EXHIBIT 4.02
THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
This THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT (the "Agreement")
is made as of June 10, 1999, by and among Interwoven, Inc., a California
corporation (the "Company"), the persons listed on the attached Schedule A who
become signatories to this Agreement (collectively, the "Investors").
R E C I T A L S
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A. The Company and the Investors have entered into one or more agreements
for sale by the Company and purchase by the Investors of the Company's Preferred
Stock and other securities.
B. In connection with the purchase and sale of the Company's securities,
the Company and the Investors desire to provide for the rights of the Investors
with respect to information about the Company and registration of the Common
Stock issued upon conversion or exercise of the securities according to the
terms of this Agreement. In addition, the Investors who were parties to the
Second Amended and Restated Investor Rights Agreement made as of October 30,
1998, as amended (the "Prior Agreement"), desire to restate the Prior Agreement
as set forth below, and consent to the addition, as parties to this Agreement,
of the Investors who purchase the Company's Series E Preferred Stock, such that
this Agreement is the only agreement governing the information and registration
rights of the holders of the Company's Preferred Stock.
THE PARTIES AGREE AS FOLLOWS:
1. Certain Definitions. As used in this Agreement, the following terms
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shall have the following respective meanings:
(a) "Commission" shall mean the U.S. Securities and Exchange
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Commission or any other federal agency at the time administering the Securities
Act.
(b) "Convertible Securities" shall mean securities of the Company
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convertible into or exercisable or exchangeable for Common Stock of the Company,
or into other securities that are convertible into or exercisable or
exchangeable for Common Stock.
(c) "Exchange Act" shall mean the Securities and Exchange Act of 1934,
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as amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
(d) "Form S-3" shall mean Form S-3 issued by the Commission or any
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substantially similar form then in effect.
(e) "Holder" shall mean any holder of outstanding Registrable
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Securities which have not been sold to the public pursuant to a public offering,
but only if such holder is one of the Investors or an assignee or transferee of
Registration rights as permitted by Section 12.
(f) "Initiating Holders" shall mean Holders (a) who in the aggregate
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hold at least forty percent (40%) of the Registrable Securities, or (b) who hold
any of the Company's outstanding Series B Preferred which are Registrable
Securities, or (c) who in the aggregate hold at least twenty percent (20%) of
the Company's outstanding Series C Preferred which are Registrable Securities,
or (d) who in the aggregate hold at least twenty percent (20%) of the Company's
outstanding Series D Preferred which are Registrable Securities, or (e) who in
the aggregate hold at least twenty percent (20%) of the Company's outstanding
Series E Preferred which are Registrable Securities.
(g) "Major Investor" shall mean an investor that, together with any
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affiliates, holds not less than 300,000 shares of the Convertible Securities
and/or Registrable Securities (as equitably adjusted for stock splits,
subdivisions, stock dividends, changes, combinations, or the like).
(h) "Material Adverse Event" shall mean an occurrence having a
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consequence that either (a) is materially adverse as to the business,
properties, prospects, or financial condition of the Company or (b) is
reasonably foreseeable, has a reasonable likelihood of occurring, and if it were
to occur might materially adversely affect the business, properties, prospects,
or financial condition of the Company.
(i) The terms "Register", "Registered", and "Registration" refer to a
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registration effected by preparing and filing a registration statement in
compliance with the Securities Act ("Registration Statement"), and the
declaration or ordering of the effectiveness of such Registration Statement.
(j) "Registrable Securities" shall mean all Common Stock issued or
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issuable upon conversion of the Company's Convertible Securities purchased by or
issued to the Investors, including Common Stock issued pursuant to stock splits,
stock dividends and similar distributions, and any securities of the Company
granted registration rights pursuant to Section 11 of this Agreement unless (a)
such Common Stock has previously been sold to the public, or (b) registration
rights with respect to such Common Stock have expired in accordance with Section
7 hereof.
(k) "Registration Expenses" shall mean all expenses incurred by the
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Company in complying with Sections 4 or 5 of this Agreement, including, without
limitation, all federal and state registration, qualification, and filing fees,
printing expenses, fees and disbursements of counsel for the Company, blue sky
fees and expenses, reasonable fees and expenses of special counsel for the
Holders, and the expense of any special audits incident to or required by any
such registration.
(l) "S-C Group" shall mean Quantum Industrial Partners LDC, S-C .
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Phoenix Holdings, L.L.C., Winston Partners II LDC, Winston Partners II LLC, and
their affiliates. For
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purposes of this Agreement, "affiliates" of the S-C Group shall include one or
more of Xxxxxxxx Xxxxxxxxxx, Chatterjee Fund Management, Xxxxxx Xxxxx or Xxxxx
Fund Management LLC or affiliates thereof, and any person or entity for which
any such person or entity acts as investment advisor or investment manager.
(m) "Securities Act" shall mean the Securities Act of 1933, as
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amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
(n) "Selling Expenses" shall mean all underwriting discounts, selling
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commissions and stock transfer taxes applicable to the sale of Registrable
Securities pursuant to this Agreement.
2. Financial Statements and Reports to Major Preferred Investors.
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2.1 The Company shall deliver to each holder who, together with
affiliates, holds a total of more than (x) 680,000 shares of Series B Preferred,
Series C Preferred, or Series D Preferred (or Common Stock issued upon
conversion of Series B Preferred, Series C Preferred, Series D Preferred), or
(y) 100,000 shares of Series E Preferred (or Common Stock issued upon conversion
of Series E Preferred), and to the S-C Group (each a "Major Preferred
Investor"):
(a) As soon as practicable after the end of each fiscal quarter after
the Closing, and in any event within 30 days thereafter, consolidated balance
sheets of the Company and its subsidiaries, if any, as of the end of such
quarter, and consolidated statements of income and cash flow for such quarter
and for the current fiscal year to date, prepared in accordance with generally
accepted accounting principles (other than for accompanying notes), consistently
applied with prior practice for earlier periods, and signed by the Chief
Financial Officer or President of the Company certifying that they fairly and
accurately present the financial condition and results of operation of the
Company, subject to changes resulting from year-end audit adjustment;
(b) As soon as practicable after the end of each fiscal year of the
Company, and in any event within 90 days thereafter, an audited consolidated
balance sheet of the Company as of the end of such year and audited consolidated
statements of income, shareholders' equity and cash flow for such year, which
year-end financial reports shall be in reasonable detail and shall be prepared
in accordance with generally accepted accounting principles, consistently
applied with prior practice for earlier periods, and accompanied by the opinion
of independent public accountants of nationally recognized standing selected by
the Company;
(c) As soon as practicable following submission to and approval by the
Board of Directors of the Company (such submission to be prior to the end of
each fiscal year) an operating budget and business plan (the "Plan") respecting
the next fiscal year and a summary of such Plan, together with any update of the
Plan as such update is prepared and approved by the Board of Directors; and
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(d) A copy of each report or document of the Company delivered to a
majority of the holders of Common Stock (including Common Stock issuable upon
conversion of Preferred Stock);
(e) An annual capitalization summary; and
(f) Prompt notice of any litigation or any material adverse claims or
disputes involving the Company.
2.2 The covenants of the Company set forth in this Section 2 shall
terminate and be of no further effect with respect to each Major Preferred
Investor upon the closing of the first public offering of the Common Stock of
the Company that is effected pursuant to a Registration Statement filed with,
and declared effective by, the Commission under the Securities Act (other than
either a public offering limited solely to employees of the Company or an
offering pursuant to Rule 145 under the Securities Act).
