COINSTAR, INC.
SECOND AMENDED AND RESTATED INVESTOR'S RIGHTS AGREEMENT
AUGUST 27, 1996
TABLE OF CONTENTS
PAGE
1. AMENDMENT AND RESTATEMENT. . . . . . . . . . . . . . . . . . . . . . . . .1
1.1 Amendment and Restatement.. . . . . . . . . . . . . . . . . . . . . .1
2. CERTAIN DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . .2
3. TRANSFERABILITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
3.1 Restrictions on Transferability.. . . . . . . . . . . . . . . . . . .3
3.2 Restrictive Legend. . . . . . . . . . . . . . . . . . . . . . . . . .3
3.3 Notice of Proposed Transfers. . . . . . . . . . . . . . . . . . . . .4
4. REGISTRATION RIGHTS. . . . . . . . . . . . . . . . . . . . . . . . . . . .4
4.1 Requested Registration. . . . . . . . . . . . . . . . . . . . . . . .4
4.2 Company Registration. . . . . . . . . . . . . . . . . . . . . . . . .7
4.3 Form S-3 Registration.. . . . . . . . . . . . . . . . . . . . . . . .8
4.4 Expenses of Registration. . . . . . . . . . . . . . . . . . . . . . .9
4.5 Registration Procedures.. . . . . . . . . . . . . . . . . . . . . . .9
4.6 Indemnification.. . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.7 Information by Holder.. . . . . . . . . . . . . . . . . . . . . . . 14
4.8 "Market Stand-off" Agreement. . . . . . . . . . . . . . . . . . . . 14
4.9 Transfer of Registration Rights.. . . . . . . . . . . . . . . . . . 15
4.10 Termination of Registration Rights. . . . . . . . . . . . . . . . . 15
4.11 Limitation on Subsequent Registration Rights. . . . . . . . . . . . 15
5. RIGHT OF FIRST REFUSAL ON COMPANY ISSUANCES. . . . . . . . . . . . . . . 16
5.1 Right of First Refusal. . . . . . . . . . . . . . . . . . . . . . . 16
6. COVENANTS OF THE COMPANY.. . . . . . . . . . . . . . . . . . . . . . . . 17
6.1 Maintenance of Books and Records. . . . . . . . . . . . . . . . . . 17
6.2 Financial Information and Reporting.. . . . . . . . . . . . . . . . 17
6.3 Additional Information Rights.. . . . . . . . . . . . . . . . . . . 18
6.4 Inspection Rights.. . . . . . . . . . . . . . . . . . . . . . . . . 19
6.5 Employee Agreements.. . . . . . . . . . . . . . . . . . . . . . . . 19
6.6 Board Meetings; Expenses. . . . . . . . . . . . . . . . . . . . . . 19
6.7 Termination of Covenants. . . . . . . . . . . . . . . . . . . . . . 19
7. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
7.1 Governing Law; Submission to Jurisdiction.. . . . . . . . . . . . . 20
7.2 Successors and Assigns. . . . . . . . . . . . . . . . . . . . . . . 20
i.
TABLE OF CONTENTS
(CONTINUED)
PAGE
7.3 Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . 20
7.4 Notices, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
7.5 Delays or Omissions.. . . . . . . . . . . . . . . . . . . . . . . . 20
7.6 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
7.7 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
7.8 Amendments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ii.
COINSTAR, INC.
SECOND AMENDED AND RESTATED INVESTOR'S RIGHTS AGREEMENT
This Second Amended and Restated Investors' Rights Agreement (the
"Agreement") is entered into as of August 27, 1996, by and among Coinstar, Inc.,
a Delaware corporation (the "Company"), Xxxx X. Xxxxxx (the "Founder") and those
persons and entities set forth on the Schedule of Investors attached hereto as
Exhibit A (the "Investors"). This Agreement is being entered into pursuant to
Section 5.1 of that certain Series E Preferred Stock and Warrant Purchase
Agreement of even date herewith between the Company and the Purchasers set forth
on Exhibit A thereto (the "Series E Agreement").
RECITALS
WHEREAS, certain of the Investors hold shares of the Company's Series A
Preferred Stock (the "Series A Preferred"), Series B Preferred Stock (the
"Series B Preferred"), Series C Preferred Stock (the "Series C Preferred"),
Series D Preferred Stock (the "Series D Preferred") and/or shares of Common
Stock issued upon conversion thereof and possess registration rights,
information rights and other rights pursuant to that certain Amended and
Restated Investors' Rights Agreement dated as of December 15, 1995 between the
Company and such Investors (the "Prior Agreement");
WHEREAS, the Company and the undersigned Investors who hold Series A
Preferred, Series B Preferred, Series C Preferred and Series D Preferred desire
to terminate the Prior Agreement and to accept the rights created pursuant
hereto in lieu of the rights granted to them under the Prior Agreement; and
WHEREAS, certain of the Investors are parties to the Series E Agreement,
and certain of the Company's and such Investors' obligations under the Series E
Agreement are conditioned upon the execution and delivery by such Investors, the
holders of at least a majority of the Series A Preferred, the Series B
Preferred, Series C Preferred, Series D Preferred and the Company of this
Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, the Investors who are parties to the Prior Agreement hereby agree
that the Prior Agreement shall be superseded and replaced in its entirety by
this Agreement, and the parties hereto further agree as follows:
1.
1. AMENDMENT AND RESTATEMENT.
1.1 AMENDMENT AND RESTATEMENT. Effective upon the closing of the sale and
issuance of the Series E Preferred pursuant to the Series E-1 Agreement, all
provisions of, rights granted and covenants made in the Prior Agreement and any
other agreement between the Company, the Investors and the Founder, are hereby
waived released and terminated in their entirety and shall have no further force
or effect whatsoever. The rights and covenants contained in this Agreement set
forth the sole and entire agreement among the Company, the Investors and the
Founder on the subject matter hereof and supersede any and all rights granted or
covenants made under any prior agreement.
2. CERTAIN DEFINITIONS.
As used in this Agreement, the following terms shall have the following
respective meanings:
"Commission" shall mean the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"Holder" shall mean any holder of Registrable Securities.
"Registrable Securities" means shares of Common Stock issued or issuable
pursuant to the conversion or exercise of Restricted Securities.
Notwithstanding the foregoing, Registrable Securities shall not include any
securities sold by a person in a transaction (a) pursuant to Rule 144, (b)
pursuant to a registration statement on file with the Commission or (c) in which
such person's rights under this Agreement are not transferred.
The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement by the Commission.
"Registration Expenses" shall mean all expenses incurred by the Company in
complying with Sections 4.1, 4.2 and 4.3 hereof, including, without limitation,
all registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company, blue sky fees and expenses, the expense of any special
audits incident to or required by any such registration (but excluding the
compensation of regular employees of the Company which shall be paid in any
event by the Company) and the reasonable fees of one counsel selected by the
selling stockholders.
"Restricted Securities" shall mean the (i) Shares, (ii) any shares of
Common Stock issued or issuable pursuant to the conversion or exercise of the
Shares, (iii) any
2.
Shares issued upon exercise of the Warrants and (iv) any shares of capital stock
issued in respect thereof, whether by way of dividend, distribution, exchange,
replacement or otherwise.
"Securities Act" shall mean the Securities Act of 1933, 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.
"Selling Expenses" shall mean all underwriting discounts and selling
commissions applicable to the sale.
"Series E Preferred" shall mean the Series E-1 Preferred Stock, Series E-2
Preferred Stock and Series E-3 Preferred Stock of the Company.
"Shares" shall mean the (i) Series A Preferred, Series B Preferred, Series
C Preferred, Series D Preferred and Series E Preferred held by the Investors as
of the date hereof or subsequently acquired by the Investors, (ii) the Series C
Preferred held by Phoenix Leasing Incorporated as of the date hereof or
subsequently acquired upon exercise of a Warrant and (iii) the Series D
Preferred held by Dominion Ventures, Inc. and Silicon Valley Bank as of the date
hereof or subsequently acquired upon exercise of a Warrant.
"Warrants" shall mean (i) the warrants to purchase Series C Preferred,
Series D Preferred and Series E Preferred held by the Investors, (ii) the
warrant to purchase up to 49,231 shares of Series C Preferred held by Phoenix
Leasing Incorporated and (iii) the Warrant to purchase shares of Series D
Preferred held by Dominion Ventures, Inc. and Silicon Valley Bank.
