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EXHIBIT 10.24
XXXX.XXX, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
This Amended and Restated Investors' Rights Agreement (the "Agreement")
is made as of the 5th day of November, 1999, by and among Xxxx.xxx, Inc., a
California corporation (the "Company"), the investors listed on Exhibit A
hereto, each of which is herein referred to as an "Investor," and Xxxx XxXxxxxx,
who is also herein referred to as the "Founder".
RECITALS
A. The Company and certain of the Investors (the "Prior Investors") have
entered into either a Series A Preferred Stock Purchase Agreement (the "Series A
Purchase Agreement") dated April 22, 1999, pursuant to which the Company sold,
and such Investors purchased, shares of the Company's Series A Preferred Stock
(the "Series A Shares"), or a Series B Preferred Stock Purchase Agreement (the
"Prior Series B Purchase Agreement," and together with the Series A Purchase
Agreement, the "Prior Purchase Agreements") pursuant to which the Company sold,
and such Investors purchased, shares of the Company's Series B Preferred Stock
(the "Previously Issued Series B Shares").
B. The Company, Founder and the Prior Investors have previously entered
into an Amended and Restated Investors' Rights Agreement, dated October 18, 1999
(the "Prior Rights Agreement"), which amended and restated that certain
Investors' Rights Agreement dated April 22, 1999 between the Company, Founder,
and certain of the Prior Investors.
C. The Company and certain of the Investors (the "New Series B
Investors") have entered into a Series B Preferred Stock and Convertible Note
Purchase Agreement of even date herewith (the "Purchase Agreement") pursuant to
which the Company desires to sell to the New Series B Investors and the New
Series B Investors desire to purchase from the Company shares of the Company's
Series B Preferred Stock (the "Series B Shares") and/or Series B-1 Preferred
Stock (the "Series B-1 Shares," and together with the Series A Shares, Series B
Shares and the Previously Issued Series B Shares, the "Preferred Stock") and/or
Convertible Promissory Notes (the "Notes"). A condition to the New Series B
Investors' obligations under the Purchase Agreement is that the Company,
Founder, Prior Investors and the New Series B Investors enter into this
Agreement in order to provide the Investors with (i) certain rights to register
shares of the Company's Common Stock issuable upon conversion of the Series A,
Series B and Series B-1 Preferred Stock held by the Investors, (ii) certain
rights to receive or inspect information pertaining to the Company, (iii)
certain rights to have a right of first offer with respect to certain issuances
by the Company of its securities, and (iv) certain additional covenants of the
Company. The Company, Founder, and the Prior Investors each desire to induce the
New Series B Investors to purchase shares of Series B Preferred Stock pursuant
to the Purchase Agreement by agreeing to the terms and conditions set forth
herein.
D. The Company wishes to execute this Agreement and grant to the New
Series B Investors the rights contained herein in order to fulfill such
condition.
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E. The Company and the Prior Investors executing this Agreement together
represent sufficient signatory authority to amend and restate the Prior Rights
Agreement and to waive the Right of First Offer contained in Section 2.3 of the
Prior Rights Agreement with respect to those Prior Investors who are not
purchasing shares of Series B and/or Series B-1 Preferred Stock pursuant to the
Purchase Agreement.
AGREEMENT
In consideration of the mutual promises and covenants hereinafter set
forth, and for certain other valuable considerations, the receipt of which is
hereby acknowledged, the parties hereby agree as follows:
1. REGISTRATION RIGHTS. The Company, the Founder and the Investors
covenant and agree as follows:
1.1 DEFINITIONS. For purposes of this Section 1:
(a) The terms "register," "registered," and "registration" refer
to a registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act of 1933, as amended (the
"Securities Act"), and the declaration or ordering of effectiveness of such
registration statement or document;
(b) The term "Registrable Securities" means (i) the shares of
Common Stock issuable or issued upon conversion of the Series A Preferred Stock,
Series B Preferred Stock and Series B-1 Preferred Stock, (ii) the shares of
Common Stock issuable or issued upon conversion of the Series B Preferred Stock
and Series B-1 Preferred Stock issuable or issued upon conversion of the Notes,
(iii) the shares of Common Stock issued to the Founder (the "Founder's Stock"),
provided, however, that for the purposes of Sections 1.2, 1.4, 1.13, 3 and 5.2
the Founder's Stock shall not be deemed Registrable Securities and the Founder
shall not be deemed a Holder, and (iv) any other shares of Common Stock of the
Company issued as (or issuable upon the conversion or exercise of any warrant,
right or other security which is issued as) a dividend or other distribution
with respect to, or in exchange for or in replacement of, the shares listed in
(i), (ii) and (iii); provided, however, that the foregoing definition shall
exclude in all cases any Registrable Securities sold by a person in a
transaction in which his or her rights under this Agreement are not assigned.