3. Right of First Refusal.
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3.l The Company hereby grants to each Major Investor the right of
first refusal to purchase up to its Pro Rata Share of the New Securities (as
defined below) which the Company may, from time to time, propose to sell and
issue in a transaction or series of related transactions involving aggregate
proceeds to the Company of $1,000,000 or more. The Major Investors may purchase
said New Securities on the same terms and at the same price at which the Company
proposes to sell the New Securities. The "Pro Rata Share" of each Major
Investor, for purposes of this right of first refusal, is the ratio of (i) the
total number of shares of Common Stock held by such Major Investor (including
any shares of Common Stock into which shares of the Convertible Securities held
by such Major Investor are convertible) to (ii) the total number of shares of
Common Stock outstanding immediately prior to the issuance of the New Securities
(including any shares of Common Stock into which outstanding shares of the
Convertible Securities are convertible and treating as outstanding the maximum
number of shares of Common Stock that can be issued under the Company's Stock
Option Plan).
3.2 "New Securities" shall mean any capital stock of the Company,
whether authorized or not, and any rights, options, or warrants to purchase said
capital stock, and securities of any type whatsoever that are, or may become,
convertible into said capital stock; provided that "New Securities" does not
include (i) the Series E Preferred Stock issued pursuant to that certain Series
E Preferred Stock Purchase Agreement of even date herewith (the "Stock Purchase
Agreement"), or the Common Stock issuable upon conversion of the Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock or such Series E Preferred Stock; (ii) securities offered
pursuant to a registration statement filed under the Securities Act; (iii)
securities issued by the Company pursuant to the acquisition of another
corporation by merger, purchase of substantially all of the assets, or other
reorganization; (iv) securities issued by the Company to a strategic corporate
partner pursuant to a strategic corporate partnership; provided such issuances
are for other than primarily equity financing purposes and provided that at the
time of any such issuance, the aggregate of such issuance and similar issuances
in the preceeding twelve month period do not exceed 1% of the then
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outstanding Common Stock of the Company (assuming full conversion and exercise
of all convertible and exercisable securities); (v) shares issued or issuable to
employees, directors, consultants, advisers and others performing services for
the Company or its subsidiaries, pursuant to a plan or arrangement approved by
the Company's Board of Directors; (vi) shares issued without consideration
pursuant to a stock dividend, stock split, or similar transaction; (vii)
warrants, and shares issuable upon exercise of such warrants, issued in
connection with equipment leasing or credit transactions with commercial lending
institutions and approved by the Company's Board of Directors; and (viii)
Registrable Securities issued or issuable upon conversion, exercise, or exchange
of New Securities.
3.3 In the event the Company proposes to undertake an issuance of New
Securities, it shall give to each Major Investor written notice (the "Notice")
of its intention, describing the type of New Securities, the price, the terms
upon which the Company proposes to issue the same, the number of shares which
Major Investor is entitled to purchase, and a statement that each Major Investor
shall have twenty (20) days to respond to such Notice. Each Major Investor
shall have twenty (20) days from the date of receipt of the Notice to agree to
purchase any portion of or all of its Pro Rata Share of the New Securities for
the price and upon the terms specified in the Notice by giving written notice to
the Company and stating therein the quantity of New Securities to be purchased
and forwarding payment for such New Securities to the Company if immediate
payment is required by such terms.
3.4 In the event a Major Investor fails to exercise in full the right
of first refusal within said twenty (20) day period, the Company shall have
sixty (60) days thereafter to sell or enter into an agreement (pursuant to which
the sale of New Securities covered thereby shall be closed, if at all, within
thirty (30) days from date of said agreement) to sell the New Securities
respecting which such Major Investor's rights were not exercised, at a price and
upon general terms no more favorable to the purchaser thereof than specified in
the Notice. In the event the Company has not sold the New Securities within
said sixty (60) day period (or sold and issued New Securities in accordance with
the foregoing within thirty (30) days from the date of said agreement), the
Company shall not thereafter issue or sell any New Securities without first
offering such securities to such Major Investor in the manner provided above.
3.5 The right of first refusal granted under this Section 3 is
assignable by the Major Investors and their affiliates to (i) any transferee of
a minimum of 100,000 shares of Common Stock (including any shares of Common
Stock into which shares of Convertible Securities then held by it are
convertible), (ii) any wholly owned subsidiary or parent of, or any corporation
or entity that is, within the meaning of the Securities Act, controlling,
controlled by or under common control with, any such Major Investor, or (iii)
any Major Investor.
3.6 The covenants of the Company set forth in this Section 3 shall be
terminated and be of no further force or effect immediately prior to the closing
of the first public offering of the Common Stock of the Company that is effected
pursuant to a Registration Statement filed with, and declared effective by, the
Commission under the Securities Act (other than either a public offering limited
solely to employees of the Company or an offering pursuant to Rule 145 under the
Securities Act), and such covenants shall terminate as to any Major
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Investor as of the date such Major Investor no longer holds any shares of the
capital stock of the Company.
4. Demand Registration.
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4.1 Request for Registration on Form Other Than Form S-3. Subject to
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the terms of this Agreement, in the event that the Company shall receive from
the Initiating Holders at any time after the earlier of (a) May 9, 2001 and (b)
six (6) months after the closing of the Company's initial public offering of
shares of Common Stock under a Registration Statement, a written request that
the Company effect any Registration with respect to all or a part of the
Registrable Securities on a Form other than Form S-3 for an offering with a
reasonably anticipated aggregate offering price to the public exceeding
$5,000,000, the Company shall (i) promptly give written notice of the proposed
Registration to all other Holders and shall (ii) use its best efforts to effect
as soon as practicable, and in any event within sixty (60) days of the receipt
of such request, Registration of the Registrable Securities specified in such
request, together with any Registrable Securities of any Holder joining in such
request as are specified in a written request given within twenty (20) days
after written notice from the Company. The Company shall not be obligated to
take any action to effect any such registration pursuant to this Section 4.1 (i)
for the one hundred eighty (180) day period immediately following the closing of
the Company's initial public offering of shares of Common Stock under a
Registration Statement, (ii) after the Company has effected two such
Registrations pursuant to this Section 4.1 and such Registrations have been
declared effective, or (iii) if the Company, within thirty (30) days of the
receipt of the request of the Initiating Holders, gives notice of its bona fide
intention to effect the filing of a Registration Statement with the Commission
within sixty (60) days of receipt of such request (other than with respect to a
Registration Statement relating to a Rule 145 transaction or an offering solely
to employees), provided that the Company is actively employing in good faith all
best efforts to cause such Registration Statement to become effective. The
substantive provisions of Section 4.5 shall be applicable to each Registration
initiated under this Section 4.1.
4.2 Right of Deferral of Registration on Form Other Than Form S-3. If
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the Company shall furnish to all such Holders who joined in the request 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 for any Registration to be effected as requested
under Section 4.1, the Company shall have the right, exercisable not more than
once in any twelve-month period, to defer the filing of a Registration Statement
with respect to such offering for a period of not more than ninety (90) days
from delivery of the request of the Initiating Holders.
