EXHIBIT 10.17
FIRST AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This Amended and Restated Registration Rights Agreement (this
"AGREEMENT"), dated as of July 12, 1999, is made by and among:
(i) VIP Calling, Inc., a Delaware corporation (the "COMPANY");
(ii) undersigned holders of at least a majority of the Registrable
Shares (as such term is defined in that certain Registration Rights Agreement,
by and among the Company and certain of its stockholders, dated as of October
24, 1997, as amended as of August 26, 1998 (the "EXISTING AGREEMENT"); and
(iii) each person or entity that subsequently becomes a party hereto by
executing and delivering to the Company an Instrument of Adherence substantially
in the form attached as EXHIBIT A hereto.
PREAMBLE
WHEREAS, the Company and the holders of shares of the Company's Series
A Convertible Preferred Stock, par value $.001 per share (the "SERIES A
PREFERRED STOCK") and the Company's Series B Convertible Preferred Stock, par
value $.001 per share (the "SERIES B PREFERRED STOCK") are parties to the
Existing Agreement;
WHEREAS, in connection with the Company's sale and issuance of up to
5,775,000 shares of Series C Convertible Preferred Stock, par value $.001 per
share (the "SERIES C PREFERRED STOCK"), to certain purchasers thereof (the
"SERIES C INVESTORS"), the parties to the Existing Agreement wish to extend to
the Series C Investors, certain rights and obligations contained in the Existing
Agreement; and
WHEREAS, parties to the Existing Agreement wish to amend and restate
the terms of the Existing Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein contained, the parties hereto hereby agree that the Existing
Agreement is amended and restated in its entirety as follows:
1. DEFINITIONS. In addition to those terms defined elsewhere in this
Agreement, the following terms as used herein shall have the following meanings:
"COMMISSION" shall mean the U.S. Securities and Exchange
Commission.
"COMMON STOCK" shall mean the Class A Common Stock, par value
$.001 per share, of the Company (or such other security of the Company
into which such Class A Common Stock may be subsequently
reconstituted).
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended.
"INVESTOR" shall mean each party to the Existing Agreement
(other than the Company), each Series C Investor and any Permitted
Transferee thereof.
"PERMITTED TRANSFEREE" shall mean any Person that (a)
purchases or otherwise acquires Registrable Shares from an affiliated
Investor, (b) alone or together with one or more affiliates, purchases
or otherwise acquires at least 250,000 Registrable Shares from one or
more Investors or (c) acquires any Registrable Shares from an Investor
or Permitted Transferee that is a partnership or limited liability
company (provided such Person is a partner or member, respectively, of
such entity or an affiliate thereof); PROVIDED that, in each case, such
Person becomes an "INVESTOR" party to this Agreement by executing and
delivering to the Company an Instrument of Adherence substantially in
the form of EXHIBIT A hereto.
"PERSON" shall mean an individual, partnership, corporation,
association, trust, joint venture, unincorporated organization, and any
government, governmental department or agency or political subdivision
thereof.
"REGISTRABLE SHARES" shall mean any or all of the shares of
Common Stock issued upon conversion of any or all of the Company's
Series A Preferred Stock, Series B Preferred Stock and Series C
Preferred Stock; PROVIDED, HOWEVER, that, with respect to each
Investor, such securities shall cease to be Registrable Shares on the
earlier of (i) the fifth anniversary of the closing of the first firm
commitment public offering of shares of capital stock of the Company
pursuant to the Securities Act (the "IPO") or (ii) the date on which
such Investor is first entitled to sell all of such shares of Common
Stock pursuant to the provisions of Rule 144 in any three-month period.
"RULE 144" shall mean Rule 144 promulgated under the
Securities Act and any successor or substitute rule, law or provision.
"SECURITIES ACT" shall mean the U.S. Securities Act of 1933,
as amended.
2. DEMAND REGISTRATION RIGHTS.
2.1. REGISTRATION UPON REQUEST. Subject to the provisions of Section
2.4 below, at any time or from time to time, Investors holding thirty (30)
percent of the Registrable Shares then outstanding may notify the Company in
writing that such Investors desire for the Company to cause all or a portion of
the Registrable Shares to be registered under the Securities Act pursuant to
this Section 2.1; PROVIDED that the Registrable Shares to be so registered by
such Investors shall have an aggregate proposed sales price of at least
$1,000,000. Thereafter, the Company shall promptly give to each Investor written
notice of such demand for registration. Upon the written request of any Investor
given within ten days after the giving of any such notice by the Company, the
Company shall use its best efforts to cause to be included in such registration
the Registrable Shares of such Investor, to the extent requested to be
registered. Thereafter, subject to the
conditions, limitations and provisions set forth below in Sections 2.3, 2.4
and 5, the Company shall promptly prepare and file, and use its best efforts
to prosecute to effectiveness, an appropriate filing with the Commission of a
registration statement covering all of those Registrable Shares with respect
to which registration under the Securities Act has been requested by the
requesting Investors; PROVIDED that, if the Company has been given a notice
of the type specified in Section 2.1 or 4.1, the Company is not at such time
continuing to pursue the registration referred to in such notice. Subject to
the provisions of Section 2.3 below, the Company may include in any
registration pursuant to this Section 2.1 additional shares of Common Stock
for sale for its own account or for the account of any other Person.
2.2. SELECTION OF UNDERWRITERS. If a registration pursuant to Section
2.1 involves an underwritten offering, the underwriter or underwriters thereof
shall be selected, after consultation with the Company, by the Investors who own
the Registrable Shares being so registered, PROVIDED that such underwriter or
underwriters shall be reasonably acceptable to the Company. The Company
covenants that it shall not unreasonably withhold its acceptance of any such
underwriter or underwriters.
2.3. PRIORITY OF DEMAND REGISTRATIONS. If a registration pursuant to
Section 2.1 involves an underwritten offering, and the managing underwriter
shall advise the Company in writing that, in its opinion, the number of shares
of Common Stock requested to be included in such registration exceeds the number
which can be sold in such offering, the Company will include in such
registration, to the extent of the number of shares of Common Stock which the
Company is so advised can be sold in such offering, (i) first, the number of
Registrable Shares requested to be included in such registration by the
Investors, pro rata among the Investors on the basis of the number of
Registrable Shares requested to be registered in such registration and (ii)
second, the other shares of Common Stock of the Company proposed to be included
in such registration, in accordance with the priorities, if any, then existing
among the Company and the holders of such other securities.
