EXHIBIT 10.1
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MOAI TECHNOLOGIES, INC.
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
January 25, 2000
TABLE OF CONTENTS
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Page
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1. REGISTRATION RIGHTS.............................................................. 1
1.1 Definitions................................................................ 1
1.2 Demand Registration........................................................ 3
1.3 Company Registration....................................................... 3
1.4 Form S-3 Registration...................................................... 4
1.5 Underwritings.............................................................. 5
1.6 Obligations of the Company................................................. 6
1.7 Furnish Information........................................................ 7
1.8 Expenses of Registration................................................... 8
1.9 Delay of Registration...................................................... 9
1.10 Indemnification............................................................ 9
1.11 Reports Under Securities Exchange Act of 1934.............................. 11
1.12 Assignment of Registration Rights.......................................... 12
1.13 Limitations on Subsequent Registration Rights.............................. 12
1.14 Market Stand-Off Agreement................................................. 12
1.15 Termination of Registration Rights......................................... 13
2. COVENANTS OF THE COMPANY......................................................... 13
2.1 Delivery of Financial Statements........................................... 13
2.2 Inspection................................................................. 14
2.3 Right to Maintain Interest................................................. 14
2.4 Board Observer Rights...................................................... 16
2.5 Accounting Firm............................................................ 16
2.6 Vesting of Restricted Stock and Stock Options.............................. 16
2.7 Proprietary Information Agreements......................................... 16
2.8 Use of Proceeds............................................................ 17
2.9 Accounts and Records....................................................... 17
2.10 Availability of Common Stock for Conversion................................ 17
2.11 Key Employee Insurance..................................................... 17
2.12 Right of First Refusal and Co-Sale Agreement............................... 17
2.13 Termination of Covenants................................................... 17
2.14 Aggregation of Stock....................................................... 18
2.15 Transactions with Affiliates............................................... 18
3. MISCELLANEOUS.................................................................... 18
3.1 Additional Parties......................................................... 18
3.2 Successors and Assigns..................................................... 18
3.3 Governing Law.............................................................. 18
3.4 Counterparts............................................................... 19
3.5 Titles and Subtitles....................................................... 19
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TABLE OF CONTENTS
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(continued)
Page
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3.6 Notices.................................................................. 19
3.7 Prevailing Party......................................................... 19
3.8 Amendments and Waivers................................................... 19
3.9 Severability............................................................. 20
3.10 Delays or Omissions...................................................... 20
3.11 Entire Agreement......................................................... 20
3.12. AMENDMENTS OF PRIOR RIGHTS AGREEMENT; WAIVER OF RIGHT OF FIRST OFFER......... 20
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MOAI TECHNOLOGIES, INC.
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
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This Third Amended and Restated Investors' Rights Agreement (this
"Agreement") is entered into as of January 25, 2000 among Moai Technologies,
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Inc., a California corporation (the "Company"), the holders of the Company's
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Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
warrants to purchase Series A Preferred Stock and warrants to purchase Series B
Preferred Stock listed on Exhibit A hereto (each, an "Existing Investor"), the
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holders of the Company's Series D Preferred Stock and warrants to purchase
Series D Preferred Stock listed on Exhibit A hereto, as may be amended from time
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to time (each, a "Series D Holder" and together with the Existing Investors, the
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"Investors"), Deva Hazarika, Xxxxx Xxxx and Xxxxxxx Xxxxxxx (each, a "Founder")
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and Xxxx Xxxxxxx ("Xxxxxxx").
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RECITAL
The Company, the Founders, Xxxxxxx and the Existing Investors entered into
an Amended and Restated Investors' Rights Agreement dated July 21, 1999 (the
"Original Agreement"). Concurrently with the execution and delivery of this
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Agreement, the Company is issuing shares of its Series D Preferred Stock to the
Series D Holders pursuant to a Series D Preferred Stock Purchase Agreement , as
may be amended from time to time (the "Purchase Agreement"). A condition to the
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Series D Holders' obligations under the Purchase Agreement is that the Company,
the Existing Investors, Xxxxxxx and the Founders enter into this Agreement. The
Company, the Existing Investors, Xxxxxxx and the Founders desire to induce the
Series D Holders to purchase shares of Series D Preferred Stock pursuant to the
Purchase Agreement by agreeing to the terms and conditions set forth herein.
Accordingly, the Company, the Existing Investors, Xxxxxxx and the Founders wish
to amend and restate the Original Agreement in its entirety as set forth herein.
AGREEMENT
1. Registration Rights.
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1.1 Definitions. For purposes of this Section 1:
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(a) The terms "register," "registered," and "registration" refer
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to a registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act of 1933, as amended (the
"Securities Act"), and the declaration or ordering of effectiveness of such
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registration statement or document;
(b) The term "Registrable Securities" means:
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(i) the shares of Common Stock issuable or issued upon
conversion of the Series A, Series B, Series C or Series D Preferred Stock of
the Company (including Series D Preferred Stock issued after the date of this
Agreement pursuant to an
addendum or amendment to the Purchase Agreement) either held by the Investors or
issuable to the Investors upon exercise of outstanding warrants to purchase
Series A, Series B or Series D Preferred Stock;
(ii) the shares of Common Stock issued to the Founders or
Xxxxxxx (the "Founders' Stock"), provided, however, that for the purposes of
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Section 1.2, 1.4, 1.13 and 3.1 the Founders' Stock shall not be deemed
Registrable Securities and none of the Founders or Xxxxxxx shall be deemed
Holders;
(iii) the shares of Common Stock issued in the names of
Xxxxxxx Xxxxxx and Xxxxx XxXxxxx on or prior to the date of this Agreement;
(iv) up to 250,000 shares of Common Stock issued or
issuable upon conversion of Series D Preferred Stock issued or issuable upon
exercise of warrants to purchase Series D Preferred Stock issued after the date
hereof to financial institutions or lessors in connection with commercial credit
arrangements, equipment financings or similar transactions, the terms of which
approved are by the Board of Directors of the Company, which entities are added
as parties hereto pursuant to Section 3.1; and
(v) any other shares of Common Stock of the Company
issued as (or issuable upon the conversion or exercise of any warrant, right or
other security which is issued as) a dividend or other distribution with respect
to, or in exchange for or in replacement of, the shares listed in (i), (ii),
(iii), (iv) and (v); provided, however, that the foregoing definition shall
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exclude in all cases any Registrable Securities sold by a person in a
transaction in which his or her rights under this Agreement are not assigned.
Notwithstanding the foregoing, Common Stock or other securities shall only be
treated as Registrable Securities if and so long as they have not been (A) sold
to or through a broker or dealer or underwriter in a public distribution or a
public securities transaction, or (B) sold in a transaction exempt from the
registration and prospectus delivery requirements of the Securities Act under
Section 4(1) thereof so that all transfer restrictions, and restrictive legends
with respect thereto, if any, are removed upon the consummation of such sale;
(c) The number of shares of "Registrable Securities then outstanding"
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shall be determined by the number of shares of Common Stock outstanding which
are Registrable Securities and the number of shares of Registrable Securities
that are shares of Common Stock issuable pursuant to then exercisable and/or
convertible securities;
(d) The term "Holder" means any person owning or having the right to
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acquire Registrable Securities or any assignee thereof in accordance with
Section 1.12 hereof;
(e) The term "Form S-3" means such form under the Securities Act as in
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effect on the date hereof or any successor form under the Securities Act; and
(f) The term "SEC" means the U.S. Securities and Exchange Commission.
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1.2 Demand Registration.
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(a) If the Company shall receive at any time after the earlier of
(i) August 17, 2002 or (ii) six (6) months after the effective date of the first
registration statement under the Securities Act for a public offering of
securities of the Company (other than a registration statement relating either
to the sale of securities to employees of the Company pursuant to a stock
option, stock purchase or similar plan or an SEC Rule 145 transaction), a
written request from the Holders of at least a majority of the Registrable
Securities then outstanding that the Company file a registration statement under
the Securities Act covering the registration of Registrable Securities in which
the anticipated aggregate offering price, net of underwriting discounts and
commissions, would equal or exceed $10,000,000, then the Company shall, within
ten (10) days of the receipt thereof, give written notice of such request to all
Holders and shall, subject to the limitations of Section 1.2(b), use its best
efforts to effect as soon as practicable, and in any event within ninety (90)
days of the receipt of such request, the registration under the Securities Act
of all Registrable Securities which the Holders request to be registered within
twenty (20) days of the mailing of such notice by the Company in accordance with
Section 3.6.
(b) Notwithstanding the foregoing, if the Company shall furnish
to the Initiating Holders a certificate signed by the President of the Company
stating that in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company and its shareholders
for such 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 ninety (90) days after
receipt of the request of the Initiating Holders; provided, however, that the
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Company may not utilize this right more than once in any twelve-month period.
(c) In addition, the Company shall not be obligated to effect, or
to take any action to effect, any registration pursuant to this Section 1.2:
(i) After the Company has effected one (1) registration
pursuant to this Section 1.2 and such registration has been declared or ordered
effective;
(ii) During the period starting with the date sixty (60)
days prior to the Company's good faith estimate of the date of filing of, and
ending on a date one hundred fifty (150) days after the effective date of, a
registration described in Section 1.3; provided that the Company is actively
employing in good faith all reasonable efforts to cause such registration
statement to become effective; or
(iii) If the Initiating Holders propose to dispose of
shares of Registrable Securities that may be immediately registered on Form S-3
pursuant to a request made pursuant to Section 1.4.