3. TRANSFERABILITY.
3.1 RESTRICTIONS ON TRANSFERABILITY. The Shares and any securities into
which the Shares may be convertible, shall not be transferable except upon the
conditions specified in this Agreement, which conditions are intended to insure
compliance with the provisions of the Securities Act, or, in the case of Section
4.8 hereof, to assist in an orderly distribution. Each Investor will cause any
proposed transferee of the Shares (or of the securities into which the Shares
may be converted) held by an Investor to agree to take and hold such securities
subject to the provisions and upon the conditions specified in this Agreement.
For purposes of this Agreement, the term "transfer" shall be construed broadly
and shall include any transfer (whether voluntary, involuntary or by operation
of law) of securities or any interest therein, including without limitation, by
way of issuance, sale, participation, pledge, gift, bequeath, intestate
transfer, distribution, liquidation, merger or consolidation.
3.
3.2 RESTRICTIVE LEGEND. Each certificate representing Restricted
Securities shall (unless otherwise permitted by the provisions of Section 3.3
below) be stamped or otherwise imprinted with a legend in substantially the
following form (in addition to any legend required under applicable state
securities laws):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT
OR, IN THE OPINION OF COUNSEL OR BASED ON OTHER WRITTEN EVIDENCE IN FORM AND
SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR
TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH.
3.3 NOTICE OF PROPOSED TRANSFERS. The holder of each certificate
representing Restricted Securities by acceptance thereof agrees to comply in all
respects with the provisions of this Section 3.3. Prior to any proposed
transfer of any Restricted Securities, unless there is in effect a registration
statement under the Securities Act covering the proposed transfer, the holder
thereof shall give written notice to the Company of such holder's intention to
effect such transfer. Each such notice shall describe the manner and
circumstances of the proposed transfer in sufficient detail, and shall be
accompanied by either (i) an unqualified written opinion of legal counsel who
shall be reasonably satisfactory to the Company addressed to the Company and
reasonably satisfactory in form and substance to the Company's counsel, to the
effect that the proposed transfer of the Restricted Securities may be effected
without registration under the Securities Act, (ii) a "no action" letter from
the Commission to the effect that the distribution of such securities without
registration will not result in a recommendation by the staff of the Commission
that action be taken with respect thereto, or (iii) such other showing that may
be reasonably satisfactory to legal counsel to the Company, whereupon the holder
of such Restricted Securities shall be entitled to transfer such Restricted
Securities in accordance with the terms of the notice delivered by the holder to
the Company. Each certificate evidencing the Restricted Securities transferred
as above provided shall bear the appropriate restrictive legend set forth in
Section 3.2 above, except that such certificate shall not bear such restrictive
legend if in the opinion of counsel for the Company such legend is not required
in order to establish compliance with any provisions of the Securities Act. All
Restricted Securities transferred as above that continue to bear the restrictive
legend set forth in Section 3.2 shall continue to be subject to the provisions
of this Section 3.3 in the same manner as before such transfer.
4.
4. REGISTRATION RIGHTS.
4.1 REQUESTED REGISTRATION. Subject to the conditions of this Section
4.1, (i) if the Company shall receive prior to the first underwritten public
offering of the Company's securities (the "Initial Offering"), a written request
from the Holders of not less than fifty percent (50%) of the Registrable
Securities issued or issuable pursuant to the conversion of the Series C
Preferred, Series D Preferred and Series E Preferred (the "Initiating Holders"),
that the Company effect a registration covering the registration of a number of
Registrable Securities equal to at least twenty percent (20%) of the Registrable
Securities held by such Holders on the date hereof or having an anticipated
aggregate offering price to the public of at least ten million dollars
($10,000,000) or (ii) if the Company shall receive subsequent to the Initial
Offering, a written request of Holders of a number of Registrable Securities
equal to not less than twenty percent (20%) of the Registrable Securities issued
or issuable pursuant to the conversion of the Series C Preferred, Series D
Preferred and Series E Preferred, the Company will:
(a) promptly give written notice of the proposed registration to all
other Holders; and
(b) use its diligent best efforts to effect, as soon as practicable,
the registration (including, without limitation, the execution of an undertaking
to file post-effective amendments, appropriate qualification under applicable
blue sky or other state securities laws and appropriate compliance with
applicable regulations issued under the Securities Act) of the Registrable
Securities specified in such request, together with all or such portion of the
Registrable Securities of any Holder or Holders joining in such request as are
specified in a written request given within fifteen (15) days after receipt of
such written notice from the Company; provided that the Company shall not be
obligated to take any action to effect any such registration, qualification or
compliance pursuant to this Section 4.1:
(i) If at the time of the request to register Registrable
Securities the Company gives notice within ten (10) days of such request that it
is then engaged or has fixed plans to engage within thirty (30) days of the time
of the request in an initial firmly underwritten registered public offering as
to which the Holders may include Registrable Securities pursuant to Sections 4.1
or 4.2.
Subject to the foregoing clause (i) and to Section 4.1(d), the
Company shall file a registration statement covering the Registrable Securities
so requested to be registered as soon as practicable after receipt of the
request of the Initiating Holders.
5.
(c) Underwriting. If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request made pursuant to
Section 4.1 and the Company shall include such information in the written notice
referred to in Section 4.1(a). The right of any Holder to registration pursuant
to Section 4.1 shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting to the extent requested (unless otherwise mutually agreed by a
majority in interest of the Holders and such Holder) to the extent provided
herein.
The Company shall (together with all Holders proposing to distribute their
securities through such underwriting) enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwriting jointly by the Company and the Initiating Holders. Notwithstanding
any other provision of this Section 4.1, if the underwriter determines that
marketing factors require a limitation of the number of shares to be
underwritten and so advises the Initiating Holders in writing, then the
Initiating Holders shall so advise all Holders (except those Holders who have
indicated to the Company their decision not to distribute any of their
Registrable Securities through such underwriting) and the number of shares of
Registrable Securities that may be included in the registration and underwriting
shall be allocated among all such Holders in proportion, as nearly as
practicable, to the respective amounts of Registrable Securities owned by such
Holders at the time of filing the registration statement. No Registrable
Securities excluded from the underwriting by reason of the underwriter's
marketing limitation shall be included in such registration.
If any Holder disapproves of the terms of the underwriting, such person may
elect to withdraw therefrom by written notice to the Company, the underwriter
and the Initiating Holders. The Registrable Securities and/or other securities
so withdrawn from such underwriting shall also be withdrawn from such
registration; provided, however, that, if by the withdrawal of such Registrable
Securities a greater number of Registrable Securities held by other Holders may
be included in such registration (up to the maximum of any limitation imposed by
the underwriters), then the Company shall offer to all Holders who have included
Registrable Securities in the registration the right to include additional
Registrable Securities in the same proportion used above in determining the
underwriter limitation; and, provided further that in the event that the
withdrawal of a Holder, and the subsequent inclusion of additional Registrable
Securities by other Holders, results in less than 20% of the Registrable
Securities or in an anticipated aggregate offering price to the public of less
than ten million dollars ($10,000,000), the Company shall no longer be required
to effect such registration pursuant to this Section 4.1.
6.
If the underwriter has not limited the number of Registrable Securities to
be underwritten, the Company may include securities for its own account or the
account of others in such registration if the underwriter so agrees and if the
number of Registrable Securities which would otherwise have been included in
such registration and underwriting will not thereby be limited.
(d) Delay of Registration. If the Company shall furnish to the
Initiating Holders a certificate signed by the President of the Company stating
that, in the good faith judgment of the Board of Directors of the Company, it
would be seriously detrimental to the Company and its shareholders for such
registration statement to be filed on or before the date filing would be
required and it is therefore essential to defer the filing of such registration
statement, then the Company may direct that such request for registration be
delayed for a period not in excess of ninety (90) days, such right to delay a
request to be exercised by the Company not more than once in any twelve-month
period.
4.2 COMPANY REGISTRATION.
(a) If at any time the Company shall determine to file a registration
statement under the Securities Act for purposes of a public offering of
securities of the Company, either for its own account or the account of a
security holder or holders exercising their respective demand registration
rights (including, but not limited to, the Initial Offering, registration
statements relating to secondary offerings of securities of the Company, but
excluding registration statements relating to employee benefit plans and
corporate reorganizations), the Company will:
(i) promptly give to each Holder and the Founder 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 or Founder's Common Stock specified in a
written request or requests, made within twenty (20) days after receipt of such
written notice from the Company, by any Holder or Holders (or by the Founder as
to any of his shares of Common Stock that are not Registrable Securities).