2.4. LIMITATION ON REGISTRATIONS. The Company shall not be required to
effect more than two (2) registrations pursuant to Section 2.1.
2.5. LIMITATION ON REQUESTS. Notwithstanding anything in this Section 2
to the contrary, the Investor may not request a registration pursuant to Section
2.1 prior to (i) June 30, 2001 or (ii) during the 180-day period following the
closing of the IPO. For purposes of this Agreement, a registration shall be
deemed to have been effected by the Company if the registration statement
relating thereto has been declared effective by the Commission or if such
registration statement, after having been filed with the Commission, is, through
no fault of the Company, withdrawn, abandoned or otherwise not declared
effective within sixty (60) days of the filing thereof.
3. PIGGYBACK REGISTRATION RIGHTS.
3.1. REGISTRATION. If at any time after the IPO, the Company proposes
to register any of its Common Stock under the Securities Act, whether for its
own account or for the account of any stockholder of the Company or pursuant to
registration rights granted to holders of securities of the Company (but
excluding in all cases any registrations pursuant to Sections 2 or 4 hereof or
any registrations to be effected on Forms S-4 or S-8 or any applicable successor
Forms), the Company shall, each such time, give to each Investor written notice
of its intent to do so. Upon the written request of any Investor given within
ten days after the giving of any such notice by the
Company, the Company shall use its best efforts to cause to be included in
such registration the Registrable Shares of such Investor, to the extent
requested to be registered, subject to Section 3.2; PROVIDED that such
Investor agrees to sell those of its Registrable Shares to be included in
such registration in the same manner and on the same terms and conditions as
the other shares of Common Stock which the Company purposes to register.
3.2. PRIORITY OF THE COMPANY SHARES. In connection with any offering
involving an underwriting of shares being issued by the Company or being sold
pursuant to any demand registration rights of any stockholder of the Company,
the Company shall not be required under Section 3.1 to include the Registrable
Shares of any Investor therein unless such Investor accepts and agrees to the
terms of the underwriting as agreed upon between the Company and/or the
stockholder(s) exercising demand registration rights, as applicable, and the
underwriters selected by the Company and/or such stockholders, and then only in
such quantity as (without any reduction in the numbers of shares to be sold for
the account of the Company and any such stockholders) will not, in the opinion
of the underwriters, jeopardize the success of the offering by the Company or
such stockholders. If the total number of shares of Common Stock which all
selling stockholders of the Company, including any Investors, request to be
included in any offering exceeds the number of shares which the underwriters
believe to be compatible with the success of the offering, the Company shall
only be required to include in the offering so many of shares of stockholders
(including any Investors) exercising piggy-back registration rights, pro rata
among the Investors and other stockholders exercising piggy-back registration
rights on the basis of the number of shares requested to be registered in such
registration, as the underwriters believe will not (without any reduction in the
number of shares to be sold for the account of the Company and any
stockholder(s) exercising demand registration rights) jeopardize the success of
the offering.
4. FORM S-3 REGISTRATION.
4.1. REGISTRATION UPON REQUEST. In the event that the Company shall
receive from Investors holding twenty (20) percent of the Registrable Shares
then outstanding a written request or requests that the Company effect a
registration on Form S-3 (or any applicable successor Form) with respect to all
or a part of the Registrable Shares owned by such Investors, then the Company
will promptly use its best efforts to effect such registration of all or such
portion of such Investors' Registrable Shares as are specified in such request;
PROVIDED that, if the Company has been given a notice of the type specified in
Section 2.1, 3 or this Section 4.1, the Company is not at such time continuing
to pursue the registration referred to in such notice. Promptly after receipt by
the Company of a notice requesting registration pursuant to this Section 4.1,
the Company shall give to each Investor written notice of such request for
registration. Upon the written request of any Investor given within ten days
after the giving of any such notice by the Company, the Company shall use its
best efforts to cause to be included in such registration the Registrable Shares
of such Investor, to the extent requested to be registered. Subject to Section
4.3, the Company may include in any registration pursuant to this Section 4.1
additional shares of Common Stock for sale for its own account or for the
account of any other Person. No registration under this Section 4.1 shall be
underwritten unless the Company shall otherwise elect in its sole and absolute
discretion.
4.2. SELECTION OF UNDERWRITERS. If a registration pursuant to Section
4.1 involves an underwritten offering, the underwriter or underwriters thereof
shall be selected by the Company.
4.3. PRIORITY OF DEMAND REGISTRATIONS. If a registration pursuant to
Section 4.1 involves an underwritten offering, and the managing underwriter
shall advise the Company in writing that, in its opinion, the number of shares
of Common Stock requested to be included in such registration exceeds the number
which can be sold in such offering, the Company will include in such
registration, to the extent of the number of shares of Common Stock which the
Company is so advised can be sold in such offering, (i) first, the number of
Registrable Shares requested to be included in such registration by the
requesting Investors and (ii) second, the other shares of Common Stock of the
Company proposed to be included in such registration, in accordance with the
priorities, if any, then existing among the Company and the holders of such
other securities.
4.4. LIMITATION ON REGISTRATIONS. Notwithstanding anything to the
contrary in this Section 4, the Company shall not be required to effect any
registration pursuant to Section 4.1 unless the Registrable Shares to be so
registered shall have an aggregate proposed sales price of at least $1,000,000.
5. DEFERRAL. Notwithstanding anything to the contrary contained in this
Agreement, the Company's obligation to file a registration statement pursuant to
Xxxxxxx 0, 0 xx 0 xxxxx xx deferred for a period not to exceed 90 days in any
12-month period if the Company, in the good faith judgment of its Board of
Directors, reasonably believes that the filing thereof at the time requested
would materially adversely affect a pending or proposed public offering of
Common Stock, or an acquisition, merger, recapitalization, consolidation,
reorganization or similar transaction, or any negotiations, discussions or
pending proposals with respect thereto.