4.3 Request for Registration on Form S-3.
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(a) If one or more Initiating Holders requests that the Company
file a Registration Statement on Form S-3 (or any successor form to Form S-3)
for a public offering of shares of Registrable Securities the reasonably
anticipated aggregate price to the public of which would not be less than
$1,000,000, and the Company is a registrant entitled to use Form S-3 to register
the Registrable Securities for such an offering, the Company shall (i) promptly
give
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written notice of the proposed registration to all other Holders, and (ii) as
soon as practicable effect such registration and all qualifications and
compliance as may be so requested and as would permit or facilitate the sale and
distribution of all of such portion of such Holder's or Holders' Registrable
Securities as are specified in such request; provided, however, that the Company
shall not be required to effect more than one Registration pursuant to this
Section 4.3 in any six (6) month period. The substantive provisions of Section
4.5 shall be applicable to each Registration initiated under this Section 4.3.
(b) Notwithstanding the foregoing, the Company shall not be obligated
to file a registration statement pursuant to this Section 4.3:
(i) in any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in effecting such
registration, qualification, or compliance unless the Company is already subject
to service in such jurisdiction and except as may be required by the Securities
Act;
(ii) if the Company, within thirty (30) days of the receipt of
the request of the Initiating Holders, gives notice of its bona fide intention
to effect the filing of a Registration Statement with the Commission within
sixty (60) days of receipt of such request (other than with respect to a
Registration Statement relating to a Rule 145 transaction or an offering solely
to employees), provided that the Company is actively employing in good faith all
reasonable efforts to cause such Registration Statement to become effective
provided that the foregoing is limited to one time in any twelve (12) month
period;
(iii) within one hundred eighty (180) days immediately following
the effective date of any Registration Statement pertaining to the securities of
the Company (other than a registration of securities in a Rule 145 transaction
or with respect to an employee benefit plan); or
(iv) if the Company shall furnish to such Initiating Holders a
certificate signed by the President of the Company stating that in the good
faith judgment of the Board of Directors it would be seriously detrimental to
the Company or its shareholders for a Registration Statement to be filed in the
near future, then the Company's obligation to use its best efforts to file a
Registration Statement shall be deferred for a period not to exceed 90 days from
the receipt of the request to file such registration by such Holder provided
that the Company shall not exercise the right contained in this paragraph (iv)
more than once in any twelve (12) month period.
4.4 Registration of Other Securities in Demand Registration. Any
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Registration Statement filed pursuant to the request of the Initiating Holders
under this Section 4 may, subject to the provisions of Section 4.5, include
securities of the Company other than Registrable Securities.
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4.5 Underwriting in Demand Registration.
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4.5.1 Notice of Underwriting. If the Initiating Holders intend to
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distribute the Registrable Securities covered by their request by means of an
underwriting, they shall so advise the Company as a part of their request made
pursuant to this Section 4, and the Company shall include such information in
the written notice referred to in Section 4.1 or 4.3. The right of any Holder to
Registration pursuant to Section 4 shall be conditioned upon such Holder's
agreement to participate in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting.
4.5.2 Inclusion of Other Holders in Demand Registration. If the
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Company, officers, or directors of the Company holding Common Stock other than
Registrable Securities, or holders of securities other than Registrable
Securities, request inclusion in such Registration, the Initiating Holders, to
the extent they deem advisable and consistent with the goals of such
Registration and subject to Section 4.5.4, may, in their sole discretion, on
behalf of all Holders, offer to any or all of the Company, such officers or
directors, and such holders of securities other than Registrable Securities that
such securities other than Registrable Securities be included in the
underwriting and may condition such offer on the acceptance by such persons of
the terms of this Section 4. In the event, however, that the number of shares so
included exceeds the number of shares of Registrable Securities requested to be
included by all Holders, such Registration shall be treated as governed by
Section 5 hereof rather than Section 4, and it shall not count as a Registration
for purposes of Section 4.1 or Section 4.3 hereof.
4.5.3 Selection of Underwriter in Demand Registration. The Company
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shall (together with all Holders and other security holders, if any, proposing
to distribute their securities through such underwriting) enter into an
underwriting agreement with the representative ("Underwriter's Representative")
of the underwriter or underwriters selected for such underwriting by the Company
and reasonably acceptable to the Holders of a majority of the Registrable
Securities being registered by the Initiating Holders.
4.5.4 Marketing Limitation in Demand Registration. In the event the
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Underwriter's Representative advises the Initiating Holders in writing that
market factors (including, without limitation, the aggregate number of shares of
Common Stock requested to be Registered, the general condition of the market,
and the status of the persons proposing to sell securities pursuant to the
Registration) require a limitation of the number of shares to be underwritten,
the underwriter and the Company may limit the number of Registrable Securities
to be included in the Registration and underwriting; provided, however, that no
Registrable Securities shall be so excluded unless (i) first, the Common Stock
(other than Registrable Securities) held by officers or employees of the
Company, (ii) second, the securities other than Registrable Securities (other
than those described in paragraph (iii) below), and (iii) third, the securities
requested to be registered by the Company, shall be excluded from such
Registration to the extent required by such limitation. If a limitation of the
number of shares is still required, the Company shall so advise all Holders and
the number of shares of Registrable Securities that may be included in the
Registration and underwriting shall be allocated among all Holders in
proportion, as nearly as practicable, to the respective amounts of Registrable
Securities otherwise
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entitled to inclusion in such Registration held by such Holders at the time of
filing the Registration Statement. No Registrable Securities or other securities
excluded from the underwriting by reason of this Section 4.5.4 shall be included
in such Registration Statement.
4.5.5 Right of Withdrawal in Demand Registration. If any Holder of
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Registrable Securities, or a holder of other securities entitled (upon request)
to be included in such Registration, disapproves of the terms of the
underwriting, such person may elect to withdraw therefrom by written notice to
the Company, the Underwriter's Representative and the Initiating Holders
delivered at least seven days prior to the effective date of the Registration
Statement. The securities so withdrawn shall also be withdrawn from the
Registration Statement. If the remaining Holders are not Initiating Holders,
then the Company may discontinue the Registration.
4.6 Blue Sky in Demand Registration. In the event of any Registration
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pursuant to this Section 4, the Company will exercise its best efforts to
Register and qualify the securities covered by the Registration Statement under
such other securities or Blue Sky laws of such jurisdictions as shall be
reasonably appropriate for the distribution of such securities; provided,
however, that (i) the Company shall not be required 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 Securities Act, and (ii)
notwithstanding anything in this Agreement to the contrary, in the event any
jurisdiction in which the securities shall be qualified imposes a non-waivable
requirement that expenses incurred in connection with the qualification of the
securities be borne by selling shareholders, such expenses shall be payable pro
rata by selling shareholders.
5. Piggyback Registration.
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5.1 Notice of Piggyback Registration and Inclusion of Registrable
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Securities. Subject to the terms of this Agreement, in the event the Company
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decides to Register any of its Common Stock (either for its own account or the
account of a security holder or holders exercising their respective demand
registration rights other than pursuant to Section 4 hereof) on a form that
would be suitable for a registration involving Registrable Securities, the
Company will: (i) promptly give each Holder written notice thereof (which shall
include a list of the jurisdictions in which the Company intends to attempt to
qualify such securities under the applicable Blue Sky or other state securities
laws) and (ii) include in such Registration (and any related qualification under
Blue Sky laws or other compliance), and in any underwriting involved therein,
all the Registrable Securities specified in a written request delivered to the
Company by any Holder within twenty (20) days after delivery of such written
notice from the Company.
