EXHIBIT 4.2
XXXXXXXXXX.XXX, INC.
THIRD AMENDED AND RESTATED INVESTOR RIGHTS
AGREEMENT
September 30, 1999
THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
This THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT (the "Agreement")
is made as of September 30, 1999, by and among XxxxXxxxxx.xxx, Inc., a Delaware
corporation (the "Company"), and the investors listed on Exhibit A hereto
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(each, an "Investor" and, collectively, the "Investors"). This Agreement is
intended to amend and restate that certain Second Amended and Restated Investor
Rights Agreement between the Company and the parties thereto, dated as of April
13, 1999 (the "Prior Agreement").
RECITALS
A. WHEREAS, certain of the Investors own Series A Preferred Stock (the
"Series A Stock"), Series B Preferred Stock (the "Series B Stock"), and Series C
Preferred Stock (the "Series C Stock") and certain of the Investors are
purchasing shares of the Company's Series D Preferred Stock (the "Series D
Stock," and together with the Series A Stock, Series B Stock and Series C Stock,
the "Preferred Stock") pursuant to that certain Series D Preferred Stock
Purchase Agreement dated as of the date hereof between the Company and the
Investors (the "Purchase Agreement"); and
B. WHEREAS, the Company and the Investors who own Series A Stock, Series B
Stock and Series C Stock are parties to the Prior Agreement; and
C. WHEREAS, it is a condition to the obligations of the Investors under
the Purchase Agreement that this Agreement be executed by the parties hereto,
and the parties are willing to execute, and to be bound by the provisions of,
this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
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shall have the following respective meanings:
1.1 "Commission" shall mean the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
1.2 "Convertible Securities" shall mean Shares of Series A Stock,
Series B Stock, Series C Stock and Series D Stock.
1.3 "Exchange Act" shall mean the Securities Exchange Act of 1934, 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.
1.4 "Form S-3" shall mean Form S-3 issued by the Commission or any
substantially similar form then in effect.
1.5 "Holder" shall mean any holder of outstanding Registrable
Securities which have not been sold to the public, but only if such holder is
one of the Investors or an assignee or transferee of registration rights as
permitted by Section 12.
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1.6 "Initiating Holders" shall mean Holders who in the aggregate hold
at least thirty-three and one-third percent (33 1/3%) of the Registrable
Securities.
1.7 "Material Adverse Event" shall mean an occurrence having a
consequence that either: (a) is materially adverse as to the business,
properties, prospects, or financial condition of the Company; or (b) is
reasonably foreseeable, has a reasonable likelihood of occurring, and if it were
to occur might materially and adversely affect the business, properties,
prospects, or financial condition of the Company.
1.8 The terms "Register," "Registered," and "Registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act (a "Registration Statement"), and the
declaration or ordering of the effectiveness of such Registration Statement.
1.9 "Registrable Securities" shall mean all Common Stock not
previously sold to the public and issued or issuable upon conversion or exercise
of any of the Company's Convertible Securities purchased by or issued to the
Investors, including Common Stock issued pursuant to stock splits, stock
dividends and similar distributions, and any securities of the Company granted
registration rights pursuant to Section 11 of this Agreement; provided, however,
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that shares of Common Stock or other securities shall cease to be treated as
Registrable Securities at such time as they: (i) have been sold pursuant to an
effective Registration Statement under the Securities Act; or (ii) have
otherwise been sold or transferred to or through a broker, dealer or underwriter
in a public distribution or a public securities transaction.
1.10 "Registration Expenses" shall mean all expenses incurred by the
Company in complying with Sections 5, 6 or 7 of this Agreement, including,
without limitation, all federal and state registration, qualification, and
filing fees, printing expenses, fees and disbursements of counsel for the
Company and one special counsel for the Holders (if different from counsel for
the Company), blue sky fees and expenses, and the expense of any special audits
incident to or required by any such registration.
1.11 "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.
1.12 "Selling Expenses" shall mean all underwriting discounts and
selling commissions applicable to the sale of Registrable Securities pursuant to
this Agreement.
2. Financial Statements and Reports to Stockholders.
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2.1 Information. As long as any Investor holds at least 750,000 shares
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(as adjusted for stock splits, stock dividends and similar events) of
Convertible Securities or Common Stock issued upon conversion of the Convertible
Securities, the Company shall deliver to such Investor:
(a) As soon as practicable after the end of each fiscal year of
the Company, and in any event within ninety (90) days thereafter, an audited
consolidated balance sheet of the Company as of the end of such year and audited
consolidated statements of income, stockholders' equity and cash flow for such
year, which year-end financial reports shall be in
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reasonable detail and shall be prepared in accordance with generally accepted
accounting principles and accompanied by the opinion of independent public
accountants of nationally recognized standing selected by the Company;
(b) As soon as practicable after the end of each quarter, and in
any event within thirty (30) days thereafter, consolidated balance sheets of the
Company and its subsidiaries, if any, as of the end of such quarter, and
consolidated statements of income and cash flow for such quarter and for the
current fiscal year to date, in reasonable detail and including comparisons to
budget, prepared in accordance with generally accepted accounting principles
(other than for accompanying notes) and accompanied by a certificate of the
Chief Financial Officer or Chief Executive Officer of the Company confirming
that such statements fairly and accurately present the financial condition and
results of operation of the Company, subject to changes resulting from year-end
audit adjustment;
(c) Contemporaneously with delivery to holders of Common Stock, a
copy of each report of the Company delivered to holders of Common Stock; and
(d) Such other information relating to the financial condition,
business, prospects, or corporate affairs of the Company as the Investor or any
assignee of the Investor may reasonably request, subject to the Investor's
execution of a confidentiality agreement reasonably satisfactory to the Company.
2.2 Inspection. As long as any Investor holds at least 750,000 shares
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(as adjusted for stock splits, stock dividends and similar events) of
Convertible Securities or Common Stock issued upon conversion of the Convertible
Securities, the Company shall permit such Investor, or such Investor's
authorized representatives, at such Investor's expense, to visit and inspect the
Company's properties, to examine its books of account and records and to discuss
the Company's affairs, finances, and accounts with its officers, all upon
reasonable notice and at such reasonable times as may be requested by each such
Investor, subject to the Investor's execution of a confidentiality agreement
reasonably satisfactory to the Company.
3. Termination of Information and Inspection Covenants. The covenants set
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forth in Section 2 shall terminate as to Investors and be of no further force or
effect when the sale of securities pursuant to a Registration Statement filed by
the Company under the Securities Act in connection with the firm commitment
underwritten offering of its securities to the general public is closed or when
the Company first becomes subject to the periodic reporting requirements of
Sections 13 or 15(d) of the Exchange Act, whichever event shall first occur.
