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EXHIBIT 10.5
OMNISKY CORPORATION
SECOND AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
APRIL 24, 2000
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TABLE OF CONTENTS
PAGE
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1. Certain Definitions......................................................................1
2. Restrictions on Transferability..........................................................2
3. Restrictive Legend.......................................................................2
4. Notice of Proposed Transfers.............................................................3
5. Requested Registration...................................................................4
6. Company Registration.....................................................................6
7. Expenses of Registration.................................................................7
8. Registration Procedures..................................................................7
9. Registration on Form S-2 or S-3..........................................................8
10. Termination of Registration Rights.......................................................8
11. Lock-up Agreement........................................................................8
12. Indemnification..........................................................................9
13. Information by Holder...................................................................10
14. Rule 144 Reporting......................................................................10
15. Transfer of Registration Rights.........................................................11
16. Subsequent Grant of Registration Rights.................................................11
17. Basic Financial Information.............................................................11
18. Visitation and Observer Rights..........................................................13
19. Rights of First Offer...................................................................13
20. Right of First Refusal..................................................................15
21. Governing Law...........................................................................17
22. Entire Agreement........................................................................17
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23. Notices, etc............................................................................17
24. Counterparts............................................................................17
25. Amendment...............................................................................17
26. Additional Parties......................................................................17
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AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
This Amended and Restated Investors' Rights Agreement (this "AGREEMENT")
is made as of April 24, 2000 by and among OmniSky Corporation (formerly known as
AirWeb Corporation), a Delaware corporation (the "COMPANY"), the persons listed
on the Schedule of Holders attached hereto as Schedule A (the "EXISTING
SHAREHOLDERS") and the purchasers of the Company's Series C Preferred Stock, par
value $0.001 per share (the "SERIES C PREFERRED") listed on the Schedule of
Purchasers attached hereto as Schedule B (the "SERIES C HOLDERS").
RECITALS
A. The Company and the Existing Shareholders are parties to an
Amended and Restated Investors' Rights Agreement dated January 18, 2000 (the
"FORMER AGREEMENT").
B. The parties to the Former Agreement desire to amend and restate
such agreement to read as set forth below and to include the Series C Holders as
set forth on Schedule B hereto.
C. The Company and the Series C Holders have entered into agreements
for issuance by the Company and acquisition by the Series C Holders of shares of
the Series C Preferred.
D. The obligation of the Series C Holders to acquire the Series C
Preferred is conditioned upon, among other things, the execution and delivery by
the Company and the Existing Shareholders of this Agreement.
AGREEMENT
1. 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
successor agency.
"HOLDER" shall mean any person owning or having the right to acquire
Registrable Securities or any assignee thereof in accordance with Section 15
hereof.
"NEW SECURITIES" shall have the meaning set forth in Section 19 of this
Agreement.
"RESTRICTED SECURITIES" shall mean the securities of the Company
required to bear the legend set forth in Section 3 hereof (or any similar
legend).
"REGISTRABLE SECURITIES" shall mean (i) shares of the Company's Common
Stock issued or issuable upon the conversion of the Series A Preferred Stock,
par value $0.001 per share (the "SERIES A PREFERRED"); (ii) shares of the
Company's Common Stock issued or issuable upon the conversion of the Series B
Preferred Stock, par value $0.001 per share (the "SERIES B PREFERRED"); (iii)
shares of the Company's Common Stock issued or issuable upon the conversion of
the Series C
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Preferred Stock, par value $0.001 per share (the "SERIES C PREFERRED"); (iv) any
Common Stock of the Company or other securities issued or issuable in respect of
shares of the Series A Preferred, Series B Preferred or Series C Preferred; and
(v) shares of the Company's Common Stock or other securities issued or issuable
in respect of the shares described in clause (i), (ii), (iii) or (iv) upon any
stock split, stock dividend, recapitalization, or similar event; provided,
however, that any shares described in clauses (i)-(v) above which have been
resold to the public and are no longer Restricted Securities shall cease to be
Registrable Securities upon such resale.
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.
"REGISTRATION EXPENSES" shall mean all expenses incurred by the Company
in complying with Sections 5, 6, 8 and 9 hereof, including, without limitation,
all registration, qualification and filing fees, printing expenses, escrow fees,
fees and disbursements of counsel for the Company, blue sky fees and expenses
and the expense of any special audits incident to or required by any such
registration and the legal expenses up to $20,000 of one counsel to the Holders.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SELLING EXPENSES" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities registered by
the Holders and the legal expenses of counsel to the Holders that exceed $20,000
or are generated by a second legal counsel to the Holders.
2. Restrictions on Transferability. The Restricted Securities shall
not be transferable except upon the conditions specified in this Agreement,
which conditions are intended to ensure compliance with the provisions of the
Securities Act. Each Holder of Restricted Securities will cause any proposed
transferee of the Restricted Securities held by such Holder, other than a
transferee acquiring such securities in connection with a registered offering
covering such disposition, to agree to take and hold such Restricted Securities
subject to the provisions and upon the conditions specified in this Agreement.
3. Restrictive Legend. Each certificate representing (i) the Series
A Preferred, (ii) the Series B Preferred, (iii) the Series C Preferred, (iv)
shares of the Company's Common Stock issued upon conversion of the Series A
Preferred, Series B Preferred and Series C Preferred, and (v) any other
securities issued in respect of the Series A Preferred, Series B Preferred,
Series C Preferred or Common Stock issued upon conversion of the Series A
Preferred, Series B Preferred and Series C Preferred including upon any stock
split, stock dividend, recapitalization, merger, consolidation or similar event,
shall (unless otherwise permitted by the provisions of Section 4 below) be
stamped or otherwise imprinted with a legend in the following form (in addition
to any legend required under applicable securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933. THESE SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE
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ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT.
COPIES OF THE AGREEMENT COVERING THE PURCHASE OF THESE SHARES AND
RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST
MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE
CORPORATION AT THE PRINCIPAL EXECUTIVE OFFICES OF THE CORPORATION.
THE SHARES REPRESENTED HEREBY ARE SUBJECT TO A ONE HUNDRED EIGHTY (180)
DAY LOCKUP FOLLOWING THE CORPORATION'S INITIAL PUBLIC OFFERING, A COPY
OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE
CORPORATION.
Each Holder consents to the Company's making a notation on its records
and giving instructions to any transfer agent of the Series A Preferred, the
Series B Preferred, the Series C Preferred or the Common Stock in order to
implement the restrictions on transfer established in this Section 3. The
Company shall be obligated to reissue promptly unlegended certificates at the
request of any Holder thereof if the Holder shall have obtained an opinion of
counsel at such Holder's expense (which counsel may be counsel to the Company)
reasonably acceptable to the Company to the effect that the securities proposed
to be disposed of may lawfully be so disposed of without registration,
qualification or legend.