Notwithstanding the foregoing, Common Stock or other securities shall only be
treated as Registrable Securities if and so long as they have not been (A) sold
to or through a broker or dealer or underwriter in a public distribution or a
public securities transaction, or (B) sold in a transaction exempt from the
registration and prospectus delivery requirements of the Securities Act under
Section 4(1) thereof so that all transfer restrictions, and restrictive legends
with respect thereto, if any, are removed upon the consummation of such sale;
(c) The number of shares of "Registrable Securities then
outstanding" shall be determined by the number of shares of Common Stock
outstanding which are, and the number of shares of Common Stock issuable
pursuant to then exercisable or convertible securities which are, Registrable
Securities;
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(d) The term "Holder" means any person owning or having the
right to acquire Registrable Securities or any assignee thereof in accordance
with Section 1.12 of this Agreement; provided, however, that the Founder shall
not be deemed to be a Holder with respect to Founder's Stock only for purposes
of Sections 1.2, 1.4 and 1.13, nor an Eligible Holder (as defined herein below
in Section 2.1) with respect to Founder's Stock only for purposes of Section
3.2.
(e) The term "Form S-3" means such form under the Securities Act
as in effect on the date hereof or any successor form that permits significant
incorporation by reference of a Company's filings under the Securities Exchange
Act of 1934, as amended (the "Exchange Act");
(f) The term "SEC" means the Securities and Exchange Commission;
and
(g) The term "Qualified IPO" means a firm commitment
underwritten public offering by the Company of shares of its Common Stock
pursuant to a registration statement under the Securities Act, the public
offering price of which is not less than $10.00 per share (appropriately
adjusted for any stock split, dividend, combination or other recapitalization)
and which results in aggregate cash proceeds to the Company of $10,000,000 (net
of underwriting discounts and commissions).
1.2 REQUEST FOR REGISTRATION.
(a) Subject to the conditions of this Section 1.2, if the
Company shall receive at any time after the earlier of (i) the fifth anniversary
of the date hereof, or (ii) six (6) months after the effective date of the first
registration statement for a public offering of securities of the Company (other
than a registration statement relating either to the sale of securities to
employees of the Company pursuant to a stock option, stock purchase or similar
plan or an SEC Rule 145 transaction), a written request from the Holders of at
least 33 1/3% of the Preferred Stock then outstanding that the Company file a
registration statement under the Securities Act covering the registration of
Registrable Securities, the anticipated aggregate offering price, net of
underwriting discounts and commissions, of which are in excess of $5,000,000,
then the Company shall, within ten (10) days of the receipt thereof, give
written notice of such request to all Holders and shall, subject to the
limitations of subsection 1.2(b), use its best efforts to effect as soon as
practicable, and in any event within 60 days of the receipt of such request, the
registration under the Securities Act of all Registrable Securities which the
Holders request to be registered within twenty (20) days of the mailing of such
notice by the Company in accordance with Section 3.3.