(b) Underwriting. If the registration of which the Company gives
notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders and the Founder as a part of the written
notice given pursuant to Section 4.2(a)(i). In such event the right of any
Holder or the Founder to registration pursuant to Section 4.2 shall be
conditioned upon such Holder's or Founder's participation in such
7.
underwriting and the inclusion of such Holder's Registrable Securities or shares
of such Founder's Common Stock in the underwriting to the extent provided
herein. Each Holder and Founder 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 in customary form with the underwriter or underwriters
selected for such underwriting by the Company. Notwithstanding any other
provision of this Section 4.2, if the underwriter determines that marketing
factors require a limitation of the number of shares to be underwritten, the
underwriter may limit the number of Registrable Securities and shares of Common
Stock to be included in the registration and underwriting to (i) in the case of
the first underwritten public offering of the securities of the Company, any
amount that the underwriter may determine, or (ii) in the case of any
registration subsequent to the first underwritten public offering of the
securities of the Company, to not less than twenty percent (20%) of the total
securities covered by the registration. The Company shall so advise all Holders
and the Founder (except with respect to each of those Holders or the Founder who
has indicated to the Company its decision not to distribute any of its
Registrable Securities or Common Stock through such underwriting), and the
number of shares of Registrable Securities and Common Stock that may be included
in the registration and underwriting shall be allocated in proportion, as nearly
as practicable, to the respective amounts of Registrable Securities owned by the
Holders and the number of shares of Common Stock held by the Founder at the time
of filing the registration statement; provided, however, that if the underwriter
limits the number of shares of Common Stock held by the Founder to be included
in the registration, such number of shares to be excluded from the registration
shall be reallocated to the Holders.
No Registrable Securities or Founder's Common Stock excluded from the
underwriting by reason of the underwriter's marketing limitation shall be
included in such registration. If any Holder or the Founder disapproves of the
terms of any such underwriting, such person may elect to withdraw therefrom by
written notice to the Company and the underwriter. The securities so withdrawn
from such underwriting shall also be withdrawn from such registration; provided,
however, that, if by the withdrawal of such securities a greater number of
Registrable Securities held by other Holders may be included in such
registration (up to the maximum of any limitation imposed by the underwriters),
then the Company shall offer to all Holders who have included Registrable
Securities in the registration the right to include additional Registrable
Securities in the same proportion used above in determining the underwriter
limitation.
4.3 FORM S-3 REGISTRATION. In case the Company shall receive from any
Holder or Holders of Registrable Securities a written request or requests that
the Company effect a registration on Form S-3 and any related qualification or
compliance with respect to all or a part of the Registrable Securities owned by
such Holder or Holders, the Company will:
8.
(a) promptly give written notice of the proposed registration, and
any related qualification or compliance, to all other Holders of Registrable
Securities; and
(b) as soon as practicable, effect such registration and all such
qualifications and compliances as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such Holder's or
Holders' Registrable Securities as are specified in such request, together with
all or such portion of the Registrable Securities of any other Holder or Holders
joining in such request as are specified in a written request given within
fifteen (15) days after receipt of such written notice from the Company;
provided, however, that the Company shall not be obligated to effect any such
registration, qualification or compliance pursuant to this Section 4.3: (i) if
Form S-3 is not available for such offering by the Holders, (ii) if the Holders,
together with the holders of any other securities of the Company entitled to
inclusion in such registration, propose to sell Registrable Securities and such
other securities (if any) at an aggregate price to the public of less than
$500,000 or (iii) if the Company shall furnish to the Holders a certificate
signed by the President of the Company stating that in the good faith judgment
of the Board of Directors of the Company, it would be seriously detrimental to
the Company and its shareholders for such Form S-3 Registration to be effected
at such time, in which event the Company shall have the right to defer the
filing of the Form S-3 registration statement for a period of not more than
ninety (90) days after receipt of the request of the Holder or Holders under
this Section 4.3 (such notice may not be delivered more than once in any 12
month period).
4.4 EXPENSES OF REGISTRATION. The Company shall bear all Registration
Expenses incurred in connection with the first three registrations pursuant to
Section 4.1 and the first five registrations pursuant to Section 4.2 and Section
4.3. All Selling Expenses incurred in connection with any registrations
hereunder, shall be borne by the holders of the securities so registered
pro-rata on the basis of the number of shares so registered. The Company shall
not, however, be required to pay for expenses of any registration proceeding
begun pursuant to Section 4.1, the request of which has been subsequently
withdrawn by the Initiating Holders (unless the withdrawal is based upon
material adverse information concerning the Company of which the Initiating
Holders were not aware at the time of such request or unless the Holders of a
majority of Registrable Securities agree to forfeit their right to one requested
registration pursuant to Section 4.1 in which event such right shall be
forfeited by all Holders), in which case such expenses shall be borne by the
holders of securities (including Registrable Securities) requesting such
registration in proportion to the number of shares for which registration was
requested.
4.5 REGISTRATION PROCEDURES. In the case of each registration,
qualification or compliance effected by the Company pursuant to this Section 4,
the Company will keep each Holder (or Founder, if including shares of Common
Stock under Section 4.2)
9.
advised in writing as to the initiation of each registration, qualification and
compliance and as to the completion thereof. At its expense the Company will:
(a) use its best efforts to cause a registration statement that
registers such Registrable Securities to become and remain effective for a
period of 120 days or until all of such Registrable Securities have been
disposed of (if earlier);
(b) furnish, at least five business days before filing a registration
statement that registers such Registrable Securities, a prospectus relating
thereto or any amendments or supplements relating to such a registration
statement or prospectus, to one counsel selected by a majority of the Holders
(the "Investors' Counsel"), copies of all such documents proposed to be filed
(it being understood that such five-business-day period need not apply to
successive drafts of the same document proposed to be filed so long as such
successive drafts are supplied to the Investors' Counsel in advance of the
proposed filing by a period of time that is customary and reasonable under the
circumstances);
(c) 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 keep such registration statement effective for
at least a period of 120 days or until all of such Registrable Securities have
been disposed of (if earlier) and to comply with the provisions of the
Securities Act with respect to the sale or other disposition of such Registrable
Securities;
(d) notify in writing the Investors' Counsel promptly of (i) the
receipt by the Company of any notification with respect to any comments by the
Commission with respect to such registration statement or prospectus or any
amendment or supplement thereto or any request by the Commission for the
amending or supplementing thereof or for additional information with respect
thereto, (ii) the receipt by the Company of any notification with respect to the
issuance by the Commission of any stop order suspending the effectiveness of
such registration statement or prospectus or any amendment or supplement thereto
or the initiation or threatening of any proceeding for that purpose and (iii)
the receipt by the Company of any notification with respect to the suspension of
the qualification of such Registrable Securities for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purposes;
(e) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
the holders of Registrable Securities included in such registration statement
reasonably request and do any and all other acts and things which may be
reasonably necessary or advisable to enable the holders of Registrable
Securities included in such registration statement to consummate the disposition
in such jurisdictions of the Registrable Securities owned by
10.
them; provided, however, that the Company will not be required to qualify
generally to do business, subject itself to general taxation or consent to
general service of process in any jurisdiction where it would not otherwise be
required to do so but for this clause (e) or to provide any material undertaking
or make any changes in its Bylaws or Certificate of Incorporation which the
Board of Directors determines to be contrary to the best interests of the
Company;
(f) furnish to the holders of such Registrable Securities such number
of copies of a summary prospectus, if any, or other prospectus, including a
preliminary prospectus, in conformity with the requirements of the Securities
Act, and such other documents as such holders may reasonably request in order to
facilitate the public sale or other disposition of such Registrable Securities;
(g) use its best efforts to cause such Registrable Securities to be
registered with or approved by such other governmental agencies or authorities
as may be necessary by virtue of the business and operations of the Company to
enable the holders of such Registrable Securities to consummate the disposition
of such Registrable Securities;
(h) notify the holders of such Registrable Securities on a timely
basis at any time when a prospectus relating to such Registrable Securities is
required to be delivered under the Securities Act within the appropriate period
mentioned in clause (a) of this Section 4.5, of the happening of any event as a
result of which the prospectus included in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing and, at the
request of such holders, prepare and furnish to such holders a reasonable number
of copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the offerees of such shares, such
prospectus shall not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing;
(i) subject to the execution of confidentiality agreements in form
and substance satisfactory to the Company, make available upon reasonable notice
and during normal business hours, for inspection by the holders of such
Registrable Securities, any underwriter participating in any disposition
pursuant to such registration statement and any attorney, accountant or other
agent retained by such holders or underwriter (collectively, the "Inspectors"),
all pertinent financial and other records, pertinent corporate documents and
properties of the Company (collectively, the "Records"), as shall be reasonably
necessary to enable them to exercise their due diligence responsibility, and
cause the Company's officers, directors and employees to supply all
11.