1.3 Company Registration. If (but without any obligation hereunder
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to do so) the Company proposes to register (including for this purpose a
registration effected by the Company for shareholders other than the Holders)
any of its securities under the Securities Act in
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connection with the public offering of such securities solely for cash (other
than a registration relating solely to the sale of securities to participants in
a Company stock plan or a transaction covered by Rule 145 under the Securities
Act), the Company shall, at such time, promptly give each Holder written notice
of such registration. Upon the written request of each Holder given within
twenty-five (25) days after mailing of such notice by the Company in accordance
with Section 3.6, the Company shall, subject to the provisions of Section 1.8,
cause to be registered under the Securities Act all of the Registrable
Securities that each such Holder has requested to be registered.
1.4 Form S-3 Registration. In case the Company shall receive from
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any Holder or Holders of not less than twenty-five percent (25%) of the
Registrable Securities then outstanding a written request or requests that the
Company effect a registration on Form S-3 and any related qualification or
compliance with respect to all or a part of the Registrable Securities owned by
such Holder or Holders, the Company will:
(a) promptly give written notice of the proposed registration,
and any related qualification or compliance, to all other Holders; and
(b) as soon as practicable, effect such registration and all such
qualifications and compliances as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such Holder's or
Holders' Registrable Securities as are specified in such request, together with
all or such portion of the Registrable Securities of any other Holder or Holders
joining in such request as are specified in a written request given within
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 1.4: (i) if
Form S-3 is not available for such offering by the Holders; (ii) if the Holders,
together with the holders of any other securities of the Company entitled to
inclusion in such registration, propose to sell Registrable Securities and such
other securities (if any) at an aggregate offering price, net of underwriting
discounts and commissions, of less than $1,000,000; (iii) if the Company shall
furnish to the Holders a certificate signed by the President of the Company
stating that in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company and its shareholders
for such Form S-3 Registration to be effected at such time, in which event the
Company shall have the right to defer the filing of the Form S-3 registration
statement for a period of not more than ninety (90) days after receipt of the
request of the Holder or Holders under this Section 1.4; provided, however, that
the Company shall not utilize this right more than once in any twelve month
period; (iv) if the Company has, within the twelve (12) month period preceding
the proposed effective date of the registration so requested, already effected
one registration on Form S-3 for the Holders pursuant to this Section 1.4; or
(v) in any particular jurisdiction in which the Company would be required to
qualify to do business or to execute a general consent to service of process in
effecting such registration, qualification or compliance.
(c) Subject to the foregoing, the Company shall file a
registration statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request or requests of the Holders. Registrations effected
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pursuant to this Section 1.4 shall not be counted as demands for registration or
registrations effected pursuant to Sections 1.2 or 1.3, respectively.
1.5 Underwritings.
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(a) If the Holders initiating a registration request pursuant to
Section 1.2 or 1.4 ("Initiating Holders") intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall so
advise the Company as a part of their request made pursuant to such Section and
the Company shall include such information in the written notice referred to in
Section 1.2(a) or 1.4(a), as the case may be. The underwriter will be selected
by a majority in interest of the Initiating Holders and shall be reasonably
acceptable to the Company. In such event, the right of any Holder to include
its Registrable Securities in such registration shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting (unless otherwise mutually agreed by
a majority in interest of the Initiating Holders and such Holder) to the extent
provided herein. All Holders proposing to distribute their securities through
such underwriting shall (together with the Company as provided in Section
1.6(e)) 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. Notwithstanding any other provision of
Section 1.2 or 1.4, if the underwriter advises the Initiating Holders in writing
that marketing factors require a limitation of the number of shares to be
underwritten, then the Initiating Holders shall so advise all Holders of
Registrable Securities which would otherwise be underwritten pursuant hereto,
and the number of shares of Registrable Securities that may be included in the
underwriting shall be allocated among all Holders thereof, including the
Initiating Holders, in proportion (as nearly as practicable) to the amount of
Registrable Securities of the Company owned by each Holder; provided, however,
that the number of shares of Registrable Securities to be included in such
underwriting shall not be reduced unless all other securities are first entirely
excluded from the underwriting.
(b) In connection with any offering involving an underwriting of
shares of the Company's capital stock, the Company shall not be required under
Section 1.3 to include any of the Holders' securities in such underwriting
unless they accept the terms of the underwriting as agreed upon between the
Company and the underwriters selected by it (or by other persons entitled to
select the underwriters), and then only in such quantity as the underwriters
determine in their sole discretion will not jeopardize the success of the
offering by the Company. If the total amount of securities, including
Registrable Securities, requested by shareholders to be included in such
offering exceeds the amount of securities that the underwriters determine in
their sole discretion is compatible with the success of the offering, then the
Company shall be required to include in the offering only that number of such
securities, including Registrable Securities, which the underwriters determine
in their sole discretion will not jeopardize the success of the offering (the
securities so included to be apportioned pro rata among the selling Holders
according to the total amount of Registrable Securities then outstanding owned
by each Holder or in such other proportions as shall mutually be agreed to by
such selling Holders) but in no event shall (i) the amount of securities of the
selling Holders included in the offering be reduced below twenty percent (20%)
of the total amount of securities
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included in such offering, unless such offering is the initial public offering
of the Company's securities in which case the selling Holders may be excluded if
the underwriters make the determination described above and no other
shareholder's securities are included; (ii) any shares being sold by a
shareholder other than a Holder be included in such offering; or (iii) any
securities held by a Founder or Xxxxxxx be included if any securities held by
any selling Investor are excluded. For purposes of the preceding parenthetical
concerning apportionment, for any selling Holder which is a partnership or
corporation, the partners, retired partners and shareholders or other entities
controlled by, controlling or under common control with, of such holder, or the
estates and family members of any such partners and retired partners and any
trusts for the benefit of any of the foregoing persons shall be deemed to be a
single "selling Holder," and any pro-rata reduction with respect to such
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"selling Holder" shall be based upon the aggregate amount of shares carrying
registration rights owned by all entities and individuals included in such
"selling Holder," as defined in this sentence.
1.6 Obligations of the Company. Whenever required under this
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Section 1 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use 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 one hundred twenty (120) days;
provided however, that such 120 day period shall be extended for a period of
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time equal to the period the Holder refrains from selling any securities
included in such registration at the request of an underwriter of Common Stock
(or other securities) of the Company.
(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 for up to one hundred twenty (120) days.
(c) Furnish to the Holders such numbers 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 unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Act.
(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
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managing underwriter of such offering. Each Holder participating in such
underwriting shall also enter into and perform its obligations under such an
agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the 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, such obligation to continue for one hundred twenty (120) days.
(g) Cause all such Registrable Securities registered pursuant
hereto to be listed on each securities exchange on which similar securities
issued by the Company are then listed, or, in the case of a registration
pursuant to Section 1.2, to list such Registrable Securities on the Nasdaq
National Market or the New York Stock Exchange.
(h) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
(i) Use its best efforts to furnish, at the request of any Holder
requesting registration of Registrable Securities pursuant to this Section 1, on
the date that such Registrable Securities are delivered to the underwriters for
sale in connection with a registration pursuant to this Section 1, if such
securities are being sold through underwriters, or, if such securities are not
being sold through underwriters, on the date that the registration statement
with respect to such securities becomes effective, (i) an opinion, dated such
date, of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to underwriters in
an underwritten public offering, addressed to the underwriters, if any, and to
the Holders requesting registration of Registrable Securities and (ii) a letter
dated such date, from the independent certified public accountants of the
Company, in form and substance as is customarily given by independent certified
public accountants to underwriters in an underwritten public offering, addressed
to the underwriters, if any, and to the Holders requesting registration of
Registrable Securities provided that, in the event, securities are not being
sold through an underwriter such letter shall be reasonably acceptable to a
majority in interest of the Holders requesting registration.
1.7 Furnish Information. It shall be a condition precedent to the
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obligations of the Company to take any action pursuant to this Section 1 with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be required to effect the registration of such Holder's Registrable
Securities. The Company shall have no obligation with respect to any
registration requested pursuant to Section 1.2 or Section 1.4 of this Agreement
if, as a result of the application of the preceding sentence, 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
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shares or the anticipated aggregate offering price required to originally
trigger the Company's obligation to initiate such registration as specified in
Section 1.2(a) or Section 1.4(b)(ii), whichever is applicable.
1.8 Expenses of Registration.
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(a) Demand Registration. All expenses other than underwriting
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discounts and commissions incurred in connection with registrations, filings or
qualifications pursuant to Section 1.2, including (without limitation) all
registration, filing and qualification fees, printers' and accounting fees, fees
and disbursements of counsel for the Company, and the reasonable fees and
disbursements of one counsel for the selling Holders selected by them with the
approval of the Company, which approval shall not be unreasonably withheld,
shall be borne by the Company; provided, however, that the Company shall not be
required to pay for any expenses of any registration proceeding begun pursuant
to Section 1.2 if the registration request is subsequently withdrawn at the
request of the Holders of a majority of the Registrable Securities to be
registered (in which case all participating Holders shall bear such expenses),
unless the Holders of a majority of the Registrable Securities agree to forfeit
their right to one demand registration pursuant to Section 1.2; provided
further, however, that if at the time of such withdrawal, (i) the Holders have
learned of a material adverse change in the condition or business of the Company
from that known or reasonably foreseeable to the Holders at the time of their
request and have withdrawn the request with reasonable promptness following
disclosure by the Company of such material adverse change, or (ii) the Holders
have provided the Company with a written opinion of legal counsel to the Holders
advising the Holders that the registration statement, or any prospectus
contained therein, contains 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 under which they
were made, then, in each case, the Holders shall not be required to pay any of
such expenses and shall retain their rights pursuant to Section 1.2.