(b) If the Holders initiating the registration request hereunder
("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 this Section 1.2 and the Company
shall include such information in the written notice referred to in subsection
1.2(a). The underwriter will be selected by a majority in interest of the
Initiating Holders and shall be reasonably acceptable to the Company. In such
event, the right of
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any Holder to include his Registrable Securities in such registration shall be
conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Securities in the underwriting (unless
otherwise mutually agreed by a majority in interest of the Initiating Holders
and such Holder) to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting shall (together with the
Company as provided in subsection 1.5(e)) enter into an underwriting agreement
in customary form with the underwriter or underwriters selected for such
underwriting. Notwithstanding any other provision of this Section 1.2, if the
underwriter advises the Initiating Holders and the Company in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then the Company shall so advise all Holders of Registrable
Securities which would otherwise be underwritten pursuant hereto, and the number
of shares of Registrable Securities that may be included in the underwriting
shall be allocated among all Holders thereof, including the Initiating Holders,
in proportion (as nearly as practicable) to the amount of Registrable Securities
of the Company owned by each Holder; provided, however, that the number of
shares of Registrable Securities to be included in such underwriting shall not
be reduced unless all other securities are first entirely excluded from the
underwriting.
(c) Notwithstanding the foregoing, if the Company shall furnish
to Holders requesting a registration statement pursuant to this Section 1.2, a
certificate signed by the President of the Company stating that in the good
faith judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its shareholders for such registration statement
to be filed 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 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; and provided further that the
Company shall not register shares for its own account during such 90 day period,
but such prohibition shall not apply to the registration of Company shares in
connection with a merger or other strategic transaction by the Company.
(d) In addition, the Company shall not be obligated to effect,
or to take any action to effect, any registration pursuant to this Section 1.2:
(i) After the Company has effected two (2) registrations
pursuant to this Section 1.2 and such registrations have been declared or
ordered effective;
(ii) During the period starting with the date sixty (60)
days prior to the Company's good faith estimate of the date of filing of, and
ending on a date one hundred eighty (180) days after the effective date of, a
registration subject to Section 1.3 hereof; provided that the Company is
actively employing in good faith all reasonable efforts to cause such
registration statement to become effective; or
(iii) If the Initiating Holders propose to dispose of shares
of Registrable Securities that may be immediately registered on Form S-3
pursuant to a request made pursuant to Section 1.4 below.
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1.3 COMPANY REGISTRATION. If (but without any obligation to do so)
the Company proposes to register (including for this purpose a registration
effected by the Company for shareholders other than the Holders) any of its
stock under the Securities Act in connection with the public offering of such
securities (other than a registration relating solely to the sale of securities
to participants in a Company stock plan or a transaction covered by Rule 145
under the Securities Act, a registration in which the only stock being
registered is Common Stock issuable upon conversion of debt securities which are
also being registered, or any registration on any form which does not include
substantially the same information as would be required to be included in a
registration statement covering the sale of the Registrable Securities), the
Company shall, at such time, promptly give each Holder written notice of such
registration. Upon the written request of each Holder given within twenty (20)
days after mailing of such notice by the Company in accordance with Section 3.3,
the Company shall, subject to the provisions of Section 1.8, cause to be
registered under the Securities Act all of the Registrable Securities that each
such Holder has requested to be registered.
1.4 FORM S-3 REGISTRATION. In case the Company shall receive from
any Holder or Holders of not less than thirty percent (30%) of the Preferred
Stock then outstanding a written request or requests that the Company effect a
registration on Form S-3 and any related qualification or compliance with
respect to all or a part of the Registrable Securities owned by such Holder or
Holders, the Company will:
(a) promptly give written notice of the proposed registration,
and any related qualification or compliance, to all other Holders; and
(b) as soon as practicable, effect such registration and all
such qualifications and compliances as may be so requested and as would permit
or facilitate the sale and distribution of all or such portion of such Holder's
or Holders' Registrable Securities as are specified in such request, together
with all or such portion of the Registrable Securities of any other Holder or
Holders joining in such request as are specified in a written request given
within 15 days after receipt of such written notice from the Company; provided,
however, that the Company shall not be obligated to effect any such
registration, qualification or compliance pursuant to this Section 1.4: (i) if
Form S-3 is not available for such offering by the Holders; (ii) if the Holders,
together with the holders of any other securities of the Company entitled to
inclusion in such registration, propose to sell Registrable Securities and such
other securities (if any) at an aggregate price to the public (net of any
underwriters' discounts or commissions) of less than $1,000,000; (iii) if the
Company shall furnish to the Holders a certificate signed by the President of
the Company stating that in the good faith judgment of the Board of Directors of
the Company, it would be seriously detrimental to the Company and its
shareholders for such Form S-3 Registration to be effected at such time, in
which event the Company shall have the right to defer the filing of the Form S-3
registration statement for a period of not more than 90 days after receipt of
the request of the Holder or Holders under this Section 1.4; provided, however,
that the Company shall not utilize this right more than once in any twelve month
period; (iv) if the Company has, within the twelve (12) month period preceding
the date of such request, already effected two registrations on Form S-3 for the
Holders pursuant to this Section 1.4; (v) in any particular jurisdiction in
which the Company would be required to qualify
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to do business or to execute a general consent to service of process in
effecting such registration, qualification or compliance; or (vi) during the
period ending one hundred eighty (180) days after the effective date of the
Company's initial registration statement subject to Section 1.3.
