incident to or required by any such registration
(but excluding the compensation of regular employees of the Company which shall
be paid in any event by the Company).
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended.
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"SELLING EXPENSES" shall mean all underwriting discounts,
selling commissions and stock transfer taxes applicable to the sale.
"SHARES" shall mean the Company's Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and
Series E Preferred Stock.
"SEC" or "COMMISSION" means the Securities and Exchange
Commission.
SECTION 3. REGISTRATION; RESTRICTIONS ON TRANSFER.
3.1 RESTRICTIONS ON TRANSFER.
(a) Each Investor and Warrant Holder agrees not to make any
disposition of all or any portion of the Shares (or the common stock issuable
upon the conversion thereof) unless and until the transferee has agreed in
writing for the benefit of the Company to be bound by the terms of this
Agreement and:
(i) There is then in effect a registration statement
under the Securities Act covering such proposed disposition and such disposition
is made in accordance with such registration statement; or
(ii) (a) Such Investor or Warrant Holder shall have
notified the Company of the proposed disposition and shall have furnished the
Company with a detailed statement of the circumstances surrounding the proposed
disposition, and (b) if reasonably requested by the Company, such Investor or
Warrant Holder shall have furnished the Company with an opinion of counsel,
reasonably satisfactory to the Company, that such disposition will not require
registration of such shares under the Securities Act. It is agreed that the
Company will not require opinions of counsel for transactions made pursuant to
Rule 144 except in unusual circumstances.
(iii) Notwithstanding the provisions of paragraphs (i)
and (ii) above, no such registration statement or opinion of counsel shall be
necessary for a transfer by an Investor or Warrant Holder which is (a) a
partnership to its partners in accordance with partnership interests, (b) an
individual to the Investor's or Warrant Holder's family member or trust for the
benefit of an individual Investor or Warrant Holder, (c) a corporation to its
shareholders in accordance with their interest in the corporation, and (d) a
limited liability company to its members or former members in accordance with
their interest in the limited liability company, provided the transferee agrees
in writing to be subject to the terms of this Agreement to the same extent as if
he were an original Investor or Warrant Holder hereunder.
(b) Each certificate representing Shares or Registrable
Securities shall (unless otherwise permitted by the provisions of the Agreement)
be stamped or otherwise imprinted with a legend substantially similar to the
following (in addition to any legend required under applicable state securities
laws or as provided elsewhere in the Agreement):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT")
AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED,
PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED
UNDER THE ACT OR, IN THE OPINION OF COUNSEL OR BASED ON
OTHER WRITTEN EVIDENCE IN FORM
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AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE
SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR
HYPOTHECATION IS IN COMPLIANCE THEREWITH.
(c) The Company shall be obligated to reissue promptly
unlegended certificates at the request of any holder thereof if the holder shall
have obtained an opinion of counsel (which counsel may be counsel to the
Company) reasonably acceptable to the Company to the effect that the securities
proposed to be disposed of may lawfully be so disposed of without registration,
qualification or legend.
(d) Any legend endorsed on an instrument pursuant to
applicable state securities laws and the stop-transfer instructions with respect
to such securities shall be removed upon receipt by the Company of an order of
the appropriate blue sky authority authorizing such removal.
3.2 DEMAND REGISTRATION.
(a) Subject to the conditions of this Section 3.2, if the
Company shall receive at any time and from time to time on or following the
earlier of (i) six months after the effective date of the Company's initial
public offering of the Company's common stock (the "INITIAL OFFERING"), or (ii)
June 5, 2000, a written request from the Series D Investors (or any assignee
pursuant to Section 3.10 hereof) holding more than forty percent (40%) of the
Series D Preferred Stock (or common stock issued upon conversion of the Series D
Preferred Stock or a combination of such common stock and Series D Preferred
Stock) then outstanding (the "REQUESTING HOLDERS") that the Company file a
registration statement under the Securities Act covering the registration of all
or any portion of the Registrable Securities, then the Company shall, within
thirty (30) days of the receipt thereof, give written notice of such request to
all Holders, and subject to the limitations of Section 3.2(c) effect, as soon as
practicable, the registration under the Securities Act of all Registrable
Securities that the Holders request to be registered.
(b) Subject to the conditions of this Section 3.2, if the
Company shall receive at any time after the earlier of (i) the date one hundred
eighty (180) days following the effective date of the registration statement
pertaining to the Company's Initial Offering, or (ii) October 25, 1999, a
written request from the Series A Investors, the Series B Investors, the Series
C Investors and/or the Series E Investors (or any assignee thereof pursuant to
Section 3.10 hereof) holding more than fifteen percent (15%) of the Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and/or
Series E Preferred Stock (or common stock issued upon conversion of the Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and/or
Series E Preferred Stock or a combination of such common stock and Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and/or
Series E Preferred Stock) then outstanding (the "INITIATING HOLDERS") that the
Company file a registration statement under the Securities Act covering the
registration of all or any portion of the Registrable Securities, then the
Company shall, within thirty (30) days of the receipt thereof, give written
notice of such request to all Holders, and subject to the limitations of Section
3.2(c), effect, as soon as practicable, the registration under the Securities
Act of all Registrable Securities that the Holders request to be registered.
(c) If the Initiating Holders or Requesting Holders,
respectively, 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 3.2 and the Company shall include
such information in the written notice referred to in Section 3.2(a) and Section
3.2(b). In such event, the right of any Holder to include its Registrable
Securities in such registration shall be conditioned upon such
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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 or Requesting Holders, as
applicable, 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 or Requesting Holders, as applicable, (which underwriter or
underwriters shall be reasonably acceptable to the Company). Notwithstanding any
other provision of this Section 3.2, if the underwriter advises the Company in
writing that marketing factors require a limitation of the number of securities
to be underwritten (including Registrable Securities) then the Company shall so
advise all Holders of Registrable Securities which 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 or Requesting
Holders, as applicable). Any Registrable Securities excluded or withdrawn from
such underwriting shall be withdrawn from the registration.
(d) The Company shall not be obligated to effect more than
two registrations pursuant to each of Section 3.2(a) and Section 3.2(b).
(e) The Company shall not be required to effect a
registration pursuant to this Section 3.2 during the period starting with the
date of filing of, and ending on the date one hundred eighty (180) days
following the effective date of the registration statement pertaining to its
Initial Offering, provided that the Company is making reasonable and good faith
efforts to cause such registration statement to become effective. In addition,
the Company shall not be required to effect a registration pursuant to this
Section 3.2 if within thirty (30) days of receipt of a written request from the
Requesting Holders pursuant to Section 3.2(a) or Initiating Holders pursuant to
Section 3.2(b), the Company gives notice to the Holders of the Company's
intention to make a public offering of the Company's common stock within sixty
(60) days.
(f) Notwithstanding the foregoing, if the Company shall
furnish to Holders requesting a registration statement pursuant to this Section
3.2, a certificate signed by the President or the Chairperson 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 shareholders
for such registration statement to be filed and it is therefore essential to
defer the filing of such registration statement, the Company shall have the
right to defer such filing for a period of not more than one hundred and twenty
(120) days after receipt of the request of the Initiating Holders or Requesting
Holders, as applicable; provided that such right to delay a request shall be
exercised by the Company no more than once in any one year period.