4. Right of First Refusal.
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4.1 Pro Rata Share. The Company hereby grants to each Investor the
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right of first refusal to purchase its Pro Rata Share (as defined below) of any
New Securities (as defined below) that the Company may, from time to time,
propose to sell and issue. The Investors may purchase New Securities on the same
terms and at the same price at which the Company proposes to sell the New
Securities. The "Pro Rata Share" of each Investor, for purposes of this right of
first refusal, is the ratio of: (a) the total number of shares of Common Stock
held by such Investor (including any shares of Common Stock into which shares of
Convertible Securities held by such Investor are convertible); to (b) the total
number of shares of Common Stock outstanding (including any shares of Common
Stock into which outstanding shares of Convertible Securities are convertible).
An Investor shall be entitled to apportion the right of first
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refusal hereby granted among itself and its partners and affiliates in such
proportions as it deems appropriate.
4.2 New Securities. "New Securities" shall mean any capital stock of
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the Company, whether authorized or not, and any rights, options, or warrants to
purchase said capital stock, and securities of any type whatsoever that are, or
may become, convertible into or exercisable for said capital stock; provided,
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however, that "New Securities" does not include: (a) securities issuable upon
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conversion of the Convertible Securities issued or issuable on the date of this
Agreement; (b) securities issued pursuant to the acquisition of another
corporation by the Company by merger, purchase of substantially all of the
assets, or other reorganization, if approved by the Company's Board of
Directors; (c) options to purchase shares of Common Stock granted pursuant to
the Company's 1997 Stock Incentive Compensation Plan (or any other employee
stock plan approved by the Board of Directors) or shares issuable upon exercise
of such options; (d) shares issuable upon exercise of warrants outstanding as of
the date of this Agreement; (e) securities issued to financial institutions or
lessors in connection with commercial credit arrangements, equipment financing
or similar transactions, provided such issuances are other than primarily for
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equity financing purposes, limited to an aggregate of no more than one-half
percent (0.5%) of the Company's outstanding equity securities on an as-converted
basis, and, approved by the Company's Board of Directors; (f) securities issued
to corporate partners or in connection with other strategic alliances approved
by the Company's Board of Directors; (g) shares issued without consideration
pursuant to a stock dividend, stock split, or similar transaction; and (h)
shares of Series D Stock issued pursuant to the Purchase Agreement.
Notwithstanding the foregoing, Xxxxxx.xxx, Inc. shall be entitled to purchase
its Pro Rata Share with respect to issuances described in (b) and (f) of this
Section.
4.3 Notice of Proposed Issuance: Exercise of Right of First Refusal.
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In the event the Company proposes to undertake an issuance of New Securities, it
shall give to each Investor written notice (the "Notice") of its intention,
describing the type of New Securities, the price, the terms upon which the
Company proposes to issue the same, the number of shares that each Investor is
entitled to purchase, and a statement that each Investor shall have fifteen (15)
days to respond to such Notice. Each Investor shall have fifteen (15) days from
the date of mailing of the Notice by the Company to agree to purchase all of its
Pro Rata Share of the New Securities for the price and upon the terms specified
in the Notice by giving written notice to the Company and stating therein that
it wishes to purchase the New Securities. Payment for such New Securities shall
be made under the same terms and at the closing for the sale of such New
Securities.
4.4 Sale of New Securities by Company. The Company shall have sixty
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(60) days after the expiration of the fifteen (15) day period referenced in
Section 4.3 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) to sell the New Securities respecting
which the Investors' rights of first refusal were not exercised, at a price and
upon general terms no more favorable to the purchaser thereof than specified in
the Notice. In the event the Company has not sold, or entered into an agreement
to sell the New Securities within said sixty (60) day period (or sold and issued
New Securities in accordance with the foregoing within thirty (30) days from the
date of said agreement), the Company shall not thereafter issue or sell any New
Securities without first offering such securities to the Investors in the manner
provided above.
4.5 Termination of Right of First Refusal. The covenants of the
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Company set
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forth in this Section 4 shall be terminated and be of no further force or effect
upon the earlier of: (a) immediately prior to the closing of the first public
offering of the Common Stock of the Company effected pursuant to a Registration
Statement filed with, and declared effective by, the Commission under the
Securities Act, that results in net offering proceeds (after deduction of
underwriters' discounts and commissions and expenses of the offering) of at
least Seventy-Five Million Dollars ($75,000,000) at a per share price of at
least Eleven Dollars Sixty Cents ($11.60) (subject to proportional adjustment
for stock splits, dividends, consolidations, recapitalizations and similar
events); and (b) the date on which less than ten percent (10%) of the shares of
Preferred Stock originally issued remain outstanding. Such covenants shall
terminate as to any Investor as of the date such Investor no longer holds any
shares of the capital stock of the Company.
5. Demand Registration.
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5.1 Request for Registration on Form Other Than Form S-3
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(a) Subject to the terms of this Agreement, in the event that the
Company shall receive from the Initiating Holders a written request that the
Company effect any Registration with respect to all or a part of the Registrable
Securities on a form other than Form S-3 for an offering of at least twenty-five
(25%) of the then outstanding Registrable Securities (or any lesser percent if
the reasonably anticipated aggregate offering price to the public would exceed
$5,000,000 ($75,000,000 if such written request is with respect to an initial
public offering)), the Company shall: (i) promptly give written notice of the
proposed Registration to all other Holders; and (ii) as soon as practicable, use
its reasonable best efforts to effect Registration of the Registrable Securities
specified in such request, together with any Registrable Securities of any
Holder joining in such request as are specified in a written request given
within twenty (20) days after written notice from the Company. The Company shall
not be obligated to take any action to effect any such registration pursuant to
this Section 5.1: (A) prior to the earlier of January 1, 2002, or One Hundred
Eighty (180) days following the closing date of the first public offering of the
Common Stock of the Company effected pursuant to a Registration Statement filed
with, and declared effective by, the Commission under the Securities Act; (B) at
any time within One Hundred Eighty (180) days following the effective date of
any Registration Statement on Form S-1 (or any successor form); or (C) if the
Company has effected two (2) such Registrations pursuant to this Section 5.1;
provided, that a Registration that is withdrawn or otherwise abandoned will not
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count toward this limitation unless it is withdrawn or abandoned at the request
of the Investors for reasons other than the occurrence of a Material Adverse
Event.
(b) Notwithstanding the provisions of Section 5.1(a), if the
Company shall furnish to all such Holders who joined in the request a
certificate signed by the Chief Executive Officer of the Company stating that,
in the good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company for any Registration to be effected as
requested under Section 5.1(a), the Company shall have the right, exercisable
not more than once in any twelve (12) month period, to defer the filing of a
Registration Statement with respect to such offering for a period of not more
than ninety (90) days from delivery of the request of the Initiating Holders.