6. ADDITIONAL OBLIGATIONS OF THE COMPANY.
Whenever the Company is required under Section 2, 3 or 4 to use its
best efforts to effect the registration of any of the Registrable Shares of any
Investor, the Company shall promptly:
(a) Prepare and file with the Commission a registration
statement with respect to such Registrable Shares and use its best
efforts to cause such registration statement to become and remain
effective; PROVIDED, however that the Company shall in no event be
obligated to cause any such registration to remain effective for more
than 180 days;
(b) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to comply with the provisions
of the Securities Act with respect to the disposition of all securities
covered by such registration statement;
(c) Furnish to such Investor such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as the
Investor may reasonably request in order to facilitate the disposition
of such Registrable Shares; and
(d) Use its best efforts to register and qualify such
Registrable Shares under such other securities or blue sky laws of such
jurisdictions as shall be reasonably appropriate in the opinion of the
Company and the managing underwriters, 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, and PROVIDED FURTHER that
(anything in Section 8 to the contrary
notwithstanding with respect to the bearing of expenses) if any
jurisdiction in which the securities shall be qualified shall
require that expenses incurred in connection with the qualification
therein of the securities be borne by selling shareholders, then
each Investor shall, to the extent required by such jurisdiction,
pay its PRO RATA share of selling expenses.
7. FURNISH INFORMATION.
It shall be a condition precedent to the obligations of the Company to
take any action pursuant to this Agreement that any Investor requesting
registration of any of such Investor's Registrable Shares shall furnish to the
Company such information regarding such Investor, the Registrable Shares held by
such Investor, the proposed plan of distribution of such Registrable Shares, and
any other information as the Company shall reasonably request and as shall be
required in order to effect any such registration by the Company.
8. EXPENSES.
All expenses incurred in connection with a registration pursuant to
this Agreement (excluding underwriting commissions and discounts), including
without limitation reasonable fees and disbursements of one special counsel for
the selling Investors, all registration and qualification fees, printing costs,
and fees and disbursements of counsel for the Company, shall be borne by the
Company; PROVIDED, HOWEVER, that the Company shall not be required to pay for
blue sky registration or qualification expenses in connection with states in
which the Company is not registering or qualifying its original issue shares or
Registrable Shares of Investors upon exercise of their demand registration
rights.
9. INDEMNIFICATION.
9.1. INDEMNIFICATION. In the event that any Registrable Shares of any
Investor are included in a registration statement pursuant to this Agreement:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless such Investor, any underwriter (as defined in the
Securities Act) for the Company, and each officer and director of such
Investor or such underwriter and each Person, if any, who controls such
Investor or such underwriter within the meaning of the Securities Act,
against any losses, claims, damages or liabilities, joint or several,
to which they may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue or alleged
untrue statement of any material fact contained in such registration
statement, including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto, or arise
out of or are based upon 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; and will reimburse the
Investor, such underwriter or such officer, director or controlling
Person for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim,
damage, liability or action; PROVIDED, HOWEVER, that the indemnity
agreement contained in this Section 9.1(a) shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of
the Company (which consent shall not be unreasonably withheld), nor
shall the Company be liable in any such case for any such loss,
damage, liability or action to the extent that it primarily arises
out of or is based upon an untrue statement or alleged untrue
statement or omission made in connection with such registration
statement, preliminary prospectus, final prospectus, or amendments
or supplements thereto, in reliance upon and in conformity with
information furnished expressly for use in connection with such
registration by such Investor, any underwriter for such Investor or
controlling Person with respect to such Investor.
(b) To the extent permitted by law, such Investor will
indemnify and hold harmless the Company, each of its directors, each of
its officers who have signed such registration statement, each Person,
if any, who controls the Company within the meaning of the Securities
Act, and any underwriter for the Company (within the meaning of the
Securities Act) against any losses, claims, damages or liabilities to
which the Company or any such director, officer, controlling Person, or
underwriter may become subject to, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereto) arise out of or are based upon any untrue
or alleged untrue statement of any material fact contained in such
registration statement, including any preliminary prospectus contained
therein or any amendments or supplements thereto, or arise out of or
are based upon 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, in each case to the extent that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in such registration statement, preliminary
prospectus, final prospectus, or amendments or supplements thereto, in
reliance upon and in conformity with information furnished in writing
by the Investor expressly for use in connection with such registration;
and the Investor will reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer, controlling
Person, or underwriter in connection with investigating or defending
any such loss, claim, damage, liability or action; PROVIDED, HOWEVER,
that the indemnity agreement contained in this Section 9.1(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 such Investor against which the request for indemnity is being made
(which consent shall not be unreasonably withheld).
(c) Promptly after receipt by an indemnified party under this
Section 9.1 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against any indemnifying party under this Section 9.1, notify the
indemnifying party in writing of the commencement thereof and the
indemnifying party shall have the right to participate in and, to the
extent the indemnifying party desires, jointly with any other
indemnifying party similarly noticed, to assume at its expense the
defense thereof with counsel mutually satisfactory to the parties. The
failure to notify an indemnifying party promptly of the commencement of
any such action, if prejudicial to his ability to defend such action,
shall relieve such indemnifying party of any liability to the
indemnified party under this Section 9.1 only if and to the extent such
failure to promptly notify was prejudicial to its ability to defend
such action, and the omission so to notify the indemnifying party will
not relieve the indemnifying party of any liability which he may have
to any indemnified party otherwise other than under this Section 9.1.