(c) Subject to the foregoing, the Company shall file a
registration statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request or requests of the Holders. Registrations effected pursuant to this
Section 1.4 shall not be counted as demands for registration or registrations
effected pursuant to Sections 1.2 or 1.3, respectively.
1.5 OBLIGATIONS OF THE COMPANY. Whenever required under this Section
1 to effect the registration of any Registrable Securities, the Company shall,
as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, upon the request of the Holders
of a majority of the Registrable Securities registered thereunder, keep such
registration statement effective for up to one hundred twenty (120) days.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement for such period of time as the
registration statement remains on effective.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders,
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) During the period of time that such registration statement
remains effective, notify each Holder of Registrable Securities covered by such
registration statement at any time when (i) 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
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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 or (ii) there is a stop order issued by the SEC
suspending effectiveness of the registration statement or the initiation of any
proceedings for that purpose or the receipt by the Company of any notification
with respect to the suspension of the qualification of the Registered Securities
for sale in any jurisdiction or the initiation of any such procedure.
(g) 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.
(h) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
(i) Use its best efforts to furnish, at the request of any
Holder requesting registration of Registrable Securities pursuant to this
Section 1, on the date that such Registrable Securities are delivered to the
underwriters for sale in connection with a registration pursuant to this Section
1, if such securities are being sold through underwriters, or, if such
securities are not being sold through underwriters, on the date that the
registration statement with respect to such securities becomes effective, (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, addressed to the underwriters,
if any, and to the Holders requesting registration of Registrable Securities and
(ii) a letter dated such date, from the independent certified public accountants
of the Company, in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public offering,
addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities.
1.6 FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 1 with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be required to effect the registration of such Holder's Registrable
Securities. The Company shall have no obligation with respect to any
registration requested pursuant to Section 1.2 or Section 1.4 of this Agreement
if, as a result of the application of the preceding sentence, the number of
shares or the anticipated aggregate offering price of the Registrable Securities
to be included in the registration does not equal or exceed the number of shares
or the anticipated aggregate offering price required to originally trigger the
Company's obligation to initiate such registration as specified in subsection
1.2(a) or subsection 1.4(b)(ii), whichever is applicable.
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1.7 EXPENSES OF REGISTRATION.
(a) DEMAND REGISTRATION. All expenses other than underwriting
discounts and commissions incurred in connection with registrations, filings or
qualifications pursuant to Section 1.2, including (without limitation) all
registration, filing and qualification fees, printers' and accounting fees, fees
and disbursements of counsel for the Company, and the reasonable fees and
disbursements of one counsel for the selling Holders selected by them with the
approval of the Company, which approval shall not be unreasonably withheld,
shall be borne by the Company; provided, however, that the Company shall not be
required to pay for any expenses of any registration proceeding begun pursuant
to Section 1.2 if the registration request is subsequently withdrawn at the
request of the Holders of a majority of the Registrable Securities to be
registered (in which case all participating Holders shall bear such expenses pro
rata based upon the number of Registrable Securities that were to be requested
in the withdrawn registration), unless the Holders of a majority of the
Registrable Securities agree to forfeit their right to one demand registration
pursuant to Section 1.2; provided, further, however, that if at the time of such
withdrawal, the Holders have learned of a material adverse change in the
condition, business, or prospects of the Company from that known to the Holders
at the time of their request and have withdrawn the request with reasonable
promptness following disclosure by the Company of such material adverse change,
then the Holders shall not be required to pay any of such expenses and shall
retain their rights pursuant to Section 1.2.