5.2 Request for Registration on Form S-3.
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(a) If a Holder or Holders of outstanding Registrable Securities
request that the Company file a Registration Statement on Form S-3 (or any
successor form to Form S-3)
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for a public offering of shares of Registrable Securities in which the aggregate
price to the public would exceed $1,000,000, and the Company is a registrant
entitled to use Form S-3 to register the Registrable Securities for such an
offering, the Company shall: (i) promptly give written notice of the proposed
Registration to all other Holders; and (ii) as soon as practicable, use its
reasonable efforts to effect Registration of the Registrable Securities
specified n such request, together with any Registrable Securities of any Holder
joining in such request as are specified in a written request given within
twenty (20) days after written notice from the Company. The substantive
provisions of Section 5.4 shall be applicable to each Registration initiated
under this Section 5.2.
(b) Notwithstanding the provisions of Section 5.2(a), if the
Company shall furnish to all Holders who joined in the request a certificate
signed by the Chief Executive Officer of the Company stating that, in the good
faith judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company for any Registration to be effected as requested
under Section 5.2(a), the Company shall have the right, exercisable not more
than once in any twelve (12) month-period, to defer the filing of a Registration
Statement with respect to such offering for a period of not more than ninety
(90) days from delivery of the request of the Holder.
5.3 Registration of Other Securities in Demand Registration. Any
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Registration Statement filed pursuant to the request of the Initiating Holders
under this Section 5 may, subject to the provisions of Section 5.4, include
securities registered for the account of the Company in addition to Registrable
Securities.
5.4 Underwriting in a Demand Registration.
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(a) Notice of Underwriting. If the Initiating Holders intend to
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distribute the Registrable Securities covered by their request by means of an
underwriting, they shall so advise the Company as part of their request made
pursuant to this Section 5, and the Company shall include such information in
the written notice referred to in Section 5.1 or 5.2. The right of any Holder to
Registration pursuant to Section 5 shall be conditioned upon such Holder's
agreement to participate in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting.
(b) Inclusion of Other Holders in Demand Registration. If the
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Company, officers or directors of the Company holding Common Stock other than
Registrable Securities, or holders of securities other than Registrable
Securities, request inclusion in such Registration, the Initiating Holders, to
the extent they deem advisable and consistent with the goals of such
Registration, may, in their sole discretion, on behalf of all Holders, offer to
any or all of the Company, such officers or directors, and such holders of
securities other than Registrable Securities that such securities other than
Registrable Securities be included in the underwriting and may condition such
offer on the acceptance by such persons of the terms of this Section 5. In the
event, however, that the number of shares so included exceeds the number of
shares of Registrable Securities included by all Holders, such Registration
shall be treated as governed by Section 6 rather than Section 5, and it shall
not count as a Registration for purposes of Section 5.1.
(c) Selection of Underwriter in Demand Registration. The
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Company shall (together with all Holders proposing to distribute their
securities through such
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underwriting) enter into an underwriting agreement with the representative of
the underwriter or underwriters (the "Underwriter's Representative") selected
for such underwriting by the Holders of a majority of the Registrable Securities
being registered by the Initiating Holders and agreed to by the Company.
(d) Marketing Limitation in Demand Registration. In the event the
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Underwriter's Representative advises the Initiating Holders in writing that
market factors (including, without limitation, the aggregate number of shares of
Common Stock requested to be Registered, the general condition of the market,
and the status of the persons proposing to sell securities pursuant to the
Registration) require a limitation of the number of shares to be underwritten,
then: (a) first the Common Stock (other than Registrable Securities) held by
officers or directors of the Company; (b) next the securities other than
Registrable Securities; and (c) last the securities requested to be registered
by the Company, shall be excluded from such Registration to the extent required
by such limitation. If a limitation of the number of shares is still required,
the Initiating Holders shall so advise all Holders and the number of shares of
Registrable Securities that may be included in the Registration and underwriting
shall be allocated among all Holders in proportion, as nearly as practicable, to
the respective amounts of Registrable Securities entitled to inclusion in such
Registration held by such Holders at the time of filing the Registration
Statement. No Registrable Securities or other securities excluded from the
underwriting by reason of this Section 5.4(d) shall be included in such
Registration Statement.
6. Piggyback Registration.
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6.1 Notice of Piggyback Registration and Inclusion of Registrable
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Securities. Subject to the terms of this Agreement, in the event the Company
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decides to Register any of its Common Stock (either for its own account or the
account of a security holder or holders exercising demand registration rights)
on a form that would be suitable for a registration involving solely Registrable
Securities, the Company will: (a) promptly give each Holder written notice
thereof; and (b) include in such Registration, and in any underwriting involved
therein, all the Registrable Securities specified in a written request delivered
to the Company by any Holder within twenty (20) days after delivery of such
written notice from the Company.
6.2 Underwriting in Piggyback Registration.
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(a) Notice of Underwriting in Piggyback Registration. If the
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Registration of which the Company gives notice is for a Registered public
offering involving an underwriting, the Company shall so advise the Holders as
part of the written notice given pursuant to Section 6.1. In such event, the
right of any Holder to Registration shall be conditioned upon such underwriting
and the inclusion of such Holder's Registrable Securities in such underwriting
to the extent provided in this Section 6. All Holders proposing to distribute
their securities through such underwriting shall (together with the Company and
the other holders distributing their securities through such underwriting) enter
into an underwriting agreement with the Underwriter's Representative for such
offering.
(b) Marketing Limitation in Piggyback Registration. In the event
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the Underwriter's Representative advises the Holders seeking Registration of
Registrable Securities pursuant to Section 6, in writing, that market factors
(including, without limitation, the aggregate number of shares of Common Stock
requested to be Registered, the general condition of the market, and the status
of the persons proposing to sell securities pursuant to the Registration)
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require a limitation of the number of shares to be underwritten, the
Underwriter's Representative (subject to the allocation priority set forth in
Section 6.2 (c)) may limit the number of shares of Registrable Securities to be
included in such Registration.