(d) If the indemnification provided for in this Subsection 9.1
is held by a court of competent jurisdiction to be unavailable or
insufficient to hold harmless an indemnified party under this
Subsection 9.1, then each indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable
by such indemnified party as a result of the claims, losses, damages or
liabilities (or actions in respect thereof) referred to in Subsection
(a) or (b) of this Section 9.1 (i) in such proportion as is appropriate
to reflect the relative fault of each indemnifying party in connection
with the statements or omissions that resulted in such claims, losses,
damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative
considerations referred to in clause (i) above but also the relative
benefit to each indemnifying party. Relative fault shall be determined
by reference to, among other things, whether the untrue or alleged
untrue statement of material fact or the omission or alleged omission
to state a material fact relates to information supplied by each
indemnifying party and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such untrue
statement or omission. The parties agree that it would not be just and
equitable if contributions pursuant to this Subsection 9.1(d) were to
be determined by pro rata allocation or by any other method of
allocation that does not take into account the equitable considerations
referred to in the first sentence of this Section 9.1(d). The amount
paid by an indemnified party as a result of the claims, losses, damages
or liabilities (or actions in respect thereof) referred to in the first
sentence of this Section 9.1(d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigation, preparing to defend or defending against
any action or claim that is the subject of this Subsection 9.1(d). No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation.
(e) Notwithstanding the foregoing, the liability of each
Investor under this Subsection 9.1 shall be limited to an amount equal
to the net proceeds of the shares sold by such Investor.
9.2. OVERRIDE. Notwithstanding anything in this Section 9 to the
contrary, if, in connection with an underwritten public offering of the
Registrable Shares, the Company, any Investor and the underwriters enter into an
underwriting or purchase agreement relating to such offering which contains
provisions covering indemnification as between the Company and such Investor,
then the indemnification provision of this Section 9 shall be deemed inoperative
for purposes of such offering.
10. [deleted]
11. GENERAL.
11.1 ADDITIONAL REGISTRATION RIGHTS. Without the prior consent of
Investors holding a majority of the Registrable Shares then outstanding, the
Company shall not grant to any other holder of the Company's securities
registration rights that are superior to or in any way adversely affect the
registration rights granted to the Investors hereunder.
11.2. REMEDIES. In case that any one or more of the covenants and/or
agreements set forth in this Agreement shall have been breached by any party
hereto, the party or parties entitled to the benefit of such covenants or
agreements may proceed to protect and enforce its or their rights, either by
suit in equity and/or action at law, including, but not limited to, an action
for damages as a result of any such breach and/or an action for specific
performance of any such covenant or agreement contained in this Agreement. The
rights, powers and remedies of the parties to this Agreement are cumulative and
not exclusive of any other right, power or remedy which such parties may have
under any other agreement or law. No single or partial assertion or exercise of
any right, power or remedy of a party hereunder shall preclude any other or
further assertion or exercise thereof.
11.3. ASSIGNMENT. None of the parties to this Agreement shall assign or
delegate any of their respective rights or obligations under this Agreement
other parties hereto other than in connection with a transfer of securities of
the Company made to a Permitted Transferee.
11.4. SURVIVAL. The rights and obligations of the parties hereto set
forth herein shall survive indefinitely, unless and until, by their respective
terms, they are no longer applicable.
11.5. ENTIRE AGREEMENT. This Agreement contains the entire agreement
among the parties with respect to the subject matter hereof and supersedes all
prior and contemporaneous arrangements or understandings with respect thereto.
11.6. NOTICES. All notices, requests, consents and other communications
hereunder to any party shall be deemed to be sufficient if contained in a
written instrument delivered in person or duly sent by first class, registered,
certified or overnight mail, postage prepaid, or telecopied with a confirmation
copy by regular mail, addressed or telecopied, as the case may be, to such party
at the address or telecopier number, as the case may be, set forth below or such
other address or telecopier number, as the case may be, as may hereafter be
designated in writing by the addressee to the addressor listing all parties:
(i) If to the Company, to:
VIP Calling, Inc.
00 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Fax: 000-000-0000
Attn: Xxxx Xxxxxx, President
with a copy to:
Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: 000-000-0000
Attn: Xxxxx X. Xxxxx, Esq.
(ii) If to an Investor, to the address or addresses of such Investor
set forth on the Instrument of Adherence to this Agreement executed and
delivered to the Company by such Investor.
or, in any such case, at such other address or addresses as shall have been
furnished in writing by such party to the others.
Any notice or other communication pursuant to this Agreement shall be
deemed to have been duly given or made and to have become effective (i) when
delivered in hand to the party to which it was directed, (ii) if sent by telex,
telecopier, facsimile machine or telegraph and properly addressed in accordance
with the foregoing provisions of this Section 11.6, when received by the
addressee, (iii) if sent by commercial courier guaranteeing next business day
delivery, on the business day following the date of delivery to such courier, or
(iii) if sent by first-class mail, postage prepaid, and properly addressed in
accordance with the foregoing provisions of this Section 11.6, (A) when received
by the addressee, or (B) on the third business day following the day of dispatch
thereof, whichever of (A) or (B) shall be the earlier.
11.7. AMENDMENTS AND WAIVERS. Any provision of this Agreement may be
amended, modified or terminated, and the observance of any provision of this
Agreement may be waived (either generally or in a particular instance and either
retrospectively or prospectively), with, but only with, the written consent of
Investors holding of record at least a majority of the Registrable Shares
outstanding at such time.
11.8. SEVERABILITY. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
11.9. NO WAIVER OF FUTURE BREACH. No failure or delay on the part of
any party to this Agreement in exercising any right, power or remedy hereunder
shall operate as a waiver thereof. No assent, express or implied, by any party
hereto to any breach in or default of any agreement or condition herein
contained on the part of any other party hereto shall constitute a waiver of or
assent to any succeeding breach in or default of the same or any other agreement
or condition hereof by such other party.
11.10. NO IMPLIED RIGHTS OR REMEDIES; THIRD PARTY BENEFICIARIES. Except
as otherwise expressly provided in this Agreement, nothing herein expressed or
implied is intended or shall be construed to confer upon or to give any Person,
firm or corporation, other than the parties hereto, any rights or remedies under
or by reason of this Agreement. Except as otherwise expressly provided in this
Agreement, there are no intended third party beneficiaries under or by reason of
this Agreement.
11.11. HEADINGS. The headings of the various sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed to
be a part of this Agreement.
11.12. NOUNS AND PRONOUNS. Whenever the context may require, any
pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of names and pronouns shall include the
plural and vice-versa.
11.13. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of Massachusetts, excluding
choice of law rules thereof.