(b) Company Registration. All expenses other than underwriting
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discounts and commissions incurred in connection with registrations, filings or
qualifications of Registrable Securities pursuant to Section 1.3, including
(without limitation) all registration, filing, and qualification fees, printers'
and accounting fees, fees and disbursements of counsel for the Company and the
reasonable fees and disbursements of one counsel for the selling Holder or
Holders selected by them with the approval of the Company, which approval shall
not be unreasonably withheld, shall be borne by the Company.
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(c) Registration on Form S-3. All expenses other than
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underwriting discounts and commissions incurred in connection with
registrations, filings or qualifications of Registrable Securities pursuant to
Section 1.4, including (without limitation) all registration, filing and
qualification fees, printers' and accounting fees, fees and disbursements of one
counsel for the Company and the reasonable fees and disbursements of one counsel
for the selling Holder or Holders selected by them with the approval of the
Company, which approval shall not be unreasonably withheld, shall be borne by
the Company.
1.9 Delay of Registration. No Holder shall have any right to obtain
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or seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 1.
1.10 Indemnification. In the event any Registrable Securities are
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included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Holder, any underwriter (as defined in the 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 "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 a "Violation"): (i) any untrue statement
or alleged untrue statement of a material fact contained in such registration
statement, including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto, (ii) the omission or alleged
omission to state therein a material fact required to be stated therein, or
necessary to make the statements therein not misleading, or (iii) any violation
or alleged violation by the Company of the Securities Act, the Exchange Act, any
state securities law or any rule or regulation promulgated under the Securities
Act, the Exchange Act or any state securities law; and the Company will pay to
each such Holder, underwriter or controlling person, as incurred, any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided, however,
that the indemnity agreement contained in this subsection 1.10(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 to a Holder, underwriter or controlling person in any such case for any
such loss, claim, damage, liability, or action to the extent that it arises out
of or is based upon a Violation which occurs in reliance upon and in conformity
with written information furnished expressly for use in connection with such
registration by such Holder, underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder,
severally but not jointly, will indemnify and hold harmless the Company, each of
its directors, each of its officers who has signed the registration statement,
each person, if any, who controls the
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Company within the meaning of the Securities Act, any underwriter, any other
Holder selling securities in such registration statement and any controlling
person of any such underwriter or other Holder, against any losses, claims,
damages, or liabilities (joint or several) to which any of the foregoing persons
may become subject, under the Securities Act, the Exchange Act or other federal
or state law, insofar as such losses, claims, damages, or liabilities (or
actions in respect thereto) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by such
Holder expressly for use in connection with such registration; and each such
Holder will pay (based on such Holder's pro rata portion of the number of
Registrable Securities included in such offering), as incurred, any legal or
other expenses reasonably incurred by any person intended to be indemnified
pursuant to this subsection 1.10(b), in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided, however,
that the indemnity agreement contained in this subsection 1.10(b) shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability
or action if such settlement is effected without the consent of the Holder,
which consent shall not be unreasonably withheld; provided, that, in no event
shall any indemnity under this subsection 1.10(b) exceed the net proceeds from
the offering received by such Holder, except in the case of willful fraud by
such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 1.10 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 1.10, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the reasonable 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, to the extent prejudicial to its ability to defend such action, shall
relieve such indemnifying party of its liability to the indemnified party under
this Section 1.10, but the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 1.10.
(d) If the indemnification provided for in this Section 1.10 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
-10-
considerations; provided, that, in no event shall any contribution by a Holder
under this Subsection 1.10(d) exceed the net proceeds from the offering received
by such Holder, except in the case of willful fraud by such Holder. The relative
fault of the indemnifying party and of the indemnified party shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified party and
the parties' relative intent, knowledge, access to information, and opportunity
to correct or prevent such statement or omission. Notwithstanding the foregoing,
no Investor shall be required to assume any liability that such Investor would
not have been liable to assume had the indemnifications provisions contained in
this Section 1.10 been enforceable.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
(f) The obligations of the Company and Holders under this Section
1.10 shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 1, and otherwise.
1.11 Reports Under Securities Exchange Act of 1934. With a view to
---------------------------------------------
making available to the Holders the benefits of Rule 144 promulgated under the
Securities Act and any other rule or regulation of the SEC that may at any time
permit a Holder to sell securities of the Company to the public without
registration or pursuant to a registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in SEC Rule 144, at all times after ninety (90) days
after the effective date of the first registration statement filed by the
Company for the offering of its securities to the general public so long as the
Company remains subject to the periodic reporting requirements under Sections 13
or 15(d) of the Exchange Act;
(b) take such action, including the voluntary registration of its
Common Stock under Section 12 of the Exchange Act, as is necessary to enable the
Holders to utilize Form S-3 for the sale of their Registrable Securities, such
action to be taken as soon as practicable after the end of the fiscal year in
which the first registration statement filed by the Company for the offering of
its securities to the general public is declared effective;
(c) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the Exchange Act;
(d) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of SEC Rule 144 (at
any time after ninety (90) days after the effective date of the first
registration statement filed by the Company), the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements), or that it
-11-
qualifies as a registrant whose securities may be resold pursuant to Form S-3
(at any time after it so qualifies), (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed by
the Company, and (iii) such other information as may be reasonably requested in
availing any Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration or pursuant to such form;
and
(e) upon the written request of a Major Investor (as defined in
Section 2.1 below), such information with Major Investor shall reasonably
request, provided that the Company shall not be required to provide any Major
Investor with information that could cause competitive harm to the Company.
1.12 Assignment of Registration Rights. The rights to cause the
---------------------------------
Company to register Registrable Securities pursuant to this Section 1 may be
assigned (but only with all related obligations) by a Holder to a transferee or
assignee of at least ten percent (10%) of a Holder's Registrable Securities set
forth on Exhibit A (or all of such Holder's Registrable Securities if such
---------
Holder holds less than ten percent (10%) of such amount) provided that (a) the
Company is, within a reasonable time after such transfer, furnished with written
notice of the name and address of such transferee or assignee and the securities
with respect to which such registration rights are being assigned, (b) such
assignment shall be effective only if immediately following such transfer the
further disposition of such securities by the transferee or assignee is
restricted under the Securities Act, (c) such transferee agrees in writing to be
bound by the provisions of this Agreement, and (d) such transferee is not an
actual or potential competitor of the Company, as determined in good faith by
the Company's Board of Directors. Notwithstanding the foregoing, any Holder may
transfer its rights to cause the Company to register Registrable Securities
pursuant to this Section 1 without regard to the minimum number of Registrable
Securities described in the first sentence of this Section 1.12 if the
transferee is a constituent partner or member of such Holder or an entity
controlling, controlled by or under common control with such Holder.
1.13 Limitations on Subsequent Registration Rights. From and after
---------------------------------------------
the date of this Agreement, the Company shall not, without the prior written
consent of the Holders of a majority of the outstanding Registrable Securities,
enter into any agreement with any holder or prospective holder of any securities
of the Company which would allow such holder or prospective holder (a) to
include such securities in any registration filed under Section 1, unless under
the terms of such agreement, such holder or prospective holder may include such
securities in any such registration only to the extent that the inclusion of his
securities will not reduce the amount of the Registrable Securities of the
Holders which is included or (b) to make a demand registration which could
result in such registration statement being declared effective prior to the
earlier of either of the dates set forth in Section 1.2(a) or within one hundred
twenty (120) days of the effective date of any registration effected pursuant to
Section 1.2. To the extent any consent granted pursuant to this Section 1.13
adversely affects one Investor in a manner different from every other Investor,
the consent of such adversely affected Investor shall be required.
1.14 "Market Stand-Off" Agreement. Each Holder hereby agrees that,
----------------------------
during the period of duration (up to, but not exceeding, one hundred eighty
(180) days) specified
-12-
by the Company and an underwriter of Common Stock or other securities of the
Company, following the effective date of the Company's first registration
statement filed under the Securities Act for the sale of its securities to the
public, it shall not, to the extent requested by the Company and such
underwriter, directly or indirectly sell, offer to sell, contract to sell
(including, without limitation, any short sale), grant any option to purchase or
otherwise transfer or dispose of (other than to donees who agree to be similarly
bound) any securities of the Company held by it at any time during such period
except securities purchased in the initial public offering or acquired pursuant
to an open market transaction with a third party other than the Company,
provided that all Founders, all officers and directors of the Company, all one
percent security holders and all other persons with registration rights (whether
or not pursuant to this Agreement) enter into similar agreements.
In order to enforce the foregoing covenant, the Company may
impose stop-transfer instructions with respect to the Registrable Securities of
each Holder (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period, and each Holder agrees
that, if so requested, such Holder will execute an agreement in the form
provided by the underwriter containing terms which are essentially consistent
with the provisions of this Section 1.14.