5.2 Underwriting in Piggyback Registration.
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5.2.1 Notice of Underwriting in Piggyback Registration. If the
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Registration of which the Company gives notice is for a Registered public
offering involving an underwriting, the Company shall so advise the Holders as a
part of the written notice given pursuant to Section 5.1. In such event, the
right of any Holder to Registration shall be conditioned upon such underwriting
and the inclusion of such Holder's Registrable Securities in
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such underwriting to the extent provided in this Section 5. All Holders
proposing to distribute their securities through such underwriting shall
(together with the Company and the other holders distributing their securities
through such underwriting) enter into an underwriting agreement with the
Underwriter's Representative for such offering. The Holders shall have no right
to participate in the selection of the underwriters for an offering pursuant to
this Section 5.
5.2.2 Marketing Limitation in Piggyback Registration. In the event
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the Underwriter's Representative advises the Company that market factors
(including, without limitation, the aggregate number of shares of Common Stock
requested to be Registered, the general condition of the market, and the status
of the persons proposing to sell securities pursuant to the Registration)
require a limitation of the number of shares to be underwritten, the
Underwriter's Representative and the Company (subject to the allocation priority
set forth in Section 5.2.3) may:
(i) in the case of the Company's initial Registered public
offering, exclude some or all Registrable Securities from such registration and
underwriting; and
(ii) in the case of any Registered public offering subsequent
to the initial public offering, limit the number of shares of Registrable
Securities to be included in such Registration and underwriting to not less than
thirty percent (30%) of the securities included in such Registration (based on
aggregate market values).
5.2.3 Allocation of Shares in Piggyback Registration. In the event
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that the Underwriter's Representative and the Company limit the number of shares
to be included in a Registration pursuant to Section 5.2.2, the shares (other
than Registrable Securities) held by officers or employees of the Company shall
be excluded from such registration and underwriting to the extent required by
such limitation. If a limitation of the number of shares is still required after
such exclusion, the number of shares held by all other holders of securities
(including Registrable Securities) requesting and legally entitled to include
such securities in such Registration shall be excluded from such registration
and underwriting to the extent required by such limitation, in proportion, as
nearly as practicable, to the respective amounts of securities which such other
holders would otherwise be entitled to include in such Registration; provided,
however, that the number of shares of Registrable Securities held by the Holders
to be included in such Registration and underwriting shall not be limited to
less than thirty percent (30%) of the securities included in such Registration
(based on aggregate market value). No Registrable Securities or other securities
excluded from the underwriting by reason of this Section 5.2.3 shall be included
in the Registration Statement.
5.2.4 Withdrawal in Piggyback Registration. If any Holder
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disapproves of the terms of any such underwriting, such person may elect to
withdraw therefrom by written notice to the Company and the Underwriter's
Representative delivered at least seven days prior to the effective date of the
Registration Statement. Any Registrable Securities or other securities excluded
or withdrawn from such underwriting shall be withdrawn from such Registration.
5.3 Blue Sky in Piggyback Registration. In the event of any Registration
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of Registrable Securities pursuant to this Section 5, the Company will exercise
its best efforts to
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Register and qualify the securities covered by the Registration Statement under
such other securities or Blue Sky laws of such jurisdictions as shall be
reasonably appropriate for the distribution of such securities; provided,
however, that (i) the Company shall not be required 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 Securities Act, and (ii)
notwithstanding anything in this Agreement to the contrary, in the event any
jurisdiction in which the securities shall be qualified imposes a non-waivable
requirement that expenses incurred in connection with the qualification of the
securities be borne by selling shareholders, such expenses shall be payable pro
rata by selling shareholders.
6. Expenses of Registration. All Registration Expenses incurred in
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connection with all Registrations pursuant to Section 4 and Section 5 shall be
borne by the Company. Notwithstanding the above, the Company shall not be
required to pay for any expenses of any registration proceeding begun pursuant
to Section 4 if the registration request is subsequently withdrawn at the
request of the Holders of a majority of the Registrable Securities to be
registered (which Holders shall bear such expenses unless the Holders of a
majority of the Registrable Securities agree to forfeit their right to such
registration), provided however, that if at the time of such withdrawal, the
Holders have learned of a Material Adverse Event with respect to the condition,
business, or prospects of the Company not known to the Holders at the time of
their request, then the Holders shall not be required to pay any of such
expenses and shall retain their rights pursuant to Section 4. All Selling
Expenses shall be borne by the holders of the securities Registered Pro Rata on
the basis of the number of shares Registered.
7. Termination of Registration Rights. The rights to cause the
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Company to register securities granted under Sections 4 and 5 of this Agreement
shall terminate, with respect to each Holder five years after the closing date
of the Company's initial public offering; provided, however, that a Holder's
rights provided for under Sections 4 and 5 shall terminate earlier when (i) such
Holder owns less than one percent (1%) of the outstanding securities of the
Company, (ii) such Holder may sell all its shares in a three (3) month period
under Rule 144 of the Act, and (iii) the Company is then subject to the
reporting requirements of Section 13(a) or 15(d) of the Exchange Act.
8. Registration Procedures and Obligations. Whenever required under
---------------------------------------
this Agreement to effect the registration of any Registrable Securities, the
Company shall, as expeditiously as reasonably possible:
(a) Prepare and file with the Commission 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 eighty (180) days,
provided, however, that such one hundred eighty (180) day period shall be
-------- -------
extended for a period of 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.
-11-
(b) Prepare and file with the Commission 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 eighty
(180) 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 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 eighty (180) days.
(g) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant to such Registration Statement and a CUSIP number
for all such Registrable Securities, in each case not later than the effective
date of such registration.
(h) Furnish, at the request of any Holder requesting registration of
Registrable Securities pursuant to this Agreement, on the date that such
Registrable Securities are delivered for sale in connection with a registration
pursuant to this Agreement, (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 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.
-12-
(i) Cause all Registrable Securities registered pursuant hereunder to
be listed on each securities exchange on which similar securities issued by the
Company are then listed.
9. Information Furnished by Holder. It shall be a condition precedent of
-------------------------------
the Company's obligations under this Agreement, with respect to each Holder,
that such Holder of Registrable Securities included in any Registration furnish
to the Company such information regarding such Holder and the distribution
proposed by such Holder or Holders as shall be required to effect the
registration of such Holder's Registrable Securities.
10. Indemnification.
---------------
10.1 Company's Indemnification of Holders. To the extent permitted
------------------------------------
by law, the Company will indemnify each Holder, each of its officers, directors,
and constituent partners, legal counsel for the Holders, and each person
controlling such Holder (within the meaning of the Securities Act), with respect
to which Registration, qualification, or compliance of Registrable Securities
has been effected pursuant to this Agreement, and each underwriter, if any, and
each person who controls any underwriter against all claims, losses, damages, or
liabilities (or actions in respect thereof) to the extent such claims, losses,
damages, or liabilities arise out of or are based upon any untrue statement (or
alleged untrue statement) of a material fact contained in any prospectus or
other document (including any related Registration Statement) incident to any
such Registration, qualification, or compliance, or are based on any 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 any
violation by the Company of any rule or regulation promulgated under the
Securities Act or the Exchange Act applicable to the Company and relating to
action or inaction required of the Company in connection with any such
Registration, qualification, or compliance; and the Company will reimburse each
such Holder, each such underwriter, and each person who controls any such Holder
or underwriter, for any legal and any other expenses reasonably incurred, as
such expenses are incurred, in connection with investigating or defending any
such claim, loss, damage, liability, or action; provided, however, that the
indemnity contained in this Section 10.1 shall not apply to amounts paid in
settlement of any such claim, loss, damage, liability, or action if settlement
is effected without the consent of the Company (which consent shall not
unreasonably be withheld); and provided, further, that if the Company and the
Holder disagree as to the reasonableness of the settlement terms, they shall
mutually agree upon an independent counsel to review the matter and resolve the
dispute with the cost of such counsel to be split between the Company and the
Holder; and provided, further, that the Company will not be liable in any such
case to the extent that any such claim, loss, damage, liability, or expense
arises out of or is based upon any untrue statement or omission based upon
written information furnished to the Company by such Holder, underwriter, or
controlling person and stated to be for use in connection with the offering of
securities of the Company.