11.14. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
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IN WITNESS WHEREOF, this First Amended and Restated Registration Rights
Agreement has been executed under seal by the parties hereto as of the day and
year first above written.
VIP CALLING, INC.
By: /s/ Xxxx Xxxxxx
----------------------------
Xxxx Xxxxxx, President
XXXXXXX RIVER VIII-A LLC MENLO VENTURES VII, L.P.
By: Xxxxxxx River Friends VII, Inc., By: MV Management VII, L.L.C.,
Manager its General Partner
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxx Xxxxxx
------------------------------ ---------------------------------
Name: Name: Xxxx Xxxxxx
Title: Title: Managing Member
XXXXXXX RIVER LIMITED MENLO ENTREPRENEURS
PARTNERSHIP VIII, A FUND VII, L.P.
Limited Partnership By: MV Management VII, L.L.C.,
By: Xxxxxxx River VIII GP its General Partner
Limited Partnership, General Partner
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxx Xxxxxx
------------------------------ ---------------------------------
Name: Name: Xxxx Xxxxxx
Title: Title: Managing Member
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
______________, 1999
Reference is made to that certain First Amended and Restated Registration
Rights Agreement, dated as of July 12, 1999, by and among VIP Calling, Inc., a
Delaware corporation (the "COMPANY"), and the "Investor" parties thereto, as
amended (the "REGISTRATION RIGHTS AGREEMENT").
In connection with the undersigned's purchase on the date hereof of shares
of the Company's Series C Convertible Preferred Stock, par value $.001 per
share, the undersigned hereby agrees to become a party as of the date hereof to
the Registration Rights Agreement as an "Investor" thereunder and that, as such,
the undersigned shall be afforded all of the rights of and subject to all of the
obligations of an Investor pursuant to the Registration Rights Agreement.
IN WITNESS WHEREOF, the undersigned hereby sets forth its hand as of the
date first written above.
By: /s/ Xxxxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxxxx X. Pawel
Title:
Accepted:
VIP CALLING, INC.
By:
-----------------------------
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
____________, 1999
Reference is made to that certain First Amended and Restated Registration
Rights Agreement, dated as of July 12, 1999, by and among VIP Calling, Inc., a
Delaware corporation (the "COMPANY"), and the "Investor" parties thereto, as
amended (the "REGISTRATION RIGHTS AGREEMENT").
In connection with the undersigned's purchase on the date hereof of shares
of the Company's Series C Convertible Preferred Stock, par value $.001 per
share, the undersigned hereby agrees to become a party as of the date hereof to
the Registration Rights Agreement as an "Investor" thereunder and that, as such,
the undersigned shall be afforded all of the rights of and subject to all of the
obligations of an Investor pursuant to the Registration Rights Agreement.
IN WITNESS WHEREOF, the undersigned hereby sets forth its hand as of the
date first written above.
By: /s/ Xxxxxx X. Case III
-----------------------------------
Name: Xxxxxx X. Case III
Title:
Accepted:
VIP CALLING, INC.
By:
-----------------------------
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
JUNE 29, 1999
Reference is made to that certain First Amended and Restated Registration
Rights Agreement, dated as of July 12, 1999, by and among VIP Calling, Inc., a
Delaware corporation (the "COMPANY"), and the "Investor" parties thereto, as
amended (the "REGISTRATION RIGHTS AGREEMENT").
In connection with the undersigned's purchase on the date hereof of shares
of the Company's Series C Convertible Preferred Stock, par value $.001 per
share, the undersigned hereby agrees to become a party as of the date hereof to
the Registration Rights Agreement as an "Investor" thereunder and that, as such,
the undersigned shall be afforded all of the rights of and subject to all of the
obligations of an Investor pursuant to the Registration Rights Agreement.
IN WITNESS WHEREOF, the undersigned hereby sets forth its hand as of the
date first written above.
By: /s/ Xxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxx
Title: Managing Director
Accepted:
VIP CALLING, INC.
By:
-----------------------------
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
JUNE 29, 1999
Reference is made to that certain First Amended and Restated Registration
Rights Agreement, dated as of July 12, 1999, by and among VIP Calling, Inc., a
Delaware corporation (the "COMPANY"), and the "Investor" parties thereto, as
amended (the "REGISTRATION RIGHTS AGREEMENT").
In connection with the undersigned's purchase on the date hereof of shares
of the Company's Series C Convertible Preferred Stock, par value $.001 per
share, the undersigned hereby agrees to become a party as of the date hereof to
the Registration Rights Agreement as an "Investor" thereunder and that, as such,
the undersigned shall be afforded all of the rights of and subject to all of the
obligations of an Investor pursuant to the Registration Rights Agreement.
IN WITNESS WHEREOF, the undersigned hereby sets forth its hand as of the
date first written above.
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Principal
Accepted:
VIP CALLING, INC.
By:
-----------------------------
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
______________, 1999
Reference is made to that certain First Amended and Restated Registration
Rights Agreement, dated as of July 12, 1999, by and among VIP Calling, Inc., a
Delaware corporation (the "COMPANY"), and the "Investor" parties thereto, as
amended (the "REGISTRATION RIGHTS AGREEMENT").
In connection with the undersigned's purchase on the date hereof of shares
of the Company's Series C Convertible Preferred Stock, par value $.001 per
share, the undersigned hereby agrees to become a party as of the date hereof to
the Registration Rights Agreement as an "Investor" thereunder and that, as such,
the undersigned shall be afforded all of the rights of and subject to all of the
obligations of an Investor pursuant to the Registration Rights Agreement.
IN WITNESS WHEREOF, the undersigned hereby sets forth its hand as of the
date first written above.
XXXXXXXXX & XXXXX EMPLOYEE VENTURE
FUND, X.X. XX
By: H&Q VENTURE MANAGEMENT, L.L.C.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Its: Tax Director, Attorney-in-Fact
Accepted:
VIP CALLING, INC.
By:
-----------------------------
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
JULY 6, 1999
Reference is made to that certain First Amended and Restated Registration
Rights Agreement, dated as of July 12, 1999, by and among VIP Calling, Inc., a
Delaware corporation (the "COMPANY"), and the "Investor" parties thereto, as
amended (the "REGISTRATION RIGHTS AGREEMENT").