(c) Allocation of Shares in Piggyback Registration. In the
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event that the Underwriter's Representative limits the number of shares to be
included in a Registration pursuant to Section 6.2 (b), the number of shares to
be included in such Registration shall be allocated (subject to Section 6.2 (b))
in the following manner: the shares (other than Registrable Securities) held by
officers or directors of the Company shall be excluded from such Registration
and underwriting to the extent required by such limitation. If a limitation of
the number of shares is still required after such exclusion, the number of
shares that may be included in the Registration and underwriting by selling
stockholders shall be allocated among all other holders thereof, in proportion,
as nearly as practicable, to the respective amounts of securities (including
Registrable Securities) which such holders would otherwise be entitled to
include in such Registration or in such other proportion as shall be mutually
agreed to by such holders; provided, however, that with respect to a
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Registration other than the Registration relating to the Company's initial
public offering, the number of Registrable Securities included in such
Registration shall not be reduced to less than thirty percent (30%) of the
aggregate number of all shares so included. No Registrable Securities or other
securities excluded from the underwriting by reason of this Section 6.2 (c)
shall be included in the Registration Statement.
7. Expenses of Registration.
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All Registration Expenses incurred in connection with an aggregate of two
(2) Registrations pursuant to Section 5.1 and in connection with Registrations
pursuant to Sections 5.2 and 6 shall be borne by the Company. The Company shall
not be required to pay for any expenses of any Registration proceeding begun
pursuant to Section 5 if the Registration request is subsequently withdrawn at
the request of the Holders of a majority of the Registrable Securities to be
Registered (which Holders shall bear such expenses), unless the Holders of a
majority of the Registrable Securities agree to forfeit their right to one (1)
demand Registration pursuant to Section 5; provided, that if at the time of such
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withdrawal, the Holders have learned of a Material Adverse Event not known to
the Holders at the time of their request, then the Holders shall not be required
to pay any of such expenses and shall retain their rights pursuant to Section 5.
All Selling Expenses shall be borne by the holders of the securities Registered,
pro rata on the basis of the number of shares Registered.
8. Registration Procedures and Obligations.
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8.1 Company Obligations. Whenever required under this Agreement to
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effect the Registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
(a) prepare and file with the Commission a Registration Statement
with respect to such Registrable Securities and use its reasonable best efforts
to cause such Registration Statement to become effective, and, upon the request
of the Holders of a majority of the Registrable Securities Registered
thereunder, keep such Registration Statement effective for up to one hundred
twenty (120) days;
(b) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in connection
with such
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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;
(c) furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in order
to facilitate the disposition of Registrable Securities owned by them;
(d) use its reasonable best efforts to register and qualify the
securities covered by such Registration Statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall not be required in connection therewith
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or as a condition thereto to qualify to do business or to file a general consent
to service of process or to become subject to taxation in any such states or
jurisdictions;
(e) in the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering;
(f) notify each Holder of Registrable Securities covered by such
Registration Statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such Registration Statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing;
(g) provide a transfer agent and registrar for all Registrable
Securities Registered pursuant to such Registration Statement and a CUSIP number
for all such Registrable Securities, in each case not later than the effective
date of such Registration; and
(h) furnish, at the request of any Holder requesting Registration
of Registrable Securities pursuant to this Agreement, on the date that such
Registrable Securities are delivered for sale in connection with a registration
pursuant to this Agreement: (i) an opinion, dated such date, of the counsel
representing the company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering; and (ii) a letter dated such date, from the independent certified
public accountants of the Company, in form and substance as is customarily given
by independent certified public accountants to underwriters in an underwritten
public offering, addressed to the underwriters.
8.2 Information Furnished by Holder. It shall be a condition precedent
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to the Company's obligations under this Agreement that each Holder of
Registrable Securities included in any Registration, furnish to the Company such
information regarding such Holder and the distribution proposed by such Holder
or Holders as the Company may reasonably request.
9. Termination of Rights.
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The rights of any particular Holder to cause the Company to Register
securities under Sections 5.1, 5.2 and 6 shall terminate ten (10) years after
the effective date of the Company's initial public offering or, as to any
Holder, such earlier time at which all Registrable Securities held by such
Holder (and any affiliate of the Holder with whom such Holder must aggregate its
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sales under Rule 144) can be sold in any three (3) month period without
registration in compliance with Rule 144 of the Act.
10. Indemnification.
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10.1 Company's Indemnification of Holders. To the extent permitted by
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law, the Company will indemnify each Holder, each of its officers, directors,
and constituent partners, legal counsel for the Holders, and each person
controlling such Holder within the meaning of the Securities Act, with respect
to which Registration, qualification, or compliance of Registrable Securities
has been effected pursuant to this Agreement, and each underwriter, if any, and
each person who controls any underwriter, against all claims, losses, damages,
or liabilities (or actions in respect thereof) to the extent such claims,
losses, damages, or liabilities arise out of or are based upon any untrue
statement (or alleged untrue statement) of a material fact contained in any
prospectus or other document (including any related Registration Statement)
incident to any such Registration, qualification, or compliance, or are based on
any omission (or alleged omission) to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading, in
light of the circumstances under which they were made, or any violation by the
Company of any rule or regulation promulgated under the Securities Act
applicable to the Company and relating to action or inaction required of the
Company in connection with any such Registration, qualification, or compliance;
and the Company will reimburse each such Holder, each such underwriter, and each
person who controls any such Holder or underwriter, for any legal and any other
expenses reasonably incurred in connection with investigating or defending any
such claim, loss, damage, liability, or action as such expenses are incurred;
provided, however, that the indemnity contained in this Section 10.1 shall not
apply to amounts paid in settlement of any such claim, loss, damage, liability,
or action if settlement is effected without the consent of the Company (which
consent shall not unreasonably be withheld); provided, further, that the Company
will not be liable in any such case to the extent that any such claim, loss,
damage, liability, or expense arises out of or is based upon any untrue
statement or omission based upon written information furnished to the Company by
such Holder, underwriter, or controlling person and stated to be for use in
connection with the offering of securities of the Company; provided, further,
that this indemnity agreement with respect to a preliminary prospectus shall not
inure to the benefit of any Holder from whom the person asserting any such
losses, liabilities, claims, damages or expenses purchased Registrable
Securities, or any person controlling such Holder, if a copy of the prospectus
(as amended or supplemented at the time of sale) was not sent or given by or on
behalf of the Holder to such person and if the prospectus (as so amended or
supplemented) would have corrected the defect giving rise to such loss,
liability, claim, damage or expense unless such failure to send or give the
prospectus resulted from noncompliance by the Company with Section 8.1(c) or (1)
hereof.