10.2 Holder's Indemnification of Company. To the extent permitted by
-----------------------------------
law, each Holder will, if Registrable Securities held by such Holder are
included in the securities as to which such Registration, qualification or,
compliance is being effected pursuant to this Agreement, indemnify the Company,
each of its directors and officers, each legal counsel and
-13-
independent accountant of the Company, each underwriter, if any, of the
Company's securities covered by such a Registration Statement, each person who
controls the Company or such underwriter within the meaning of the Securities
Act, and each other such Holder, each of its officers, directors, and
constituent partners, and each person controlling such other Holder (within the
meaning of the Securities Act), against all claims, losses, damages, and
liabilities (or actions in respect thereof) arising out of or based upon any
untrue statement (or alleged untrue statement) of a material fact contained in
any such Registration Statement, prospectus, offering circular, or other
document, or any 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 any violation by such Holder of any rule or regulation
promulgated under the Securities Act or the Exchange Act applicable to such
Holder and relating to action or inaction required of such Holder in connection
with any such Registration, qualification, or compliance, and will reimburse the
Company, such Holders, such directors, officers, partners, persons, law and
accounting firms, underwriters or control persons for any legal and any other
expenses reasonably incurred in connection with investigating or defending any
such claim, loss, damage, liability, or action, in each case to the extent, but
in each case only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such Registration
Statement, prospectus, offering circular, or other document in reliance upon and
in conformity with written information furnished to the Company by such Holder
and stated to be specifically for use in connection with the offering of
securities of the Company, provided, however, that the indemnity contained in
this Section 10.2 shall not apply to amounts paid in settlement of any such
claim, loss, damage, liability or action if settlement is effected without the
consent of such Holder (which consent shall not be unreasonably withheld) and
provided, further, that each Holder's liability under this Section 10.2 shall
not exceed such Holder's net proceeds from the offering of securities made in
connection with such Registration.
10.3 Indemnification Procedure. Promptly after receipt by an
-------------------------
indemnified party under this Section 10 of notice of the commencement of any
action, such indemnified party will, if a claim in respect thereof is to be made
against an indemnifying party under this Section 10, notify the indemnifying
party in writing of the commencement thereof and generally summarize such
action. The indemnifying party shall have the right to participate in and to
assume the defense of such claim; provided, however, that the indemnifying party
shall be entitled to select counsel for the defense of such claim with the
approval of any parties entitled to indemnification, which approval shall not be
unreasonably withheld; provided further, however, that if either party
reasonably determines that there may be a conflict between the position of the
Company and the Holders in conducting the defense of such action, suit, or
proceeding (such conflict being related to claims for indemnity under this
Section 10), then counsel for such party whose reasonable fees and expenses
shall be borne by the indemnifying party shall be entitled to conduct the
defense to the extent reasonably determined by such counsel to be necessary to
protect the interest of such party. The failure to notify an indemnifying party
promptly of the commencement of any such action, if prejudicial to the ability
of the indemnifying party to defend such action, shall relieve such indemnifying
party, to the extent so prejudiced, of any liability to the indemnified party
under this Section 10, but the omission so to notify the indemnifying party will
not relieve such party of any liability that such party may have to any
indemnified party otherwise other than under this Section 10.
-14-
10.4 Contribution. If the indemnification provided for in this
------------
Section 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
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
10.5 The obligations of the Company and Holders under this Section 10
shall survive the completion of any offering of Registrable Securities in a
registration statement under this Agreement.
11. Limitations on Registration Rights Granted to Other Securities. From
--------------------------------------------------------------
and after the date of this Agreement, the Company shall not enter into any
agreement with any holder or prospective holder of any securities of the Company
providing for the granting to such holder of any Registration rights that are
superior to such rights provided to the Holders under this Agreement without the
consent of the holders of at least two-thirds of the Registrable Securities.
With the consent of the Holders of a majority of the Registrable Securities then
outstanding, additional holders may be added as parties to this Agreement with
regard to any or all securities of the Company held by them. Any such
additional parties shall execute a counterpart of this Agreement, and upon
execution by such additional parties and by the Company, shall be considered an
Investor for all purposes of this Agreement. The additional parties and the
additional Registrable Securities shall be identified in an amendment to
Schedule A hereto.
12. Transfer of Rights.
------------------
12.1 The right to cause the Company to Register Securities granted
by the Company to the Investors under this Agreement may be assigned by any
Holder to (i) any partner, member or other owner or retired partner, member or
other owner of any Holder which is a partnership or limited liability company,
(ii) any family member or trust for the benefit of any individual Holder, or
(iii) any transferee or assignee of any Convertible Securities or Registrable
Securities not sold to the public pursuant to a public offering acquiring at
least 300,000 shares of such Holder's Registrable Securities (equitably adjusted
for any stock splits, subdivisions, stock dividends, changes, combinations or
the like); provided, however, that the Company must receive written notice prior
to the time of said transfer, stating the name and address of said transferee or
assignee and identifying the securities with respect to which such information
and Registration rights are being assigned, and the transferee or assignee of
such rights must not be a person deemed by the Board of Directors of the
Company, in its best judgment, to be a competitor or potential competitor of the
Company.
-15-
12.2 Notwithstanding the limitation set forth in the foregoing
Section 12.1, any Holder which is a partnership, a limited liability company or
a limited duration company may transfer such Holder's Registration rights to
such Holder's constituent partners or members (or any affiliates) without
restriction as to the number or percentage of shares acquired by any such
constituent partner or member and any Holder who is an individual may transfer
such rights to a member of Holder's immediate family or to a trust for the
benefit of Holder or of a member of Holder's immediate family without
restriction as to the number or percentage of shares acquired by any such person
or trust.
13. Market Standoff. Each Holder hereby agrees that, if so requested by
---------------
the Company and the Underwriter's Representative (if any) in connection with the
Company's initial public offering, such Holder shall not sell, make any short
sale of, loan, grant any option for the purchase of, or otherwise transfer or
dispose (other than to partners, affiliates or shareholders of such Holder who
shall be bound by the provisions of this Section 13) of any Registrable
Securities without the prior written consent of the Company and the
Underwriter's Representative for such offerings for such period of time (not to
exceed one hundred eighty (180) days) following the effective date of a
Registration Statement of the Company filed under the Securities Act as may be
requested by such Underwriter's Representative. The obligations of Holders under
this Section 13 shall be conditioned upon similar agreements being in effect
with each other shareholder who is an employee, officer, director or 1%
shareholder of the Company. Furthermore, with respect to any shares of the
Company offered or traded in the public market (including pursuant to the
Company's initial public offering or any market that may develop pursuant to
Rule 144A promulgated under the Securities Act) there shall be no restriction on
the acquisition or disposition of such shares pursuant to the Transactional
Agreements (as defined in the Stock Purchase Agreement).