information (together with the Records, the "Information") reasonably requested
by any such Inspector in connection with such registration statement. Any of
the Information which the Company determines in good faith to be confidential,
and of which determination the Inspectors are so notified, shall not be
disclosed by the Inspectors unless (i) the disclosure of such Information is
necessary to avoid or correct a misstatement or omission in the registration
statement, (ii) the release of such Information is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction or (iii) such
Information has been made generally available to the public; the holders of such
Registrable Securities agree that they will, upon learning that disclosure of
such Information is sought in a court of competent jurisdiction, give notice to
the Company and allow the Company, at the Company's expense, to undertake
appropriate action to prevent disclosure of the Information deemed confidential;
(j) use its best efforts to obtain from its independent certified
public accountants "cold comfort" letters in customary form and at customary
times and covering matters of the type customarily covered by cold comfort
letters;
(k) use its best efforts to obtain from its counsel an opinion or
opinions in customary form naming the holders of such Registrable Securities as
additional addressees or parties who may rely thereon;
(l) provide a transfer agent and registrar (which may be the same
entity and which may be the Company) for such Registrable Securities;
(m) issue to any underwriter to which the holders of such Registrable
Securities may sell shares in such offering certificates evidencing such
Registrable Securities;
(n) list such Registrable Securities on any national securities
exchange or automated quotation system on which any shares of the Common Stock
are listed; or, if the Common Stock is not listed on a national securities
exchange, use its best efforts to qualify such Registrable Securities for
inclusion on the automated quotation system of the National Association of
Securities Dealers, Inc. (the "NASD"), or any national securities exchange;
(o) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission and make available to its
securityholders, as soon as reasonably practicable, earnings statements (which
need not be audited) covering a period of 12 months beginning within three
months after the effective date of the registration statement, which earnings
statements shall satisfy the provisions of Section 11(e) of the Securities Act;
and
12.
(p) use its best efforts to take all other steps necessary to effect
the registration of such Registrable Securities contemplated hereby.
Each holder of the Registrable Securities included in any registration
statement, upon receipt of any notice from the Company of any event of the kind
described in Section 4.5(h) hereof, shall forthwith discontinue disposition of
the Registrable Securities pursuant to the registration statement converting
such Registrable Securities until such holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 4.5(h) hereof, and,
if so directed by the Company, such holder shall deliver to the Company all
copies, other than permanent file copies then in such holder's possession, of
the prospectus covering such Registrable Securities at the time of receipt of
such notice.
4.6 INDEMNIFICATION.
(a) The Company will indemnify each Holder, each person controlling
such Holder and their respective officers, directors, partners and legal counsel
(the "Indemnified Persons"), with respect to which registration, qualification
or compliance has been effected pursuant to this Section 4, against all claims,
losses, damages and liabilities (or actions in respect thereof) arising out of
or based on (i) any untrue statement (or alleged untrue statement) of a material
fact contained in any prospectus, offering circular or other similar document
(including any related registration statement, notification or the like)
incident to any such registration, qualification or compliance, or 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 in the
light of the circumstances under which they were made, or (ii) any violation by
the Company of any federal, state or common law rule or regulation applicable to
the Company in connection with any such registration, qualification or
compliance, and will reimburse each such Indemnified Person, for any legal and
any other expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action, as incurred,
provided 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 on
any untrue statement or omission based upon written information furnished to the
Company by an instrument duly executed by such Holder and stated to be
specifically for use therein or furnished by the Holder to the Company in
response to a request by the Company stating specifically that such information
will be used by the Company therein.
(b) 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, indemnify the Company, each of its directors and
officers, each legal counsel and independent accountant of the Company, each
person who controls the Company within the meaning of the Securities Act, and
each other such Holder and each
13.
person controlling such Holder and their respective officers, directors, and
partners, against all claims, losses, damages and liabilities (or actions in
respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other similar 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 in the
light of the circumstances under which they were made, and will reimburse the
Company, such Holders, such directors, officers, persons, or control persons for
any legal or any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or action, as
incurred, in each case to the extent, but 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 an instrument duly executed by such Holder and stated to be
specifically for use therein or furnished by the Holder to the Company in
response to a request by the Company stating specifically that such information
will be used by the Company therein.
(c) Each party entitled to indemnification under this Section 4.6
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has received written notice of any claim as to which indemnity may be sought,
and shall permit the Indemnifying Party to assume the defense of any such claim
or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld). The Indemnified Party may participate in such
defense at such party's expense; provided, however, that the Indemnifying Party
shall bear the expense of such defense of the Indemnified Party if
representation of both parties by the same counsel would be inappropriate due to
actual or potential conflicts of interest. The failure of any Indemnified Party
to give notice as provided herein shall relieve the Indemnifying Party of its
obligations under this Section 4.6 only to the extent that such failure to give
notice shall materially adversely prejudice the Indemnifying Party in the
defense of any such claim or any such litigation. No Indemnifying Party, in the
defense of any such claim or litigation, shall, except with the consent of each
Indemnified Party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnified Party of a release from all liability
in respect to such claim or litigation.
(d) To the extent any Founder participates in a registration under
Section 4.2 hereof, such Founder shall be deemed to be a "Holder" for purposes
of this Section 4.6.
14.
4.7 INFORMATION BY HOLDER. Each Holder or Founder, including securities
of the Company in any registration shall furnish to the Company such information
regarding such Holder or Founder and the distribution proposed by such Holder or
Founder as the Company may request in writing and as shall be required in
connection with any registration, qualification or compliance referred to in
this Section 4.
4.8 "MARKET STAND-OFF" AGREEMENT Each Holder and Founder agrees not to
sell or otherwise transfer or dispose of any Common Stock (or other securities)
of the Company held by it for a period not to exceed one hundred twenty (120)
days following the effective date of a registration statement of the Company
filed under the Securities Act if so requested by the Company and underwriter of
Common Stock (or other securities) of the Company, provided that such agreement
shall apply only to the first underwritten registered public offering of the
Company.
4.9 TRANSFER OF REGISTRATION RIGHTS.
(a) Except as otherwise provided herein, the rights contained in this
Section 4 may be assigned or otherwise conveyed to a transferee or assignee of
Registrable Securities, who shall be considered a "Holder" for purposes of this
Section 4, provided that (i) the prospective transferee or assignee must acquire
an amount of Registrable Securities not less than twenty percent (20%) of the
total number of Registrable Securities acquired by the original Holder thereof
directly from the Company, (ii) such transfer is effected in accordance with
applicable federal and state securities laws and (iii) such transferee or
assignee becomes a party to this Agreement or agrees in writing to be subject to
the terms hereof to the same extent as if he were an original purchaser
hereunder and, provided further, that the Company is given written notice at the
time of or within a reasonable time after said transfer, stating the name and
address of said transferee or assignee and identifying the securities with
respect to which such registration rights are being assigned.
(b) The right contained in Section 4.2 allowing the Founder to
include his shares of the Company's Common Stock in a registration may not be
assigned or otherwise conveyed to a transferee of such shares, and such right
shall expire with respect to such shares upon the transfer of such shares.
Notwithstanding the foregoing, such rights may be assigned or otherwise conveyed
to any or all of his ancestors, descendants or spouse or to a trust for the
benefit of such persons or the Founder in connection with the transfer of Common
Stock to such persons; provided that such transfer is effected in accordance
with applicable federal and state securities laws and that the Company is given
written notice at the time of or within a reasonable time after said transfer,
stating the name of said transferee or assignee and identifying the securities
with respect to which such registration rights are being assigned.
15.
4.10 TERMINATION OF REGISTRATION RIGHTS. All rights and duties provided
for in this Section 4 shall terminate for each Holder or the Founder on December
15, 2005, as applicable, or upon such earlier date on which all Registrable
Securities held by such Holder or the Founder may immediately be sold during any
90-day period under Commission Rule 144 (excluding paragraph (k) of Rule 144).
4.11 LIMITATION ON SUBSEQUENT REGISTRATION RIGHTS. The Company shall not,
without the prior written consent of the Holders of a majority of the
Registrable Securities, grant or enter into any agreement that would grant to
any holder or prospective holder of any securities of the Company (a)
registration rights superior to the registration rights granted herein, (b)
registration rights that would reduce the number of Shares includable by the
Holders in a Company registration pursuant to Section 4.2 or (c) registration
rights that would allow any other holder to register shares in a registration
initiated under Section 4.1 or 4.3.