1.15 Termination of Registration Rights. No Holder shall be entitled
----------------------------------
to exercise any right provided for in this Section 1 after the earlier of (a)
seven (7) years following the effective date of the Company's first registration
statement filed under the Securities Act for the sale of its securities to the
public or (b) such time as Rule 144 or another similar exemption under the
Securities Act is available for the sale of all of such Holder's shares during a
three (3)-month period without registration provided that such Holder owns less
than one percent of the Company's outstanding capital stock.
2. Covenants of the Company.
------------------------
2.1 Delivery of Financial Statements. The Company shall deliver to
--------------------------------
each Investor holding, and to transferees of, at least 200,000 shares of
Registrable Securities (each, a "Major Investor"):
--------------
(a) as soon as practicable, but in any event within ninety (90)
days after the end of each fiscal year of the Company, an income statement for
such fiscal year, a balance sheet of the Company and statement of shareholder's
equity as of the end of such year, and a statement of cash flows for such year,
such year-end financial reports to be in reasonable detail, prepared in
accordance with generally accepted accounting principles ("GAAP"), and audited
----
and certified by an independent public accounting firm of nationally recognized
standing selected by the Company;
(b) as soon as practicable, but in any event within forty-five
(45) days after the end of each of the first three (3) quarters of each fiscal
year of the Company, an unaudited profit or loss statement, a statement of cash
flows for such fiscal quarter and an unaudited balance sheet as of the end of
such fiscal quarter;
-13-
(c) within thirty (30) days of the end of each month, an
unaudited income statement and a statement of cash flows and balance sheet for
and as of the end of such month, in reasonable detail;
(d) as soon as practicable, but in any event no later than the
beginning of each fiscal year, a budget and business plan for such fiscal year,
prepared on a monthly basis, including balance sheets and sources and
applications of funds statements for such months and, as soon as prepared, any
other budgets or revised budgets prepared by the Company; and
(e) with respect to the financial statements called for in
subsections (b) and (c) of this Section 2.1, an instrument executed by the Chief
Financial Officer or President of the Company certifying that such financial
statements were prepared in accordance with GAAP consistently applied with prior
practice for earlier periods (with the exception of footnotes that maybe
required by GAAP) and fairly present the condition of the Company and its
results of operation for the period specified, subject to year end audit
adjustments.
2.2 Inspection. The Company shall permit each Major Investor, at
----------
such Major Investor's expense, to visit and inspect the Company's properties,
to examine its books of account and records and to discuss the Company's
affairs, finances and accounts with its officers, all at such reasonable times
as may be requested by such Major Investor; provided, however, that the Company
shall not be obligated pursuant to this Section 2.2 to provide access to any
information which it reasonably considers to be a trade secret or similar
confidential information.
2.3 Right to Maintain Interest.
--------------------------
(a) Mechanics. Each time the Company proposes to offer any
---------
shares of, or securities convertible into or exercisable for any shares of, any
class of its capital stock ("Shares"), the Company shall notify each Major
Investor thereof and permit each Major Investor to participate in such offering
in order to maintain its percentage ownership interest in the Company in
accordance with the following provisions:
(i) The Company shall deliver a notice ("Notice") to each
------
Major Investor stating (A) its bona fide intention to offer such Shares; (B) the
number of such Shares to be offered; and (C) the price and terms, if any, upon
which it proposes to offer such Shares.
(ii) Within fifteen (15) days after delivery of the Notice,
each Major Investor may submit to the Company an irrevocable commitment to
purchase or obtain, within thirty-five (35) days after receipt of the Notice, at
the price and on the terms specified in the Notice, up to that portion of such
Shares which equals the proportion that the number of shares of Common Stock and
Preferred Stock then held by such Major Investor bears to the total number of
shares of Common Stock and Preferred Stock then outstanding. In the event one or
more Major Investors do not elect to exercise its or their right to purchase
Shares pursuant to this Section 2.3(a), such right shall be reallocated to each
Major Investor, if any, exercising its right, such reallocation to be on a pro
rata basis (based upon the proportion that the number of shares of Common Stock
and Preferred Stock then held by such Major Investor bears to the total number
-14-
of shares of Common Stock and Preferred Stock then outstanding), provided that
the Company shall have offered such reallocation right to the participating
Major Investors at least five (5) days prior to the expiration of such 35-day
period and provided further that such right to purchase Shares must be
exercised, if at all, prior to the expiration of such 35-day period.
(iii) The Company may, during the 60-day period following the
expiration of the 35-day period provided in Section 2.3(a)(ii), offer the
remaining unsubscribed portion of the Shares to any person or persons at a price
not less than, and upon terms no more favorable to the offeree than those
specified in the Notice. If the Company does not enter into an agreement for
the sale of the Shares within such period, or if such agreement is not
consummated within sixty (60) days of the execution thereof, the right provided
hereunder shall be deemed to be revived and such Shares shall not be offered
unless the Investors are permitted to maintain their percentage ownership
interest in the Company in such offering in accordance with this Section 2.3.
(b) Exclusions. The right to maintain interest in this Section 2.3
----------
shall not be applicable to the issuance of:
(i) shares of Common Stock (or options or warrants therefor)
referenced in Section 4(d)(ii)(B) of the Company's Fourth Amended and Restated
Articles of Incorporation;
(ii) shares of Common Stock in connection with the Company's
first registration statement filed under the Securities Act for the sale of its
securities to the public;
(iii) securities pursuant to the conversion or exercise of
securities;
(iv) securities in connection with the acquisition by the
Company of another entity, whether by merger, consolidation, sale of assets,
sale or exchange of stock or otherwise;
(v) up to 250,000 shares of Series D Preferred Stock and up to
1,000,000 shares of Common Stock to financial institutions or lessors in
connection with commercial credit arrangements, equipment financings or similar
transactions approved by the Board of Directors;
(vi) securities to any person or entity in which such issuance
is approved by the Board of Directors (including all directors designated by the
holders of the Company's Preferred Stock) in connection with a strategic
business relationship between the Company and such person or entity also
involving material marketing, distribution, product development or technology
licensing rights, as determined in good faith by the Board of Directors of the
Company; or
(vii) up to 3,745,318 shares of Series D Preferred Stock.
-15-
(c) Assignment of Right. Each Major Investor shall be permitted
-------------------
to assign the right to maintain interest in this Section 2.3 to constituent
partners or members of such Major Investor or any entity controlling, controlled
by or under common control with such Major Investor.
(d) Waiver of Right to Maintain Interest. The Existing Investors
------------------------------------
hereby waive their right to maintain interest, including the notice provisions
thereof, set forth in Section 2.3 of the Original Agreement, with respect to the
issuance of up to 3,745,318 shares of Series D Preferred Stock.
2.4 Board Observer Rights. Tredegar Investments, HarbourVest Partners
---------------------
V-DirectFund L.P. ("HarbourVest"), UPS General Services Co. ("UPS"), Reuters
Holdings Switzerland SA and Vortex Partners MTI, L.P. (each, a "Strategic
---------
Investor") shall each be entitled to designate a non-voting observer to attend
--------
and participate in, and receive all notices and materials provided to the
members of the Board of Directors of the Company at all meetings of the Board of
Directors of the Company (in each case, a "Non-voting Observer"). In the event
-------------------
the Board of Directors determines in good faith that the presence of any Non-
voting Observer (i) would violate the Company's attorney-client privilege or
(ii) could cause competitive harm to the Company, such Non-voting Observer shall
be excluded from such portion of the meeting as the Board of Directors shall
designate. Notwithstanding the foregoing, no Strategic Investor shall be
entitled to designate a Non-Voting Observer at any time during which a designee
of such Strategic Investor serves as a director of the Company.
2.5 Accounting Firm. The Company shall retain the services of a
---------------
national accounting firm until such time as the Board of Directors determines
otherwise, such determination to include the affirmative vote of either (a) a
majority of the directors nominated by the holders of Series A and Series B
Preferred Stock, or (b) director(s) representing, in the aggregate, a majority
in interest of the outstanding Series A and Series B Preferred Stock (or Common
Stock issuable upon conversion thereof).
2.6 Vesting of Restricted Stock and Stock Options. The Company shall
---------------------------------------------
ensure that all future grants of restricted stock or options to purchase Common
Stock to any officer or employee of the Company vest at a rate no faster than
1/48th per month and shall not accelerate without affirmative vote of either (a)
a majority of the directors nominated by the holders of Series A and Series B
Preferred Stock or (b) director(s) representing, in the aggregate, a majority in
interest of the outstanding Series A and Series B Preferred Stock (or Common
Stock issuable upon conversion thereof).
2.7 Proprietary Information Agreements. Each person employed by the
----------------------------------
Company in a technical or management position shall, as a condition to the
commencement and continuation of their employment with the Company, execute a
proprietary information agreement in a form satisfactory to the Company's Board
of Directors.
2.8 Use of Proceeds. The Company will use the proceeds from the sale
---------------
of Series D Preferred Stock pursuant to the Series D Preferred Stock Purchase
Agreement of even date herewith for general corporate purposes.
-16-
2.9 Accounts and Records. The Company will keep true records and
--------------------
books of account in which full, true and correct entries will be made of all
dealings or transactions in relation to its business and affairs in accordance
with generally accepted accounting principles applied on a consistent basis.