(b) COMPANY REGISTRATION. All expenses other than underwriting
discounts and commissions incurred in connection with registrations, filings or
qualifications of Registrable Securities pursuant to Section 1.3 for each Holder
(which right may be assigned as provided in Section 1.12), including (without
limitation) all registration, filing, and qualification fees, printers' and
accounting fees, fees and disbursements of counsel for the Company and the
reasonable fees and disbursements of one counsel for the selling Holder or
Holders selected by them with the approval of the Company, which approval shall
not be unreasonably withheld, shall be borne by the Company.
(c) REGISTRATION ON FORM S-3. All expenses incurred in
connection with a registration requested pursuant to Section 1.4, including
(without limitation) all registration, filing, qualification, printers' and
accounting fees and the reasonable fees and disbursements of one counsel for the
selling Holder or Holders selected by them with the approval of the Company,
which approval shall not be unreasonably withheld, and counsel for the Company,
and any underwriters' discounts or commissions associated with Registrable
Securities, shall be borne by the Company.
1.8 UNDERWRITING REQUIREMENTS. In connection with any offering
involving an underwriting of shares of the Company's capital stock, the Company
shall not be required under Section 1.3 to include any of the Holders'
securities in such underwriting unless they accept the terms of the underwriting
as agreed upon between the Company and the underwriters selected by it (or by
other persons entitled to select the underwriters) and enter into an
underwriting agreement in the customary form with an underwriter or
underwriters, and then, except as provided below, only in such quantity as the
underwriters determine in their sole
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discretion will not jeopardize the success of the offering by the Company. If
the total amount of securities, including Registrable Securities, requested by
shareholders to be included in such offering exceeds the amount of securities
sold other than by the Company that the underwriters determine in their sole
discretion is compatible with the success of the offering, then the Company
shall be required to include in the offering only that number of such
securities, including Registrable Securities, which the underwriters determine
in their sole discretion will not jeopardize the success of the offering (the
securities so included to be apportioned pro rata among the selling shareholders
according to the total amount of securities entitled to be included therein
owned by each selling shareholder or in such other proportions as shall mutually
be agreed to by such selling shareholders) but in no event shall (i) the amount
of securities of the selling Holders included in the offering be reduced below
thirty percent (30%) of the total amount of securities included in such
offering, unless such offering is the initial public offering of the Company's
securities, in which case, the selling shareholders may be excluded if the
underwriters make the determination described above and no other shareholder's
securities are included, (ii) any securities held by a Founder be included if
any securities held by any selling Holder are excluded, or (iii) notwithstanding
(i) above, any shares being sold by a shareholder exercising a demand
registration right similar to that granted in Section 1.2 be excluded from such
offering. For purposes of the preceding parenthetical concerning apportionment,
for any selling shareholder which is a holder of Registrable Securities and
which is a partnership or corporation, the partners, retired partners and
shareholders of such holder, or the estates and family members of any such
partners and retired partners and any trusts for the benefit of any of the
foregoing persons shall be deemed to be a single "selling shareholder," and any
pro-rata reduction with respect to such "selling shareholder" shall be based
upon the aggregate amount of shares carrying registration rights owned by all
entities and individuals included in such "selling shareholder," as defined in
this sentence.
1.9 DELAY OF REGISTRATION. No Holder shall have any right to obtain
or seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 1.