In connection with the undersigned's purchase on the date hereof of shares
of the Company's Series C Convertible Preferred Stock, par value $.001 per
share, the undersigned hereby agrees to become a party as of the date hereof to
the Registration Rights Agreement as an "Investor" thereunder and that, as such,
the undersigned shall be afforded all of the rights of and subject to all of the
obligations of an Investor pursuant to the Registration Rights Agreement.
IN WITNESS WHEREOF, the undersigned hereby sets forth its hand as of the
date first written above.
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
Title:
Accepted:
VIP CALLING, INC.
By:
-----------------------------
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
JULY 12, 1999
Reference is made to that certain First Amended and Restated Registration
Rights Agreement, dated as of July 12, 1999, by and among VIP Calling, Inc., a
Delaware corporation (the "COMPANY"), and the "Investor" parties thereto, as
amended (the "REGISTRATION RIGHTS AGREEMENT").
In connection with the undersigned's purchase on the date hereof of shares
of the Company's Series C Convertible Preferred Stock, par value $.001 per
share, the undersigned hereby agrees to become a party as of the date hereof to
the Registration Rights Agreement as an "Investor" thereunder and that, as such,
the undersigned shall be afforded all of the rights of and subject to all of the
obligations of an Investor pursuant to the Registration Rights Agreement.
IN WITNESS WHEREOF, the undersigned hereby sets forth its hand as of the
date first written above.
XXXXXXXXX & XXXXX CALIFORNIA
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Tax Director, Attorney-in-Fact
Accepted:
VIP CALLING, INC.
By:
-----------------------------
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
______________, 1999
Reference is made to that certain First Amended and Restated Registration
Rights Agreement, dated as of July 12, 1999, by and among VIP Calling, Inc., a
Delaware corporation (the "COMPANY"), and the "Investor" parties thereto, as
amended (the "REGISTRATION RIGHTS AGREEMENT").
In connection with the undersigned's purchase on the date hereof of shares
of the Company's Series C Convertible Preferred Stock, par value $.001 per
share, the undersigned hereby agrees to become a party as of the date hereof to
the Registration Rights Agreement as an "Investor" thereunder and that, as such,
the undersigned shall be afforded all of the rights of and subject to all of the
obligations of an Investor pursuant to the Registration Rights Agreement.
IN WITNESS WHEREOF, the undersigned hereby sets forth its hand as of the
date first written above.
BAYVIEW INVESTORS, LTD.
By: /s/ Xxxx Xxxxx
-----------------------------------
Name: Xxxx Xxxxx
Title: Authorized Signatory
Accepted:
VIP CALLING, INC.
By:
-----------------------------
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
JUNE 29, 1999
Reference is made to that certain First Amended and Restated Registration
Rights Agreement, dated as of July 12, 1999, by and among VIP Calling, Inc., a
Delaware corporation (the "COMPANY"), and the "Investor" parties thereto, as
amended (the "REGISTRATION RIGHTS AGREEMENT").
In connection with the undersigned's purchase on the date hereof of shares
of the Company's Series C Convertible Preferred Stock, par value $.001 per
share, the undersigned hereby agrees to become a party as of the date hereof to
the Registration Rights Agreement as an "Investor" thereunder and that, as such,
the undersigned shall be afforded all of the rights of and subject to all of the
obligations of an Investor pursuant to the Registration Rights Agreement.
IN WITNESS WHEREOF, the undersigned hereby sets forth its hand as of the
date first written above.
NEW MEDIA INVESTORS III, L.L.C.
By: /s/ Xxxx Xxxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxxx
Title: Managing Member
Accepted:
VIP CALLING, INC.
By:
-----------------------------
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
______________, 1999
Reference is made to that certain First Amended and Restated Registration
Rights Agreement, dated as of July 12, 1999, by and among VIP Calling, Inc., a
Delaware corporation (the "COMPANY"), and the "Investor" parties thereto, as
amended (the "REGISTRATION RIGHTS AGREEMENT").
In connection with the undersigned's purchase on the date hereof of shares
of the Company's Series C Convertible Preferred Stock, par value $.001 per
share, the undersigned hereby agrees to become a party as of the date hereof to
the Registration Rights Agreement as an "Investor" thereunder and that, as such,
the undersigned shall be afforded all of the rights of and subject to all of the
obligations of an Investor pursuant to the Registration Rights Agreement.
IN WITNESS WHEREOF, the undersigned hereby sets forth its hand as of the
date first written above.
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title:
Accepted:
VIP CALLING, INC.
By:
-----------------------------
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
______________, 1999
Reference is made to that certain First Amended and Restated Registration
Rights Agreement, dated as of July 12, 1999, by and among VIP Calling, Inc., a
Delaware corporation (the "COMPANY"), and the "Investor" parties thereto, as
amended (the "REGISTRATION RIGHTS AGREEMENT").
In connection with the undersigned's purchase on the date hereof of shares
of the Company's Series C Convertible Preferred Stock, par value $.001 per
share, the undersigned hereby agrees to become a party as of the date hereof to
the Registration Rights Agreement as an "Investor" thereunder and that, as such,
the undersigned shall be afforded all of the rights of and subject to all of the
obligations of an Investor pursuant to the Registration Rights Agreement.
IN WITNESS WHEREOF, the undersigned hereby sets forth its hand as of the
date first written above.
TCV III (GP),
a Delaware General Partnership
By: Technology Crossover Management III, L.L.C.,
Its General Partner
By: /s/ X. Xxxxxx
-----------------------------------
Xxxxxx X. Xxxxxx
Chief Financial Officer
Address: Technology Crossover Ventures
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Technology Crossover Ventures
000 Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Attn.: Xxxxxxx X. Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Accepted:
VIP CALLING, INC.
By:
-----------------------------
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
______________, 1999
Reference is made to that certain First Amended and Restated Registration
Rights Agreement, dated as of July 12, 1999, by and among VIP Calling, Inc., a
Delaware corporation (the "COMPANY"), and the "Investor" parties thereto, as
amended (the "REGISTRATION RIGHTS AGREEMENT").