3.3 PIGGYBACK REGISTRATIONS. The Company shall notify all Holders of
Registrable Securities in writing at least thirty (30) days prior to the filing
of any registration statement under the Securities Act for purposes of a public
offering of securities of the Company (including, but not limited to,
registration statements relating to secondary offerings of securities of the
Company, but excluding registration statements relating to employee benefit
plans and corporate reorganizations) and will afford each such Holder an
opportunity to include in such registration statement all or part of such
Registrable Securities held by such Holder, provided, that such notice shall not
obligate the Company to file such registration statement. Each Holder desiring
to include in any such registration statement all or any part of the Registrable
Securities held by it shall, within twenty (20) days after receipt of the
above-described notice from the Company, so notify the Company in writing. Such
notice shall state the intended method
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of disposition of the Registrable Securities by such Holder. If a Holder decides
not to include all of its Registrable Securities in any registration statement
thereafter filed by the Company, such Holder shall nevertheless continue to have
the right to include any Registrable Securities in any subsequent registration
statement or registration statements as may be filed by the Company with respect
to offerings of its securities, all upon the terms and conditions set forth
herein.
(a) UNDERWRITING. If the registration statement under which
the Company gives notice under this Section 3.3 is for an underwritten offering,
the Company shall so advise the Holders of Registrable Securities. In such
event, the right of any such Holder to be included in a registration pursuant to
this Section 3.3 shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting to the extent provided herein. All Holders proposing to distribute
their Registrable Securities through such underwriting shall enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected by the Company for such underwriting. Notwithstanding any other
provision of the Agreement, if the underwriter determines in good faith that
marketing factors require a limitation of the number of shares to be
underwritten, the number of shares that may be included in the underwriting
shall be allocated, first, to the Company; second, to the Holders on a pro rata
basis based on the total number of Registrable Securities held by the Holders;
and third, to any shareholder of the Company (other than a Holder) on a pro rata
basis. No such reduction shall reduce the securities being offered by the
Company for its own account to be included in the registration and underwriting,
except that in no event shall the amount of securities of the Holders included
in the registration be reduced below thirty percent (30%) of the total amount of
securities included in such registration, unless such offering is the Initial
Offering, in which event any or all of the Registrable Securities of the Holders
may be excluded in accordance with the immediately preceding sentence. In no
event will shares of any other selling shareholder be included in such
registration which would reduce the number of shares which may be included by
any Holders without the written consent of Holders holding not less than a
majority of the Registrable Securities proposed to be sold in the offering.
3.4 FORM S-3 REGISTRATION. In case the Company shall receive from
either (a) the Series D Investors holding at least twenty percent (20%) of the
Series D Preferred Stock (the "REQUISITE SERIES D INVESTORS") (or common stock
issued upon conversion of the Series D Preferred Stock or a combination of such
common stock and Series D Preferred Stock) 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 (b) Series A Investors, Series B Investors, Series C Investors
and/or Series E Investors holding at least twenty percent (20%) of the Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and/or the
Series E Preferred Stock (the "REQUISITE JUNIOR INVESTORS") (or common stock
issued upon conversion of the Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock and/or the Series E Preferred Stock or a
combination of such common stock and Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock and/or the Series E Preferred Stock) 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 part of the
Registrable Securities owned by such Holder, the Company will:
(a) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all other Holders
of Registrable Securities; and
(b) as soon as practicable, effect such registration and all
such qualifications and compliances as may be so requested and as would permit
or facilitate the sale and distribution of all or such portion of such Holder's
or Holders' Registrable Securities as are specified in such request, together
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with all or such portion of the Registrable Securities of any other Holder or
Holders joining in such request as are specified in a written request given
within fifteen (15) days after receipt of such written notice from the Company;
provided, however, that the Company shall not be obligated to effect any such
registration, qualification or compliance pursuant to this Section 3.4: (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 of less than
$1,000,000, (iii) if the Company shall furnish to the Holders a certificate
signed by the President or Chairperson of the Board of Directors of the Company
stating that in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company and its shareholders
for such Form S-3 Registration to be effected at such time, in which event the
Company shall have the right to defer the filing of the Form S-3 registration
statement for a period of not more than sixty (60) days after receipt of the
request of the Holder or Holders under this Section 3.4; provided that such
right to delay a request shall be exercised by the Company no more than twice in
any one-year period, (iv) if the Company has, within the twelve (12) month
period preceding the date of such request, already effected two registrations on
Form S-3 for the Holders of Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock or Series E Preferred Stock or two registrations on
Form S-3 for the Holders of Series D Preferred Stock pursuant to this Section
3.4, 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. In
addition, the Company shall not be required to effect a registration pursuant to
this Section 3.4 if within thirty (30) days receipt of a written request from
Investors pursuant to this Section 3.4, the Company gives notice to the Holders
of the Company's intention to make a public offering of the Company's common
stock within sixty (60) days.
(c) Subject to the foregoing, the Company shall file a Form
S-3 registration statement covering the Registrable Securities and other
securities so requested to be registered as soon as practicable after receipt of
the request or requests of the Holders.
3.5 EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to
Section 3.2 or any registration under Section 3.3 or Section 3.4 herein shall be
borne by the Company. All Selling Expenses incurred in connection with any
registrations hereunder, shall be borne by the holders of the securities so
registered pro rata on the basis of the number of shares so registered. The
Company shall not, however, be required to pay for the Registration Expenses of
any registration proceeding begun pursuant to Sections 3.2 or 3.4, the request
of which has been subsequently withdrawn by the Initiating Holders, Requesting
Holders, Requisite Series D Investors or Requisite Junior Investors, as
applicable, unless (a) the withdrawal is based upon material adverse information
concerning the Company of which the Initiating Holders, Requesting Holders,
Requisite Series D Investors or Requisite Junior Investors, as applicable, were
not aware at the time of such request or (b) the Initiating Holders, Requesting
Holders, Requisite Series D Investors, or Requisite Junior Investors, as
applicable, agree to forfeit their right to one requested registration pursuant
to Section 3.2 or Section 3.4, as applicable. If the Holders are required to pay
the Registration Expenses, such expenses shall be borne by the holders of
securities (including Registrable Securities) requesting such registration in
proportion to the number of shares for which registration was requested. If the
Company is required to pay the Registration Expenses of a withdrawn offering
pursuant to this Section 3.5, then the Holders shall not forfeit their rights
pursuant to Section 3.2 or Section 3.4 to a demand registration or registration
on Form S-3, respectively.
3.6 OBLIGATIONS OF THE COMPANY. Whenever required to effect the
registration of any Registrable Securities, the Company shall, as expeditiously
as reasonably possible:
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(a) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its best efforts to cause
such registration statement to become effective, and, upon the request of the
Holders of a majority of the Registrable Securities registered thereunder, keep
such registration statement effective for up to ninety (90) 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.
(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 Registrable
Securities owned by them.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
blue sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter(s) of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by
such registration statement at any time when a prospectus relating thereto is
required to be delivered under the 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.
(g) Furnish, at the request of a majority of the Holders
participating in the registration, on the date that such Registrable Securities
are delivered to the underwriters for sale, if such securities are being sold
through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective, (i) an opinion, dated 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 and reasonably satisfactory to a majority in interest of the Holders
requesting registration, addressed to the underwriters, if any, and to the
Holders requesting registration of Registrable Securities 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 and
reasonably satisfactory to a majority in interest of the Holders requesting
registration, addressed to the underwriters, if any, and to the Holders
requesting registration of Registrable Securities.
3.7 TERMINATION OF REGISTRATION RIGHTS. All registration rights
granted under this Section 3 shall terminate and be of no further force and
effect upon the earlier of (a) seven years after the date
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following the closing of the Company's Initial Offering or (b) as to any Holder,
when the Company's shares are publicly traded on a national market and such
Holder is able to sell all of his shares under Rule 144 within any ninety (90)
day period.