10.2 Holder's Indemnification of Company. To the extent permitted by
-----------------------------------
law, each Holder will, if Registrable Securities held by such Holder are
included in the securities as to which such Registration, qualification or
compliance is being effected pursuant to this Agreement, indemnify the Company,
each of its directors and officers, each legal counsel and independent
accountant of the Company, each underwriter, if any, of the Company's securities
covered by such a Registration Statement, each person who controls the Company
or such underwriter within the meaning of the Securities Act, and each other
such Holder, each of its officers, directors, and constituent partners, and each
person controlling such other Holder, against all claims, losses, damages, and
liabilities (or actions in respect thereof) arising out of or based upon any
untrue statement (or alleged untrue statement) of a material fact contained in
any such Registration Statement, prospectus, offering circular, or other
document, or any omission
-11-
(or alleged omission) to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in light of
the circumstances under which they were made, or any violation by such Holder of
any rule or regulation promulgated under the Securities Act applicable to such
Holder and relating to action or inaction required of such Holder in connection
with any such Registration, qualification, or compliance, and will reimburse the
Company, such Holders, such directors, officers, partners, persons, law and
accounting firms, underwriters or control persons for any legal and any other
expenses reasonably incurred in connection with investigating or defending any
such claim, loss, damage, liability, or action, in each case to the extent, but
in each case only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such Registration
Statement, prospectus, offering circular, or other document in reliance upon and
in conformity with written information furnished to the Company by such Holder
and stated to be specifically for use in connection with the offering of
securities of the Company; provided, however, that the indemnity contained in
-------- -------
this Section 10.2 shall not apply to amounts paid in settlement of any such
claim, loss, damage, liability or action if settlement is effected without the
consent of such Holder (which consent shall not be unreasonably withheld);
provided, further, that each Holder's liability under this Section 10.2 shall
not exceed such Holder's net proceeds from the offering of securities made in
connection with such Registration.
10.3 Indemnification Procedure. Promptly after receipt by an
-------------------------
indemnified party under this Section 10 of notice of the commencement of any
action, such indemnified party xxxxx if a claim in respect thereof is to be made
against an indemnifying party under this Section 10, notify the indemnifying
party in writing of the commencement thereof and generally summarize such
action. The indemnifying party shall have the right to participate in and to
assume the defense of such claim; provided, however, that the indemnifying party
shall be entitled to select counsel for the defense of such claim with the
approval of any parties entitled to indemnification, which approval shall not be
unreasonably withheld; provided further, however, that if either party
reasonably determines that there may be a conflict between the positions of the
Company and the Holders in conducting the defense of such action, suit or
proceeding by reason of recognized claims for indemnity under this Section 10,
then such party shall be entitled to separate counsel to conduct the defense to
the extent reasonably determined by such counsel to be necessary to protect the
interests of such party at the expense of the indemnifying party. The failure to
notify an indemnifying party promptly of the commencement of any such action, if
prejudicial to the ability of the indemnifying party to defend such action,
shall relieve such indemnifying party, to the extent so prejudiced, of any
liability to the indemnified party under this Section 10, but the omission so to
notify the indemnifying party will not relieve such party of any liability that
such party may have to any indemnified party other than under this Section 10.
10.4 Contribution. If the indemnification provided for in this Section
------------
10 is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, liability, claim, damage, or expense
referred to therein, then the indemnifying party, in lieu of indemnifying, such
indemnified party hereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such loss, liability, claim, damage, or
expense in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and of the indemnified party on the other
in connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information
-12-
supplied by the indemnifying party or by the indemnified party and the parties'
relative intent, knowledge, access to information, and opportunity to correct or
prevent such statement or omission. Each Holder's liability under this Section
10.4 shall not exceed such Holder's net proceeds from the offering of securities
made in connection with such Registration.
11. Limitations on Registration Rights Granted to Other Securities.
--------------------------------------------------------------
From and after the date of this Agreement, the Company shall not, without
the prior written consent of the Holders of a majority of the Registrable
Securities, enter into any agreement with any holder or prospective holder of
any securities of the Company that would allow such holder or prospective
holder: (a) to include such securities in any registration filed under Section 6
hereof, unless under the terms of such agreement, such holder or prospective
holder may include such securities in any such registration only to the extent
that the inclusion of such securities will not reduce the amount of the
Registrable Securities of the Holders that are included; or (b) to demand
registration of their securities.
12. Transfer of Rights.
------------------
The rights to information and inspection under Section 2, the right to
purchase under Section 4 and the right to cause the Company to Register
securities granted by the Company to the Investors under this Agreement may be
assigned by any Holder to a transferee or assignee of any Convertible Securities
or Registrable Securities acquiring at least ten percent (10%) of such Holder's
Convertible Securities or Registrable Securities; provided, however, that the
--------- -------
Company must receive written notice prior to the time of said transfer, stating
the name and address of said transferee or assignee and identifying the
securities with respect to which such information and Registration rights are
being assigned.
13. Market Stand-off.
----------------
Each Holder hereby agrees that, if so requested by the Company and the
Underwriter's Representative (if any) in connection with the Company's initial
public offering, such Holder shall not sell, make any short sale of, loan, grant
any option for the purchase of, or otherwise transfer or dispose of any
Registrable Securities or other securities of the Company without the prior
written consent of the Company and the Underwriter's Representative for such
period of time (not to exceed 180 days) following the effective date of a
Registration Statement of the Company filed under the Securities Act, as may be
requested by the Underwriter's Representative. The obligations of Holders under
this Section 13 shall be conditioned upon similar agreements being in effect
with each other stockholder who is an officer, director, or five percent (5%)
stockholder of the Company.
14. Reports Under the Exchange Act.
------------------------------
With a view to making available to the Holders the benefits of Rule 144
promulgated under the Securities Act and any other rule or regulation of the
Commission that may at any time permit a Holder to sell securities of the
Company to the public without Registration or pursuant to a Registration on Form
S-3, the Company agrees to:
14.1 make and keep public information available, as those terms are
understood and defined in Rule 144, at all times after the effective date of the
first Registration Statement filed by the Company for the offering of its
securities to the general public;
-13-
14.2 take such action, including the voluntary registration of its
Common Stock under Section 12 of the Exchange Act, as is necessary to enable the
Holders to utilize Form S-3 for the sale of their Registrable Securities, such
action to be taken as soon as practicable after the end of the fiscal year in
which the first Registration Statement filed by the Company for the offering of
its securities to the general public is declared effective;
14.3 file with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act; and
14.4 furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request: (a) a written statement by the
Company that it has complied with the reporting requirements of Rule 144 (at
any time after ninety (90) days after the effective date of the first
Registration Statement filed by the Company), the Securities Act, and the
Exchange Act (at any time after it has become subject to such reporting
requirements), or that it qualifies as a registrant whose securities may be
Registered on Form S-3 (at any time after it so qualifies); (ii) a copy of the
most recent annual or quarterly report of the Company and such other reports and
documents so filed by the Company; and (iii) such other information as may be
reasonably requested in availing any Holder of any rule or regulation of the
Commission which permits the selling of any such securities without Registration
or pursuant to such form.