1.10 INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Holder, any underwriter (as defined in the Securities
Act) for such Holder and each person, if any, who controls such Holder or
underwriter within the meaning of the Securities Act or the Exchange Act,
against any losses, claims, damages, or liabilities (joint or several) to which
they may become subject under the Securities Act, the Exchange Act or other
federal or state law, insofar as such losses, claims, damages, or liabilities
(or actions in respect thereof) arise out of or are based upon any of the
following statements, omissions or violations (collectively a "Violation"): (i)
any untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to
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make the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation promulgated under the Securities Act,
the Exchange Act or any state securities law; and the Company will pay to each
such Holder, underwriter or controlling person, as incurred, any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided, however,
that the indemnity agreement contained in this subsection 1.10(a) shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability,
or action if such settlement is effected without the consent of the Company
(which consent shall not be unreasonably withheld), nor shall the Company be
liable to any Holder, underwriter or controlling person for any such loss,
claim, damage, liability, or action to the extent that it arises out of or is
based upon a Violation which occurs in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by any such Holder, underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the Securities Act, any underwriter,
any other Holder selling securities in such registration statement and any
controlling person of any such underwriter or other Holder, against any losses,
claims, damages, or liabilities (joint or several) to which any of the foregoing
persons may become subject, under the Securities Act, the Exchange Act or other
federal or state law, insofar as such losses, claims, damages, or liabilities
(or actions in respect thereto) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by such
Holder expressly for use in connection with such registration; and each such
Holder will pay, as incurred, any legal or other expenses reasonably incurred by
any person intended to be indemnified pursuant to this subsection 1.10(b), in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement contained
in this subsection 1.10(b) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is effected
without the consent of the Holder, which consent shall not be unreasonably
withheld; provided, that in no event shall any indemnity under this subsection
1.10(b) exceed the net proceeds from the offering received by such Holder,
except in the case of willful fraud by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 1.10 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 1.10, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the reasonable fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate
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due to actual or potential differing interests between such indemnified party
and any other party represented by such counsel in such proceeding. The failure
to deliver written notice to the indemnifying party within a reasonable time of
the commencement of any such action, if prejudicial to its ability to defend
such action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 1.10 to the extent prejudicial, but the
omission so to deliver written notice to the indemnifying party will not relieve
it of any liability that it may have to any indemnified party otherwise than
under this Section 1.10.
(d) If the indemnification provided for in this Section 1.10 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; provided, that in no event shall any contribution by a Holder
under this Subsection 1.10(d) when aggregated with amounts paid pursuant to
Subsection 1.10(b) hereof, exceed the net proceeds from the offering received by
such Holder, except in the case of willful fraud by such Holder. The relative
fault of the indemnifying party and of the indemnified party shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified party and
the parties' relative intent, knowledge, access to information, and opportunity
to correct or prevent such statement or omission.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
(f) The obligations of the Company and Holders under this
Section 1.10 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and otherwise.
1.11 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. 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 SEC that may at any time
permit a Holder to sell securities of the Company to the public without
registration or pursuant to a registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in SEC Rule 144, at all times after ninety (90) days
after the effective date of the first registration statement filed by the
Company for the offering of its securities to the general public so long as the
Company remains subject to the periodic reporting requirements under Sections 13
or 15(d) of the Exchange Act;
12
(b) take such action, including the voluntary registration of
its Common Stock under Section 12 of the Exchange Act, as is necessary to enable
the Holders to utilize Form S-3 for the sale of their Registrable Securities,
such action to be taken as soon as practicable after the 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;
(c) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and
(d) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of SEC 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
resold pursuant to Form S-3 (at any time after it so qualifies), (ii) a copy of
the most recent annual or quarterly report of the Company and such other reports
and documents so filed by the Company, and (iii) such other information as may
be reasonably requested in availing any Holder of any rule or regulation of the
SEC which permits the selling of any such securities without registration or
pursuant to such form.
1.12 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the
Company to register Registrable Securities pursuant to this Section 1 may be
assigned (but only with all related obligations) by a Holder to a transferee or
assignee of such securities that (i) is a subsidiary, parent, partner, limited
partner, retired partner, member or former member of a Holder, (ii) is a
Holder's family member or trust for the benefit of an individual Holder or (iii)
is a transferee or assignee of at least 100,000 (appropriately adjusted to
reflect subsequent stock splits, stock dividends, combinations or other
recapitalizations) shares of such securities; provided the Company is, within a
reasonable time after such transfer, furnished with written notice of the name
and address of such transferee or assignee and the securities with respect to
which such registration rights are being assigned; and provided, further, that
such assignment shall be effective only if immediately following such transfer
the further disposition of such securities by the transferee or assignee is
restricted under the Securities Act. For the purposes of determining the number
of shares of Registrable Securities held by a transferee or assignee, the
holdings of transferees and assignees of (i) a partnership who are partners or
retired partners of such partnership (including spouses and ancestors, lineal
descendants and siblings of such partners or spouses who acquire Registrable
Securities by gift, will or intestate succession) or (ii) a corporation or
limited liability company which is a parent or subsidiary of such entity shall
be aggregated together and with the partnership or other entity, as the case may
be; provided that all assignees and transferees who would not qualify
individually for assignment of registration rights shall have a single
attorney-in-fact for the purpose of exercising any rights, receiving notices or
taking any action under Section 1.