3.8 DELAY OF REGISTRATION: FURNISHING INFORMATION.
(a) 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 3.
(b) It shall be a condition precedent to the obligations of
the Company to take any action pursuant to Section 3 that the selling Holders
shall furnish to the Company such information regarding themselves, the
Registrable Securities held by them and the intended method of disposition of
such securities as shall be required to effect the registration of their
Registrable Securities.
(c) The Company shall have no obligation with respect to any
registration requested pursuant to Section 3.2 or Section 3.4 if, due to the
operation of subsection 3.8(b) the number of shares or the anticipated aggregate
offering price of the Registrable Securities to be included in the registration
does not equal or exceed the number of shares or the anticipated aggregate
offering price required to originally trigger the Company's obligation to
initiate such registration as specified in Section 3.2 or Section 3.4, whichever
is applicable.
3.9 INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under Sections 3.2, 3.3 or 3.4:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless each Holder, the partners, officers and directors of
each Holder, any underwriter (as defined under 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 Securities Exchange Act of 1934, as
amended, (the "1934 ACT"), against any losses, claims, damages, or liabilities
(joint or several) to which they may become subject under the Securities Act,
the 1934 Act or other federal or state law, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any of the following statements, omissions or violations (collectively a
"VIOLATION") by the Company: (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 Securities Act, the 1934 Act, any state
securities law or any rule or regulation promulgated under the Securities Act,
the 1934 Act or any state securities law in connection with the offering covered
by such registration statement; and the Company will reimburse each such Holder,
partner, officer or director, underwriter or controlling person for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the indemnity agreement contained in this Section 3.9(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld) nor shall the Company be liable in any such
case for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation which occurs solely in reliance upon
and in conformity with written information furnished expressly for use in
connection with such registration by such Holder, partner, officer, director,
underwriter or controlling person of such Holder.
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(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 Securities Act, any underwriter and any other Holder selling securities
under such registration statement or any of such other Holder's partners,
directors or officers or any person who controls such Holder, against any
losses, claims, damages or liabilities (joint or several) to which the Company
or any such director, officer, controlling person, underwriter or other such
Holder, or partner, director, officer or controlling person of such other Holder
may become subject under the Securities Act, the 1934 Act or other federal or
state law, insofar as such losses, claims, damages or liabilities (or actions in
respect thereto) arise out of or are based upon any Violation, in each case to
the extent (and only to the extent) that such Violation occurs solely in
reliance upon and in conformity with written information furnished by such
Holder under an instrument duly executed by such Holder and stated to be
specifically for use in connection with such registration; and each such Holder
will reimburse any legal or other expenses reasonably incurred by the Company or
any such director, officer, controlling person, underwriter or other Holder, or
partner, officer, director or controlling person of such other Holder in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the indemnity agreement contained
in this Section 3.9(b) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of the Holder, which consent shall not be unreasonably withheld;
provided further, that in no event shall any indemnity under this Section 3.9
exceed the net proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under
this Section 3.9 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 3.9, 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 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 differing interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if materially prejudicial to its ability to
defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 3.9, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this Section 3.9.
(d) If the indemnification provided for in this Section 3.9
is held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any losses, claims, damages or liabilities referred to
herein, the indemnifying party, in lieu of indemnifying such indemnified party
thereunder, shall to the extent permitted by applicable law contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability 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 Violation(s) that resulted in such
loss, claim, damage or liability, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by a court of law by reference to, among
other things, whether the Violation relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
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(e) The foregoing indemnity agreements of the Company and
Holders are subject to the condition that, insofar as they relate to any
Violation made in a preliminary prospectus but eliminated or remedied in the
amended prospectus on file with the SEC at the time the registration statement
in question becomes effective or the amended prospectus filed with the SEC
pursuant to SEC Rule 424(b) (the "FINAL PROSPECTUS"), such indemnity agreement
shall not inure to the benefit of any person if a copy of the Final Prospectus
was furnished to the indemnified party and was not furnished to the person
asserting the loss, liability, claim or damage at or prior to the time such
action is required by the Securities Act.
(f) The obligations of the Company and Holders under this
Section 3.9 shall survive the completion of any offering of Registrable
Securities in a registration statement and otherwise.
3.10 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the
Company to register Registrable Securities pursuant to this Section 3 may be
assigned by a Holder to a transferee or assignee of Registrable Securities;
provided, however, that no such transferee or assignee shall be entitled to
registration rights under Sections 3.2, 3.3 or 3.4 hereof unless it acquires at
least the greater of ten percent (10%) of such Holder's Registrable Securities
or twenty five thousand (25,000) shares of Registrable Securities (as adjusted
for stock splits and combinations) and the Company shall, within twenty (20)
days after such transfer, be furnished with written notice of the name and
address of such transferee or assignee and the securities with respect to which
such registration fights are being assigned. Notwithstanding the foregoing,
rights to cause the Company to register securities may be assigned to any
subsidiary, parent, general partner or limited partner of a Holder.
3.11 AMENDMENT OF REGISTRATION RIGHTS. Any provision of this Section
3 may be amended and the observance thereof 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 at least seventy-five
percent (75%) of the Registrable Securities. Any amendment or waiver effected in
accordance with this Section 3.11 shall be binding upon each Holder and the
Company. By acceptance of any benefits under this Section 3, Holders of
Registrable Securities hereby agree to be bound by the provisions hereunder.
3.12 LIMITATION ON SUBSEQUENT REGISTRATION RIGHTS. After the date of
this Agreement, the Company shall not, without the prior written consent of
Investors holding at least a majority of the Registrable Securities, enter into
any agreement with any holder or prospective holder of any securities of the
Company providing for the granting to such holder of registration rights
superior to those granted to the Holders pursuant to this Section 3, or of
registration rights pursuant to Sections 3.2, 3.3 or 3.4.
3.13 "MARKET STAND-OFF" AGREEMENT. If requested by the Company and an
underwriter of common stock (or other securities) of the Company, an Investor, a
Founder or a Warrant Holder shall not sell or otherwise transfer, dispose of,
make any short sale of, grant any option for the purpose of, or enter into any
hedging or similar transaction with the same economic effect as a sale, any
common stock (or other securities) of the Company held by such Investor, Founder
or Warrant Holder (other than those included in the registration) for a period
specified by the underwriters not to exceed one hundred eighty (180) days
following the effective date of a registration statement of the Company filed
under the Securities Act relating to the Initial Offering and not to exceed
ninety (90) days following a subsequent underwritten registration, provided that
all officers, key employees and directors of the Company enter into similar
agreements. The obligations described in this Section 3.13 shall not apply to a
registration relating solely to employee benefit plans on Form S-1 or Form S-8
or similar forms that may be promulgated in the future, or a registration
relating solely to a Commission Rule 145 transaction on Form
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S-4 or similar forms that may be promulgated in the future. The Company may
impose stop-transfer instructions with respect to the shares (or securities)
subject to the foregoing restriction until the end of said one hundred eighty
(180) day or ninety (90) day period, as applicable.
SECTION 4. COVENANTS OF THE COMPANY.
4.1 BASIC FINANCIAL INFORMATION AND REPORTING.
(a) The Company will maintain true books and records of
account in which full and correct entries will be made of all its business
transactions pursuant to a system of accounting established and administered in
accordance with generally accepted accounting principles consistently applied
and will set aside on its books all such proper accruals and reserves as shall
be required under generally accepted accounting principles consistently applied.