2.10 Availability of Common Stock for Conversion. The Company will
-------------------------------------------
not issue or agree to issue any shares of Common Stock or options, rights or
warrants to purchase Common Stock or securities convertible into or exchangeable
for Common Stock or take any other action if, after giving effect thereto, the
number of shares of Common Stock remaining unissued and duly reserved for
issuance upon conversion of shares of the Company's Preferred Stock then
outstanding shall be insufficient to permit conversion of all the then
outstanding shares of the Company's Preferred Stock after giving effect to any
adjustment pursuant to the Company's Fourth Amended and Restated Articles of
Incorporation.
2.11 Key Employee Insurance. The Company will use its best efforts
----------------------
following the closing to cause to be maintained, with sound and reputable
insurers, term life insurance and on the life of Xxxx Xxxxxxx in the amount of
$2,000,000 and on the lives of Deva Hazarika and Xxxxx Xxxx in the amount of
$500,000 each. Such policy shall be owned by the Company and all benefits
thereunder shall be payable to the Company.
2.12 Right of First Refusal and Co-Sale Agreement. Unless the Board
--------------------------------------------
of Directors determines it is not necessary, the Company shall use commercially
reasonable efforts to cause each shareholder of the Company holding in excess of
(10%) of the Company's Common Stock to become a party to the Third Amended and
Restated Right of First Refusal and Co-Sale Agreement, as amended from time to
time, dated as of the date hereof, among the Company and the other parties
thereto.
2.13 Termination of Covenants. The covenants set forth in Sections
------------------------
2.1 through Section 2.12 shall terminate and be of no further force or effect
upon the earliest of (a) the effective date of the Company's first registration
statement filed under the Securities Act for the sale of its securities to the
public; (b) the closing of the sale, conveyance, or other disposition or
encumbrance of all or substantially all of the Company's assets or business or
the merger into or consolidation with any other entity (other than a wholly-
owned subsidiary corporation) or any other transaction or series of related
transactions in which at least fifty percent (50%) of the voting power of the
Company is disposed of (other than a merger effected exclusively for the purpose
of changing the domicile of the Company). The covenants set forth in Sections
2.1 and 2.2 shall terminate and be of no further force or effect upon when the
Company first becomes subject to the periodic reporting requirements of Sections
13 or 15(d) of the Exchange Act.
2.14 Aggregation of Stock. For purposes of the share threshold used
--------------------
in determining which Investors are "Major Investors" under this Agreement, (i)
all shares of Registrable Securities held or acquired by affiliated entities or
persons shall be aggregated together and (ii) if any investment company together
with other investment companies advised
-17-
by the same investment adviser owns the minimum number of shares required to be
a "Major Investor," each such investment company shall have the rights of a
Major Investor hereunder.
2.15 Transactions with Affiliates. The Company shall not, without the
----------------------------
approval of the disinterested members of the Company's Board of Directors,
engage in any loans, leases, contracts or other transactions with any director,
officer or key employee of the Company, or any member of any such person's
immediate family, including the parents, spouse, children and other relatives of
any such person, or any entity controlled by the Company, its officers or
directors or, to the Company's knowledge, any entity controlled by any member of
such person's immediate family, including the parents, spouse, children and
other relatives of such person, on terms less favorable than the Company would
obtain in a transaction with an unrelated party, as determined in good faith by
the Board of Directors.
3. Miscellaneous.
-------------
3.1 Additional Parties. In the event of (a) an additional closing or
------------------
closings of the purchase of shares of Series D Preferred Stock pursuant to an
addendum or amendment to the Purchase Agreement or (b) the issuance of up to
250,000 shares of Series D Preferred Stock to financial institutions or lessors
in connection with commercial credit arrangements, equipment financings or
similar transactions, the terms of which approved are by the Board of Directors,
then upon execution of a signature page counterpart hereto by any such purchaser
and without need for an amendment hereto except to add such purchaser's name to
Exhibit A hereto (which addition shall not require the consent of any party
---------
hereto other than the Company), such purchaser shall become a party to this
Agreement, shall be deemed an "Investor" and a "Series D Holder" for purposes of
this Agreement, and shall have the identical rights and obligations hereunder as
the other Investors, in each case as of the date of execution of such
counterpart signature page.
3.2 Successors and Assigns. Except as otherwise provided herein, the
----------------------
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective permitted successors and assigns of the parties
(including transferees of any of the Registrable Securities). Nothing in this
Agreement, express or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
3.3 Governing Law. This Agreement and all acts and transactions
-------------
pursuant hereto shall be governed, construed and interpreted in accordance with
the laws of the State of California, without giving effect to principles of
conflicts of laws.
3.4 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
-18-
3.5 Titles and Subtitles. The titles and subtitles used in this
--------------------
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
3.6 Notices. Unless otherwise provided, any notice required or
-------
permitted by this Agreement shall be in writing and shall be deemed sufficient
upon delivery, when delivered personally or by overnight courier or sent by
telegram or fax, or forty-eight (48) hours after being deposited in the U.S.
mail, as certified or registered mail, with postage prepaid, and addressed to
the party to be notified at such party's address or fax number as set forth on
the signature pages hereto or on Exhibit A hereto or as subsequently modified by
---------
written notice, and if to the Company, with a copy to Xxxxxx X. Xxxxxx, Xx.,
Venture Law Group, 0000 Xxxx Xxxx Xxxx, Xxxxx Xxxx, XX 00000.
3.7 Prevailing Party. If any action at law or in equity is necessary
----------------
to enforce or interpret the terms of this Agreement, the prevailing party shall
be entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
3.8 Amendments and Waivers. Any term of this Agreement may be
----------------------
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders of
a majority of the Registrable Securities then outstanding, not including the
Founders' Stock; provided that if such amendment has the effect of affecting the
Founders' Stock (a) in a manner different than securities issued to the
Investors and (b) in a manner adverse to the interests of the holders of the
Founders' Stock, then such amendment shall require the consent of the holder or
holders of a majority of the Founders' Stock, provided further that any
amendment or waiver that affects any Investor in a manner different from all
other Investors shall not be binding upon such adversely affected Investor
without such Investor's written consent, provided further that any amendment of
Section 1.14 shall require the consent of each holder of greater than 1,000,000
shares of Series D Preferred Stock (after application of the aggregation
principles provided in Section 2.14 hereof). Any waiver, permit, consent or
approval of any kind or character on the part of any party to this Agreement of
any breach or default under this Agreement, or any waiver on the part of any
party to this Agreement of any provisions or conditions of this Agreement must
be made in writing and shall be effective only to the extent specifically set
forth in such writing. All remedies, either under this Agreement or by law or
otherwise afforded to any party to this Agreement, shall be cumulative and not
alternative. Any amendment or waiver effected in accordance with this paragraph
shall be binding upon each holder of any Registrable Securities then
outstanding, each future holder of all such Registrable Securities, and the
Company.
3.9 Severability. If one or more provisions of this Agreement are
------------
held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (a) such
provision shall be excluded from this Agreement, (b) the balance of
-19-
the Agreement shall be interpreted as if such provision were so excluded and (c)
the balance of the Agreement shall be enforceable in accordance with its terms.
3.10 Delays or Omissions. No delay or omission to exercise any
-------------------
right, power or remedy accruing to any party to this Agreement upon any breach
or default of any other party under this Agreement shall impair any such right,
power or remedy of such party nor shall it be construed to be a waiver of any
such breach or default, or an acquiescence therein, or of or in any similar
breach or default thereafter occurring; nor shall any waiver of any single
breach or default be deemed a waiver of any other breach or default theretofore
or thereafter occurring.
3.11 Entire Agreement. This Agreement constitutes the entire
----------------
agreement between the parties hereto pertaining to the subject matter hereof,
and any and all other written or oral agreements existing between the parties
hereto are expressly canceled.
3.12. Amendments of Prior Rights Agreement; Waiver of Right of First
--------------------------------------------------------------
Offer. Effective and contingent upon execution of this Agreement by the
-----
Company and the holders of a majority of the Registrable Securities, as that
term is defined in the Original Agreement, not including the Founders Stock, as
that term is defined in the Original Agreement, and upon closing of the
transactions contemplated by the Purchase Agreement, the Original Agreement is
hereby amended and restated in its entirety to read as set forth in this
Agreement, and the Company, the Founders, and the Investors hereby agree to be
bound by the provisions hereof as the sole agreement of the Company, the
Founders and the Investors with respect to registration rights of the Company's
securities and certain other rights, as set forth herein. Each of the Existing
Investors, to the extent such Existing Investor holds the right to maintain
interest set forth in Section 2.3 of the Original Agreement, hereby waives, on
behalf of itself and all other holders of such right, such right to maintain
interest with respect to the sale of Series D Preferred Stock pursuant to the
Purchase Agreement or any addendum or amendment thereto.
[Signature Pages Follow]
-20-
The parties have executed this Third Amended and Restated Investors' Rights
Agreement as of the date first above written.
COMPANY: FOUNDERS:
MOAI TECHNOLOGIES, INC.
By: /s/ Xxxx Xxxxxxx /s/ Deva Hazarika
------------------------------- ------------------------------------
Xxxx Xxxxxxx, President and CEO Deva Hazarika
Address: 00 Xxxx Xxxxxx Address: c/o Moai Technologies, Inc.