5. RIGHT OF FIRST REFUSAL ON COMPANY ISSUANCES.
5.1 RIGHT OF FIRST REFUSAL. The Company hereby grants to each Investor
(solely for purposes of this Section 5, the terms "Investor" and "Investors"
shall include the Founder) a right of first refusal to purchase, pro rata, all
(or any part) of New Securities (as defined in this Section 5.1) that the
Company may, from time to time propose to sell and issue. Each Investor's pro
rata share, for purposes of this right of first refusal, is the ratio, the
numerator of which is the number of shares of Common Stock then owned by such
Investor (assuming full conversion of the Preferred Stock of the Company then
owned by such Investor and the exercise of any Warrants if the issuance price of
the New Securities implies a value per share of Common Stock in excess of the
exercise price under such Warrants), and the denominator of which is the total
number of shares of Common Stock outstanding immediately prior to the issuance
of the New Securities, assuming full conversion of all outstanding shares of
Preferred Stock of the Company and the exercise of any Warrants if the issuance
price of the New Securities implies a value per share of Common Stock in excess
of the exercise price under such Warrants. This right of first refusal shall be
subject to the following provisions:
(a) "New Securities" shall mean any capital stock of the Company,
whether now authorized or not, and 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, however, that "New Securities"
does not include (i) securities issuable upon conversion of or with respect to
any series of Preferred Stock or upon exercise of any existing rights, options
or warrants to purchase Common Stock or Preferred Stock; (ii) securities issued
pursuant to the acquisition of another corporation by the Company by merger,
purchase of substantially all of the assets, or other reorganization whereby the
Company owns more than fifty percent (50%) of the voting
16.
power of the surviving corporation; (iii) up to 286,541 shares of the Company's
Common Stock reserved for issuance subsequent to the date hereof to employees,
officers, directors, consultants or other service providers to the Company in
the form of stock issuances or options; (iv) shares of the Company's Common
Stock or Preferred Stock issued in connection with any stock split, stock
dividend, or similar recapitalization by the Company; (v) up to 200,000 shares
of equity securities issued in connection with lease financing arrangements or
similar debt financing arrangements with institutional lenders; or (vi)
securities issued in connection with strategic transactions involving the
Company and other entities, including (A) joint ventures, manufacturing,
marketing or distribution arrangements or (B) technology transfer or development
arrangements.
(b) In the event that the Company proposes to undertake an issuance
of New Securities, it shall give each Investor written notice of its intention,
describing the type of New Securities, the price, and the general terms upon
which the Company proposes to issue the same. Each Investor shall have thirty
(30) days from the date of mailing of any such notice to agree to purchase its
full pro rata share of such New Securities for the price and upon the general
terms specified in the notice by giving written notice to the Company and
stating therein the quantity of New Securities to be purchased.
(c) In the event that Investors fail to exercise in full the right of
first refusal within said thirty (30) day period the Company shall have ninety
(90) days thereafter to sell or enter into an agreement providing for the
closing of the sale of the New Securities respecting which the Investors' rights
were not exercised at a price and upon general terms no more favorable to the
purchasers thereof than specified in the Company's notice. In the event the
Company has not sold the New Securities within such ninety (90) day period, the
Company shall not thereafter issue or sell any New Securities, without first
offering such securities to the Investors in the manner provided above.
(d) The right of first refusal granted under this Agreement (i) shall
not apply to and shall expire upon the first firmly underwritten public offering
of Common Stock of the Company that is pursuant to a registration statement on
Form S-1 or any successor form filed with, and declared effective by, the
Commission under the Securities Act, and (ii) shall not apply to and shall
expire upon the closing of the Company's sale of all or substantially all of its
assets or the acquisition of the Company (other than relating to a
reincorporation of the Company) by another entity by means of merger or
consolidation resulting in the exchange of the outstanding shares of the
Company's capital stock for securities or consideration issued, or caused to be
issued, by the acquiring entity or its subsidiary.
6. COVENANTS OF THE COMPANY.
17.
6.1 MAINTENANCE OF BOOKS AND RECORDS. The Company will maintain true
books and records of account in which full and correct entries will be made of
all its business transactions pursuant to a system of accounting established and
administered in accordance with generally accepted accounting principles
consistently applied, and will set aside on its books all such proper accruals
and reserves as shall be required under generally accepted accounting principles
consistently applied.
6.2 FINANCIAL INFORMATION AND REPORTING. For so long as an Investor shall
hold or have the right to acquire Restricted Securities representing 153,846
shares of Common Stock:
(a) As soon as practicable after the end of each fiscal year of the
Company, and in any event within 90 days thereafter, the Company will furnish
each such Investor an audited consolidated balance sheet of the Company, as at
the end of such fiscal year, and an audited consolidated statement of income and
an audited consolidated statement of cash flows of the Company, for such year,
all prepared in accordance with generally accepted accounting principles and
setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail. Such financial statements shall be
accompanied by a report and opinion thereon by independent public accountants of
national standing selected by the Company's Board of Directors.
(b) As soon as practicable after the end of the first, second and
third quarterly accounting periods in each fiscal year of the Company, and in
any event within 30 days thereafter, the Company will furnish each such Investor
the following prepared in accordance with generally accepted accounting
principles (with the exception that no notes need be attached to such statements
and year end audit adjustments may not have been made), (i) a consolidated
balance sheet of the Company as of the end of each such quarterly period, (ii) a
consolidated statement of income, (iii) a consolidated statement of cash flows
of the Company for such period and for the current fiscal year to date and (iv)
a comparison between the actual figures for such quarterly accounting period and
the comparable figures (with respect to clauses (i) and (ii) only) for the prior
year (if any) and budget for such quarterly accounting period, with an
explanation of any material differences between them.
(c) As soon as practicable after the end of each month, and in any
event within 30 days thereafter, the Company will furnish each such Investor the
following prepared in accordance with generally accepted accounting principles
(with the exception that no notes need be attached to such statements and year
end audit adjustments may not have been made) (i) a consolidated balance sheet
of the Company as of the end of each such monthly period, (ii) a consolidated
statement of income, (iii) a consolidated statement of cash flows of the Company
for such period and for the current fiscal year to date and (iv) a comparison
between the actual figures for such monthly accounting period
18.
and the comparable figures (with respect to clauses (i) and (ii) only) for the
prior year (if any) and budget for such monthly accounting period, with an
explanation of any material differences between them.
(d) As soon as practicable prior to the beginning of each fiscal
year, and in any event at least 30 days prior thereto, the Company will furnish
each such Investor an annual budget and operating plans for such fiscal year.
6.3 ADDITIONAL INFORMATION RIGHTS.
(a) Upon the request of any Investor, the Company will promptly (and
in any event within 10 days of such request) furnish to such Investor all
information necessary in order for such Investor to prepare and file SBA Form
468 and any other information requested or required by any governmental
authority.
(b) The Company shall provide to Olympic Venture Partners III, L.P.,
within 30 days after the end of each calendar year, a list of all holders of all
equity interests and rights to acquire equity interests in the Company as of the
end of such calendar year, and the type and amount of such securities held by
each such holder.
6.4 INSPECTION RIGHTS. For so long as an Investor is eligible to receive
reports under Section 6.2, it shall have the right to visit and inspect any of
the properties of the Company or any of its subsidiaries, and to discuss the
affairs, finances and accounts of the Company or any of its subsidiaries with
its officers, all at such reasonable times and as often as may be reasonably
requested; provided, however, that the Company shall not be obligated under this
Section 6.4 with respect to information which the Board of Directors determines
in good faith is confidential and should not, therefore, be disclosed unless the
requesting Investor shall sign an acceptable confidentiality agreement or with
respect to a competitor of the Company.
6.5 EMPLOYEE AGREEMENTS. All future employees of the Company shall be
required to execute a Proprietary Information and Inventions Agreement in the
form provided by legal counsel to the Company with such amendments thereto as
the Board of Directors may from time to time deem appropriate.
6.6 BOARD MEETINGS; EXPENSES.
(a) The Company shall call, or use its best efforts to have, regular
meetings of its Board of Directors not less often than quarterly. The Company
shall give reasonable notice of meetings of its Board of Directors to each
Investor which holds at least 153,846 shares of Series C Preferred or Series D
Preferred or at least 100,000 shares of Series E Preferred and/or Common Stock
issued upon conversion of Series C Preferred, Series D Preferred and Series E
Preferred (a "Qualified Investor"). Each
19.