(b) The Company will furnish each Investor as soon as
practicable after the end of each fiscal year of the Company, and in any event
within ninety (90) days thereafter, a consolidated balance sheet of the Company,
as at the end of such fiscal year, and a consolidated statement of income and a
consolidated statement of cash flows of the Company, for such year, all prepared
in accordance with generally accepted accounting principles and setting forth in
each case in comparative form the figures for the previous fiscal year, all in
reasonable detail. Such financial statements shall be accompanied by a report
and opinion thereon by independent public accountants of national standing
selected by the Company's Board of Directors.
(c) The Company will furnish each Investor, as soon as
practicable after the end of the first, second and third quarterly accounting
periods in each fiscal year of the Company, and in any event within forty-five
(45) days thereafter, a balance sheet of the Company as of the end of each such
quarterly period, and a statement of income and a statement of cash flows of the
Company for such period and for the current fiscal year to date, prepared in
accordance with generally accepted accounting principles, with the exception
that no notes need to be attached to such statements and year-end audit
adjustments may not have been made.
(d) The Company will furnish each Investor (i) at least
thirty (30) days prior to the beginning of each fiscal year an annual budget of
sales and expenses for such fiscal year; and (ii) within twenty (20) days after
the end of each month, an unaudited balance sheet and statements of income and
cash flows, prepared in accordance with generally accepted accounting
principles, with the exception that no notes need be attached to such statements
and year-end audit adjustments may not have been made, but such statement shall
set forth applicable budget figures and variances from budget.
4.2 INSPECTION RIGHTS. Each Investor shall have the right to visit
and inspect any of the properties of the Company or any of its subsidiaries, and
to discuss the affairs, finances and accounts of the Company or any of its
subsidiaries with its officers, all at such reasonable times and as often as may
be reasonably requested; provided, however, that the Company shall not be
obligated under this Section 4.2 with respect to a competitor of the Company or
with respect to information which the Board of Directors determines in good
faith is confidential and should not, therefore, be disclosed.
4.3 CONFIDENTIALITY. Each Investor agrees that it will keep
confidential and will not disclose or divulge any confidential, proprietary or
secret information which such Investor may obtain from the Company, and which
the Company has prominently marked "confidential," "proprietary" or "secret" or
has otherwise identified as being such or if due to its character or nature, a
reasonable person in a like
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position and under like circumstances would treat the information as
confidential, proprietary or secret, pursuant to financial statements, reports
and other materials submitted by the Company as required hereunder, or pursuant
to visitation or inspection rights granted hereunder unless such information is
or becomes known to the Investor from a source other than the Company which, to
such Investor's knowledge, is not under any confidentiality obligation, whether
imposed by law or contract or is or becomes publicly known without any breach of
this Section 4.3, or unless the Company gives its written consent to the
Investor's release of such information, except that no such written consent
shall be required (and Investor shall be free to release such information) if
such information is to be provided to an Investor's counsel or accountant, or to
an officer, director or partner of an Investor, provided that the Investor shall
inform the recipient of the confidential nature of such information, and shall
instruct the recipient to treat the information as confidential.
4.4 RESERVATION OF COMMON STOCK. The Company will at all times
reserve and keep available, solely for issuance and delivery upon the conversion
of the Shares, all common stock issuable from time to time upon such conversion.
4.5 REAL PROPERTY HOLDING CORPORATION. The Company covenants that it
will operate in a manner such that it will not become a "United States real
property holding corporation" ("USRPHC") as that term is defined in Section
897(c)(2) of the Internal Revenue Code of 1986, as amended, and the regulations
thereunder. The Company agrees to make determinations as to its status as a
USRPHC, and will file statements concerning those determinations with the
Internal Revenue Service, in the manner and at the times required under Reg.
Section 1.897-2(h), or any supplementary or successor provision thereto. Within
thirty (30) days of a request from an Investor or any of its partners, the
Company will inform the requesting party, in the manner set forth in Reg.
Section 1.897- 2(h)(1) or any supplementary or successor provision thereto,
whether that party's interest in the Company constitutes a United States real
property interest (within the meaning of Internal Revenue Code Section 897(c)(1)
and the regulations thereunder) and whether the Company has provided to the
Internal Revenue Service all required notices as to its USRPHC status.
4.6 TERMINATION OF COVENANTS. All covenants of the Company contained
in Section 4 of this Agreement shall expire and terminate as to each Investor
immediately after the time of effectiveness of the Company's Initial Offering.
4.7 OBSERVER RIGHTS. Technology Funding Venture Partners V, An
Aggressive Growth Fund, L.P. and Rodale Press, Inc., shall have the right to
have a representative (the "REPRESENTATIVE") attend all meetings of the Board of
Directors in a nonvoting observer capacity, to receive notice of such meetings
and to receive the information provided by the Company to the Board of
Directors; provided, however, that the Representative and each person having
access to any of the information provided by the Company to the Board of
Directors must agree to hold in confidence and trust and to act in a fiduciary
manner with respect to all information so received during such meetings or
otherwise (which agreement shall be presumed by their attendance at any such
meeting or their acceptance of any such information); provided further, that the
Company reserves the right not to provide information and to exclude the
Representative from any meeting or portion thereof if delivery of such
information or attendance at such meeting by such Representative would result in
disclosure of trade secrets to such Representative or would adversely affect the
attorney-client privilege between the Company and its counsel.
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4.8 CERTAIN COVENANTS RELATING TO SBA MATTERS.
(a) USE OF PROCEEDS. The investment proceeds from each
Investor which is a licensed Small Business Investment Company (an "SBIC
INVESTOR") (the "PROCEEDS") shall be used by the Company for its growth,
modernization or expansion. The Company shall provide each SBIC Investor and the
Small Business Administration (the "SBA") reasonable access to the Company's
books and records for the purpose of confirming the use of Proceeds.
(b) BUSINESS ACTIVITY. For a period of one year following
the date hereof, the Company shall not change the nature of its business
activity if such change would render the Company ineligible as provided in 13
C.F.R. Section 107.720.
(c) COMPLIANCE. So long as any SBIC Investor holds any
securities of the Company, the Company will at all times comply with the
non-discrimination requirements of 13 C.F.R. Parts 112, 113 and 117.
(d) INFORMATION FOR SBIC INVESTOR. Within forty-five (45)
days after the end of each fiscal year and at such other times as an SBIC
Investor may reasonably request, the Company shall deliver to such SBIC Investor
a written assessment, in form and substance satisfactory to such SBIC Investor,
of the economic impact of such SBIC Investor's financing specifying the
full-time equivalent jobs created or retained in connection with such
investment, and the impact of the financing on the Company's business in terms
of profits and on taxes paid by the Company and its employees. Upon request, the
Company agrees to promptly provide each SBIC Investor with sufficient
information to permit such Investor to comply with their obligations under the
Small Business Investment Act of 1958, as amended, and the regulations
promulgated thereunder and related thereto; provided, however, each SBIC
Investor agrees that it will protect any information which the Company labels as
confidential to the extent permitted by law. Any submission of any financial
information under this Section shall include a certificate of the company's
president, chief executive officer, treasurer or chief financial officer.
(e) NUMBER OF HOLDERS OF VOTING SECURITIES. So long as any
SBIC Investor holds any securities purchased pursuant to the Purchase Agreement
or issued by the Company with respect thereto, the Company shall notify each
SBIC Investor (i) at least fifteen (15) days prior to taking any action after
which the number of record holders of the Company's voting securities would be
increased from fewer than fifty (50) to fifty (50) or more, and (ii) of any
other action or occurrence after which the number of record holders of the
Company's voting securities was increased (or would increase) from fewer than
fifty (50) to fifty (50) or more, as soon as practicable after the Company
becomes aware that such other action or occurrence has occurred or is proposed
to occur.