4. 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 4. 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, if the Company reasonably
requests, be accompanied (except in transactions in compliance with Rule 144) by
either (i) a 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, or (ii) a "No Action" letter from the
Commission to the effect that the transfer of such securities without
registration will not result in a recommendation by the staff of the Commission
that action be taken with respect thereto, 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; provided, however, that no opinion or "No Action" letter need be
obtained with respect to a transfer to (A) a partner or member, active or
retired, of a Holder of Restricted Securities, (B) the estate of any Holder of
Registrable Securities, (C) an "affiliate" of a Holder of Restricted Securities
as that term is defined in Rule 405 promulgated by the Commission under the
Securities Act, (D) if to a corporation, to its stockholders, (E) if to a
limited liability company, to its members or former members or (F) the spouse,
children, grandchildren or spouse of such children or grandchildren of any
Holder or to trusts for the benefit of any Holder or such persons, if the
transferee agrees to be subject to the terms hereof. Each certificate evidencing
the Restricted Securities transferred as
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above provided shall bear the appropriate restrictive legend set forth in
Section 3 above, except that such certificate shall not bear such restrictive
legend if the transferee provides an opinion of counsel as provided in Section 3
or 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.
5. Requested Registration.
(a) Request for Registration. If at any time after the
earlier of (i) December 30, 2003 or (ii) the first anniversary of the closing
date of a sale of securities registered on the first registration statement
filed by the Company covering an underwritten offering of any of its securities
to the general public, the Company shall receive from any Holder or group of
Holders holding at least one-third of the Preferred Stock (the "INITIATING
HOLDERS") a written request that the Company effect any registration where the
anticipated gross proceeds from the sale of the shares of Registrable Securities
being registered exceeds $10 million, the Company will:
(i) promptly give written notice of the proposed
registration, qualification or compliance to all other Holders; and
(ii) as soon as practicable, use its best efforts to
effect such registration (including, without limitation, filing 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 and any other governmental requirements or regulations)
as would permit or facilitate the sale and distribution of all or such portion
of such Registrable Securities as are 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 received by the
Company within 20 days after receipt of such written notice from the Company.
Provided, however, that the Company shall not be obligated to take any
action to effect any such registration pursuant to this Section 5:
(A) in any particular jurisdiction in which
the Company would be required to execute a general consent to service of process
in effecting such registration, qualification or compliance unless the Company
is already subject to service in such jurisdiction and except as may be required
by the Securities Act;
(B) after the Company has effected two such
registrations pursuant to this Section 5(a), such registrations have been
declared or ordered effective and the securities offered pursuant to such
registration have been sold; or
(C) during the period starting with the date
sixty (60) days prior to the Company's estimated date of filing of, and ending
on the date 120 days immediately following the effective date of, any
Company-initiated registration statement pertaining to securities of the Company
(other than a registration of securities in a Rule 145 transaction or with
respect to an employee benefit plan); provided that, the Company is actively
employing in good faith all reasonable efforts to cause such registration
statement to become effective.
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Subject to the foregoing clauses (A), (B) and (C), 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 or requests
of the Initiating Holders. If, however, 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 stockholders for such
registration statement to be filed and it is therefore essential to defer the
filing of such registration statement, the Company shall have the right to defer
such filing for a period of not more than 90 days (or not more than 60 days in
the case of a registration pursuant to Section 9 hereof) after receipt of the
request of the Initiating Holders; provided, however, that the Company may not
utilize this right more than once in any twelve-month period.
(b) 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 5(a) and the Company shall include such information in the
written notice referred to in Section 5(a). The right of any Holder to
registration pursuant to Section 5 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities to be registered in the underwriting to the extent
requested (unless otherwise mutually agreed by a majority in interest of the
Holders) and to the extent provided herein. A Holder may elect to include in
such underwriting all or a part of the Registrable Securities he holds.
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 managing underwriter selected for such underwriting
by a majority in interest of the Initiating Holders. Notwithstanding any other
provision of this Section 5, if the managing underwriter advises the Initiating
Holders in writing that marketing factors require a limitation of the number of
shares to be underwritten, then, subject to the provisions of Section 5(a), the
Company shall so advise all Holders and the number of shares of Registrable
Securities that may be included in the registration and underwriting shall be
allocated among all Holders requesting inclusion in the registration as follows:
(A) all securities proposed to be offered by the Company for its own account or
for the account of holders of securities other than Registrable Securities shall
be excluded before any Registrable Securities are excluded; and (B) if, after
all non-Registrable Securities have been excluded, additional limitations are
required, then the number of Registrable Securities included in the registration
shall be allocated among all Holders requesting inclusion thereof in the
registration in proportion, as nearly as practicable, to the respective amounts
of Registrable Securities proposed to be registered by such Holders at the time
of filing the registration statement. No Registrable Securities excluded from
the underwriting by reason of the managing underwriter's marketing limitation
shall be included in such registration.
If any Holder of Registrable Securities disapproves of the terms of the
underwriting, such person may elect to withdraw therefrom by written notice to
the Company, the managing underwriter and the other Holders. The Registrable
Securities and/or other securities so withdrawn shall also be withdrawn from
registration; provided, however, that if by the withdrawal of such
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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 in
determining the underwriter limitation in this Section 5(b). If the registration
does not become effective due to the withdrawal of Registrable Securities at the
behest of the Holder(s) of such Registrable Securities and the withdrawal of the
registration is not at the request or on the advice of the Company or the
underwriter nor is the result of a material adverse change in the Company's
business, financial condition, results of operations or prospects since the date
of the written request of the Initiating Holders pursuant to this Section 5,
then either (1) the Holders requesting registration shall reimburse the Company
for expenses incurred in complying with the request or (2) if the Holders fail
to make such reimbursement, the aborted registration shall be treated as
effected for purposes of Section 5(a)(B).
6. Company Registration.
(a) Notice of Registration. If the Company shall determine to
register any of its securities, either for its own account or the account of a
security holder or holders exercising their respective demand registration
rights, other than (i) a registration pursuant to Section 5 or 9, (ii) a
registration relating solely to employee benefit plans or (iii) a registration
relating solely to a Rule 145 transaction, the Company will:
(i) promptly give to each Holder written notice
thereof; and
(ii) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any underwriting
involved therein, all the Registrable Securities specified in a written request
or requests, mailed by any Holder or Holders within 20 days after receipt of
such written notice from the Company, provided that the Company may limit, to
the extent so advised by the underwriters as a result of market conditions, the
amount of Registrable Securities to be included in the registration by the
Holders to an amount not less than 25% of the total number of securities
included in the offering, unless such offering is the initial public offering of
the Company's securities, in which case all Registrable Securities may be
excluded from such offering if the underwriter so advises the Company based on
the current market conditions. The written request of a Holder may specify that
all or a part of such Holder's Registrable Securities shall be included in such
registration.
(b) In all registered public offerings, whether underwritten
or not, the amount of Registrable Securities of Holders which are included in
such registration, in accordance with the limitations set forth in Section
6(a)(ii) above, shall be allocated to the Holders in proportion, as nearly as
practicable, to the respective amounts of Registrable Securities proposed to be
registered by each of such Holders (assuming conversion of all outstanding
Series A Preferred, Series B Preferred or Series C Preferred, as the case may
be) as of the date of the notice given pursuant to this Section.
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7. Expenses of Registration. All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to
Sections 5, 6 and 9 shall be borne by the Company. All Selling Expenses relating
to securities registered by the Holders shall be borne by the Holders of such
securities pro rata on the basis of the number of shares so registered.