Xxx Xxxxxxxxx, XX 00000 00 Xxxx Xxxxxx
Fax: (000) 000-0000 Xxx Xxxxxxxxx, XX 00000
/s/ Xxxx Xxxxxxx /s/ Xxxxx Xxxx
------------------------------------ ------------------------------------
Xxxx Xxxxxxx Xxxxx Xxxx
Address: [ADDRESS]
Address: c/o Moai Technologies, Inc.
00 Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
/s/ Xxxxxxx Xxxxxxx
------------------------------------
Xxxxxxx Xxxxxxx
Address: c/o Moai Technologies, Inc.
00 Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
SIGNATURE PAGE TO MOAI TECHNOLOGIES, INC.
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS:
AC VENTURES, B.V.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
---------------------------------
Title: Managing Director
--------------------------------
Address: c/x Xxxxxxxx Consulting LLP
0000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attn: Chief Financial Officer
Fax:
SIGNATURE PAGE TO MOAI TECHNOLOGIES, INC.
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS:
XXXXXXX CHEMICAL COMPANY
By: /s/ Xxxxx X. Xxxxx, Xx.
----------------------------------
Name: Xxxxx X. Xxxxx, Xx.
--------------------------------
Title: VP Customer First and CIO
-------------------------------
Address: 000 X. Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Fax:
SIGNATURE PAGE TO MOAI TECHNOLOGIES, INC.
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS:
INTEL 64 FUND, LLC
By: INTEL 64 FUND OPERATIONS, INC.,
its Coordinating Member
By: /s/ Xxxx Xxxx
----------------------------------
Name: Xxxx Xxxx
--------------------------------
Title: Assistant Treasurer
-------------------------------
Address: Intel 64 Fund Operations, Inc.
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, XX 00000
Attn: Portfolio Manager
Fax: (000) 000-0000
INTEL CORPORATION
By: /s/ Xxxx Xxxx
----------------------------------
Name: Xxxx Xxxx
--------------------------------
Title: Assistant Treasurer
-------------------------------
Address: 0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, XX 00000
Attn: Portfolio Manager
Fax:
SIGNATURE PAGE TO MOAI TECHNOLOGIES, INC.
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS:
HEWLETT-PACKARD COMPANY
By: /s/ Xxxxxxxx X. Xxxxx
---------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President and Chief Marketing Officer
Enterprise and Commercial Business
Address: Hewlett-Packard Company
00000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx 00 - XX UT
Xxxxxxxxx XX 00000
Fax: (000) 000-0000
With copy to:
Attn: General Counsel
Hewlett-Packard Company
0000 Xxxxxxx Xxxxxx, XX 20BQ
Xxxx Xxxx, XX 00000
Fax: (000) 000-0000
SIGNATURE PAGE TO MOAI TECHNOLOGIES, INC.
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS:
MLBC, INC.
By: /s/ Xxxx Xxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxx
---------------------------------
Title: Board Member
--------------------------------
Address: c/o Merrill Xxxxx & Co., Inc.
000 Xxxxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
SIGNATURE PAGE TO MOAI TECHNOLOGIES, INC.
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS:
XXXXXXXX COMMUNICATIONS AND
INFORMATION FUND, INC.
By: J. & X. Xxxxxxxx & Co. Incorporated,
its investment advisor
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
---------------------------------
Title: Managing Director
--------------------------------
XXXXXXXX NEW TECHNOLOGIES
FUND, INC.
By: J. & X. Xxxxxxxx & Co. Incorporated,
its investment advisor
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
---------------------------------
Title: Managing Director
--------------------------------
XXXXXXXX INVESTMENT OPPORTUNITIES
(MASTER) FUND - NTV PORTFOLIO
By: J. & X. Xxxxxxxx & Co. Incorporated,
its investment advisor
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
---------------------------------
Title: Managing Director
--------------------------------
SIGNATURE PAGE TO MOAI TECHNOLOGIES, INC.
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS:
[XXXXXXXXX XXXXXXXX & CO.]
By:
Its:
/s/ [illegible]
---------------------------
SIGNATURE PAGE TO MOAI TECHNOLOGIES, INC.
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS:
HARBOURVEST PARTNERS V-DIRECT FUND L.P.
By: HVP V-Direct Associates LLC
Its: General Partner
By: HarbourVest Partners LLC
Its: Managing Member
/s/ Xxxx Xxxxxxxxxx
----------------------------------
Xxxx Xxxxxxxxxx, Managing Director
SIGNATURE PAGE TO MOAI TECHNOLOGIES, INC.
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS:
UPS GENERAL SERVICES CO.
By: /s/ Xxxx X. Xxxxxxx
----------------------------------
Xxxx X. Xxxxxxx, Vice President
SIGNATURE PAGE TO MOAI TECHNOLOGIES, INC.
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS:
REDLEAF VENTURE I, L.P.
By: Redleaf Venture Management, L.L.C.
By: /s/ C. Xxxxx Xxxxxxxx
-----------------------------------
Name: C. Xxxxx Xxxxxxxx
---------------------------------
Title: Managing Director
--------------------------------
REDLEAF ASSOCIATES I, L.P.
By: Redleaf Venture Management, L.L.C.
By: /s/ C. Xxxxx Xxxxxxxx
------------------------------------
Name: C. Xxxxx Xxxxxxxx
-----------------------------------
Title: Managing Director
----------------------------------
REDLEAF VENTURE II, L.P.
By: Redleaf Venture Management II, L.L.C.
By: /s/ C. Xxxxx Xxxxxxxx
------------------------------------
Name: C. Xxxxx Xxxxxxxx
---------------------------------
Title: Managing Director
--------------------------------
SIGNATURE PAGE TO MOAI TECHNOLOGIES, INC.
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS:
REDLEAF GROUP, LLC
By: /s/ C. Xxxxx Xxxxxxxx
-------------------------------------
Name: C. Xxxxx Xxxxxxxx
-----------------------------------
Title: CEO
----------------------------------
SIGNATURE PAGE TO MOAI TECHNOLOGIES, INC.
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS:
XXXXXX MEDIA & INFORMATION
TECHNOLOGY FUND, L.P.
By: Xxxxxx Media, LLC
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxx
----------------------------
Title: Manager
---------------------------
XXXXXX-SBIC, L.P.
By: Xxxxxx XX Corporation
By: /s/ Xxxxxx Xxxxx
----------------------------------
Name: Xxxxxx Xxxxx
--------------------------------
Title: General Partner
------------------------------
XXXXXX TECHNOLOGY VENTURES II, L.P.
By: Xxxxxx Technology Partners, L.P.
By: /s/ Xxxxxx Xxxxx
----------------------------------
Name: Xxxxxx Xxxxx
--------------------------------
Title: General Partner
--------------------------------
SIGNATURE PAGE TO MOAI TECHNOLOGIES, INC.
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS:
TGI FUND I, LC
By: Tredegar Investments, Inc.
Its: Manager
/s/ Xxxx X. Xxxxxx
---------------------------------------
Xxxx X. Xxxxxx, Vice President
Address: 0000 Xxxxxxxx Xxxxxx
000 - 0xx Xxxxxx
Xxxxxxx, XX 00000
SIGNATURE PAGE TO MOAI TECHNOLOGIES, INC.
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS:
By: /s/ Xxxxxxx Xxxxxx
----------------------------
Title:
-------------------------
By: /s/ Xxxxxxxxxxx X'Xxxxx
----------------------------
Title: General Partner, Vortex Partners MTI, L.P.
-------------------------------------------
S.I. VENTURE FUND, LLC
By: /s/ X.X. Xxxxxxxx
----------------------------
Title: Managing Director
-------------------------
SIGNATURE PAGE TO MOAI TECHNOLOGIES, INC.
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS:
XXXX TECHNOLOGY VENTURES, L.P.
By: X.X. Xxxx Corp, ITS
General Partner
By: /s/ Xxxxx X. Xxxx
---------------------------
Title: President
------------------------
SIGNATURE PAGE TO MOAI TECHNOLOGIES, INC.
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS:
REUTERS HOLDING SWITZERLAND SA
By: /s/ X. Xxxxxx
------------------------------
Title: CEO [illegible]
---------------------------
Address: 000 xxxxx xx Xxxxx
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxxx
BROADVISION, INC.
By: /s/ XxXxxx Xxxx
------------------------------
Name: XxXxxx Xxxx
Title: CEO
SIGNATURE PAGE TO MOAI TECHNOLOGIES, INC.
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
EXHIBIT A
---------
INVESTORS
---------
Series A Series A Series B Series B Series C Series D
Common Preferred Preferred Preferred Preferred Preferred Preferred
Name/Address Stock Stock Warrants Stock Warrants Stock Stock
------------ ----- ----- -------- ----- -------- ----- -----
Xxxxxx-SBIC, L.P. 734,308 116,316 46,392
Attn: Xxxxx Xxxxxxxx
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxxx Media & Information 2,343,750 371,210 148,071
Technology Fund, L.P.
Attn: Xxxxx Xxxxxxxx
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxxx Technology Ventures II, 244,770 38,790 15,465
L.P.