Qualified Investor shall be entitled to designate one observer to attend all
meetings of the Company's Board of Directors and all committees thereof.
(b) The Company shall pay the reasonable out-of-pocket expenses
incurred in connection with attending the meetings of the Board to (i) each
Board member designated by the Series C Preferred and (ii) one observer
designated by each Qualified Investor on a four times a year basis during the
first year after the date of this Agreement and on a twice per year basis
thereafter.
6.7 TERMINATION OF COVENANTS. The covenants provided in this Section VI
shall terminate upon the first date that the Company shall become subject to the
filing requirements of the Securities Exchange Act of 1934, as amended.
7. MISCELLANEOUS
7.1 GOVERNING LAW; SUBMISSION TO JURISDICTION. This Agreement shall be
governed by and construed in accordance with the laws of the State of Washington
applicable to contracts between Washington residents entered into and to be
performed entirely within the State of Washington. Each of the parties hereto
hereby submits to the nonexclusive jurisdiction of the United States District
Court for the Western District of Washington and of any Washington state court
sitting in the county of King, State of Washington, for the purposes of all
legal proceedings arising out of or relating to this Agreement or the
transactions contemplated hereby. Each of the parties hereto irrevocably
waives, to the fullest extent permitted by applicable law, any objection which
it may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such a
court has been brought in an inconvenient forum.
7.2 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
7.3 ENTIRE AGREEMENT. This Agreement, the Series E Agreement and each of
the documents contemplated by the Series E Agreement constitute the full and
entire understanding and agreement among the parties with regard to the subjects
hereof and thereof.
7.4 NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be sent by registered or
certified mail, return receipt requested, postage prepaid, and, if to an address
outside the United States of America, by telex or facsimile transmitted
substantially concurrently with the mailing of such written notice, addressed:
(a) if to a Holder, at such Holder's address as set forth on the Company's
records, or at such other address as such Holder shall have furnished to the
20.
Company in writing or (b) if to the Company, at its address as set forth at the
end of this Agreement, or at such other address as the Company shall have
furnished to the Holders in writing.
7.5 DELAYS OR OMISSIONS. No delay or omission to exercise any right,
power or remedy accruing to any party, upon any breach or default of any other
party under this Agreement, shall impair any such right, power or remedy of such
party nor shall it be construed to be a waiver of any such breach or default, or
an acquiescence therein, or of or in any similar breach or default thereunder
occurring; nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring. Any
waiver, permit, consent or approval of any kind or character on the part of any
party of any breach or default under this Agreement, or any waiver on the part
of any party of any provisions or conditions of this Agreement, must be in
writing and shall be effective only to the extent specifically set forth in such
writing. All remedies, either under this Agreement, or by law or otherwise
afforded to any holder, shall be cumulative and not alternative.
7.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which may be executed by less than all of the Investors,
each of which shall be enforceable against the parties actually executing such
counterparts, and all of which together shall constitute one instrument.
7.7 SEVERABILITY. In the 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.
7.8 AMENDMENTS. Except as otherwise provided herein, the provisions of
this Agreement may be amended at any time and from time to time, and particular
provisions of this Agreement may be waived, with and only with an agreement or
consent in writing signed by the Company and by the holders of not less than a
majority of the number of shares of Registrable Securities outstanding as of the
date of such amendment or waiver. In addition to the waiver and amendment
provisions set forth in the preceding sentence, and without in any way limiting
such provisions, in the event of any issuances of New Securities (as defined in
Article V) in which no holder of Series C Preferred, Series D Preferred and
Series E Preferred participates, the provisions of Article V may be waived on
behalf of all Investors with respect to any such issuance by a writing signed by
the Company and the holders of a majority of the outstanding Series C Preferred,
Series D Preferred and Series E Preferred. Each Investor acknowledges that by
the operation of this Section 7.8 the holders of a majority of the outstanding
Registrable Securities may have the right and power to diminish or eliminate all
rights of such Investor under this Agreement; provided, however, that any
amendment which would adversely affect the Founder in a manner different than
the Holders of Registrable Securities, shall
21.
additionally require the consent of the Founder. This Agreement may be amended
with no further action on the part of the Investors for the sole purpose of
including as Investors hereunder any future holders of the Company's Series E
Preferred.
22.
The foregoing Amended and Restated Investors Rights' Agreement is
hereby executed as of the date first above written.
COMPANY: FOUNDER:
COINSTAR, INC. /s/ Xxxx X. Xxxxxx
00000 XX 00xx Xxxxxx, Xxx. 000 -----------------------------------
Bellevue, WA 98006-1323 Xxxx X. Xxxxxx
By: /s/ Xxxx X. Xxxxxx INVESTORS:
-------------------------------------
Xxxx X. Xxxxxx
President
Xxxx X. Xxxxxx
-----------------------------------
[Print name of Investor]
By: /s/ Xxxx X. Xxxxxx
--------------------------------
[signature]
Title:
-----------------------------
ACORN VENTURES
By:
--------------------------------
[signature]
Title:
-----------------------------
SECOND AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
23.
The foregoing Amended and Restated Investors Rights' Agreement is
hereby executed as of the date first above written.
COMPANY: FOUNDER:
COINSTAR, INC.
00000 XX 00xx Xxxxxx, Xxx. 000 -----------------------------------
Bellevue, WA 98006-1323 Xxxx X. Xxxxxx
By: INVESTORS:
-------------------------------------
Xxxx X. Xxxxxx
President
-----------------------------------
[Print name of Investor]
By:
--------------------------------
[signature]
Title:
-----------------------------
ACORN VENTURES
By: /s/
--------------------------------
[signature]
Title: President
-----------------------------
SECOND AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
23.
The foregoing Amended and Restated Investors Rights' Agreement is
hereby executed as of the date first above written.
COMPANY: FOUNDER:
COINSTAR, INC.
00000 XX 00xx Xxxxxx, Xxx. 000 -----------------------------------
Bellevue, WA 98006-1323 Xxxx X. Xxxxxx
By: INVESTORS:
-------------------------------------
Xxxx X. Xxxxxx
President
Alaskan Copper Companies, Inc.
-----------------------------------
[Print name of Investor]
By: /s/
--------------------------------
[signature]
Title: Vice President
-----------------------------
ACORN VENTURES
By:
--------------------------------
[signature]
Title:
-----------------------------
SECOND AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
23.
The foregoing Amended and Restated Investors Rights' Agreement is
hereby executed as of the date first above written.
COMPANY: FOUNDER:
COINSTAR, INC.
00000 XX 00xx Xxxxxx, Xxx. 000 -----------------------------------
Bellevue, WA 98006-1323 Xxxx X. Xxxxxx
By: INVESTORS:
-------------------------------------
Xxxx X. Xxxxxx
President
BENAROYA CAPITAL COMPANY, L.L.C.
Xxxxx X. Xxxxxxxx
-----------------------------------
[Print name of Investor]
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
[signature]
Title: Manager
-----------------------------
Benaroya Capital Company, L.L.C.
ACORN VENTURES
By:
--------------------------------
[signature]
Title:
-----------------------------
SECOND AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
23.
The foregoing Amended and Restated Investors Rights' Agreement is
hereby executed as of the date first above written.
COMPANY: FOUNDER:
COINSTAR, INC.
00000 XX 00xx Xxxxxx, Xxx. 000 -----------------------------------
Bellevue, WA 98006-1323 Xxxx X. Xxxxxx
By: INVESTORS:
-------------------------------------
Xxxx X. Xxxxxx
President
CIBC Wood GundyVentures, Inc.
-----------------------------------
[Print name of Investor]
By: /s/
--------------------------------
[signature]
Title: Director
-----------------------------
ACORN VENTURES
By:
--------------------------------
[signature]
Title:
-----------------------------
SECOND AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
23.
The foregoing Amended and Restated Investors Rights' Agreement is
hereby executed as of the date first above written.
COMPANY: FOUNDER:
COINSTAR, INC.
00000 XX 00xx Xxxxxx, Xxx. 000 -----------------------------------
Bellevue, WA 98006-1323 Xxxx X. Xxxxxx
By: INVESTORS:
-------------------------------------
Xxxx X. Xxxxxx
President
Coin Partners, G.P.
-----------------------------------
[Print name of Investor]
By: /s/
--------------------------------
[signature]
Title: General Partner
-----------------------------
ACORN VENTURES
By:
--------------------------------
[signature]
Title:
-----------------------------
SECOND AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
23.