8. Registration Procedures. In the case of each registration,
qualification or compliance effected by the Company pursuant to this Agreement
the Company will keep each Holder 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) prepare and file with the Commission a registration
statement with respect to such securities and use its best efforts to cause such
registration statement to become and remain effective for at least 120 days or
until the distribution described in the registration statement has been
completed; provided, however, that (i) such 120-day period shall be extended for
a period of time equal to the period the Holder refrains from selling any
securities included in such registration at the request of an underwriter of
securities of the Company; and (ii) in the case of any registration of
Registrable Securities on Form S-2 or Form S-3 which are intended to be offered
on a continuous or delayed basis, such 120-day period shall be extended, if
necessary, to keep the registration statement effective until all such
Registrable Securities are sold;
(b) furnish to the Holders participating in such
registration and to the underwriters of the securities being registered such
number of copies of the registration statement, preliminary prospectus, final
prospectus and such other documents as such Holders or underwriters may
reasonably request in order to facilitate the public offering of such
securities;
(c) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement or to applicable anti-fraud
provisions;
(d) use its best efforts to register and qualify the
securities covered by such registration statement under such other applicable
securities or blue sky laws; provided that, the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business or to
file a general consent to service of process in any such states or jurisdictions
unless the Company is already subject to service in such jurisdiction and except
as may be required by the Securities Act;
(e) cause all such Registrable Securities registered
pursuant hereunder to be listed on each securities exchange on which similar
securities issued by the Company are then listed;
(f) provide a transfer agent and registrar for all
Registrable Securities registered pursuant to such registration statement and a
CUSIP number for all such Registrable Securities, in each case not later than
the effective date of such registration;
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(g) enter into an underwriting agreement in form reasonably
necessary to effect the offer and sale of Registrable Securities; and
(h) notify each Holder of Registrable Securities covered by
such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of circumstances then existing.
9. Registration on Form S-2 or S-3. In addition to the rights set
forth above, if the Holder(s) holding at least 25% of the Registrable Securities
request in writing that the Company file a registration statement on Form S-2 or
S-3 (or any successors thereto) ("FOLLOW-ON REGISTRATIONS") for a public
offering of shares of Registrable Securities the reasonably anticipated
aggregate price to the public of which would exceed $1,000,000, and the Company
is entitled to use Form S-2 or S-3 to register securities for such an offering,
the Company shall use its best efforts to effect such registration (including,
without limitation, filing post-effective amendments, appropriate qualifications
under applicable blue sky or other state securities laws, and appropriate
compliance with the Securities Act). The Company will promptly give written
notice of the request for the proposed registration to all other Holders and
include all Registrable Securities of any Holder or Holders joining in such
request as are specified in a written request received by the Company within 30
days after receipt of such written notice from the Company. The written request
of a Holder may specify that all or part of such Holder's Registrable Securities
will be included in such registration. If the Follow-On Registration is for an
underwritten offering, the provisions of Section 5(b) shall apply to such
registration. Notwithstanding the foregoing, the Company shall not be required
to effect more than one follow-on Registration in any 12-month period.
10. Termination of Registration Rights. The registration rights
granted pursuant to this Agreement shall terminate as to any Holder, at the
earlier of (i) five years after the Company's initial public offering or (ii) at
such time as such Holder is able to sell all Registrable Securities held, in one
three-month period, pursuant to Rule 144 promulgated under the Securities Act.
11. Lock-up Agreement. In consideration for the Company agreeing to
its obligations under this Agreement each Holder of Registrable Securities and
each transferee pursuant to Section 15 hereof agrees, in connection with the
first registration of the Company's securities, upon request of the Company or
the underwriters managing such first registration of the Company's securities,
not to sell, make any short sale of, loan, grant any option for the purchase of,
or otherwise dispose of any Registrable Securities (other than those included in
the registration) without the prior written consent of the Company or such
underwriters, as the case may be, for 180 days from the effective date of such
registration; provided, however, that all executive officers, directors and 2%
or greater shareholders of the Company must enter into similar lock-up
agreements as well. Each Holder agrees that the Company may instruct its
transfer agent to place stop transfer notations in its records to enforce the
provisions of this Section 11. Notwithstanding the foregoing, each Holder of
Registrable Securities may freely transfer such securities (a) to any
constituent partner or retired
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partner of a Holder, where such Holder is a partnership, (b) to any affiliate
(as that term is defined in Rule 405 promulgated by the Commission under the
Securities Act) of a Holder, (c) to any officer, director, principal shareholder
or member thereof, where such Holder is a corporation or limited liability
company or (d) to the spouse, children, grandchildren or spouse of such children
or grandchildren of any Holder or to trusts for the benefit of any Holder or
such persons where the Holder is a natural person, provided that written notice
thereof is promptly given to the Company and that the transferee agrees to be
bound by the provisions of this Agreement.
12. Indemnification.
(a) The Company will indemnify each Holder, each of its
officers, directors and partners, members, legal counsel, accountants and each
person controlling such Holder within the meaning of Section 15 of the
Securities Act, with respect to which registration, qualification or compliance
has been effected pursuant to this Agreement, and each underwriter, if any, and
each person who controls any underwriter within the meaning of Section 15 of the
Securities Act, against all expenses, claims, losses, damages and liabilities
(or actions in respect thereof), including any of the foregoing incurred in
settlement of any litigation, arising out of or based on any untrue statement
(or alleged untrue statement) of a material fact contained in any registration
statement, prospectus, offering circular or other document, or any amendment or
supplement thereto, 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, or any violation by the Company of the Securities Act
or any rule or regulation promulgated thereunder applicable to the Company and
relating to action or inaction required of the Company in connection with any
such registration, qualification or compliance, and will reimburse each such
Holder, each of its officers, directors, partners and members and each person
controlling such Holder, each such underwriter and each person who controls any
such underwriter, for any legal and any other expenses reasonably incurred in
connection with investigating, preparing or defending any such claim, loss,
damage, liability or action; 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 or alleged
untrue statement or omission, made in reliance upon and in conformity with
written information furnished to the Company by an instrument duly executed by
such Holder or underwriter and stated to be specifically for use 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 underwriter, if any, of the Company's
securities covered by such a registration statement, each person who controls
the Company or such underwriter within the meaning of Section 15 of the
Securities Act, and each other such Holder, each of its officers and directors
and each person controlling such Holder within the meaning of Section 15 of the
Securities Act, 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 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, and will reimburse
the Company, such
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Holders, such directors, officers, underwriters 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, 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;
provided, however, that the obligations of such Holder hereunder shall not apply
to amounts paid in settlement of any such claims, losses, damages or liabilities
(or actions in respect thereof) if such settlement is effected without the
consent of such Holder; and provided further that the obligations of each such
Holder hereunder shall be limited to an amount equal to the net proceeds after
expenses and commissions to such Holder from Registrable Securities sold in such
offering.