1.13 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and
after the date of this Agreement, the Company shall not, without the prior
written consent of the Holders of at least seventy percent (70%) of the
outstanding Registrable Securities, not including the
13
Founder's Stock, enter into any agreement with any holder or prospective holder
of any securities of the Company which would allow such holder or prospective
holder (a) to include such securities in any registration filed under Section
1.2 or 1.3 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 his securities will not reduce the amount of
the Registrable Securities of the Holders which are included in such
registration, (b) to make a demand registration which could result in such
registration statement being declared effective prior to the earlier of either
of the dates set forth in subsection 1.2(a) or within one hundred twenty (120)
days of the effective date of any registration effected pursuant to Section 1.2
or (c) to receive rights pari passu or senior to those granted the Investors
hereunder.
1.14 MARKET-STANDOFF AGREEMENT.
(a) MARKET-STANDOFF PERIOD; AGREEMENT. In connection with the
initial public offering of the Company's securities and upon request of the
Company or the underwriters managing such offering of the Company's securities,
each Holder agrees not to sell, make any short sale of, loan, grant any option
for the purchase of, or otherwise dispose of any securities of the Company
acquired by such Holder in a private transaction (other than those included in
the registration) without the prior written consent of the Company or such
underwriters, as the case may be, for such period of time (not to exceed 180
days) from the effective date of such registration as may be requested by the
Company or such managing underwriters and to execute an agreement reflecting the
foregoing as may be requested by the underwriters at the time of the Company's
initial public offering.
(b) LIMITATIONS. The obligations described in Section 1.14(a)
shall apply only if all officers, directors and one-percent security holders of
the Company and all other persons with registration rights (whether or not
pursuant to this Agreement) enter into similar agreements, and shall not apply
to a registration relating solely to employee benefit plans, or to a
registration relating solely to a transaction pursuant to Rule 145 under the
Securities Act.
(c) STOP-TRANSFER INSTRUCTIONS. In order to enforce the
foregoing covenants, the Company may impose stop-transfer instructions with
respect to the securities of each Holder (and the securities of every other
person subject to the restrictions in Section 1.14(a)) until the end of such
period.
(d) TRANSFEREES BOUND. Each Holder agrees that it will not
transfer securities of the Company unless each transferee agrees in writing to
be bound by all of the provisions of this Section 1.14, provided that this
Section 1.14(d) shall not apply to transfers pursuant to a registration
statement or transfers after the six-month anniversary of the effective date of
the Company's initial registration statement subject to this Section 1.14.
1.15 TERMINATION OF REGISTRATION RIGHTS. No Holder shall be entitled
to exercise any right provided for in this Section 1 after the earlier of (i)
seven (7) years following the consummation of a Qualified IPO, or (ii) such time
as Rule 144 or another similar exemption under the Securities Act is available
for the sale of all of such Holder's shares during a three (3)-month period
without registration.