Attn: Xxxxx Xxxxxxxx
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Redleaf Venture I, L.P. 3,868,618 1,586,992
Attn: Xxxxx Xxxxxxxx
00000 Xxxxxxxx Xxxxxx, Xxxxx
000
Xxxxxxxx, XX 00000
Redleaf Associates I, L.P. 48,048 19,712
Attn: Xxxxx Xxxxxxxx
00000 Xxxxxxxx Xxxxxx, Xxxxx
000
Xxxxxxxx, XX 00000
Redleaf Venture II, L.P. 741,158
Attn: Xxxxx Xxxxxxxx
00000 Xxxxxxxx Xxxxxx, Xxxxx
000
Xxxxxxxx, XX 00000
Redleaf Group, LLC 62,422
Attn: Xxxxx Xxxxxxxx
00000 Xxxxxxxx Xxxxxx, Xxxxx
000
Xxxxxxxx, XX 00000
Series D
Preferred
Warrants
--------
Xxxxxx-SBIC, L.P.
Attn: Xxxxx Xxxxxxxx
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxxx Media & Information
Technology Fund, L.P.
Attn: Xxxxx Xxxxxxxx
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxxx Technology Ventures II,
L.P.
Attn: Xxxxx Xxxxxxxx
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Redleaf Venture I, L.P.
Attn: Xxxxx Xxxxxxxx
00000 Xxxxxxxx Xxxxxx, Xxxxx
000
Xxxxxxxx, XX 00000
Redleaf Associates I, L.P.
Attn: Xxxxx Xxxxxxxx
00000 Xxxxxxxx Xxxxxx, Xxxxx
000
Xxxxxxxx, XX 00000
Redleaf Venture II, L.P.
Attn: Xxxxx Xxxxxxxx
00000 Xxxxxxxx Xxxxxx, Xxxxx
000
Xxxxxxxx, XX 00000
Redleaf Group, LLC
Attn: Xxxxx Xxxxxxxx
00000 Xxxxxxxx Xxxxxx, Xxxxx
000
Xxxxxxxx, XX 00000
Series A Series A Series B Series B Series C Series D
Common Preferred Preferred Preferred Preferred Preferred Preferred
Name/Address Stock Stock Warrants Stock Warrants Stock Stock
------------ ----- ----- -------- ----- -------- ----- -----
TGI Fund I, L.C. 2,500,000 1,205,028 263,158
c/o Tredegar Investments, Inc.
Attn: Xxxx Xxxxxx
0000 Xxxxxxxx Xxxxxx
000 - 0xx Xxxxxx
Xxxxxxx, XX 00000
Xxxxxxx Xxxxxx 145,834 70,294 22,000 7,413
c/o Telematica
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Xxxxx XxXxxxx 145,834 20,000
000 Xxxxxxxx Xxxx
Xxxxxxx Xxxx, XX 00000
VLG Investments 1998 17,602 18,420
Venture Law Group
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Xxxxxx X. Xxxxxx, Xx. 7,896
c/o Venture Law Group
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Xxxxx X. Xxxxx 7,544
Amicus LLC
000 Xxx Xxxxxxxxxxx, Xxxxx
Xxxxx
Xxx Xxxxxxxxx, XX 00000
HarbourVest Partners, LLC 2,631,578 143,523
Attn: Xxxx Xxxxxxxxxx
Xxx Xxxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxxxxx, XX 00000
Vortex Partners MTI, L.P. 326,316 17,797
Attn: Xxxxxxxxxxx X'Xxxxx
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Xxxx Technology Ventures, L.P. 200,000 10,908
Attn: Xxxxx Xxxx
0000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Series D
Preferred
Name/Address Warrants
------------ --------
TGI Fund I, L.C.
c/o Tredegar Investments, Inc.
Attn: Xxxx Xxxxxx
0000 Xxxxxxxx Xxxxxx
000 - 0xx Xxxxxx
Xxxxxxx, XX 00000
Xxxxxxx Xxxxxx
c/o Telematica
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Xxxxx XxXxxxx
000 Xxxxxxxx Xxxx
Xxxxxxx Xxxx, XX 00000
VLG Investments 1998
Venture Law Group
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Xxxxxx X. Xxxxxx, Xx.
c/o Venture Law Group
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Xxxxx X. Xxxxx
Amicus LLC
000 Xxx Xxxxxxxxxxx, Xxxxx
Xxxxx
Xxx Xxxxxxxxx, XX 00000
HarbourVest Partners, LLC
Attn: Xxxx Xxxxxxxxxx
Xxx Xxxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxxxxx, XX 00000
Vortex Partners MTI, L.P.
Attn: Xxxxxxxxxxx X'Xxxxx
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Xxxx Technology Ventures, L.P.
Attn: Xxxxx Xxxx
0000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
-2-
Series A Series A Series B Series B Series C Series D
Common Preferred Preferred Preferred Preferred Preferred Preferred
Name/Address Stock Stock Warrants Stock Warrants Stock Stock
------------ ----- ----- -------- ----- -------- ----- -----
S.I. Venture Fund, LLC 526,316 28,705
Attn: Xxxx X. Xxxxxxxx
0000 Xxxxxxx Xxxx
Xx. Xxxxxx, XX 00000
UPS General Services Co. 789,474 43,057
Attn: Xxxx Xxxxx
00 Xxxxxxxx Xxxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Reuters Holdings Switzerland SA 1,578,948 86,115
Attn: Xxxx Xxxxxx
000 xxxxx xx Xxxxxx
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxxx
BroadVision, Inc. 263,158 14,352
Attn: Xxxxx Xxxxx
000 Xxxxxxxx
Xxxxxxx Xxxx, XX 00000
Xxxxxxx Xxxxxx 26,468 19,922
C/o Xxxxxxxx-Xxxxxx
000 Xxxxx Xxxx Xxxxxx, Xxxxx
000
Xxxxx Xxxx, XX 00000
Xxxxx Xxxxxxxx 10,866 9,374
C/o Xxxxxxxx-Xxxxxx
000 Xxxxx Xxxx Xxxxxx, Xxxxx
000
Xxxxx Xxxx, XX 00000
Silicon Valley Bank 90,000
0000 Xxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Xxxxxxxx Communications and 249,687
Information Fund, Inc.
Attn: Xxxxx X. Xxxxxx
000 Xxxx Xxxxxx, 0/xx/ Xxxxx
Xxx Xxxx, XX 00000
Xxxxxxxx New Technologies 789,014
Fund, Inc.
Attn: Xxxxx X. Xxxxxx
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Series D
Preferred
Name/Address Warrants
------------ --------
S.I. Venture Fund, LLC
Attn: Xxxx X. Xxxxxxxx
0000 Xxxxxxx Xxxx
Xx. Xxxxxx, XX 00000
UPS General Services Co.
Attn: Xxxx Xxxxx
00 Xxxxxxxx Xxxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Reuters Holdings Switzerland SA
Attn: Xxxx Xxxxxx
000 xxxxx xx Xxxxxx
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxxx
BroadVision, Inc.
Attn: Xxxxx Xxxxx
000 Xxxxxxxx
Xxxxxxx Xxxx, XX 00000
Xxxxxxx Xxxxxx
C/o Xxxxxxxx-Xxxxxx
000 Xxxxx Xxxx Xxxxxx, Xxxxx
000
Xxxxx Xxxx, XX 00000
Xxxxx Xxxxxxxx
C/o Xxxxxxxx-Xxxxxx
000 Xxxxx Xxxx Xxxxxx, Xxxxx
000
Xxxxx Xxxx, XX 00000
Silicon Valley Bank
0000 Xxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Xxxxxxxx Communications and
Information Fund, Inc.
Attn: Xxxxx X. Xxxxxx
000 Xxxx Xxxxxx, 0/xx/ Xxxxx
Xxx Xxxx, XX 00000
Xxxxxxxx New Technologies
Fund, Inc.
Attn: Xxxxx X. Xxxxxx
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
-3-
Series A Series A Series B Series B Series C Series D
Common Preferred Preferred Preferred Preferred Preferred Preferred
Name/Address Stock Stock Warrants Stock Warrants Stock Stock
------------ ----- ----- -------- ----- -------- ----- -----
Xxxxxxxx Investment 209,738
Opportunities (Master) Fund -
NTV Portfolio
Attn: Xxxxx X. Xxxxxx
000 Xxxx Xxxxxx, 0/xx/ Xxxxx
Xxx Xxxx, XX 00000
Xxxxxxxxx Xxxxxxxx & Co.
AC Ventures B.V. 249,688
C/x Xxxxxxxx Consulting LLP
0000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attn: Chief Financial Officer
With a copy to:
Legal Department
Xxxxxxxx Consulting
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Xxxxxxxx Consulting
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Xxxxxxx Chemical Company 249,688
000 X. Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Intel 64 Fund, LLC 624,220
Intel 64 Fund Operations, Inc.
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, XX 00000
Attn: Portfolio Manager
Fax Number: (000) 000-0000
With a copy to:
Intel Corporation
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, XX 00000
Attn: General Counsel
Fax Number: (000) 000-0000
Series
Preferred
Name/Address Warrants
------------ --------
Xxxxxxxx Investment
Opportunities (Master) Fund -
NTV Portfolio
Attn: Xxxxx X. Xxxxxx
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Xxxxxxxxx Xxxxxxxx & Co. 31,211
AC Ventures B.V.
C/x Xxxxxxxx Consulting LLP
0000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attn: Chief Financial Officer
With a copy to:
Legal Department
Xxxxxxxx Consulting
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Xxxxxxxx Consulting 75,000
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Xxxxxxx Chemical Company 15,000
000 X. Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Intel 64 Fund, LLC
Intel 64 Fund Operations, Inc.