(c) Each party entitled to indemnification under this
Section 12 (the "INDEMNIFIED PARTY") shall give notice to the party required to
provide indemnification (the "INDEMNIFYING PARTY") promptly after such
Indemnified Party has actual knowledge 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 be
unreasonably withheld and which shall not, except with the consent of the
Indemnified Party, be counsel to the Indemnifying Party), and the Indemnified
Party may participate in such defense at such party's expense; and provided
further that the failure of any Indemnified Party to give notice as provided
herein shall not relieve the Indemnifying Party of its obligations under this
Agreement, except to the extent, but only to the extent, that the Indemnifying
Party's ability to defend against such claim or litigation is impaired as a
result of such failure to give notice. 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.
13. Information by Holder. The Holder or Holders of Registrable
Securities included in any registration shall furnish to the Company such
information regarding such Holder or Holders and the distribution proposed by
such Holder or Holders as the Company may request in writing and as shall be
reasonably required in connection with any registration, qualification or
compliance referred to in this Agreement.
14. Rule 144 Reporting. With a view to making available the benefits
of certain rules and regulations of the Commission which may at any time permit
the sale of the Restricted Securities to the public without registration, the
Company agrees to:
(a) make and keep adequate current public information
available, as those terms are understood and defined in Rule 144 under the
Securities Act, at all times after the effective date
-10-
14
of the first registration under the Securities Act filed by the Company for an
offering of its securities to the general public;
(b) file with the Commission in a timely manner all reports
and other documents required of the Company under the Securities Act and the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), at any time
after it has become subject to such reporting requirements; and
(c) so long as any of the Holders owns Restricted
Securities, furnish to Holders of Registrable Securities forthwith upon written
request, a written statement by the Company as to its compliance with the
reporting requirements of Rule 144 (at any time after 90 days after the
effective date of the first registration statement filed by the Company for an
offering of its securities to the general public), and of the Securities Act and
the Exchange Act (at any time after it has become subject to such reporting
requirements), a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents of the Company as a Holder of
Restricted Securities may reasonably request in availing itself of any rule or
regulation of the Commission allowing such Holder to sell any such securities
without registration.
15. Transfer of Registration Rights. The right to cause the Company
to register securities granted hereunder may be assigned by a Holder to a
transferee or assignee who acquires the lesser of (i) all of such Holder's
Registrable Securities or (ii) 50,000 shares of Registrable Securities (as
adjusted for stock splits, stock dividends and the like); provided that, the
Company is given written notice of such assignment at the time of or within a
reasonable time after said transfer or assignment, and the transferee agrees in
writing to be bound by the provisions of this Agreement regarding the right to
register securities. Notwithstanding the foregoing, the rights to cause the
Company to register securities may be freely assigned (a) to any constituent
partner or retired partner of a Holder, where such Holder is a partnership, (b)
to any affiliate (as that term is defined in Rule 405 promulgated by the
Commission under the Securities Act) of a Holder, (c) to any officer, director,
principal shareholder or member thereof, where such Holder is a corporation or
limited liability company or (d) to the spouse, children, grandchildren or
spouse of such children or grandchildren of any Holder or to trusts for the
benefit of any Holder or such persons where the Holder is a natural person,
provided that written notice thereof is promptly given to the Company and that
the transferee agrees to be bound by the provisions of this Agreement.
16. Subsequent Grant of Registration Rights. The Company shall not
grant rights to have securities other than the Registrable Securities registered
under the Securities Act that are more favorable to the registration rights
granted herein without the written consent of the holders of a majority of the
Registrable Securities.
17. Basic Financial Information. The Company will furnish the
following reports to each holder of Series A Preferred, Series B Preferred and
Series C Preferred then holding shares of Series A Preferred, Series B
Preferred, Series C Preferred or Common Stock equal to 2,000,000 shares or more
of the total outstanding capital stock of the Company (as adjusted for stock
splits and like events) (each being a "SIGNIFICANT HOLDER"), assuming full
conversion of the Series A Preferred, Series B Preferred and Series C
Preferred:
-11-
15
(a) As soon as practicable after the end of each fiscal year
of the Company, and in any event within 90 days thereafter, a consolidated
balance sheet of the Company and its subsidiaries, if any, as at the end of such
fiscal year, and consolidated statements of income and cash flows of the Company
and its subsidiaries, if any, for such year, prepared in accordance with
generally accepted accounting principles consistently applied, all in reasonable
detail and audited by an independent public accountant of recognized national
standing selected by the Company.
(b) As soon as practicable after the end of each month and
in any event within 30 days thereafter, a consolidated balance sheet of the
Company and its subsidiaries, if any, as of the end of each monthly period, and
consolidated statements of income and cash flows of the Company and its
subsidiaries for such period, prepared in accordance with generally accepted
accounting principles consistently applied, subject to changes resulting from
year-end audit adjustments and the absence of notes, all in reasonable detail
and certified by the principal financial or accounting officer of the Company
and with respect to the granting of piggy-back rights, the Series B Preferred
and the Series C Preferred.
(c) Not less than 30 days before the end of each fiscal
year, an annual financial plan of the Company, which financial plan shall have
been approved by the Board of Directors and shall provide each Significant
Holder with the Company's projections of its monthly financial statements for
the forthcoming fiscal year.
(d) As soon as practicable after the end of each month, an
executive summary of the activities of the Company including, without
limitation, marketing, financial, product development and support and other
material activities.
(e) The rights to basic financial information set forth in
this Section 17 may be transferred to any person acquiring from a Significant
Holder a number of shares of Series A Preferred, Series B Preferred and/or
Series C Preferred equal to 2,000,000 shares or more of the total outstanding
capital stock of the Company (as adjusted for stock splits and like events)
provided that the transferred Series A Preferred, Series B Preferred and/or
Series C Preferred is not transferred to an unaffiliated third party who is an
actual competitor of the Company in the reasonable judgment of the Company.
(f) Each Holder agrees that any information obtained by such
Holder pursuant to this Section 17 which the Company identifies in writing to be
proprietary or otherwise confidential will not be disclosed without the prior
written consent of the Company; provided, however, that a Holder may reasonably
disclose such information without the prior written consent of the Company if:
(A) such information is or becomes generally available to the public other than
as a result of a disclosure by such Holder or its agent; (B) such information
was in the possession of such Holder prior to receiving it from the Company; (C)
such information becomes available to such Holder on a non-confidential basis
from a source other than the Company and the Holder does not know or reasonably
suspect that the provider of such information was violating a confidentiality
agreement with the Company or its agents; or (D) the disclosure of such
information is required by law. Each Holder further acknowledges and understands
that any information so obtained which may be considered "inside" non-public
information will not be utilized by such Holder in connection with
-12-
16
purchases and/or sales of the Company's securities except in compliance with
applicable state and federal anti-fraud statutes.
(g) The Covenants of the Company set forth in Section 17
(Basic Financial Information) shall terminate as to all Purchasers, other than
Holders of greater than 20% of the Company's Registrable Securities, and be of
no further force or effect upon the first sale of Common Stock in a bona fide,
firm commitment underwriting pursuant to a registration statement under the
Securities Act, the public offering of which is not less than $9.26 per share
(appropriately adjusted for any recapitalizations, stock combinations, stock
dividends, stock splits and the like) and for an aggregate offering price, net
of underwriters' discounts and commissions, of more than $25,000,000.