In connection with the undersigned's purchase on the date hereof of shares
of the Company's Series C Convertible Preferred Stock, par value $.001 per
share, the undersigned hereby agrees to become a party as of the date hereof to
the Registration Rights Agreement as an "Investor" thereunder and that, as such,
the undersigned shall be afforded all of the rights of and subject to all of the
obligations of an Investor pursuant to the Registration Rights Agreement.
IN WITNESS WHEREOF, the undersigned hereby sets forth its hand as of the
date first written above.
TCV III, L.P.,
a Delaware Limited Partnership
By: Technology Crossover Management III, L.L.C.,
Its General Partner
By: /s/ X. Xxxxxx
-----------------------------------
Xxxxxx X. Xxxxxx
Chief Financial Officer
Address: Technology Crossover Ventures
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Technology Crossover Ventures
000 Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Attn.: Xxxxxxx X. Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Accepted:
VIP CALLING, INC.
By:
-----------------------------
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
______________, 1999
Reference is made to that certain First Amended and Restated Registration
Rights Agreement, dated as of July 12, 1999, by and among VIP Calling, Inc., a
Delaware corporation (the "COMPANY"), and the "Investor" parties thereto, as
amended (the "REGISTRATION RIGHTS AGREEMENT").
In connection with the undersigned's purchase on the date hereof of shares
of the Company's Series C Convertible Preferred Stock, par value $.001 per
share, the undersigned hereby agrees to become a party as of the date hereof to
the Registration Rights Agreement as an "Investor" thereunder and that, as such,
the undersigned shall be afforded all of the rights of and subject to all of the
obligations of an Investor pursuant to the Registration Rights Agreement.
IN WITNESS WHEREOF, the undersigned hereby sets forth its hand as of the
date first written above.
TCV III (Q), L.P.,
a Delaware Limited Partnership
By: Technology Crossover Management III, L.L.C.,
Its General Partner
By: /s/ X. Xxxxxx
-----------------------------------
Xxxxxx X. Xxxxxx
Chief Financial Officer
Address: Technology Crossover Ventures
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Technology Crossover Ventures
000 Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Attn.: Xxxxxxx X. Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Accepted:
VIP CALLING, INC.
By:
-----------------------------
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
______________, 1999
Reference is made to that certain First Amended and Restated Registration
Rights Agreement, dated as of July 12, 1999, by and among VIP Calling, Inc., a
Delaware corporation (the "COMPANY"), and the "Investor" parties thereto, as
amended (the "REGISTRATION RIGHTS AGREEMENT").
In connection with the undersigned's purchase on the date hereof of shares
of the Company's Series C Convertible Preferred Stock, par value $.001 per
share, the undersigned hereby agrees to become a party as of the date hereof to
the Registration Rights Agreement as an "Investor" thereunder and that, as such,
the undersigned shall be afforded all of the rights of and subject to all of the
obligations of an Investor pursuant to the Registration Rights Agreement.
IN WITNESS WHEREOF, the undersigned hereby sets forth its hand as of the
date first written above.
TCV III Strategic Partners, L.P.,
a Delaware Limited Partnership
By: Technology Crossover Management III, L.L.C.,
Its General Partner
By: /s/ X. Xxxxxx
-----------------------------------
Xxxxxx X. Xxxxxx
Chief Financial Officer
Address: Technology Crossover Ventures
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Technology Crossover Ventures
000 Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Attn.: Xxxxxxx X. Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Accepted:
VIP CALLING, INC.
By:
-----------------------------
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
______________, 1999
Reference is made to that certain First Amended and Restated Registration
Rights Agreement, dated as of July 12, 1999, by and among VIP Calling, Inc., a
Delaware corporation (the "COMPANY"), and the "Investor" parties thereto, as
amended (the "REGISTRATION RIGHTS AGREEMENT").
In connection with the undersigned's purchase on the date hereof of shares
of the Company's Series C Convertible Preferred Stock, par value $.001 per
share, the undersigned hereby agrees to become a party as of the date hereof to
the Registration Rights Agreement as an "Investor" thereunder and that, as such,
the undersigned shall be afforded all of the rights of and subject to all of the
obligations of an Investor pursuant to the Registration Rights Agreement.
IN WITNESS WHEREOF, the undersigned hereby sets forth its hand as of the
date first written above.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title:
Accepted:
VIP CALLING, INC.
By:
-----------------------------
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
_________________, 1999
Reference is made to that certain First Amended and Restated Registration
Rights Agreement, dated as of July 12, 1999, by and among VIP Calling, Inc., a
Delaware corporation (the "COMPANY"), and the "Investor" parties thereto, as
amended (the "REGISTRATION RIGHTS AGREEMENT").
In connection with the undersigned's purchase on the date hereof of shares
of the Company's Series C Convertible Preferred Stock, par value $.001 per
share, the undersigned hereby agrees to become a party as of the date hereof to
the Registration Rights Agreement as an "Investor" thereunder and that, as such,
the undersigned shall be afforded all of the rights of and subject to all of the
obligations of an Investor pursuant to the Registration Rights Agreement.
IN WITNESS WHEREOF, the undersigned hereby sets forth its hand as of the
date first written above.
By: /s/ Xxxx X. Xxxxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Principal
Accepted:
VIP CALLING, INC.
By:
-----------------------------
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
JULY 16, 1999
Reference is made to that certain First Amended and Restated Registration
Rights Agreement, dated as of July 12, 1999, by and among VIP Calling, Inc., a
Delaware corporation (the "COMPANY"), and the "Investor" parties thereto, as
amended (the "REGISTRATION RIGHTS AGREEMENT").
In connection with the undersigned's purchase on the date hereof of shares
of the Company's Series C Convertible Preferred Stock, par value $.001 per
share, the undersigned hereby agrees to become a party as of the date hereof to
the Registration Rights Agreement as an "Investor" thereunder and that, as such,
the undersigned shall be afforded all of the rights of and subject to all of the
obligations of an Investor pursuant to the Registration Rights Agreement.
IN WITNESS WHEREOF, the undersigned hereby sets forth its hand as of the
date first written above.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Accepted:
VIP CALLING, INC.