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, XX 00000
Attn: Portfolio Manager
Fax Number: (000) 000-0000
With a copy to:
Intel Corporation
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, XX 00000
Attn: General Counsel
Fax Number: (000) 000-0000
-4-
Series A Series A Series B Series B Series C Series D
Common Preferred Preferred Preferred Preferred Preferred Preferred
Name/Address Stock Stock Warrants Stock Warrants Stock Stock
------------ ----- ----- -------- ----- -------- ----- -----
Intel Corporation
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, XX 00000
Attn: General Counsel
Fax Number: (000) 000-0000
Hewlett-Packard Company 624,220
00000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx 00 - XX UH
Xxxxxxxxx XX 00000
With a copy to:
Attention: General Counsel
Hewlett-Packard Company
0000 Xxxxxxx Xxxxxx, XX 20BQ
Xxxx Xxxx, XX 00000
MLBC, Inc. 124,843
C/0 Xxxxxxx Xxxxx & Co.
000 Xxxxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, XX 00000
Fax Number: (000) 000-0000
----------------------------------------------------------------------------------------------
TOTALS: 291,668 6,416,666 37,334 6,250,000 119,296 7,894,738 3,745,318
----------------------------------------------------------------------------------------------
Series D
Preferred
Warrants
--------
Intel Corporation 93,633
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, XX 00000
Attn: General Counsel
Fax Number: (000) 000-0000
Hewlett-Packard Company 93,633
00000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx 00 - XX UH
Xxxxxxxxx XX 00000
With a copy to:
Attention: General Counsel
Hewlett-Packard Company
0000 Xxxxxxx Xxxxxx, XX 20BQ
Xxxx Xxxx, XX 00000
MLBC, Inc.
C/0 Xxxxxxx Xxxxx & Co.
000 Xxxxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, XX 00000
Fax Number: (000) 000-0000
-------------
TOTALS: 308,477
-------------
-5-
EXHIBIT 10.1
------------
FIRST AMENDMENT TO THIRD AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT AND WAIVER
--------------------------------------
This First Amendment to Third Amended and Restated Investors' Rights
Agreement (this "Amendment") is made and entered into as of March 10, 2000 by
---------
and among Moai Technologies, Inc., a California corporation (the "Company"),
-------
Xxxxxxxx Consulting LLP ("Xxxxxxxx"), Hewlett-Packard Company ("HP"), Intel
-------- --
Corporation ("Intel") and Xxxxxxx Chemical Company ("Eastman" and, collectively
----- -------
with AC Ventures, HP and Intel, the "Warrantholders"), the holders of the
--------------
Company's Series A, Series B, Series C and Series D Preferred Stock listed on
the signature pages hereto (the "Investors"), and Deva Hazarika ("Founder") and
--------- -------
Xxxx Xxxxxxx ("Xxxxxxx").
-------
RECITALS
--------
A. The Company, Investors, Founder, Xxxxxxx and certain other
shareholders of the Company are parties to a Third Amended and Restated
Investors' Rights Agreement dated January 25, 2000 (the "Rights Agreement").
----------------
B. On March 6, 2000, the Company issued Xxxxxxxx a warrant (the "AC
--
Warrant") exercisable for 75,000 shares of the Company's Series D Preferred
-------
Stock (the "AC Shares").
---------
C. Concurrently herewith, the Company is issuing HP a warrant (the "HP
--
Warrant") exercisable for 93,633 shares of the Company's Series D Preferred
-------
Stock (the "HP Shares").
---------
D. On March 6, 2000, the Company issued Intel Corporation a warrant (the
"Intel Warrant") exercisable for 93,633 shares of the Company's Series D
-------------
Preferred Stock (the "Intel Shares").
------------
E. On March 6, 2000, the Company entered into a Memorandum of
Understanding to issue Eastman a warrant (the "Eastman Warrant" and,
---------------
collectively with the AC Warrant, HP Warrant and Intel Warrant, the "Warrants")
--------
exercisable for 15,000 shares of the Company's Series D Preferred Stock (the
"Eastman Shares" and, collectively with the AC Shares, HP Shares and Intel
--------------
Shares, the "Shares").
------
F. Pursuant to Section 2.3 of the Rights Agreement, the Company granted a
right of first offer to certain investors with respect to certain issuances of
the Company's capital stock (the "Right to Maintain Interest").
--------------------------
G. The Company, Investors, Founder and Xxxxxxx desire to amend the Rights
Agreement pursuant to Section 3.8 thereof so that Xxxxxxxx, HP, Intel and
Eastman shall be entitled to the registration rights set forth in Section 1 of
the Restated Agreement with respect to the Shares.
E. The Investors desire to waive the Right to Maintain Interest, on
behalf of themselves and all other holders of Registrable Securities under the
Rights Agreement who are
entitled to the Right to Maintain Interest, to permit the issuance of the
Warrants and the Series D Preferred Stock issuable upon exercise thereof
(collectively, the "Securities").
----------
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
promises hereinafter set forth, the parties hereto agree as follows:
1. Amendment. The first sentence of Section 1.1(b)(i) of the Rights
---------
Agreement is hereby amended and restated in its entirety to read as follows:
"(i) the shares of Common Stock issuable or issued upon conversion of the
Series A, Series B, Series C or Series D Preferred Stock of the Company
(including Series D Preferred Stock issued after the date of this Agreement
pursuant to an addendum or amendment to the Purchase Agreement) either held
by the Investors or issuable to the Investors upon exercise of outstanding
warrants to purchase Series A Preferred Stock issued to Xxxxxxx Xxxxxx and
Xxxxx Xxxxxxxx, outstanding warrants to purchase Series B Preferred Stock
issued to Silicon Valley Bank, Xxxxxxx Xxxxxx and Xxxxx Xxxxxxxx, or
outstanding warrants to purchase Series D Preferred Stock issued to
Xxxxxxxxx Xxxxxxxx, Consulting LLP, Hewlett-Packard Company, Intel
Corporation and Xxxxxxx Chemical Company, or affiliates thereof, including
such warrants to purchase Series D Preferred Stock issued after the date
hereof;"
2. Waiver. The Investors hereby waive the Right to Maintain Interest, on
------
behalf of themselves and all other holders of Registrable Securities under the
Rights Agreement who are entitled to the Right to Maintain Interest, with
respect to the issuance of the Securities.
3. General Provisions.
------------------
3.1 Governing Law. This Amendment and all acts and transactions
-------------
pursuant hereto shall be governed, construed and interpreted in accordance with
the laws of the State of California, without giving effect to principles of
conflicts of laws.
3.2 Counterparts. This Amendment may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[Signature Page Follows]
-2-
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
to Third Amended and Restated Investors' Rights Agreement as of the date and
year first above written.
COMPANY:
MOAI TECHNOLOGIES, INC.
By: /s/ Xxxx Xxxxxxx
---------------------------------------------------
Xxxx Xxxxxxx, President and Chief Executive Officer
XXXXXXXX CONSULTING LLP
By:______________________________
Name:____________________________
Title:___________________________
Address: Xxxxxxxx Consulting LLP
0000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
XXXXXXX CHEMICAL COMPANY
By: /s/ Xxxxx X. Xxxxx, Xx.
-------------------------------
Name: Xxxxx X. Xxxxx, Xx.
-----------------------------
Title: Vice President
----------------------------
Address: 000 X. Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
SIGNATURE PAGE TO FIRST AMENDMENT TO MOAI TECHNOLOGIES, INC.
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
AC VENTURES, B.V.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
---------------------------------------------------------------------------
Title: Managing Director
--------------------------------------------------------------------------
Address: c/x Xxxxxxxx Consulting LLP
0000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
SIGNATURE PAGE TO FIRST AMENDMENT TO MOAI TECHNOLOGIES, INC.
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INTEL CORPORATION
By: /s/ Xxxx Xxxx
------------------------------------
Name: Xxxx Xxxx
----------------------------------
Title: Assistant Treasurer
---------------------------------
Address: 0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, XX 00000
Attn: General Counsel
HEWLETT-PACKARD COMPANY
By: /s/ Illegible
------------------------------------
Name: Xxx Xxxxxx
Title: Business development Manager
Address: 0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx 00 - XX UH
Xxxxxxxxx, XX 00000
With a copy to: Hewlett-Packard Company
Attn: General Counsel
0000 Xxxxxxx Xxxxxx, XX 20BQ
Xxxx Xxxx, XX 00000
SIGNATURE PAGE TO FIRST AMENDMENT TO MOAI TECHNOLOGIES, INC.
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS:
XXXXXXXX COMMUNICATIONS AND
INFORMATION FUND, INC.
By: J. & X. Xxxxxxxx & Co. Incorporated,
ITS INVESTMENT ADVISOR
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxx
--------------------------
Title: Managing Director
-------------------------
XXXXXXXX NEW TECHNOLOGIES
FUND, INC.
By: J. & X. Xxxxxxxx & Co. Incorporated,
ITS INVESTMENT ADVISOR
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxx
---------------------------
Title: Managing Director
--------------------------
XXXXXXXX INVESTMENT OPPORTUNITIES
(MASTER) FUND - NTV PORTFOLIO
By: J. & X. Xxxxxxxx & Co. Incorporated,
ITS INVESTMENT ADVISOR
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxx
---------------------------
Title: Managing Director
--------------------------
SIGNATURE PAGE TO FIRST AMENDMENT TO MOAI TECHNOLOGIES, INC.
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