18. Visitation and Observer Rights. In addition to any rights of
inspection afforded stockholders by statute or otherwise, the Company shall
permit each Significant Holder to visit and inspect the Company's properties, to
examine its books of account and records and to discuss the Company's affairs,
finances and accounts with its officers, all at such times as may be requested
by the Significant Holder.
19. Rights of First Offer. The Company hereby grants to each Existing
Shareholder and Series C Holder (individually, an "OFFEREE;" collectively, the
"OFFEREES") who owns any shares of Series A Preferred, Series B Preferred,
Series C Preferred or Common Stock, the right of first offer to purchase a pro
rata share of New Securities (as defined in this Section 19) which the Company
may, from time to time, propose to sell and issue. Each Offeree's pro rata
share, for purposes of this right of first offer, is the ratio of the number of
shares of Common Stock owned by such Offeree immediately prior to the issuance
of New Securities, assuming full conversion of the Series A Preferred, the
Series B Preferred and the Series C Preferred and exercise of all outstanding
rights, options and warrants held by said Existing Shareholder or Series C
Holder, to the total number of shares of Common Stock outstanding immediately
prior to the issuance of New Securities, assuming full conversion of all
outstanding Series A Preferred, Series B Preferred and Series C Preferred. Each
Offeree shall have a right of over-allotment such that if any Offeree fails to
exercise its right hereunder to purchase its pro rata share of New Securities,
the other Offerees may purchase the non-purchasing Offeree's portion on a pro
rata basis within twenty (20) days from the date such non-purchasing Offeree
fails to exercise its right hereunder to purchase its pro rata share of New
Securities. This right of first offer shall be subject to the following
provisions:
(a) "NEW SECURITIES" shall mean any Common Stock and
Preferred Stock of the Company whether or not authorized on the date hereof, and
rights, options, or warrants to purchase Common Stock or Preferred Stock and
securities of any type whatsoever that are, or may become, convertible into
Common Stock or Preferred Stock; provided, however, that "New Securities" does
not include the following:
(i) shares of Common Stock, or options to purchase
shares of Common Stock, issued or granted to officers, directors and employees
of, or consultants to, the Company or its subsidiaries pursuant to an option
plan or purchase plan or other stock incentive program (collectively, the
"PLANS") approved by the Board of Directors, including the approval of a
majority of the representatives of the Series A Holders, Series B Holders and
Series C Holders;
-13-
17
(ii) shares of Common Stock issued upon conversion of
the Series A Preferred, Series B Preferred and Series C Preferred or other
outstanding securities as of the date hereof;
(iii) shares of Common Stock of the Company sold in a
firm commitment underwritten public offering pursuant to a registration
statement under the Securities Act, the aggregate proceeds of which are not less
than $25,000,000 at a public offering price of not less than $9.26 per share
(appropriately adjusted for any recapitalizations, stock combinations, stock
dividends, stock splits and the like);
(iv) securities of the Company issued pursuant to an
acquisition approved by the Board of Directors, including the approval of a
majority of the representatives of the Series A Holders, Series B Holders and
Series C Holders, of another corporation by the Company by merger, purchase of
substantially all of the assets, or other reorganization;
(v) securities of the Company issued in connection
with equipment lease financing transactions or bank financing transactions
approved by the Company's Board of Directors, including the approval of a
majority of the representatives of the Series A Holders, Series B Holders and
Series C Holders which the principal purpose of which is not to raise equity
funding;
(vi) securities issued in connection with
transactions with operating companies approved by the Company's Board of
Directors, including the approval of a majority of the representatives of the
Series A Holders, Series B Holders and Series C Holders, involving research or
development funding, technology licensing or joint marketing or manufacturing
activities; and
(vii) shares of Common Stock or Preferred Stock issued
in connection with any stock split, stock dividend, or recapitalization where
the proportionate equity of the Holders remains unchanged by the Company.
(b) In the event that the Company proposes to undertake an
issuance of New Securities, it shall give each Offeree 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 Offeree shall have
thirty (30) business days after receipt of such notice to agree to purchase its
pro rata share of such New Securities at the price and upon the terms specified
in the notice by giving written notice to the Company and stating therein the
quantity of New Securities to be purchased. Such Offeree's obligation to
purchase such New Securities under this Section 19 will be contingent upon the
completion of the issuance of the New Securities substantially in the form as
provided in the written notice.
(c) The Company shall have sixty (60) days after the thirty
(30) business days specified above to sell (or enter into an agreement pursuant
to which the sale of New Securities covered thereby shall be closed, if at all,
within thirty (30) days from the date of said agreement) the New Securities
respecting which the rights of the Offerees were not exercised (or which were
not
-14-
18
subject to a right of first offer) at a price and upon 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 sixty (60) day period
(or sold and issued New Securities in accordance with the foregoing within
thirty (30) days from the date of such agreement) the Company shall not
thereafter issue or sell any New Securities, without first offering such New
Securities to the Offerees in the manner provided above.
(d) Expiration. The Right of First Offer granted under this
Section 19 shall expire upon the first sale of Common Stock in a bona fide, firm
commitment underwriting pursuant to a registration statement under the
Securities Act, the public offering of which is not less than $9.26 per share
(appropriately adjusted for any recapitalizations, stock combinations, stock
dividends, stock splits and the like) and for an aggregate offering price, net
of underwriters' discounts and commissions, of more than $25,000,000.
(e) Assignability. This Right of First Offer is
nonassignable except to any transferee to whom registration rights may be
transferred pursuant to Section 15 of this Agreement.
20. Right of First Refusal.
(a) The Right. In the event a Series A Holder proposes to
sell, assign, pledge or in any manner transfer any of the Series A Preferred, or
any right or interest therein, whether voluntarily or by operation of law, or by
gift or otherwise (a "SELLER"), to one (1) or more unaffiliated third parties in
a transaction not registered under the Securities Act, then such Seller shall
first grant the other Series A Holders, as the case may be (the "NONSELLING
HOLDERS"), the right to purchase all or any part of such securities (the
"OFFERED SECURITIES") on the same terms as such Seller is willing to sell or
otherwise transfer the Offered Securities to such third parties and then, to the
extent such Nonselling Holders do not fully exercise their rights with respect
to the Offered Securities, to the Company. In the event of a gift, property
settlement or other transfer in which the proposed transferee is not paying the
full price for the shares, the price payable by the purchasing Holders and/or
the Company (or its designee) (collectively, the "PURCHASING PARTIES") shall be
deemed to be the fair market value of the securities at such time, as reasonably
determined by the Board of Directors in good faith.
(b) Notice of Proposed Transfer. Before any Registrable
Securities held by a Seller may be sold or otherwise transferred, the Seller
shall deliver to the Nonselling Holders and the Company a written notice (the
"TRANSFER NOTICE") stating (i) the Seller's bona fide intention to sell or
otherwise transfer such Registrable Securities; (ii) the name of the proposed
transferee(s); (iii) the number of shares of Registrable Securities to be
transferred to each proposed transferee; and (iv) the bona fide cash price or
other consideration for which the Seller proposes to transfer the Registrable
Securities.