14. No-Action Letter or Opinion of Counsel in Lieu of Registration;
---------------------------------------------------------------
Conversion of Preferred Stock. Notwithstanding anything else in this Agreement,
-----------------------------
if the Company shall have obtained from the Commission a "no-action" letter in
which the Commission has indicated that it will take no action if, without
Registration under the Securities Act, any Holder disposes of Registrable
Securities covered by any request for Registration made under this Section in
the specific manner in which such Holder proposes to dispose of the Registrable
Securities included in such request (such as including, without limitation,
inclusion of such Registrable Securities in an underwriting initiated by either
the Company or the holders) and that such Registrable Securities may be sold to
the public without Registration, or if in the opinion of counsel for the Company
concurred in by counsel for such Holder, which concurrence shall not be
unreasonably withheld, no Registration under the Securities Act is required in
connection with such disposition and that such Registrable Securities may be
sold to the public without Registration, the Registrable Securities included in
such request shall not be eligible for Registration under this Agreement;
provided, however, that any Registrable Securities not so disposed of shall be
eligible for Registration in accordance with the terms of this Agreement with
respect to other proposed dispositions to which this Section 14 does not apply.
The Registration rights of the Holders of the Registrable Securities set forth
in this Agreement are conditioned upon the conversion of the Registrable
Securities with respect to which Registration is sought into Common Stock
immediately prior to the effectiveness of the Registration Statement.
-16-
15. Reports Under Exchange Act. 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 Commission that may at any time permit a
Holder to sell securities of the Company to the public without Registration or
pursuant to a registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 after the date that the Company becomes
subject to the periodic reporting requirements 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 first Registration Statement
filed by the Company for the offering of its securities to the general public is
declared effective;
(c) file with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and
(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 Rule 144, the Securities Act,
and the Exchange Act (at any time after it has become subject to such reporting
requirements), or that it qualifies as a registrant whose securities may be
resold pursuant to Form S-3 (at any time after it so qualifies), (ii) a copy of
the most recent annual or quarterly report of the Company and such other reports
and documents so filed by the Company, and (iii) such other information as may
be reasonably requested in availing any Holder of any rule or regulation of the
Commission which permits the selling of any such securities without Registration
or pursuant to such form.
16. Capital Expenditures. The Company covenants that it will not
--------------------
undertake any corporate action involving capital expenditures greater than
$200,000 (other than such action included in a budget previously approved by the
Company's Board of Directors) without first obtaining the affirmative vote or
written consent of the holders of more than fifty percent (50%) of the
outstanding shares of Series A Preferred, Series B Preferred, Series C
Preferred, Series D Preferred and Series E Preferred (voting on an as-converted
to Common Stock basis), voting together as a single class.
17. Miscellaneous.
-------------
17.1 Entire Agreement; Successors and Assigns; Waiver of Rights of
-------------------------------------------------------------
First Refusal. This agreement constitutes the entire contract between the
-------------
Company and the Investors relative to the subject matter hereof. Any previous
agreement between the Company and any Investor concerning registration rights
and rights to information is superseded by this Agreement. Subject to the
exceptions specifically set forth in this Agreement, the terms and conditions of
this Agreement shall inure to the benefit of and be binding upon the respective
executors, administrators, heirs, successor, and assigns of the parties.
Investors who are parties to the Prior Agreement, who constitute a majority of
the Registrable Securities thereunder, hereby waive on
-17-
behalf of all the Holders under the Prior Agreement (i) the notice periods set
forth in Section 3 of the Prior Agreement with respect to their Right of First
Refusal, and (ii) the Right of First Refusal with respect to shares of Series E
Preferred that the Holders are not acquiring hereunder.
17.2 Governing Law. This Agreement shall be governed by, and
-------------
construed in accordance with, the laws of the State of California excluding
those laws that direct the application of the laws of another jurisdiction.
17.3 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
17.4 Headings. The headings of the Sections of this Agreement are
--------
for convenience and shall not by themselves determine the interpretation of
this Agreement.
17.5 Notices. Any notice required or permitted hereunder shall be
-------
given in writing and shall be conclusively deemed effectively given upon
personal delivery, or five days after deposit in the United States mail, by
registered or certified mail, postage prepaid, addressed (i) if to the Company,
as set forth below the Company's name on the signature page of this Agreement,
and (ii) if to an Investor, at such Investor's address as set forth on Schedule
A, or at such other address as the Company or such Investor may designate by ten
(10) days advance written notice to the Investors or the Company, respectively.
17.6 Amendment of Agreement. Any provision of this Agreement may be
----------------------
amended (and the rights of first refusal provided in Section 3 waived) only by a
written instrument signed by the Company and by persons holding a majority of
the Registrable Securities as defined in Section 1 of this Agreement; provided,
however, that no provision of this Agreement may be amended such that the rights
hereunder of any Holder of Registrable Securities are adversely affected
relative to the rights of any other such Holder without the approval of the
Holders of at least two-thirds of the Registrable Securities adversely affected;
provided, however, that no amendment shall be effective as to any investment
company without its approval.
17.7 Severability. In case any provision of this Agreement shall be
------------
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
17.8 Prior Agreements. Any and all prior agreements between the
----------------
Company and the parties hereto governing information and registration rights are
hereby superseded and replaced.
17.9 Aggregation of Stock. All shares of Registrable Securities held
--------------------
or acquired by affiliated entities or persons shall be aggregated together for
the purpose of determining the availability of any rights under this Agreement.
-18-
IN WITNESS WHEREOF, the parties hereto have executed this Third
Amended and Restated Investor Rights Agreement as of the day and year first
above written.
Company: INTERWOVEN, INC.,
a California corporation
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Xxxxxx Xxxxxx, President and Chief
Executive Officer
Address: 0000 Xxxx Xxxxxxx Xxxxxx,
Xxxxx 0000
Xxxxxxxxx, XX 00000
INVESTOR: Foundation Capital II, L.P.
By: Foundation Capital Management II, L.L.C.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Xxxxxxx X. Xxxxx, Manager
Foundation Capital II Entrepreneurs' Fund, L.L.C.
By: Foundation Capital Management II, L.L.C.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Xxxxxxx X. Xxxxx, Manager
Foundation Capital II Principals Fund, L.L.C.
By: Foundation Capital Management II, L.L.C.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Xxxxxxx X. Xxxxx, Manager
ACCEL VL.P.
By: ACCEL V ASSOCIATES L.L.C.
ITS GENERAL PARTNER
By: /s/ Xxxxxx Sednaoui
-----------------------------------------
MANAGING MEMBER
Accel Internet/Strategic Technology Fund L.P.
By: Accel Internet/Strategic Technology Fund
Associates L.L.C.
Its General Partner
By: /s/ Xxxxxx Sednaoui
-----------------------------------------
Managing Member
Accel Keiretsu V L.P.
By: Accel Keiretsu V Associates L.L.C.
Its General Partner
By: /s/ Xxxxxx Sednaoui
-----------------------------------------
Managing Member
ACCEL INVESTORS '97 L.P.
By: /s/ Xxxxxx Sednaoui
-----------------------------------------
Managing Partner
Xxxxxxx X. Xxxxxxxxx Partners
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxxxx
General Partner
By: /s/ Xxxxxx Xxxxxxxxxx
-----------------------------------------
(Signature)
JK&B Capital, L.P.