SECTION 5. RIGHTS OF FIRST REFUSAL.
5.1 SUBSEQUENT OFFERINGS. Each Investor shall have a right of first
refusal to purchase its pro rata share of all Equity Securities (as hereinafter
defined) that the Company may, from time to time, propose to sell and issue
after the date of this Agreement, other than the Equity Securities excluded by
Section 5.6 hereof. Each Investor's pro rata share, for purposes of this right
of first refusal, is equal to the ratio of the number of Shares (including all
shares of common stock issued or issuable upon conversion of the Shares) which
such Investor is deemed to be a holder immediately prior to the issuance of such
Equity Securities to the total number of Shares (including all shares of common
stock issued or issuable upon conversion of the Shares) held by all Investors.
The term "EQUITY SECURITIES" shall mean (a) any stock or similar security of the
Company, (b) any security convertible, with or without
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consideration, into any stock or similar security (including any option to
purchase such a convertible security), (c) any security carrying any warrant or
right to subscribe to or purchase any stock or similar security or (d) any such
warrant or right.
5.2 EXERCISE OF RIGHTS. If the Company proposes to issue any Equity
Securities, it shall give each Investor written notice of its intention,
describing the Equity Securities, the price and the terms and conditions upon
which the Company proposes to issue the same. Each Investor shall have fifteen
(15) days from the giving of such notice to agree to purchase its pro rata share
of the Equity Securities for the price and upon the terms and conditions
specified in the notice by giving written notice to the Company and stating
therein the quantity of Equity Securities to be purchased. Notwithstanding the
foregoing, the Company shall not be required to offer or sell such Equity
Securities to any Investor who would cause the Company to be in violation of
applicable federal or state securities laws by virtue of such offer or sale.
5.3 TERMINATION OF RIGHTS OF FIRST REFUSAL. The rights of first
refusal established by this Section 4 shall not apply to and shall terminate
upon the closing of the Company's Initial Offering.
5.4 ISSUANCE OF EQUITY SECURITIES TO OTHER PERSONS. If not all of
the Investors elect to purchase their pro rata share of the Equity Securities,
then the Company shall promptly notify in writing the Investors who do so elect
and shall offer such Investors the right to acquire such unsubscribed shares
("SUBSCRIPTION NOTICE"). The Investors shall have five days after receipt of the
Subscription Notice to notify the Company of its election to purchase all or a
portion thereof of the unsubscribed shares. If the Investors fail to exercise in
full the rights of first refusal, the Company shall have ninety (90) days
thereafter to sell the Equity Securities in respect of which the Investors'
rights were not exercised, at a price and upon terms and conditions no more
favorable to the purchasers thereof than specified in the Company's notice to
the Investors pursuant to Section 5.2 hereof. If the Company has not sold such
Equity Securities within such ninety (90) days, the Company shall not thereafter
issue or sell any Equity Securities, without first offering such securities to
the Investors in the manner provided above.
5.5 TRANSFER OF RIGHTS OF FIRST REFUSAL. The rights of first refusal
of each Investor under this Section 5 may be transferred to any constituent
partner or affiliate of such Investor, to any successor in interest to all or
substantially all the assets of such Investor, or to a transferee who acquires
the greater of ten percent (10%) of the Investor's Registrable Securities or
twenty-five thousand (25,000) shares (as adjusted for stock splits, combinations
and the like) of Registrable Securities, provided that such transferee agrees in
writing to be bound by the provisions of this Agreement.
5.6 EXCLUDED SECURITIES. The rights of first refusal established by
this Section 5 shall have no application to any of the following Equity
Securities:
(a) shares of common stock issuable or issued to employees,
officers, directors or consultants of the Company directly (or pursuant to stock
purchase or option plans), which number shall not include additional shares of
common stock reissued to employees, officers, directors or consultants of the
Company after any repurchase of shares of common stock issued to or held by
employees, officers, directors or consultants of the Company upon termination of
their employment or services pursuant to any agreement providing for such
repurchases;
(b) stock issued pursuant to any rights, agreements or
warrants outstanding as of the date hereof;
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(c) any Equity Securities issued for consideration other
than cash pursuant to a merger, consolidation, acquisition or similar business
combination;
(d) any Equity Securities that are issued by the Company as
part of an underwritten public offering referred to in
Section 5.3 hereof;
(e) shares of common stock issued in connection with any
stock split, stock dividend or recapitalization by the Company;
(f) shares of common stock issued upon conversion of the
preferred stock of the Company;
(g) shares of Securities (as hereinafter defined in Section
6 hereof); or
(h) any Equity Securities issued pursuant to any equipment
leasing arrangement, bank financing, licenses or non-financial business
arrangements.
SECTION 6. PARTICIPATION RIGHTS.
6.1 PARTICIPATION RIGHTS. Each Investor shall have a participation
right to purchase its pro rata share of all Securities (as hereinafter defined)
that the Company may, from time to time, propose to sell or issue pursuant to
Section 6.2 or Section 7.1 hereof in connection with the Company's right to
purchase shares of Xxxxx.xxx Networks LLC (the "LLC") (as defined in the
Liability Company Agreement of Xxxxx.xxx Networks LLC by and between Xxxxx.xxx
Networks and Hearst HomeArts, Inc. dated January 27, 1999 (the "LLC AGREEMENT")
attached hereto as EXHIBIT B and for purposes of this Agreement the "SHARES," as
defined in such LLC Agreement, shall be hereinafter defined as the "LLC SHARES")
(individually, a "PARTICIPATION RIGHT" and collectively, the "PARTICIPATION
RIGHTS"). Each Investor's pro rata share, for purposes of these Participation
Rights and the Capital Call (as defined below), shall be equal to the ratio of
the number of Shares (including all shares of common stock issued or issuable
upon conversion of the Shares) which such Investor is deemed to hold immediately
prior to the issuance of such Securities to the total number of Shares
(including all shares of common stock issued or issuable upon conversion of the
Shares) held by all Investors. The Investors herein agree to vote their Shares
(including all shares of common stock issued upon conversion of the Shares) to
approve the issuance of the Securities and to approve all amendments to existing
agreements and agreements required to effectuate such issuance, including, but
not limited to, approving an amendment to the Company's Amended and Restated
Articles of Incorporation in order to authorize such Securities. The term
"SECURITIES" for purposes of this Agreement shall mean the preferred security
that the Company will propose to sell in connection with the purchase of the LLC
Shares at such time as the Company receives a Participation Notice (as
hereinafter defined in Section 6.2 hereof) or receives notice of a Capital Call
from the Management Committee of the LLC.