15. Transactions with Affiliates.
----------------------------
Except for transactions contemplated by this Agreement or as otherwise
approved by a disinterested majority of the Company's Board of Directors, for as
long as at least ten percent (10%) of the originally issued shares of Preferred
Stock, taken together, remains outstanding, neither the Company nor any of its
subsidiaries shall enter into any transaction with any director, officer or
holder of more than five percent (5%) of the outstanding capital stock of any
class or series of capital stock of the Company or any of its subsidiaries, any
member of the family of any such person, or any corporation, partnership, trust
or other entity in which any such person, or member of the family of any such
person, is a director, officer trustee, partner or holder of more than five
percent (5%) of the outstanding equity interests thereof, except for
transactions on customary terms related to such person's employment or service
as a director.
16. Terms Applicable to Amazon. com, Inc.
-------------------------------------
16.1 Major Transactions. For purposes of this section, a "Major
------------------
Transaction" shall mean any of: (a) an offer, sale or other transfer, in a
single transaction or a series of related transactions, of(i) all or
substantially all of the assets of the Company, or (ii) securities of the
Company representing, directly or indirectly, more than twenty percent (20%) of
the voting power of the Company; and (b) any transaction that would constitute a
"liquidation" under the provisions of the Company's Restated Certificate of
Incorporation.
In the event: (i) the Company signs any agreement, whether
binding or nonbinding, under which the Company will enter into a Major
Transaction; (ii) the Chief Executive Officer of the Company discusses a
specific proposal for a Major Transaction with one or more members of the
Company's Board of Directors; or (iii) the management of the Company determines
in good faith that a Major Transaction is more likely than not to arise out of a
proposal made by a third party, then, for each such Major Transaction, the
Company shall promptly give Xxxxxx.xxx, Inc. notice of same. Such notice shall
set forth the details of such
-14-
agreement, discussion or determination (i.e., the terms of such Major
Transaction proposed by the Company or the offeror). Xxxxxx.xxx, Inc. shall have
seven (7) days from the date of such notice in which to accept such terms. In
the event that Xxxxxx.xxx, Inc. has not accepted such terms within such period,
then Xxxxxx.xxx, Inc. will be deemed to have waived its opportunity with respect
to the Major Transaction, and the Company shall be free to complete such Major
Transaction with a third party for sixty (60) days on terms no more favorable
than those last offered to Xxxxxx.xxx, Inc. After the 60-day period, the
opportunity with respect to any Major Transaction must again be offered to
Xxxxxx.xxx, Inc.
In the event that a Major Transaction is proposed in which the Company
is offered value other than cash or marketable securities, the Board of
Directors of the Company shall make a good faith determination of that value for
the purposes of the notice described above.
The rights of Xxxxxx.xxx, Inc. under this Section 16.1 shall terminate
on the date that is four (4) years from the closing of the Company's initial
public offering registered with the Commission.
16.2 Restriction. Neither Xxxxxx.xxx, Inc. nor its affiliates shall
-----------
acquire or control more than thirty-five percent (35%) of the Company's shares
on a fully-diluted basis unless Xxxxxx.xxx, Inc. first negotiates with the
Company's Board of Directors in good faith for the purchase of all of the
Company's capital stock. If Xxxxxx.xxx and the Company's Board of Directors
negotiating in good faith cannot reach agreement on the price or terms for such
acquisition within twenty (20) business days after notice from Xxxxxx.xxx to the
Company, Xxxxxx.xxx may, in its discretion, either: (a) make an offer to
purchase all of the Company's capital stock at a price it reasonably believes to
be fair market value; or (b) not proceed with the acquisition of the Company's
shares in excess of thirty-five percent (35%). This provision remains in place
for each proposed acquisition of the Company's shares by Xxxxxx.xxx, Inc. and
shall terminate on the earlier of: (i) the Company's initial public offering
registered with the Commission; or (ii) four years from the date of this
Agreement.
16.3 Public Offering. The Company hereby grants to Xxxxxx.xxx a right
---------------
of first offer to purchase shares of the Company's Common Stock (the "IPO
Purchase Option") in the first public offering of the Common Stock of the
Company effected pursuant to a Registration Statement filed with, and declared
effective by, the Commission under the Securities Act (the "Public Offering") at
a price equal to the Public Offering price of such shares of Common Stock. If
Xxxxxx.xxx, Inc. exercises its IPO Purchase Option, it shall have the right to
purchase a pro rata portion of such offering such that Xxxxxx.xxx, Inc. shall be
able to maintain after the Public Offering the same proportionate ownership
interest in the Company as it held before the Public Offering. The Company shall
deliver notice of the Public Offering to Xxxxxx.xxx, Inc. within ten (10) days
following the filing of a registration statement relating to the Public
Offering. Such notice shall set forth the number of shares of Common Stock that
Xxxxxx.xxx. Inc. shall have the right to buy, and the basis for the computation
of such number. Within five (5) days following delivery of such notice,
Xxxxxx.xxx, Inc. may exercise the IPO Purchase Option (by delivery of notice to
such effect to the Company) for a number of shares up to the maximum number set
forth in such notice. To the extent Xxxxxxx.xxx, Inc. does not exercise the IPO
Purchase Option within such five (5) day period, the Company shall have no
further obligation to Xxxxxx.xxx, Inc. under this Section 16.3.
Xxxxxx.xxx, Inc.'s exercise of the IPO Purchase Option shall be deemed
an expression of interest in receiving an offer by the Company to purchase the
number of shares
-15-
indicated in Xxxxxx.xxx's notice. The Company's offer to sell such Shares to
Xxxxxx.xxx, Inc. shall be deemed to occur automatically upon the completion of
the earliest to occur of each of: (a) the Company's providing Xxxxxx.xxx, Inc.
with a copy of the final prospectus filed with the Securities and Exchange
Commission with respect to the shares; and (b) two hours after the latest to
occur of(A) notice to Xxxxxx.xxx, Inc. of the effectiveness of the Public
Offering registration statement and (B) notice to Xxxxxx.xxx, Inc. of the
Company's determination of the offering price (the completion of the last to
occur of the foregoing, the "Offer Commencement"). Xxxxxx.xxx, Inc. shall have
an unconditional right to terminate its IPO Purchase Option and revoke its
exercise thereof by written notice to the Company on or before the Offer
Commencement.
Once revoked by Xxxxxx.xxx, Inc., the IPO Purchase Option shall become
null and void. Xxxxxx.xxx, Inc.'s exercise of the IPO Purchase Option shall,
unless so revoked on or before the Offer Commencement, automatically be deemed
to be a binding commitment to purchase the shares indicated by Xxxxxx.xxx, Inc.
in its notice to the Company when each of the actions specified in the
immediately preceding sentence have occurred. Xxxxxx.xxx, Inc.'s purchase of the
shares shall occur simultaneously with the closing of the purchase and sale of
the other shares distributed in the Public Offering. It is the intent of the
parties that the shares issued to Xxxxxx.xxx, Inc. shall be fully registered
shares, offered and sold in the Public Offering. Shares purchased by Xxxxxx.xxx,
Inc. pursuant to its exercise of the LPO Purchase Option shall be subject to the
provisions of Section 13 ("Market Stand-Off") of this Agreement.