-----------------------------------------
(Name of Entity or Individual)
-----------------------------------------
(Name and Title of Authorized Signatory)
By: /s/ Xxxxxx Xxxxxxxxxx
-----------------------------------------
(Signature)
JK&B Capital II, L.P.
-----------------------------------------
(Name of Entity or Individual)
-----------------------------------------
(Name and Title of Authorized Signatory)
By: /s/ Xxx Xxxxx
-----------------------------------------
(Signature)
Quantum Industrial Partners LDC
Xxx Xxxxx
-----------------------------------------
(Name of Entity or Individual)
Attorney-in-Fact
-----------------------------------------
(Name and Title of Authorized Signatory)
By: /s/ Xxxxxxx X. Xxxx
-----------------------------------------
(Signature)
Xxxxxxx X. Xxxx
Attorney-in-Fact
-----------------------------------------
(Name of Entity or Individual)
S-C Phoenix Holdings LLC
-----------------------------------------
(Name and Title of Authorized Signatory)
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
(Signature)
Winston Partners II LDC
-----------------------------------------
(Name of Entity or Individual)
Xxxxx X. Xxxxxxx
Attorney in Fact
-----------------------------------------
(Name and Title of Authorized Signatory)
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
(Signature)
Winston Partners II LLC by Chatterjee Advisors LLC
Its Manager
-----------------------------------------
(Name of Entity or Individual)
/s/ Xxxxx X. Xxxxxxx, Manager
-----------------------------------------
(Name and Title of Authorized Signatory)
By: /s/ X. Xxxx Xxxxx
-----------------------------------------
(Signature)
Charter Ventures III LLC
-----------------------------------------
(Name of Entity or Individual)
-----------------------------------------
(Name and Title of Authorized Signatory)
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------------
(Signature)
Xxxxxx Xxxxxx Associates Fund III, L.P.
-----------------------------------------
(Name of Entity or Individual)
Xxxxx Xxxxxxxxx, Managing Director
-----------------------------------------
(Name and Title of Authorized Signatory)
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------------
(Signature)
Xxxxxx Xxxxxx Partners LLC
-----------------------------------------
(Name of Entity or Individual)
Xxxxx Xxxxxxxxx, Managing Director
-----------------------------------------
(Name and Title of Authorized Signatory)
By: Integral Capital Management IV, LLC
Its General Partner
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------
(Signature)
Integral Capital Partners IV, L.P.
Xxxxxx X. Xxxxxxx
-----------------------------------------
(Name of Entity or Individual)
Manager
-----------------------------------------
(Name and Title of Authorized Signatory)
By: Integral Capital Partners NBT, LLC
Its General Partner
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------
(Signature)
Integral Capital Partners IV MS Side Fund, L.P.
Xxxxxx X. Xxxxxxx
-----------------------------------------
(Name of Entity or Individual)
Manager
-----------------------------------------
(Name and Title of Authorized Signatory)
Merchant Capital, Inc.
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------
(Signature)
Xxxx X. Xxxxxxx
-----------------------------------------
(Name of Entity or Individual)
Vice President
-----------------------------------------
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------------
(Signature)
Xxxxxxx Xxxxxxx
-----------------------------------------
(Name of Entity or Individual)
-----------------------------------------
(Name and Title of Authorized Signatory)
By: /s/ S. M.S. Boswick
-----------------------------------------
(Signature)
Xxxxxxxx Communication and Information Fund
-----------------------------------------
(Name of Entity or Individual)
S. M. S. Boswick, Managing Director
-----------------------------------------
(Name and Title of Authorized Signatory)
By: /s/ Xxxxxxx Xxx Xxxxxxx
-----------------------------------------
(Signature)
Xxx Xxxxxxx Capital Management
-----------------------------------------
(Name of Entity or Individual)
Xxxxxxx Xxx Xxxxxxx, President
-----------------------------------------
(Name and Title of Authorized Signatory)
CAMBRIDGE TECHNOLOGY CAPITAL FUND I L.P.
By: Cambridge Technology GPLP, L.P.
By: Cambridge Technology CGP, Inc.
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Managing Director
By: /s/ Xxxxxxx Xxxxx Xxxx
-----------------------------------------
(Signature)
Xxxxxxx Xxxxx Xxxx 1993 Trust
-----------------------------------------
(Name of Entity or Individual)
Xxxxxxx Xxxxx Xxxx - Trustee
-----------------------------------------
(Name and Title of Authorized Signatory)
By: /s/ Xxxxxx X. Xxxx
-----------------------------------------
(Signature)
Charter Growth Capital, L.P.
-----------------------------------------
(Name of Entity or Individual)
Xxxxxx X. Xxxx, G.P of the G.P.
-----------------------------------------
(Name and Title of Authorized Signatory)
By: /s/ Xxxxxx X. Xxxx
-----------------------------------------
(Signature)
Charter Growth Capital Co. - Investment Fund, L.P.
-----------------------------------------
(Name of Entity or Individual)
Xxxxxx X. Xxxx, G.P. of the G.P.
-----------------------------------------
(Name and Title of Authorized Signatory)
By: /s/ Xxxxxx X. Xxxx
-----------------------------------------
(Signature)
CGC Investors, L.P.
-----------------------------------------
(Name of Entity or Individual)
Xxxxxx X. Xxxx, G.P. of the G.P.
-----------------------------------------
(Name and Title of Authorized Signatory)
STAR BAY PARTNERS, L.P., a California Limited
Partnership
By: APH Capital Management LLC. A California
Limited Liability Company, its General Partner
By: Levensohn Capital Management LLC, a California
Limited Liabililty Company, its Managing Member
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxxxx
Managing Member
By: /s/ Xxxxx X. Xxxx
-----------------------------------------
(Signature)
COMDISCO, INC.
-----------------------------------------
(Name of Entity or Individual)
Xxxxx X. Xxxx, President
Comdisco Ventures Division
-----------------------------------------
(Name and Title of Authorized Signatory)
By: /s/ X. Xxxxxxx
-----------------------------------------
(Signature)
Lion Investments Limited
-----------------------------------------
(Name of Entity or Individual)
Xxxxxxx Xxxxxxx - Director
-----------------------------------------
(Name and Title of Authorized Signatory)
By: /s/ X. Xxxxxxx
-----------------------------------------
(Signature)
Westpool Investment Trust plc
-----------------------------------------
(Name of Entity or Individual)
Xxxxxxx Xxxxxxx - Director
-----------------------------------------
(Name and Title of Authorized Signatory)
By: /s/ Xxxxxx X. Xxxxx, Trustee
-----------------------------------------
(Signature)
Xxxxx Family Trust dated 1/6/89
-----------------------------------------
(Name of Entity or Individual)
Xxxxxx X. Xxxxx, Trustee
-----------------------------------------
(Name and Title of Authorized Signatory)
By: /s/ Xxxxx Xxxxxx
-----------------------------------------
(Signature)
Nexus Capital Partners I, LP
-----------------------------------------
(Name of Entity or Individual)
Xxxxx Xxxxxx, Gen. Partner
-----------------------------------------
(Name and Title of Authorized Signatory)
By: /s/ Xxxxx Xxxxxx
-----------------------------------------
(Signature)
Porcelain Partners, LP
-----------------------------------------
(Name of Entity or Individual)
Xxxxx Xxxxxx, Gen. Partner
-----------------------------------------
(Name and Title of Authorized Signatory)
-19-
SCHEDULE A
----------
SCHEDULE OF INVESTORS
Number of Aggregate
--------- ---------
Investor Shares Purchase Price
-------- ------ --------------
Foundation Capital II, L.P. 187,000 $1,058,420.00
Foundation Capital II Entrepreneurs Fund, LLC 22,000 $ 124,520.00
Foundation Capital II Principals Fund, LLC 11,000 $ 62,260.00
Foundation Capital Subtotal: 220,000 $1,245,200.00
c/o Foundation Capital
00 Xxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxx
----------------------------------------------------------------------------------------