6.2 EXERCISE OF RIGHTS. In the event that the Company receives a
written notice from the LLC (the "PARTICIPATION NOTICE") setting forth the
amount of the LLC Shares which the LLC proposes to sell or issue, the price
(before any commission or discount) at which such LLC Shares are proposed to be
issued (or, in the case of an underwritten or privately placed offering in which
the price is not known at the time the Participation Notice is given, the method
for determining such price and an estimate thereof), and all other relevant
information as to such proposed transaction as may be necessary for the Members
(as defined in the LLC Agreement) to determine whether or not to exercise the
rights granted in Section 8.04 of such LLC Agreement or receives notice of a
Capital Call by the Management
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Committee of the LLC pursuant to Section 3.12 of the LLC Agreement, then the
Company shall propose to sell an equivalent number of Securities to the
Investors at the same price per share upon which the LLC Shares shall be sold to
the Company. The Company shall deliver a written notice to each of the Investors
within three days of receipt of the Participation Notice or the notice of a
Capital Call, as applicable, describing the Securities, the price and the terms
and conditions upon which the Company proposes to issue the same (the "COMPANY
Notice"). Each Investor shall have seven days from the giving of such Company
Notice to agree to purchase its pro rata share of the Securities for the price
and upon the terms and conditions specified in the Company Notice by giving
written notice to the Company and stating therein the quantity of Securities to
be purchased by such Investor (the "EXERCISE NOTICE"). Pursuant to such Exercise
Notice, the Investor shall state the aggregate amount of Securities that the
Investor elects to purchase in such sale of Securities; provided, however, if
Investors subscribe for a number of Securities in excess of the aggregate amount
proposed to be sold by the Company in such transaction, the Investors shall be
cut back proportionally based on their pro rata share percentages determined in
accordance with the ratios specified in Section 6.1 hereof. Each Exercise Notice
shall be irrevocable, subject to the conditions of closing of the transaction
giving rise to the Participation Rights, as provided for in Section 8.04 of the
LLC Agreement, or the conditions to a Capital Call as described in Section 3.12
of the LLC Agreement and Section 7.1 herein. The Company shall utilize the
proceeds from the sale of such Securities to purchase corresponding LLC Shares
on the terms specified in such Participation Notice within the requisite
timeframe specified in Section 8.04 of the LLC Agreement or the terms of the
Capital Call, as applicable. Notwithstanding the foregoing, the Company shall
not be required to offer or sell such Securities to any Investor who would cause
the Company to be in violation of applicable federal or state securities laws by
virtue of such offer or sale.
6.3 TIMING OF SALE. If, with respect to any Company Notice, the
Investors fail to exercise in full their Participation Rights with respect to
any offering of Securities, the Company shall have eleven (11) days thereafter
to sell the Securities in respect of which the Investors' rights were not
exercised, at a price and upon terms and conditions no more favorable to the
purchasers thereof than specified in the Company Notice to the Investors
pursuant to Section 6.2 hereof. If the Company has not sold such Securities
within such eleven (11) day period, the Company shall not thereafter issue or
sell any Securities without first offering such securities to the Investors in
the manner provided above.
6.4 TERMINATION. Such Participation Rights shall not apply to, and
shall terminate upon the closing of, the Initial Public Offering (as defined in
the LLC Agreement).
SECTION 7. CAPITAL CALLS.
7.1 OPERATION OF CAPITAL CALLS. Upon a request from the Management
Committee of the LLC pursuant to Section 3.12 of the LLC Agreement for an
additional capital contribution from the Company (the "CAPITAL CALL"), the
Company agrees to take the following actions. Upon receipt of such request for
additional capital, the Company shall send a written notice to the Investors
within three days of receipt of the notice of the Capital Call stating the
amount requested by the Management Committee and the purpose of such Capital
Call (the "CALL NOTICE") as described in Section 6.2 hereof. The Investors shall
have seven days from the giving of such Call Notice to notify the Company of how
much capital they would be willing to contribute in connection with such Capital
Call (the "COMMITTED AMOUNT") in accordance with the requirements of Section 6.2
hereof. The Company shall notify the Management Committee of the Committed
Amount; provided, however, the Company shall not commit funds in excess of such
Committed Amount to the LLC and shall not agree to transfer the Committed Amount
to the LLC without additional LLC Shares being issued to the Company in
connection with such contribution of any Committed Amount as described in
Section 6.2 hereof. In conjunction with the
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issuance of LLC Shares to the Company in connection with such Capital Call, the
Company shall issue Securities to the participating Investors in accordance with
Sections 6.1 and 6.2 hereof. If the Investors do not agree to contribute any
funds to the LLC pursuant to such Capital Call, the Company, as a Member of the
LLC, shall not approve any capital contribution requested by the Management
Committee of the LLC, which requires a pro rata contribution by the Company with
the other Members of such LLC.
SECTION 8. MISCELLANEOUS.
8.1 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 the State
of California.
8.2 SURVIVAL. The representations, warranties, covenants, and
agreements made herein shall survive any investigation made by any Holder and
the closing of the transactions contemplated hereby. All statements as to
factual matters contained in any certificate or other instrument delivered by or
on behalf of the Company pursuant hereto in connection with the transactions
contemplated hereby shall be deemed to be representations and warranties by the
Company hereunder solely as of the date of such certificate or instrument.
8.3 SUCCESSORS AND ASSIGNS. Except in connection with a merger or
sale of substantially all the assets of the Company, or as otherwise expressly
provided herein, this Agreement, and the rights and obligations hereunder, may
not be assigned by any party hereto without the prior written consent of the
Company, the Founders and the holders of at least a majority in interest of the
Shares. The provisions hereof shall inure to the benefit of, and be binding
upon, the successors, permitted assigns, heirs, executors, and administrators of
the parties hereto; provided, however, that prior to the receipt by the Company
of adequate written notice of the transfer of any Registrable Securities
specifying the full name and address of the transferee, the Company may deem and
treat the person listed as the holder of such shares in its records as the
absolute owner and holder of such shares for all purposes, including the payment
of dividends or any redemption price.
8.4 SEPARABILITY. In case any provision of the Agreement shall be
invalid, illegal, or unenforceable, the validity, legality, and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
8.5 AMENDMENT AND WAIVER.
(a) Except as otherwise expressly provided, this Agreement
may be amended or modified only upon the written consent of the Company and the
holders of at least a majority of the Shares (including any common stock of the
Company issued upon the conversion of the Shares). In addition, any amendment
that adversely affects the rights of any Founder shall require the written
consent of such Founder.
(b) Except as otherwise expressly provided, the obligations
of the Company and the rights of the Holders and the Founders under this
Agreement may be waived only with the written consent of the Company and the
holders of at least a majority of the Shares (including any common stock of the
Company issued upon the conversion of the Shares). In addition, any waiver that
adversely affects the rights of any Founder shall require the written consent of
the Founder.
18.
19
(c) Any amendment or waiver effected in accordance with this
Section 8.5 shall be binding upon each Holder, its successors and assigns, the
Company and each Founder, its successors and assigns.
(d) The Company, the Founders and the Holders which are
parties to the Prior Agreement, agree that such Prior Agreement is hereby
terminated and superseded by the terms hereof. Without limiting the generality
of the foregoing, the rights of first refusal and the Participation Rights
specified in Section 6.2 and the notice of requirements of Sections 5, 6 and 7
hereof with regard to any issuances of Series E Preferred Stock are hereby
waived.
8.6 DELAYS OR OMISSIONS. It is agreed that no delay or omission to
exercise any right, power, or remedy accruing to any party hereto, upon any
breach, default or noncompliance of any other party hereto under this Agreement
shall impair any such right, power, or remedy, nor shall it be construed to be a
waiver of any such breach, default or noncompliance, or any acquiescence
therein, or of any similar breach, default or noncompliance thereafter
occurring. It is further agreed that any waiver, permit, consent, or approval of
any kind or character on any party's part of any breach, default or
noncompliance under the Agreement or any waiver on such party's part of any
provisions or conditions of this Agreement must be in writing and shall be
effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement, by law, or otherwise afforded to the
parties hereto, shall be cumulative and not alternative.