In the event that the Company shall determine that making such Public
Offering to Xxxxxx.xxx, Inc. is infeasible due to applicable regulatory
restrictions (which determination shall be reasonably acceptable to Xxxxxx.xxx,
Inc.), then the Company shall in lieu thereof make a concurrent private
placement offering of such securities to Xxxxxx.xxx, Inc. (or its Company
approved designated affiliate(s)) and shall provide reasonably acceptable
registration rights with respect to such privately placed securities.
16.4 Assignment. The foregoing rights of Xxxxxx.xxx, Inc. shall be
----------
assignable to affiliates of Xxxxxx.xxx, Inc. only with the prior approval of the
Company, not to be unreasonably withheld.
17. Xxxx-Xxxxx-Xxxxxx Act
---------------------
The Company hereby agrees that if the waiting period under the Xxxx-
Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act"), has
not expired or terminated on or prior to December 31, 1999 with respect to each
of the Holders of the Series D Stock listed on Exhibit A to the Purchase
Agreement, then each Holder of Series D Stock (regardless of whether a filing
under the HSR Act was required with respect to such Holder and regardless of
whether the waiting period under the HSR Act has expired or terminated with
respect to such Holder) shall have the right to require the Company to
repurchase from such Holder, at a purchase price equal to eleven dollars sixty
cents ($11.60) per share, each share of Series D Stock held by that Holder. Such
right may be exercised by each Holder at any time on or after December 31, 1999
by delivering the certificates representing the shares of Series D Stock held by
that Holder to the Company, endorsed for transfer, together with a written
notice indicating that Holder's election to exercise its right to require the
Company to repurchase, and the Company shall be obligated to deliver the
purchase price to that Holder on the date on which it receives such delivery and
notice from that Holder (or if such notice is delivered on a day that is not a
business day, on the next business day). The obligation of the Company to
repurchase
-16-
such stock shall be a contract obligation, and the Holders shall have the right
to enforce such obligation through appropriate legal proceedings.
The Company shall provide: (a) written notice to each Holder on the
date that the waiting period under the HSR Act has expired or terminated or on
or before December 20, 1999 if the waiting period under the HSR Act has not
expired or terminated on or before that date; and (b) periodic updates from the
date hereof until the date that the waiting period under the HSR Act has expired
or terminated to each Holder as to the status of the filing and clearance of the
transactions contemplated hereby under the XXX Xxx
00. Miscellaneous
-------------
18.1 No Conflicts. The parties hereto represent that they are not
------------
parties to and do not know of any other agreements that conflict with any of the
provisions of this Agreement.
18.2 Successors. The provisions of this Agreement shall inure to the
----------
benefit of and shall be binding upon the successors and assigns of the parties
hereto, including any successors in interest to or transferees or assignees of
any shares of capital stock of the Company.
18.3 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
18.4 Modification. This Agreement shall not be subject to
------------
modification or amendment or waiver in any respect, except by an instrument in
writing signed by: (a) the Company; and (b) the holders of a majority of the
Registrable Securities (including for this purpose all securities of the Company
convertible into or exchangeable for Registrable Securities). Any amendment,
modification or waiver effected in accordance with this Section 18.4 shall be
binding upon each holder of any Registrable Securities, each future holder of
all such Registrable Securities and the Company. Notwithstanding the foregoing,
any party who becomes a party to the Purchase Agreement as an "Investor"
pursuant to Section 1.3 of the Purchase Agreement shall become a party to this
Agreement, without the need for any further consent, approval or signature of
any party to this Agreement.
18.5 Aggregation of Stock. All Preferred Stock held or acquired by
--------------------
affiliated persons or entities shall be aggregated together for the purpose of
determining the availability of any rights under this Agreement.
18.6 Applicable Law. This Agreement shall for all purposes be
--------------
governed by and construed in accordance with the laws of the State of Delaware,
without reference to the conflicts of laws portions thereof.
18.7 Notices. All notices, demands or other communications desired or
-------
required to be given by any party to any other party hereto shall be in writing
and shall be deemed effectively given upon: (a) personal delivery (including via
facsimile transmission); (b)delivery by courier or overnight service; or (c)
deposit with the United States Post Office registered or certified, return
receipt requested, postage prepaid, addressed: (i) if to the Company, to the
address specified on the signature pages hereto, Attn: Chief Executive Officer
(ii) if to. an Investor, to the address specified on the signature pages and
Exhibit A hereto; or (iii) to such
---------
-17-
other addresses and to the attention of such other individuals as the Company or
any Investor shall have designated in writing to the other parties.
18.8 Severability. If one or more provisions of this Agreement are
------------
held to be unenforceable under applicable law, such provisions shall be excluded
from this Agreement and the balance of this Agreement shall be interpreted as if
such provisions were so excluded and shall be enforceable in accordance with its
terms.
18.9 Specific Performance. Each of the parties to this Agreement
--------------------
agrees that the other parties to this Agreement will be irreparably damaged if
this Agreement is not specifically enforced. Upon a breach or threatened breach
of the terms, covenants and/or conditions of this Agreement by any party to this
Agreement, the parties to this Agreement shall, in addition to all other
remedies, each be entitled to a temporary or permanent injunction, without
showing any actual damage, and/or a decree for specific performance, in
accordance with the provisions of this Agreement.
18.10 Expenses. If any action at law or in equity is necessary to
--------
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
18.11 Entire Agreement. This Agreement constitutes the entire
----------------
agreement between the Company and the Investors relative to the subject matter
hereof.
-18-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day first above written.
COMPANY:
XXXXXXXXXX.XXX, INC.
By: /s/ Xxxx Xxxxx Xxxxxx
-------------------------------------
Xxxx Xxxxx Xxxxxx
Chief Executive Officer
Address: 00000 X.X. Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
INVESTORS:
[signatures of all investors intentionally
deleted]
-19-
Exhibit A
---------
LIST OF INVESTORS
522618 BC Ltd. C&LB Family Limited Partnership
0000 Xxxxxx Xxxxx 0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxxxxx, XX X0X 0X0 Xxxxxxx, XX 00000
CANADA
Xxxxxx Xxxxxx
Amazon. com, Inc. 0000 Xxxxxx Xxx.