(c) Exercise of Right of First Refusal. The Right of First
Refusal set forth in this Section 20 may be exercised first by each Nonselling
Holder as to any or all of the Offered Securities by giving notice to the Seller
within seven (7) business days of the receipt by such Nonselling Holder of the
Transfer Notice. Each Nonselling Holder shall have a right of over-
-15-
19
allotment such that if any other holder fails to exercise its right hereunder to
purchase its pro rata share of Offered Securities, the other holders may
purchase the non-purchasing holder's portion on a pro rata basis. If the
Nonselling Holders do not exercise their Right of First Refusal as to all of
such Offered Securities within such period, then the Company (or a designee
approved by the Board and identified to the Seller in writing before exercise)
may exercise its Right of First Refusal as to any or all of the remaining
Offered Securities, within thirty (30) days of the expiration of the Nonselling
Persons' Right of First Refusal. If the Company does not exercise its Right of
First Refusal within such period as to all remaining Offered Securities, then
the Seller shall have sixty (60) days thereafter to sell (or enter into an
agreement pursuant to which the sale of Offered Securities covered thereby shall
be closed, if at all, within thirty (30) days from the date of said agreement)
the Offered Securities respecting which the rights of the Nonselling Holders and
the Company were not exercised at a price and upon terms no more favorable to
the transferees thereof than specified in the Transfer Notice. In the event the
Seller has not sold the Offered Securities within such sixty (60) day period (or
sold and issued Offered Securities in accordance with the foregoing within
thirty (30) days from the date of such agreement) the Seller shall not
thereafter issue or sell any Offered Securities, without first offering such
Offered Securities to the Nonselling Holders and the Company in the manner
provided above.
(d) Legend. The certificates held by the Series A Holders
that are subject to the Right of First Refusal set forth in this Section 20
shall have endorsed thereon, in addition to such other legends as required to be
imprinted thereon pursuant to this Agreement or to applicable law, a legend in
substantially the following form:
THE SECURITIES REPRESENTED BY THE CERTIFICATE ARE SUBJECT TO A RIGHT OF FIRST
REFUSAL AND CERTAIN OTHER RESTRICTIONS ON TRANSFER AS SET FORTH IN AN INVESTORS'
RIGHTS AGREEMENT, ENTERED INTO AMONG THE COMPANY, CERTAIN OF ITS STOCKHOLDERS
AND THE REGISTERED HOLDER, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICE OF
THE COMPANY AND WILL BE FURNISHED UPON REQUEST TO THE HOLDER OF RECORD OF THE
SHARES REPRESENTED BY THIS CERTIFICATE.
(e) Expiration. The Right of First Refusal granted under
this Section 20 shall expire upon the first sale of the Company's Common Stock
to the public in a bona fide, firm commitment underwriting pursuant to a
registration statement under the Securities Act, the public offering of which is
not less than $9.26 per share (appropriately adjusted for any recapitalizations,
stock combinations, stock dividends, stock splits and the like) and for an
aggregate offering price, net of underwriters' discounts and commissions, of
more than $25,000,000.
(f) Assignability. The Right of First Refusal is not
assignable except to any transferee to whom registration rights may be
transferred pursuant to Section 15 of this Agreement.
(g) Exceptions to Right of First Refusal. The provisions of
this Section 20 shall not apply if the proposed transferee of the Offered
Securities is (A) a partner, active or retired, of a Holder of Registrable
Securities, (B) if the Holder is a corporation, to its stockholders, (C) if the
Holder is a limited liability company, to its members, (D) the estate of any
Holder of Registrable
-16-
20
Securities, (E) the spouse, children, grandchildren or spouse of such children
or grandchildren of any Holder or a trust or trusts for the benefit of any
Holder or such persons, or (F) any fund or entity affiliated with a Holder
including any successor funds or follow-on funds related thereto, upon the
request of the appropriate partner or officer of such Holder; provided that the
transferee agrees to be subject to the terms of the Right of First Refusal set
forth in this Section 20.
21. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware, without
regard to conflicts of laws.
22. Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement between the parties regarding the rights provided
herein. Except as otherwise expressly 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.
23. Notices, etc. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed effectively given
upon delivery to the party to be notified in person, by courier service or by
confirmed facsimile or ten days after deposit with the United States mail, by
registered or certified mail, postage prepaid, addressed (a) if to an Existing
Shareholder, to such Existing Shareholder's address set forth on Schedule A
hereto, or at such other address as such Holder shall have furnished to the
Company in writing, (b) if to a Series C Holder, to such Series C Holder's
address set forth on Schedule B hereto, or at such other address as such Series
C Holder shall have furnished to the Company in writing, (c) if to any other
holder of any Registrable Securities, to such address as such holder shall have
furnished the Company in writing, or, until any such holder so furnishes an
address to the Company, then to and at the address of the last holder of such
securities who has so furnished an address to the Company, (d) if to a Founder,
to such Founder's address as set forth in the records of the Company, or (e) if
to the Company, to its address set forth on the signature page of this Agreement
to the attention of the Corporate Secretary, or at such other address as the
Company shall have furnished to the stockholders of the Company.
24. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
25. Amendment. Any provision of this Agreement may be amended, waived
or modified only upon the written consent of (i) the Company, (ii) the holders
of a majority of the Registrable Securities, (iii) the holders of a majority of
the Preferred Stock, voting as a class, and (iv) with respect to Section 19 or
any amendment, waiver or modification which may adversely affect the rights of
the Founders thereunder, a majority-in-interest of the Founders. Any amendment
or modification effected in accordance with this Section shall be binding upon
each Holder of Registrable Securities and the Company. Any Shareholder may waive
any of his or her rights or the Company's obligations hereunder with respect to
such Shareholder without obtaining the consent of any other person only be a
writing signed by such Shareholder. Any amendment, waiver or modification not
effected in accordance with this Section shall be void.
26. Additional Parties. The parties hereto agree that additional
holders of securities of the Company may, subject only to Section 2.3 of that
certain Series C Purchase Agreement between the
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21
Company and the Series C Holders, be added as parties to this Agreement with
respect to any or all securities of the Company held by them, and shall
thereupon be deemed for all purposes "Series C Holders" hereunder. Any such
additional party shall execute a counterpart of this Agreement, and upon
execution by such additional party and by the Company, shall be considered a
Series C Holder for purposes of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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22
IN WITNESS WHEREOF, the undersigned have executed this Investors' Rights
Agreement as of the date first set forth above.
COMPANY:
OMNISKY CORPORATION
a Delaware corporation
By: /s/ Xxxxxxx X. XxXxxxx
---------------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: CEO
Address:
--------------------------
--------------------------
FOUNDERS:
/s/ Xxxxxxx X. XxXxxxx
-------------------------------------
Xxxxxxx XxXxxxx
/s/ Xxxxx Xxxxxxxxx
------------------------------------
Xxxxx Xxxxxxxxx
/s/ Xxxxxxx Xxxxxx
-------------------------------------
Xxxxxxx Xxxxxx
/s/ Xxxx Xxxxx
-------------------------------------
Xxxx Xxxxx
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
23
IN WITNESS WHEREOF, the undersigned have executed this Investors' Rights
Agreement as of the date first set forth above.