8.7 NOTICES. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (a) upon personal delivery to the
party to be notified; (b) when sent by confirmed telex; (c) five days after
having been sent by registered or certified mail, return receipt requested,
postage prepaid; or (d) one 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 party to be notified at the
address as set forth on the signature page hereof with regard to the Company and
the Founders, and on EXHIBIT A hereto with regard to the Investors and Warrant
Holders or at such other address as such party may designate by ten days advance
written notice to the other parties hereto.
8.8 ATTORNEYS' FEES. In the event that any dispute among the parties
to this Agreement should result in litigation, the prevailing party in such
dispute shall be entitled to recover from the losing party all fees, costs and
expenses of enforcing any right of such prevailing party under or with respect
to this Agreement, including without limitation, such reasonable fees and
expenses of attorneys and accountants, which shall include, without limitation,
all fees, costs and expenses of appeals.
8.9 TITLES AND SUBTITLES. The titles of the sections and subsections
of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
8.10 PRONOUNS. All pronouns contained herein and any variations
thereof shall be deemed to refer to the masculine, feminine or neuter, singular
or plural, as the identity of the parties hereto may require.
8.11 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
19.
20
IN WITNESS WHEREOF, the parties hereto have executed this AMENDED AND
RESTATED INVESTORS' RIGHTS AGREEMENT as of the date first above written.
COMPANY: XXXXX.XXX NETWORKS
By: /s/ XXXXXXX XXXXXXXX
---------------------------------
Xxxxxxx XxXxxxxx, President
/s/ XXXXX PACK
FOUNDER(S): ---------------------------------
Xxxxx Pack
/s/ XXXXXXX XXXXXXXX
---------------------------------
Xxxxxxx XxXxxxxx
INVESTOR(S): ---------------------------------
(Name of Entity, if applicable)
By:
---------------------------------
(Signature)
Title:
---------------------------------
WARRANT HOLDER(S): ---------------------------------
(Name of Entity, if applicable)
By:
---------------------------------
(Signature)
Title:
---------------------------------
20.
21
================================================================================
XXXXX.XXX NETWORKS
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
MAY 7, 1999
================================================================================
22
TABLE OF CONTENTS
PAGE
SECTION 1. AMENDMENT AND RESTATEMENT OF PRIOR AGREEMENT..................1
1.1 Amendment and Restatement.....................................1
SECTION 2. GENERAL.......................................................2
2.1 Definitions...................................................2
SECTION 3. REGISTRATION; RESTRICTIONS ON TRANSFER........................3
3.1 Restrictions on Transfer......................................3
3.2 Demand Registration...........................................4
3.3 Piggyback Registrations.......................................5
3.4 Form S-3 Registration.........................................6
3.5 Expenses of Registration......................................7
3.6 Obligations of the Company....................................7
3.7 Termination of Registration Rights............................8
3.8 Delay of Registration: Furnishing Information.................9
3.9 Indemnification...............................................9
3.10 Assignment of Registration Rights............................11
3.11 Amendment of Registration Rights.............................11
3.12 Limitation on Subsequent Registration Rights.................11
3.13 "Market Stand-Off" Agreement.................................11
SECTION 4. COVENANTS OF THE COMPANY.....................................12
4.1 Basic Financial Information and Reporting....................12
4.2 Inspection Rights............................................12
4.3 Confidentiality..............................................12
4.4 Reservation of Common Stock..................................13
4.5 Real Property Holding Corporation............................13
4.6 Termination of Covenants.....................................13
4.7 Observer Rights..............................................13
4.8 Certain Covenants Relating to SBA Matters....................14
SECTION 5. RIGHTS OF FIRST REFUSAL......................................14
5.1 Subsequent Offerings.........................................14
5.2 Exercise of Rights...........................................15
5.3 Termination of Rights of First Refusal.......................15
i.
23
TABLE OF CONTENTS
(CONTINUED)
PAGE
5.4 Issuance of Equity Securities to Other Persons...............15
5.5 Transfer of Rights of First Refusal..........................15
5.6 Excluded Securities..........................................15
SECTION 6. PARTICIPATION RIGHTS.........................................16
6.1 Participation Rights.........................................16
6.2 Exercise of Rights...........................................16
6.3 Timing of Sale...............................................17
6.4 Termination..................................................17
SECTION 7. CAPITAL CALLS................................................17
7.1 Operation of Capital Calls...................................17
SECTION 8. MISCELLANEOUS................................................18
8.1 Governing Law................................................18
8.2 Survival.....................................................18
8.3 Successors and Assigns.......................................18
8.4 Separability.................................................18
8.5 Amendment and Waiver.........................................18
8.6 Delays or Omissions..........................................19
8.7 Notices......................................................19
8.8 Attorneys' Fees..............................................19
8.9 Titles and Subtitles.........................................19
8.10 Pronouns.....................................................19
8.11 Counterparts.................................................19
ii.
24
EXHIBIT A
SCHEDULE OF INVESTORS AND WARRANT HOLDERS
MediaOne Interactive Services, Inc.
000 Xxxxxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
El Dorado Ventures III, L.P.
El Dorado Technology IV, L.P.
0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, 00000
AVI Capital, L.P.
Associated Venture Investors III, L.P.
AVI Silicon Valley Partners, L.P.
Xxx Xxxxx Xxxxxx, Xxxxx 00
Xxx Xxxxx, XX 00000
Technology Funding Partners III, L.P.
Technology Funding Venture Partners IV, an Aggressive Growth Fund, L.P.
Technology Funding Venture Partners V, an Aggressive Growth Fund, L.P.
0000 Xxxxxxx xx xxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
HC Crown Corp.
2501 XxXxx, Box 419580
Xxxxxx Xxxx, XX 00000
Xxxxx & Xxx Xxxxx Family Trust
00000 Xxxxxxx Xxxxx
Xxx Xxxxx Xxxxx, XX 00000
Xxxxxxx Xxxxxxx
00000 Xxx Xxxxx Xxxxxxxxx
Xxx Xxxxx, XX 00000
Xxxx XxXxxxxx
000 Xxxxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Xxxxx X. Pack
Xxxxx.xxx Networks
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
EXHIBIT A-1
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
25
GC&H Investments
Xxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000-0000
Xxxxxxxx Xxxx Xxxxx, Xxxxxx X. Xxxxx,
Trustees of the Xxxxxxxx Xxxx Xxxxx Family Trust
U/D/T dated 10/30/87
00000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Xxxx Xxxxxx
00 Xxxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Xxxxx Xxx Xxxxx, Trustee of the Xxxxx Xxx Xxxxx Trust dated October 14, 1997
c/o AutoDesk
000 XxXxxxx Xxxxxxx
Xxx Xxxxxx, XX 00000
Xxxxxxx Pack
00 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxx and Xxxx Xxxx Xxxxxx, Trustees of the
Xxxxxx Living Trust UTA dated 07/27/90
c/o Foundation Capital
00 Xxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Xxxxx X. Xxxxx
0000 Xxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
X. Xxxxx McDonald
Vector Fund Management
0 Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
ABS Employees' Venture Fund Limited Partnership
000 Xxxx Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
Achiever, Inc.
x/x Xxxxxxxxxxxxx Xxxxx & Xxxxxxxxxx
Xxx X-0000-Xxxxxxxxxxx Hse
Cumberland St.
Nassau, Bahamas
EXHIBIT A-2
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
26
Xxxxxx X. Xxxxxxxx Limited Family Partnership
0000 Xxxx Xxxx Xxxxx Xxxxxx
Xxx Xxxxx, XX 00000-0000
Xxxxxxx X. Xxxx
c/o United Holdings, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Xxxxx Family, L.C.