Accel V L.P. 84,827 480,120.82
Accel Internet/Strategic Technology Fund L.P. 11,238 63,607.08
Accel Keiretsu V L.P. 4,430 25,073.80
Accel Investors `97 L.P. 5,187 29,358.42
Xxxxxxx X. Xxxxxxxxx Partners 2,377 13,453.82
Accel Partners Subtotal: 108,059 $ 611,613.94
c/o Accel Partners
000 Xxxxxxxxxx Xxx.
Xxxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxxx
with copies to:
Accel Partners
Xxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Xxxxxx Sednaoui
----------------------------------------------------------------------------------------
JK&B Capital, L.P. 132,862 $ 751,998.92
JK&B Capital II, L.P. 66,431 $ 375,999.46
JK&B Capital Subtotal: 199,293 $1,127,998.38
JK&B Capital
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxxx
with copies to:
x/x XX&X Xxxxxxx
Xxxxxxxxx Xxxxxx/Xxxx Xxx Xxxx
Xxxxxxx 0
P.O. Box 31106 SMB
Grand Cayman, Cayman Islands
Attn: Xxxxxxx Xxxxxx
----------------------------------------------------------------------------------------
SCHEDULE A
----------
SCHEDULE OF INVESTORS (Cont'd)
Number of Aggregate
-------- ---------
Investor Shares Purchase Price
-------- ------ --------------
Quantum Industrial Partners LDC 20,742 $117,399.72
x/x Xxxxxxx Xxxxxxxxxxx Xxxxxxx, X.X.
Xxxx Xxxxxxxxx 0
Willemstad, Curacao
Netherlands Antilles
with copies to:
Xxxxx Fund Management LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxx
Akin, Gump, Strauss, Xxxxx & Xxxx L.L.P
000 Xxxxxxx Xxxxxx
Xxx Xxxx. Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
---------------------------------------------------------------------------------
S-C Phoenix Holdings LLC 13,828 $ 78,266.48
c/x Xxxxx Fund Management LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention Xxxxxxx X Xxxx
with a copy to
Akin, Gump, Straus, Xxxxx & Xxxx L.L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X Xxxxxx
---------------------------------------------------------------------------------
Winston Partners II LDC 4,609 $ 26,086.94
c/o Curacao Corporation Company, N X
Xxxx Xxxxxxxxx 0
Xxxxxxxxxx, Xxxxxxx
Xxxxxxxxxxx Antilles
with copies to
The Chatterjee Group
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention Xxx Xxxxxxxxx/Xxxxx Xxxxxxx
Xxxx, Gump, Strauss, Xxxxx & Xxxx L.L.P
000 Xxxxxxx Xxxxxx
Xxx Xxxx Xxx Xxxx 00000
Attention: Xxxxx X. Xxxx
---------------------------------------------------------------------------------
Winston Partners II LLC 2,305 $ 13,046.30
c/o Chatterjee Advisors L.L.C.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxxxx/Xxxxx Xxxxxxx
with a copy to:
Akin, Gump, Strauss, Xxxxx & Xxxx L.L.P
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxx
---------------------------------------------------------------------------------
2
SCHEDULE A
----------
SCHEDULE OF INVESTORS (Cont'd)
Number of Aggregate
--------- ---------
Investor Shares Purchase Price
-------- ------ --------------
Charter Ventures III LLC 45,000 $ 254,700.00
c/o Charter Venture Capital
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx, XX 00000
Attn: X. Xxxx Xxxxx
-----------------------------------------------------------------------------------
Xxxxxx Xxxxxx Partners, LLC 120 679.20
Xxxxxx Xxxxxx Associates Fund III, L.P. 1849 10,465.34
Xxxxxx Xxxxxx Subtotal: 1,969 $ 11,144.54
c/x Xxxxxx Xxxxxx Jurvetson
000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx
-----------------------------------------------------------------------------------
Integral Capital Partners IV, L.P. 57,746 $ 326,842.36
Integral Capital Partners IV MS Side Fund, L.P. 320 $ 1,811.20
Integral Capital Partners Subtotal: 58,066 $ 328,653.56
c/o Integral Capital Partners
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
-----------------------------------------------------------------------------------
Merchant Capital, Inc. 229,682 $1,300,000.12
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxx Xxxxxxx
-----------------------------------------------------------------------------------
Xxxxxxx Xxxxxxx 8,834 $ 50,000.44
0000 Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
-----------------------------------------------------------------------------------
Xxxxxxxx Communications and Information Fund, Inc. 706,714 $4,000,001.24
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxxxx, Esq.
-----------------------------------------------------------------------------------
Xxx Xxxxxxx Capital Management 706,714 $4,000,001.24
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxx Xxxxxxx
-----------------------------------------------------------------------------------
Cambridge Technology Capital Fund I L.P. 176,678 $ 999,997.48
0 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
-----------------------------------------------------------------------------------
Xxxxxxx Xxxxx Xxxx 1993 Trust 132,510 $ 750,006.60
00000 Xxxxxxxx Xxxx
Xxx Xxx, XX 00000
-----------------------------------------------------------------------------------
3
SCHEDULE A
----------
SCHEDULE OF INVESTORS (Cont'd)
Number of Aggregate
--------- ---------
Investor Shares Purchase Price
-------- ------ --------------
Charter Growth Capital, L.P. 141,343 $ 800,001.38
Charter Growth Capital Co-Investment Fund, L.P. 26,501 $ 149,995.66
CGC Investors, L.P. 8,834 $ 50,000.44
Charter Growth Capital Subtotal 176,678 $ 999,997.48
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx, XX 00000
Attn: Xxxxxx Xxxx
-------------------------------------------------------------------------------
Star Bay Partners, L.P. 88,339 $ 499,998.74
c/o Levensohn Capital Management
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
-------------------------------------------------------------------------------
Comdisco, Inc. 88,339 $ 499,998.74
0000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Venture Group
-------------------------------------------------------------------------------
Lion Investments Limited 176,678 $ 999,997.48
c/o London Merchant Securities plc
00 Xxxxxx Xxxx Xxxxxx
Xxxxxx XXX 0XX, Xxxxxxx
Attn: Xxxxxxx Xxxxxxx
-------------------------------------------------------------------------------
Westpool Investment Trust plc 84,806 $ 480,001.96
c/o London Merchant Securities plc
00 Xxxxxx Xxxx Xxxxxx
Xxxxxx XXX 0XX, Xxxxxxx
Attn: Xxxxxxx Xxxxxxx
-------------------------------------------------------------------------------
Xxxxx Family Trust Dated 1/6/89 3,534 $ 20,002.44
c/o Bluewater Capital Management
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
-------------------------------------------------------------------------------
Nexus Capital Partners I, L.P. 88,339 $ 499,998.74
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
-------------------------------------------------------------------------------
Porcelain Partners, L.P. 53,003 $ 299,996.98
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
-------------------------------------------------------------------------------
_________ ______________
TOTAL: 3,394,719 $19,214,109.54
4