OMNI HOLDINGS, INC., a wholly-owned subsidiary of
THE NEWS CORPORATION LIMITED
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxx
-------------------------------------
Title:
------------------------------------
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
24
PSINET STRATEGIC INVESTMENTS, INC., A DELAWARE CORPORATION
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------------
Its: VP
--------------------------------------
SUNRISE VALLEY VENTURES I, LLC A DELAWARE LIMITED LIABILITY COMPANY
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------------
Its: Manager
--------------------------------------
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
25
DLJ CAPITAL GROUP
By: Xxxxxxx X. Xxxxxxx
Vice President
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
DLJ ESC II, L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Attorney In Fact
SPROUT CAPITAL VIII, L.P.
By: DLJ Capital Corp.
Managing General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
SPROUT VENTURE CAPITAL, L.P.
By: DLJ Capital Corp.
General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
26
XXXXXX X. XXXXXXXX
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
XXXXX X. XXXXXXX
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
XXXXX X. XXXXXXXX
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
XXXXXXX XXXXXXX
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
XXXX X. XXXXXXXXX
By: /s/ Xxxx X. Xxxxxxxxx
--------------------------------
XXXXX X. XXXX, TRUSTEE
By: /s/ Xxxxx X. Xxxx, Trustee
--------------------------------
XXX XXXXXXX
By: /s/ Xxx Xxxxxxx
--------------------------------
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
27
AETHER OPENSKY INVESTMENTS LLC
By: Aether Systems, Inc.,
Its Sole Member
By: /s/ Xxxxx X. Xxxx
-----------------------------------------
Name: Xxxxx X. Xxxx
Title: President and Chief Executive Officer
3COM VENTURES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President 3COM Ventures
WS INVESTMENT COMPANY 99B
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxxx
Title:
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
28
XXXXX X. XXXXX XXXXX XXXXXXX
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx Xxxxxxx
-------------------------- ----------------------------
XXXXX XXXXXXXX
By: /s/ Xxxxx Xxxxxxxx
--------------------------
XXXXXXX X. DY
By: /s/ Xxxxxxx X. Dy
--------------------------
XXXXXXX X. XXXXXX, XX.
By: /s/ Xxxxxxx X. Xxxxxx, XX.
---------------------------
XXXX XXXXXXXXX
By: /s/ Xxxx Xxxxxxxxx
--------------------------
XXXXXXX X. XXXXX
By: /s/ Xxxxxxx X. Xxxxx
--------------------------
XXXXX X. XXXXXXXX
By:
--------------------------
XXXXXX XXXXXXXX
By: /s/ Xxxxxx Xxxxxxxx
--------------------------
XXXXX XXXXXXX
By: /s/ Xxxxx Xxxxxxx
--------------------------
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
29
INFOSPACE VENTURE CAPITAL FUND 2000, LLC
By: InfoSpace, Inc. as Managing Member
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President, Legal and Business
Affairs and Secretary
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
30
Xxxxxxxx Xxxxxxx
/s/ Xxxxxxxx Xxxxxxx
--------------------------------------
By: Xxxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxxx
--------------------------------------
By: Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxxxx
/s/ Xxxxxxx Xxxxxxxxx
--------------------------------------
By: Xxxxxxx Xxxxxxxxx
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
31
Xxxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxxxx
------------------------------------------
By: Xxxxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxxx
/s/ Xxxx X. Xxxxxxxxx
------------------------------------------
By: Xxxx X. Xxxxxxxxx
Xxxxx Xxx
/s/ Xxxxx Xxx
------------------------------------------
By: Xxxxx Xxx
Xxxx Xxxxxx
/s/ Xxxx Xxxxxx
------------------------------------------
By: Xxxx Xxxxxx
Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------
By: Xxxxxxx X. Xxxxxxxx
Qazi Xxxxxxx Xxxx
/s/ Qazi Xxxxxxx Xxxx
------------------------------------------
By: Qazi Xxxxxxx Xxxx
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
32
AT&T CORP.
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Name: Xxxx X. Xxxxx
-------------------------------------
Title: President AT&T's Strategic Ventures
------------------------------------
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
33
AKAMAI TECHNOLOGIES, INC.
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
----------------------------------
Title: CFO
---------------------------------
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
34
PSINET STRATEGIC INVESTMENTS, INC., A DELAWARE
CORPORATION
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------
Its: VP
----------------------------------
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
35
Xxxxx Xxxxxx
/s/ Xxxxx Xxxxxx
-------------------------------------------
By: Xxxxx Xxxxxx
Xxxx Xxxx
/s/ Xxxx Xxxx
-------------------------------------------
By: Xxxx Xxxx
Xxxxxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxxx
-------------------------------------------
By: Xxxxxxx Xxxxxxx
Xxxxxx Xxxxxxx
/s/ Xxxxxx Xxxxxxx
-------------------------------------------
By: Xxxxxx Xxxxxxx
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
36
Xxxxxxx Xxxxxxxx, Trustee
/s/ Xxxxxxx Xxxxxxxx
----------------------------------
By: Xxxxxxx Xxxxxxxx
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
37
SCHEDULE A
SCHEDULE OF HOLDERS
COMMON STOCK:
1) Xxxxxxx XxXxxxx
2) Xxxxx Xxxxxxxxx
3) Xxxxxxx Xxxxxx
4) Xxxxxx Xxxxx
SERIES A PREFERRED:
1) 3Com Ventures, Inc.
Address:
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000-0000
Facsimile: (000) 000-0000
With a copy of all notices to:
3Com Corporation
Attention: General Counsel
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000-0000
Facsimile: (000) 000-0000
2) Aether OpenSky Investments LLC
Address:
00000 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
3) WS Investment Company 99B
Address:
000 Xxxx Xxxx Xx
Xxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
38
4) Xxxxx Xxxxxxx
Address:
000 Xxxx Xxxx Xx
Xxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
5) Xxxxx Xxxxxxx
Address:
000 Xxxx Xxxx Xx
Xxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
6) Xxxxx Xxxxx
Address:
000 Xxxx Xxxx Xx
Xxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
7) Xxxxx Xxxxxxxx
Address:
000 Xxxx Xxxx Xx
Xxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
8) Xxxxxxx Xx
Address:
000 Xxxx Xxxx Xx
Xxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
9) Xxxxxxx X. Xxxxxx, Xx.
Address:
000 Xxxx Xxxx Xx
Xxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
39
SERIES B PREFERRED:
1) DLJ Capital Corp.
Address:
0000 Xxxx Xxxx Xxxx #0-000
Xxxxx Xxxx, XX 00000
2) DLJ ESC II, L.P.
Address:
0000 Xxxx Xxxx Xxxx #0-000
Xxxxx Xxxx, XX 00000
3) Sprout Capital VIII, L.P.
Address:
0000 Xxxx Xxxx Xxxx #0-000
Xxxxx Xxxx, XX 00000
4) Sprout Venture Capital, L.P.