By:
-----------------------------
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
JULY 16, 1999
Reference is made to that certain First Amended and Restated Registration
Rights Agreement, dated as of July 12, 1999, by and among VIP Calling, Inc., a
Delaware corporation (the "COMPANY"), and the "Investor" parties thereto, as
amended (the "REGISTRATION RIGHTS AGREEMENT").
In connection with the undersigned's purchase on the date hereof of shares
of the Company's Series C Convertible Preferred Stock, par value $.001 per
share, the undersigned hereby agrees to become a party as of the date hereof to
the Registration Rights Agreement as an "Investor" thereunder and that, as such,
the undersigned shall be afforded all of the rights of and subject to all of the
obligations of an Investor pursuant to the Registration Rights Agreement.
IN WITNESS WHEREOF, the undersigned hereby sets forth its hand as of the
date first written above.
By: /s/ Xxx X. Xxxxxxx
-----------------------------------
Manager and Authorized Agent
Name: Porky Partners II, LLC
Accepted:
VIP CALLING, INC.
By:
-----------------------------
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
____________, 1999
Reference is made to that certain First Amended and Restated Registration
Rights Agreement, dated as of July 12, 1999, by and among VIP Calling, Inc., a
Delaware corporation (the "COMPANY"), and the "Investor" parties thereto, as
amended (the "REGISTRATION RIGHTS AGREEMENT").
In connection with the undersigned's purchase on the date hereof of shares
of the Company's Series C Convertible Preferred Stock, par value $.001 per
share, the undersigned hereby agrees to become a party as of the date hereof to
the Registration Rights Agreement as an "Investor" thereunder and that, as such,
the undersigned shall be afforded all of the rights of and subject to all of the
obligations of an Investor pursuant to the Registration Rights Agreement.
IN WITNESS WHEREOF, the undersigned hereby sets forth its hand as of the
date first written above.
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title:
Accepted:
VIP CALLING, INC.
By:
-----------------------------
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
JULY 16, 1999
Reference is made to that certain First Amended and Restated Registration
Rights Agreement, dated as of July 12, 1999, by and among VIP Calling, Inc., a
Delaware corporation (the "COMPANY"), and the "Investor" parties thereto, as
amended (the "REGISTRATION RIGHTS AGREEMENT").
In connection with the undersigned's purchase on the date hereof of shares
of the Company's Series C Convertible Preferred Stock, par value $.001 per
share, the undersigned hereby agrees to become a party as of the date hereof to
the Registration Rights Agreement as an "Investor" thereunder and that, as such,
the undersigned shall be afforded all of the rights of and subject to all of the
obligations of an Investor pursuant to the Registration Rights Agreement.
IN WITNESS WHEREOF, the undersigned hereby sets forth its hand as of the
date first written above.
By: /s/ Xxxxx X. Xxxx
-----------------------------------
Name: Xxxxx X. Xxxx
Title:
Accepted:
VIP CALLING, INC.
By:
-----------------------------
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
_______________, 1999
Reference is made to that certain First Amended and Restated Registration
Rights Agreement, dated as of July 12, 1999, by and among VIP Calling, Inc., a
Delaware corporation (the "COMPANY"), and the "Investor" parties thereto, as
amended (the "REGISTRATION RIGHTS AGREEMENT").
In connection with the undersigned's purchase on the date hereof of shares
of the Company's Series C Convertible Preferred Stock, par value $.001 per
share, the undersigned hereby agrees to become a party as of the date hereof to
the Registration Rights Agreement as an "Investor" thereunder and that, as such,
the undersigned shall be afforded all of the rights of and subject to all of the
obligations of an Investor pursuant to the Registration Rights Agreement.
IN WITNESS WHEREOF, the undersigned hereby sets forth its hand as of the
date first written above.
INTEGRAL CAPITAL PARTNERS IV
MS SIDE FUND, L.P.
By: Integral Capital Partners NBT, LLC,
Its Manager
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
A Manager
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Fax No.: 000-000-0000
Accepted:
VIP CALLING, INC.
By:
-----------------------------
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
_____________, 1999
Reference is made to that certain First Amended and Restated Registration
Rights Agreement, dated as of July 12, 1999, by and among VIP Calling, Inc., a
Delaware corporation (the "COMPANY"), and the "Investor" parties thereto, as
amended (the "REGISTRATION RIGHTS AGREEMENT").
In connection with the undersigned's purchase on the date hereof of shares
of the Company's Series C Convertible Preferred Stock, par value $.001 per
share, the undersigned hereby agrees to become a party as of the date hereof to
the Registration Rights Agreement as an "Investor" thereunder and that, as such,
the undersigned shall be afforded all of the rights of and subject to all of the
obligations of an Investor pursuant to the Registration Rights Agreement.
IN WITNESS WHEREOF, the undersigned hereby sets forth its hand as of the
date first written above.
INTEGRAL CAPITAL PARTNERS IV, L.P.
By: Integral Capital Management IV, LLC,
Its General Partner
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
A Manager
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
FaxNo.: 000-000-0000
Accepted:
VIP CALLING, INC.
By:
-----------------------------
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
_______________, 1999
Reference is made to that certain First Amended and Restated Registration
Rights Agreement, dated as of July 12, 1999, by and among VIP Calling, Inc., a
Delaware corporation (the "COMPANY"), and the "Investor" parties thereto, as
amended (the "REGISTRATION RIGHTS AGREEMENT").
In connection with the undersigned's purchase on the date hereof of shares
of the Company's Series C Convertible Preferred Stock, par value $.001 per
share, the undersigned hereby agrees to become a party as of the date hereof to
the Registration Rights Agreement as an "Investor" thereunder and that, as such,
the undersigned shall be afforded all of the rights of and subject to all of the
obligations of an Investor pursuant to the Registration Rights Agreement.
IN WITNESS WHEREOF, the undersigned hereby sets forth its hand as of the
date first written above.
DIRIGO PARTNERS, LLC
By: /s/ Xxxxx Xxxx
-----------------------------------
Name: Xxxxx Xxxx
Title: Manager
Accepted:
VIP CALLING, INC.
By:
-----------------------------