0000 00xx Xxxxxx Xxxxx, Xxxxx 0000 Xxxxxxxxx, XX X0X 0X0
Xxxxxxx, XX 00000 CANADA
Attn: General Counsel
Comdisco, Inc.
Analytical Software, Inc. 0000 Xxxx Xxxx Xxxx, Xxxxxxxx 0, Xxxxx 000
0000 Xxxxxxxx Xxxxxx X., Xxxxx 000 Xxxxx Xxxx, XX 00000
Xxxxxxx, XX 00000 Attn: Xxxxx Xxxxx
Xxxx Xxxxx Comdisco, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000 000 Xxxxx Xxxxx Xxxx
Xxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Attn: Venture Group
Xxxxxxx X. and Xxxxx X. Xxxxx
0000 Xxxxxx Xxxxxx, Xxxxx 000 Xxxxx XX Xxxxxx
Xxxxxxx, XX 00000 c/o The Xxxxxxxxx Group
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx Xxxxx Trust dated 12/10/91 Xxxxx Xxxx, XX 00000
0000 Xxxxxxxxx Xxxxx X
Xxxxxxx, XX 00000 Xxxxxx X. Xxxxx Xx.
1207 XxXxxxxx Blvd. East
Xxxxx Xxxxx Xxxxxxx, XX 00000
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000 Xxxxxx Xxxxx
2121 Avenue of the Stars
The Xxxxxxxxx Group, L.L.C. Fox Plaza, Suite 3100
0000 Xxxx Xxxx Xxxx, Xxxxx 000 Xxx Xxxxxxx, XX 00000
Xxxxx Xxxx, XX 00000
Xxxx X. Xxxxxxx
Xxxxxxxxx Investments, L.P. Xxxxx 000, 000 - 0xx Xx. X.X.
0000 Xxxx Xxxx Xxxx, Xxxxx 000 Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxx Xxxx, XX 00000 CANADA
Xxxxxxxxx Ventures, L.L.C. Xxxxxxx X. Xxxxxx
0000 Xxxx Xxxx Xxxx, Xxxxx 000 1445-120th Ave. NE
Menlo Park, CA 94043 Xxxxxxxx, XX 00000
Xxxxx X. Xxxxxxxxx J. Xxxxxxxx Xxxxxxx
4333 Xxxxxxx Ave. N. 00000 XX Xxxxxx, Xx.
Xxxxxxx, XX 00000-0000 Xxxxxxxx, XX 00000
Xxxxxxxx X. Xxxxxx
00000 XX 0xx Xx., Xxxxx 0000
Xxxxxxxx, XX 00000
-20-
Xxxxx Xxxxx KPCB Information Sciences Zaibatsu Fund II, L.P.
0000 X. 000xx Xx. 0000 Xxxx Xxxx Xxxx
Xxxx, XX 00000 Xxxxx Xxxx, XX 00000
Fitpro Pty Ltd KPCB VIII Founders Fund, L.P.
00 Xxxxxxxx Xxxxxx 2750 Sand Hill Road
Balmoral N.S.W. 2088 Menlo Park, CA 94025
AUSTRALIA
Xxxxxxx X. Xxxxxx
A. Xxxx Xxxxxxx and Xxxx Xxxxx 00000 000xx Xxxxx XX
The Highlands Redmond, WA 98052
Xxxxxxx, XX 00000
Xxxxx Xxxxxxx
Xxxxxxx Xxxxxx Limited 0000 XX 00xx Xxxxxx
00 Xxxx Xxxx Xxxxxxx, XX 00000
Xxxxxxx, Xxxxxxx X0X 0X0
XXXXXX Lazarus Family Investments LLC
One Xxxxxx Plaza
Dr. Xxxxx Xxxxxx and Dr. David Wasylynko 0000 00xx Xxxxxx X.X., Xxxxx 000
1877 Laronde Dr. Mercer Island, WA 98040
Surrey, British Columbia
CANADA Liberty HG, Inc.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx X. Xxxxxxxx Xxxxxxxxx, XX 00000
00000 Xxxxxxx Xx. Attn: Xxxxxxx Xxxxxx
Juneau, AK 99801
Madrona Investment Group, LLC
Xxxxxx X. Xxxxxxxx, Xx. 0000 Xxxxxx Xxxxxx, Xxxxx 0000
000 Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxx, XX 00000
Xxxxxxx, XX 00000
Xxxxxxx Xxxxxxxxx Jr.
Xxxxxxxx Investment Group 0000 Xxxxxx Xxx Xx. XX
#000, 1550 - 8 St. S.W. Olympia, WA 98502
Xxxxxxx, Xxxxxxx X0X 0X0
XXXXXX Xxxx and Xxxxxxxx Xxxxx
1845 Broadmoor Xx. X.
Xxxxxx Winblad Technology Fund III, L.P. Xxxxxxx, XX 00000
0 Xxxxx Xxxx, 0xx xxxxx
Xxx Xxxxxxxxx, XX 00000 Organic, Inc.
000 Xxxxx Xx
Hummer Winblad Venture Partners III, L.P. Xxx Xxxxxxxxx, XX 00000
0 Xxxxx Xxxx 0xx xxxxx
Xxx Xxxxxxxxx, XX 00000 Pickwick Group, L.P.
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Hummer Winbiad Venture Partners IV, L.P. Xxxxx Xxxx, XX 00000
0 Xxxxx Xxxx 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000 Xxxx Xxxxxxxxx
0000 00xx Xxx. X.X., Xxxxx 000
Xxxxxxx Xxxxxxx Xxxxxxxx & Xxxxx VIII, L.P. Xxxxxxxx, Xxxxxxx X0X 0X0
0000 Xxxx Xxxx Xxxx XXXXXX
Xxxxx Xxxx, XX 00000
-21-
Xxxxxxx X. Xxxxxxx and
Xxxxxx X. Xxxxxxx, Tenants in Common
0000 0xx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Xxxxxx Xxxxxxx
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
X. Xxxxx and Xxxxxx Xxxxx
0000 00xx Xxxxxx X
Xxxxxxx, XX 00000
Xxxxxx Xxxxxxxxxx
0000 Xxxxxxxxx Xx.
Xxxxxxxxxx, XX 00000
Xxx X. Xxxxxxx
00000 000xx Xxx. XX
Xxxxxxxxx, XX 00000
Spanish Caravan Investments LLC
l6l6 Xxxxxxx Xxx X
Xxxxxxx, XX 00000
Xxxxxx X. Xxxxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
R. Xxxx Xxxxxx
0000 Xxxxxxx Xxxx Xxxxx
Xxxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxxx
0000 Xxxxxxxxx Xxxxxx XX
Xxxxxxx, Xxxxxxx
XXXXXX
-22-