The foregoing Amended and Restated Investors Rights' Agreement is
hereby executed as of the date first above written.
COMPANY: FOUNDER:
COINSTAR, INC.
00000 XX 00xx Xxxxxx, Xxx. 000 -----------------------------------
Bellevue, WA 98006-1323 Xxxx X. Xxxxxx
By: INVESTORS:
-------------------------------------
Xxxx X. Xxxxxx
President
EOS Partners SBIC, L.P.
-----------------------------------
[Print name of Investor]
By: /s/
--------------------------------
[signature]
Title: General Partner of General
Partner
-----------------------------
ACORN VENTURES
By:
--------------------------------
[signature]
Title:
-----------------------------
SECOND AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
23.
The foregoing Amended and Restated Investors Rights' Agreement is
hereby executed as of the date first above written.
COMPANY: FOUNDER:
COINSTAR, INC.
00000 XX 00xx Xxxxxx, Xxx. 000 -----------------------------------
Bellevue, WA 98006-1323 Xxxx X. Xxxxxx
By: INVESTORS:
-------------------------------------
Xxxx X. Xxxxxx
President
FLUKE CAPITAL MANAGEMENT, L.P.
By: Fluke Management Corporation -----------------------------------
Managing Partner [Print name of Investor]
By: /s/ By:
------------------------------------- --------------------------------
Vice President [signature]
Title:
-----------------------------
ACORN VENTURES
By:
--------------------------------
[signature]
Title:
-----------------------------
SECOND AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
23.
The foregoing Amended and Restated Investors Rights' Agreement is
hereby executed as of the date first above written.
COMPANY: FOUNDER:
COINSTAR, INC.
00000 XX 00xx Xxxxxx, Xxx. 000 -----------------------------------
Bellevue, WA 98006-1323 Xxxx X. Xxxxxx
By: INVESTORS:
-------------------------------------
Xxxx X. Xxxxxx
President
-----------------------------------
[Print name of Investor]
By: /s/
--------------------------------
[signature]
Title:
-----------------------------
ACORN VENTURES
By:
--------------------------------
[signature]
Title:
-----------------------------
SECOND AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
23.
The foregoing Amended and Restated Investors Rights' Agreement is
hereby executed as of the date first above written.
COMPANY: FOUNDER:
COINSTAR, INC.
00000 XX 00xx Xxxxxx, Xxx. 000 -----------------------------------
Bellevue, WA 98006-1323 Xxxx X. Xxxxxx
By: INVESTORS:
-------------------------------------
Xxxx X. Xxxxxx
President
OLYMPIC VENTURE PARTNERS III, L.P. -----------------------------------
By OVMC III, L.P. Its G.P. [Print name of Investor]
By /s/ By:
-------------------------------- --------------------------------
Its General Partner [signature]
Title:
-----------------------------
ACORN VENTURES
By:
--------------------------------
[signature]
Title:
-----------------------------
SECOND AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
23.
The foregoing Amended and Restated Investors Rights' Agreement is
hereby executed as of the date first above written.
COMPANY: FOUNDER:
COINSTAR, INC.
00000 XX 00xx Xxxxxx, Xxx. 000 -----------------------------------
Bellevue, WA 98006-1323 Xxxx X. Xxxxxx
By: INVESTORS:
-------------------------------------
Xxxx X. Xxxxxx
President
OSCCO III, L.P.
-----------------------------------
[Print name of Investor]
By: /s/
--------------------------------
[signature]
Title: General Partner
-----------------------------
ACORN VENTURES
By:
--------------------------------
[signature]
Title:
-----------------------------
SECOND AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
23.
The foregoing Amended and Restated Investors Rights' Agreement is
hereby executed as of the date first above written.
COMPANY: FOUNDER:
COINSTAR, INC.
00000 XX 00xx Xxxxxx, Xxx. 000 -----------------------------------
Bellevue, WA 98006-1323 Xxxx X. Xxxxxx
By: INVESTORS:
-------------------------------------
Xxxx X. Xxxxxx
President
OVP III ENTREPRENEURS FUND -----------------------------------
By OVMC III, L.P. Its G.P. [Print name of Investor]
By /s/ By:
-------------------------------- --------------------------------
Its General Partner [signature]
Title:
-----------------------------
ACORN VENTURES
By:
--------------------------------
[signature]
Title:
-----------------------------
SECOND AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
23.
The foregoing Amended and Restated Investors Rights' Agreement is
hereby executed as of the date first above written.
COMPANY: FOUNDER:
COINSTAR, INC.
00000 XX 00xx Xxxxxx, Xxx. 000 -----------------------------------
Bellevue, WA 98006-1323 Xxxx X. Xxxxxx
By: INVESTORS:
-------------------------------------
Xxxx X. Xxxxxx
President
Roanoke Investors' Limited
Partnership
By: Roanoke Capital, Ltd.
Its General Partner
-----------------------------------
[Print name of Investor]
By: /s/
--------------------------------
[signature]
Title: Principal
-----------------------------
ACORN VENTURES
By:
--------------------------------
[signature]
Title:
-----------------------------
SECOND AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
23.
The foregoing Amended and Restated Investors Rights' Agreement is
hereby executed as of the date first above written.
COMPANY: FOUNDER:
COINSTAR, INC.
00000 XX 00xx Xxxxxx, Xxx. 000 -----------------------------------
Bellevue, WA 98006-1323 Xxxx X. Xxxxxx
By: INVESTORS:
-------------------------------------
Xxxx X. Xxxxxx
President
Vencap, Inc.
-----------------------------------
[Print name of Investor]
By: /s/
--------------------------------
[signature]
Title: Vice President VP & CFO
-----------------------------
ACORN VENTURES
By:
--------------------------------
[signature]
Title:
-----------------------------
SECOND AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
23.
The foregoing Amended and Restated Investors Rights' Agreement is
hereby executed as of the date first above written.
COMPANY: FOUNDER:
COINSTAR, INC.
00000 XX 00xx Xxxxxx, Xxx. 000 -----------------------------------
Bellevue, WA 98006-1323 Xxxx X. Xxxxxx
By: INVESTORS:
-------------------------------------
Xxxx X. Xxxxxx
President
XXXXXX XXXXXXXXX
-----------------------------------
[Print name of Investor]
By: /s/
--------------------------------
[signature]
Title:
-----------------------------
ACORN VENTURES
By:
--------------------------------
[signature]
Title:
-----------------------------
SECOND AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
23.
The foregoing Amended and Restated Investors Rights' Agreement is
hereby executed as of the date first above written.
COMPANY: FOUNDER:
COINSTAR, INC.
00000 XX 00xx Xxxxxx, Xxx. 000 -----------------------------------
Bellevue, WA 98006-1323 Xxxx X. Xxxxxx
By: INVESTORS:
-------------------------------------
Xxxx X. Xxxxxx
President
Xxxxxxxxx Family Partnership
-----------------------------------
[Print name of Investor]
By: /s/
--------------------------------
[signature]
Title: General Partner
-----------------------------
ACORN VENTURES
By:
--------------------------------
[signature]
Title:
-----------------------------
SECOND AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
23.
EXHIBIT A
Acorn Ventures
Xxxx X. Xxxxxxxx
Vencap Equities Alberta Ltd.
Olympic Venture Partners III, L.P.
OVP III Entrepreneurs Fund
Roanoke Investors' Limited Partnership
Eos Partners SBIC, L.P.
Fluke Capital Management, L.P.
CIBC Wood Gundy Ventures, Inc.
OSCCO III, L.P.
Xxxx Xxxxxxxx Incorporated
Xxxxx X. Xxxxxxxxx
Alaskan Copper Companies, Inc.
Xxxx and Xxxxx Xxxxxxxx
Xxxxxxxx Xxx Xxxxxxxx
Xxxxxx X. Xxxxxxxx
Xxxxxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxx
B & P Investments
Xxxxxx Xxxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxx Xxxxxxxx Co., Inc. Pension Trust
Xxxxx Xxxxxxx
Xxx Xxxxxx
Xxxxxx X. Xxxx
Xxxxx X. Xxxxxx
Xxxxxxxxx X. Xxxxxxxx
Coin Partners, GP
Xxxxx X. Xxxxxxxxxx
Xxx Xxxxxxx Xxxxxxxx
Dominion Ventures, Inc.
Xxxxxxxxx Xxxx Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxx
Xxxxxx Xxxxx
Xxxxx X. Xxxxxx
Xxxxxxx Xxxxx Trust UDT 2/20/67
Xxxxx X. & Xxxx X. Xxxxxxxx
3.