Address:
0000 Xxxx Xxxx Xxxx #0-000
Xxxxx Xxxx, XX 00000
5) Xxxxxx X. Xxxxxxxx
Address:
00 Xxxxxx Xxx Xxxx
Xxxxxxxxxx Xxxxx, XX 00000
000-000-0000
6) Xxxxx Xxxxxxxx Xxxxxxx
Address:
000 Xxxxxxx Xxxx Xxxx
Xxx. #00X
Xxx Xxxx, XX 00000
000-000-0000
7) Xxxxx X. Xxxxxxxx
Address:
00 X 00xx Xx.
Xxx Xxxx, XX 00000
000-000-0000
8) Xxxxxxx Xxxxxxx
Address:
00 Xxxxxxxxxx Xxxx
00
Xxxxxxxxx, XX 00000
000-000-0000
9) Xxxx X. Xxxxxxxxx
Address:
000 X. 00xx Xxxxxx
Xxx. #00X
Xxx Xxxx, XX 00000
000-000-0000
10) Xxxxx X. Xxxx and Xxxx X. Xxxx 1999 Revocable Trust
Xxxxx X. Xxxx and Xxxx X. Xxxx, Trustees
Address:
0000 Xxxxxxx Xxx
Xxx Xxxx, XX 00000
(000)000-0000
11) Xxxxxxx Xxxxxxx
Address:
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
(000) 000-0000
12) Aether OpenSky Investments LLC
Address:
00000 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
13) WS Investment Company 99B
Address:
000 Xxxx Xxxx Xx
Xxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
41
14) Xxxxx Xxxxx
Address:
000 Xxxx Xxxx Xx
Xxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
15) Xxxxx Xxxxxxxx
Address:
000 Xxxx Xxxx Xx
Xxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
16) Xxxxxxx Xx
Address:
000 Xxxx Xxxx Xx
Xxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
17) Xxxxxxx X. Xxxxxx, Xx.
Address:
000 Xxxx Xxxx Xx
Xxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
18) Xxxx Xxxxxxxxx
Address:
000 Xxxx Xxxx Xx
Xxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
19) Xxxxxxx X. Xxxxx
Address:
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
20) Xxxxx Xxxxxxxx
Address:
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
42
SCHEDULE B
SCHEDULE OF PURCHASERS
FIRST CLOSING: APRIL 24, 2000
Name and Address of Purchaser Number of Shares of Series C Aggregate Purchase
----------------------------- ---------------------------- -------------------
Preferred Price
--------- -----
Omni Holdings, Inc. 2,227,342 $14,499,996.42
c/o News America Incorporated
1211 Avenue of the Americas
Xxx Xxxx, XX 00000
Attention: Xxxxx Nova
PSINet Strategic Investments, Inc. 2,112,135 $13,749,998.85
c/o PSINet Inc.
000 Xxxxxxx Xxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx,
Senior Vice President and General
Counsel
Sunrise Valley Ventures I, LLC 38,402 $ 249,997.02
c/o PSINet Inc.
000 Xxxxxxx Xxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx,
Manager
--------- --------------
Subtotal: 4,377,879 $28,499,992.29
43
SECOND CLOSING: MAY 12, 2000
Name and Address of Purchaser Number of Shares of Series C Aggregate Purchase
----------------------------- ---------------------------- -------------------
Preferred Price
--------- -----
Infospace Venture Capital Fund 460,829 $2,999,996.79
2000, LLC
c/o InfoSpace, Inc.
00000 X.X. 00xx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Xxxxxxxx Xxxxxxx 100,000 $ 651,000 (1)
0000 Xxxxxx Xxxxx
Xxxx Xxxx, XX 00000
Xxxxxxx Xxxxxxx 50,000 $ 325,500 (1)
0000 Xxxxxx Xxxxx
Xxxx Xxxx, XX 00000
Xxxxxxx Xxxxxxxxx 50,000 $ 325,500 (1)
0000 Xxxxxx Xxxxx
Xxxx Xxxx, XX 00000
Xxxxxx X. Xxxxxxxx 10,000 $ 65,100
SS # ###-##-####
00 Xxxxxx Xxx Xx
Xxxxxxxxxx Xxxxx, XX 00000
Xxxx X. Xxxxxxxxx 3,840 $ 24,998.40
SS# ###-##-####
000 X. 00xx Xxxxxx, Xxx. #00X
Xxx Xxxx, XX 00000
Xxxxx Xxx 3,840 $ 24,998.40
SS# - ###-##-####
00 XxxxxxXxxx Xxxx
Xxxxxxxxxx Xxxxx, XX 00000
44
Xxxx Xxxxxx 3,072 $ 19,998.72
SS# ###-##-####
000 Xxxx 00xx Xxxxxx, #00X
Xxx Xxxx, XX 00000
Xxxxxxx X. Xxxxxxxx 3,072 $ 19,998.72
SS# ###-##-####
00 Xxxx 00xx Xxxxxx, #0
Xxx Xxxx, XX 00000-0000
Qazi Xxxxxxx Xxxx 768 $ 4,999.68
SS# ###-##-####
00 Xxxx Xxxxxx, #00X
Xxx Xxxx, XX 00000
------- -------------
Subtotal: 685,421 $4,462,090.71
45
THIRD CLOSING: MAY 19, 2000
Name and Address of Purchaser Number of Shares of Series C Aggregate Purchase
----------------------------- ---------------------------- -------------------
Preferred Price
--------- -----
AT&T Corp. 1,536,098 $ 9,999,997.98
00 Xxxxxx Xxxx
Xxxxx Xxxx, XX 00000
With a copy to:
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
Attn: VP Law/ Corporate Secretary
Akamai Technologies, Inc. 153,609 $ 999,994.59
000 Xxxxxxxx
Xxxxxxxxx, XX 00000
Attn: General Counsel
PSINet Strategic Investments, Inc. 153,609 $ 999,994.59
c/o PSINet Inc.
000 Xxxxxxx Xxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxx, Senior
Vice President and General Counsel
Xxxxx Xxxxxx 25,000 $ 162,750 (2)
0000 Xxxxxx Xxxxx
Xxxx Xxxx, XX 00000
Xxxx X. Xxxx 7,680 $ 49,996.80
S/S #: ###-##-####
000 Xxxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxxx X. Xxxxxxx 7,680 $ 49,996.80
S/S #: ###-##-####
000 X. 00xx Xxxxxx, Xxx. 0X
Xxx Xxxx, XX 00000
46
Trust Agreement Dated 11/1/95 23,041 $ 149,996.91
FBO Xxxxxx X. Xxxxxxx
Xxxxxxx Xxxxxxxx, Trustee
Address:
0000 Xxxxxxxxxxxx Xxxxxx, XX,
Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
--------- --------------
Subtotal: 1,906,717 $12,412,727.67
47
FOURTH CLOSING: JUNE 9, 2000
Name and Address of Purchaser Number of Shares of Series C Aggregate Purchase
----------------------------- ---------------------------- -------------------
Preferred Price
--------- -----
Omni Holdings, Inc. 6,982,995 $45,459,297.45
c/o News America Incorporated
1211 Avenue of the Americas
Xxx Xxxx, XX 00000
Attention: Xxxxx Nova
---------- --------------
Subtotal: 6,982,995 $45,459,297.45
---------- --------------
Total: 13,953,012 $90,834,108.12
(1) - Payment made by full recourse
promissory note.
(2) - 5,000 shares purchased by
full recourse promissory note.