0000 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
W. Xxxxx Xxxxx III
0000 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxxx Xxxxx
00 Xxxxx Xxx Xxxxx
Xxxxxxxx, XX 00000-0000
Xxxxxxx Xxxxxx
c/o Standard Mortgage Holding Company
000 Xxxxx, Xxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Xxxx X. Xxxxx, Xx.
0000 Xxxxxxxxxxx Xxxxx
Xxxxxxxxx Xxxxx, XX 00000-0000
J&T Investments
c/o Xxxx X. Xxxxxxxx and Xxxxxx Xxxxx
00000 Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx Xxxx, XX 00000
Xxxx Xxxx
0000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxxx X. Xxxx
0 Xxxx Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Xxxxx Xxxxxxxx
00 Xxxxxxxx Xxxx
Xxxxx Xxxxx, XX 00000-0000
EXHIBIT A-3
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
27
Xxxxx Xxxxxxx & Associates, Inc.
c/o Dauphin Capital Partners
0000 Xxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000-0000
3GT Investment Partnership
000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Xxxxxx X. Xxxx
00000 Xxxxxxxx Xxxx
Xx. Xxxx, XX 00000-0000
The Xxxxx Xxxxxxx Family Trust
0000-X Xxxxxxxxx Xxxx Xxxxxxxxx
Xxx Xxx Xxxxx, XX 00000-0000
D.W.B. Associates
0000 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxxx Xxxx and Xxxxx Xxxx
2 Longspur
Portola Valley, CA 94028
Essex High Technology Fund, L.P.
c/o Essex Investment Management Company
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000-0000
Essex High Technology Fund (Bermuda), L.P.
c/o Essex Investment Management Company
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000-0000
Fanaroff Investment Partnership
0000 Xxxxxxxxx Xxxx, Xxx. 0000
Xxxxxxxxx, XX 00000
Xxxxxxxx X. Xxxxxx, Xx.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Xxxxx X. Xxxxxxxx, Trustee, 1993 Revocable Trust
0000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
EXHIBIT A-4
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
28
Xxx X. Xxxxxxxxx
c/o Bagel Bros.
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0X
Xxxxxxx, XX 00000-0000
Xxxxxx X. Xxxxxxxxx
c/o Bagel Bros.
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0X
Xxxxxxx, XX 00000-0000
Xxxxxxx Xxxxxx
0000 Xxxxxx Xxxxx
Xxxxxx, XX 00000
Maresol L.P.
c/o Xxxxx Xxxxxxxxx
0 Xxxxx Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Greenwood Equities, LLC
c/o Piper & Marbury
00 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxxxxx
Xxxxxxx X. Xxxx, Xx.
c/x Xxxx & Xxxxxxx
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
H & K Partnership
c/o Xxxxxx Xxxxxx
0000 Xxxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000-0000
JPK Partners
c/o Argonaut Securities Co.
0000 Xxxxxxx Xxxxxx, XX0
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxx, Jr.
Xxxxx X. Xxxxxxxx
c/o Stonemaker Ent., Inc.
000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx-Xxxxx, XX 00000
EXHIBIT A-5
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
29
Xxxxx Xxxxxxxxxx
00 Xxxxx Xxx
Xxxxxxxx, XX 00000
Xxxxxx Xxxxx
0000 Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Lincoln Trust Company
X.X. Xxx 0000
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
H. Xxxx Lunenburg
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Xxx Xxxxx
00000 Xx Xxxxx Xxxxx
Xxx Xxxxx Xxxxx, XX 00000
Xxxxxxxx-Xxxxx Company
0000 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: W. Xxxxx Xxxxx III
Xxxxxx Xxxxxx, Xx.
000 Xxxxxx Xxx
Xxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxx
c/x Xxxxxx Associates
0000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxxx and Xxxxx Xxxxx
00 X. Xxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Northport Private Equity, LLC
000 X. Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
Xxxxx Pack
000 Xxxx 00xx Xxxxxx, Xxx. 00X
Xxx Xxxx, XX 00000
EXHIBIT A-6
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
30
Xxxxxxx and Xxxxxx Xxxxxxx, as Community Property
00 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
G. Xxxxxxx Xxxxxx
0000 Xx. Xxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
Phoenix Small Cap Fund
00 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxx Xxxxxxx
Xxxxxx X. Xxxxxx
0000 Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Prism IV Investment Partnership
0000 Xxxx Xxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx
Rainbow Trading Partners, Ltd.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxx, Xx.
Rainbow Trading Venture Partners, L.P.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxx, Xx.
Xxxxxx X. Xxxxxxxxx
c/o Regal Capital
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Xxxxx X. Xxxxxx, Xx.
Xxxx Xxxxxx Xxx 00000
Xxxxx Xxxxx, XX 00000
Xxxx Xxxxxx
Xxxx Xxxxxx Xxx 00000
Xxxxx Xxxxx, XX 00000
EXHIBIT A-7
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
31
Rodale Press, Inc.
00 Xxxx Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Xxxx Rome
0000 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
Xxxxxxxx X. Xxxxx
x/x Xxxxx Xxxxxxx
Xxxx Xxxxxx Xxx 000
Xxxxx, XX 00000
Xxxxx X. Xxxxx
000 Xxxxxxxxx Xxxx
Xxxx Xxxxxx Xxx 000
Xxxx Xxxxxxx, XX 00000
Xxxxxxx Xxxxx
0000 Xxxxx Xxxx
Xxxxxxxx, XX 00000
Xxxxxx X. Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Xxxxx Xxxxxxx
00000 Xxx Xxxxx Xxxxxxxxx
Xxx Xxxxx, XX 00000
The Springs Company
P. O. Drawer 460
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Standard Mortgage Holding Corporation
000 Xxxxx, Xxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Xxxxxxx and Xxxxxxx Xxxxxx III
0000 Xxxxxxx Xxxx
Xxxxxxxxxxxxx, XX 00000
Tennyson Private Placement Opportunity Fund, LLP
c/x Xxxxxxx Smullian & Xxxxxxxxxx
EXHIBIT A-8
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
32
00 Xxxx Xxxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
TriVentures
410-17th Street, Suite 1705
Xxxxxx, XX 00000
Xxxx Xxxxxx
c/o BT Alex. Xxxxx Incorporated
0000 Xxxxx Xxxxxx, #000
Xxx Xxxxxxxxx, XX 00000
Turtle & Company
Xxxxxxxx Xxxxx and Xxxxxxx Xxxxxxxx-Xxxxx
c/x Xxxxxx and Xxxxxx, Inc.
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxx
Xxxx Xxxxxxx Xxxxxxxxx
0000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Wakefield Partners, L.P.
00 Xxxx Xxxxxx Xxxx
Xxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxxxxxx
Xxxxxxx Xxxxxx Institutional Fund, Inc. - Small Companies Growth Portfolio
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
Warburg Pincus Post-Venture Capital Fund, Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
Xxxxxxx Xxxxxx Trust, Inc. Post-Venture Capital Portfolio
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
EXHIBIT A-9
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
33
Willou & Co.
X.X. Xxx 00000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx
Women, LLC
000 Xxxxx Xxxxx Xxxxxxx
Xxxx Xxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx
Women's Growth Capital Fund I, LLP
0000 - 00xx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Xxxx Xxxxxxxx
000 Xxx Xxxxx
Xxxx, XX 00000
EXHIBIT A-10
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
34
EXHIBIT B
LIMITED LIABILITY COMPANY AGREEMENT OF XXXXX.XXX NETWORKS LLC BETWEEN HEARST
HOMEARTS, INC. AND XXXXX.XXX NETWORKS DATED JANUARY 27, 1999
EXHIBIT B-1
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