Xxxxx X. Xxxxx
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Fosterville Investments Ltd.
Xxx Xxxxxxx
G C & H Investments
Xxxxxx X. & Xxxxxxx X. Xxxxxxx
Xxxxx Xxxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxx X. & Xxxxxxxx Xxx Xxxxx
Xxxxx Xxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxxxxxx X. Xxxxxx
Xxxxxx Xxxxxx
Xxxxxx X. Xxxxxxxxxx
Xxxxxxx Xxxx
Xxxxx X. Xxxxxxx
Xxxx X. Xxxxxx
Xxxx and Xxxxx Xxxxxx
Xxxx X. Xxxxxxx
Xxxxx Xxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxx Xxx
Xxxxxxx Xxxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxxx Xxxxxxx
Xxxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxxx Xxxx Inc. Pension Trust
Xxxxx Xxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx Xxxxxxxxx
Xxxxx Xxxxxxx
Xxxxxxx X. Sodequist
Stusser Group
Xxxxx X. Tall
Xxxxx X. and Xxxxx Xxx Xxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxxxx Family Partnership
4.
Xxxxxx and Xxxxxxx Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Xxxxx Investors
5.
AMENDMENT TO
SECOND AMENDED AND RESTATED
INVESTOR'S RIGHTS AGREEMENT
Pursuant to Section 4.11 of that certain Second Amended and Restated
Investor's Rights Agreement, dated as of August 27, 1996 (the "Rights
Agreement"), the undersigned Holder (as defined in the Rights Agreement) of
Registrable Securities (as defined in the Rights Agreement) of Coinstar, Inc.
(the "Company"), hereby agrees to the amendments set forth below effective as of
the date set forth below.
NOW, THEREFORE, the undersigned hereby agrees as follows:
1. The second paragraph of Section 4.1(c) is hereby amended by adding the
underlined text such that the amended Section 4.1(c) shall read in its entirety
as follows:
"The Company shall (together with all Holders proposing to distribute their
securities through such underwriting) enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwriting jointly by the Company and the Initiating Holders. Notwithstanding
any other provision of this Section 4.1, if the underwriter determines that
marketing factors require a limitation of the number of shares to be
underwritten and so advises the Initiating Holders in writing, then the
Initiating Holders shall so advise all Holders (except those Holders who have
indicated to the Company their decision not to distribute any of their
Registrable Securities through such underwriting) and the number of shares of
Registrable Securities that may be included in the registration and underwriting
shall be allocated: (i) FIRST among all such Holders in proportion, as nearly as
practicable, to the respective amounts of Registrable Securities owned by such
Holders, AND (ii) SECOND AMONG THE HOLDERS OF WARRANT SHARES (AS DEFINED IN THE
WARRANT REGISTRATION RIGHTS AGREEMENT EXPECTED TO BE DATED ON OR ABOUT OCTOBER
8, 1996 BY AND BETWEEN THE COMPANY AND XXXXX XXXXXX INC. (THE "WARRANT RIGHTS
AGREEMENT")) IN PROPORTION, AS NEARLY AS PRACTICABLE, TO THE RESPECTIVE NUMBER
OF WARRANT SHARES OWNED BY THE HOLDERS THEREOF at the time of filing the
registration statement. No Registrable Securities excluded from the
underwriting by reason of the underwriter's marketing limitation shall be
included in such registration.
2. The first paragraph of Section 4.2(b) is hereby amended by adding the
underlined text and deleting the strike-through text such that Section 4.2(b)
shall read in its entirety as follows:
"(b) Underwriting. If the registration of which the Company
gives notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders and the Founder as a part of the written
notice given pursuant to Section 4.2(a)(i). In such event the right of any
Holder or the Founder to registration pursuant to Section 4.2 shall be
conditioned upon such Holder's or Founder's participation in such underwriting
and the inclusion of such Holder's Registrable Securities or shares of such
Founder's Common Stock in the underwriting to the extent provided herein. Each
Holder and Founder 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
in customary form with the underwriter or underwriters selected for such
underwriting by the Company. Notwithstanding any other provision of this
Section 4.2, if the underwriter determines that marketing factors require a
limitation of the number of shares to be underwritten, the
underwriter may limit the number of Registrable Securities and shares of Common
Stock to be included in the registration and underwriting to (i) in the case of
the first underwritten public offering of the securities of the Company, any
amount that the underwriter may determine, or (ii) in the case of any
registration subsequent to the first underwritten public offering of the
securities of the Company, to not less than twenty percent (20%) of the total
securities covered by the registration. The Company shall so advise all Holders
and the Founder (except with respect to each of those Holders or the Founder who
has indicated to the Company its decision not to distribute any of its
Registrable Securities or Common Stock through such underwriting), and the
number of shares of Registrable Securities and Common Stock that may be included
in anythe registration and underwriting INITIATED (i) BY THE COMPANY FOR ITS OWN
ACCOUNT, (II) PURSUANT TO A REQUEST MADE UNDER SECTION 4.3, OR (iii) PURSUANT TO
A DEMAND MADE BY ANY PERSON OTHER THAN A PARTY TO THE WARRANT RIGHTS AGREEMENT
shall be allocated in proportion, as nearly as practicable, to the respective
amounts of Registrable Securities owned by the Holders, and the number of shares
of Common Stock held by the Founder AND THE NUMBER OF WARRANT SHARES OWNED BY
THE HOLDERS THEREOF COVERED BY THE WARRANT RIGHTS AGREEMENT at the time of
filing the registration statement; provided, however, that if the underwriter
limits the number of shares of Common Stock held by the Founder to be included
in the registration, such number of shares to be excluded from the registration
shall be reallocated to the Holders AND THE HOLDERS OF THE WARRANT SHARES. IN
CONNECTION WITH ANY REGISTRATION MADE PURSUANT TO A DEMAND MADE UNDER THE
WARRANT RIGHTS AGREEMENT, THE HOLDERS AND THE FOUNDER SHALL BE CUT BACK PRIOR TO
ANY CUT BACK OF THE HOLDERS UNDER THE WARRANT RIGHTS AGREEMENT.
IN WITNESS WHEREOF, the undersigned has executed this AMENDMENT as of the
_____ day of October, 1996.
----------------------------------------
(Print Name of Stockholder)
----------------------------------------
(Signature)
----------------------------------------
(Title, if applicable)
2.
COINSTAR, INC.
AMENDMENT AGREEMENT
THIS AMENDMENT AGREEMENT (the "Agreement") is made as of March 10, 1997, by
and among COINSTAR, INC., a Delaware corporation (the "Company"), certain
holders of the Company's Preferred Stock (the "Investors") and Xxxx Xxxxxx (the
"Founder").
WHEREAS, the Company, the Investors and the Founder have entered into that
certain Second Amended and Restated Investors' Rights Agreement dated August 27,
1996 and amended on October 22, 1996 attached hereto as Exhibit A (the
"Investors' Rights Agreement");
WHEREAS, in connection with a proposed initial public offering, the
underwriters have requested that all stockholders of the Company agree not to
sell any securities of the Company for a period of 180 days following the
effectiveness of the initial public offering; and
WHEREAS, in accordance with Section 7.8 of the Investors' Rights Agreement,
the Company, the Investors and the Founder wish to amend such agreement as set
forth herein.
NOW, THEREFORE, in consideration of the foregoing and of other valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto hereby agree as follows:
1. AMENDMENT
Section 4.8 of the Investors' Rights Agreement is hereby amended to read in
its entirety as follows:
4.8 "MARKET STAND-OFF" AGREEMENT. Each Holder and Founder agrees
not to sell or otherwise transfer or dispose of any Common Stock (or other
securities) of the Company held by it for a period not to exceed one hundred
eighty (180) days following the effective date of a registration statement of
the Company filed under the Securities Act if so requested by the Company and
underwriter of Common Stock (or other securities) of the Company, provided that
such agreement shall apply only to the first underwritten registered public
offering of the Company.
2. This Agreement may be executed in two or more components, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
1.
IN WITNESS WHEREOF, this AMENDMENT AGREEMENT is hereby executed as of the
date first above written.
COMPANY: INVESTOR:
COINSTAR, INC. -----------------------------------
(PRINT NAME OF INVESTOR)
By: By:
------------------------------- --------------------------------
Xxxx Xxxxxx, President (SIGNATURE)
Title:
-----------------------------
(IF APPLICABLE)
FOUNDER:
-----------------------------------
Xxxx Xxxxxx
0.