14
2. COVENANTS OF THE COMPANY.
2.1 DELIVERY OF FINANCIAL STATEMENTS. The Company shall deliver to
each Holder of at least 100,000 shares of Registrable Securities (as adjusted
for stock splits, stock dividends, recapitalizations and the like) (each, an
"Eligible Holder"):
(a) as soon as practicable, but in any event within ninety (90)
days after the end of each fiscal year of the Company, an income statement for
such fiscal year, a balance sheet of the Company and statement of shareholder's
equity as of the end of such year, and a statement of cash flows for such year,
such year-end financial reports to be in reasonable detail, prepared in
accordance with generally accepted accounting principles ("GAAP"), and audited
and certified by an independent public accounting firm of nationally recognized
standing selected by the Company;
(b) within thirty (30) days of the end of each month, an
unaudited income statement and a statement of cash flows and balance sheet for
and as of the end of such month, in reasonable detail;
(c) as soon as practicable, but in any event thirty (30) days
prior to the end of each fiscal year, a budget and business plan for the next
fiscal year, prepared on a monthly basis, including balance sheets, income
statements and statements of cash flows for such months and, as soon as
prepared, any other budgets or revised budgets prepared by the Company; and
(d) with respect to the financial statements called for in
subsection (b) of this Section 2.1, an instrument executed by the Chief
Financial Officer or President of the Company and certifying that such
financials were prepared in accordance with GAAP consistently applied with prior
practice for earlier periods (with the exception of footnotes that may be
required by GAAP) and fairly present the financial condition of the Company and
its results of operation for the period specified, subject to year-end audit
adjustment, provided that the foregoing shall not restrict the right of the
Company to change its accounting principles consistent with GAAP, if the Board
of Directors determines that it is in the best interest of the Company to do so.
2.2 INSPECTION. The Company shall permit each Eligible Holder
(except for an Eligible Holder reasonably deemed by the Company to be a
competitor of the Company), at such Eligible Holder'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 at such reasonable times as may be requested by the Investor; provided,
however, that the Company shall not be obligated pursuant to this Section 2.2 to
provide access to any information which it reasonably considers to be a trade
secret or similar confidential information. For purposes of this Section 2.2,
Xxxxxx.xxx, Inc. ("Xxxxxx.xxx") shall not be considered a competitor of the
Company.
2.3 RIGHT OF FIRST OFFER. Subject to the terms and conditions
specified in this Section 2.3, the Company hereby grants to each Eligible Holder
a right of first offer with respect to future sales by the Company of its Shares
(as hereinafter defined). For the avoidance of doubt
15
and for purposes of this Section 2.3, the Founder shall be considered an
Eligible Holder only with respect to the Series A Preferred Stock held by him,
and his pro rata share (as used in Section 2.3(b) below) shall be calculated
based exclusively on the shares of Series A Preferred Stock then held by him. An
Eligible Holder who chooses to exercise the right of first offer may designate
as purchasers under such right itself, its current or former partners, members
or affiliates, or a corporation or limited liability company which is a parent
or subsidiary of such entity, in such proportions as it deems appropriate.
Each time the Company proposes to offer any shares of, or securities
convertible into or exercisable for any shares of, any class of its capital
stock ("Shares"), the Company shall first make an offering of such Shares to
each Eligible Holder in accordance with the following provisions:
(a) The Company shall deliver a notice by certified mail
("Notice") to the Eligible Holders stating (i) its bona fide intention to offer
such Shares, (ii) the number of such Shares to be offered, and (iii) the price
and terms, if any, upon which it proposes to offer such Shares.
(b) Within 15 calendar days after delivery of the Notice, (i)
each Eligible Holder (including Xxxxxx.xxx) may elect to purchase or obtain, at
the price and on the terms specified in the Notice, up to that portion of such
Shares which equals the proportion that the number of shares of Common Stock
issued and held, or issuable upon conversion and exercise of all convertible or
exercisable securities then held by such Eligible Holder bears to the total
number of shares of Common Stock then outstanding (assuming full conversion and
exercise of all convertible or exercisable securities); and (ii) Xxxxxx.xxx may
elect to purchase or obtain, at the price and on the terms specified in the
Notice, the lesser of (A) all such remaining Shares and (B) up to that portion
of such Shares that, when aggregated with the total number of shares of the
Company's Common Stock issued and held, or issuable upon conversion or exercise
of all convertible or exercisable securities then held by Xxxxxx.xxx, plus all
shares which Xxxxxx.xxx has the right to purchase under Subsection (i) of this
Section 2.3(b), equals 46% of the total number of shares of the Company's Common
Stock then outstanding on a fully-diluted basis (assuming full conversion and
exercise of all convertible or exercisable securities of the Company, including
securities reserved for issuance and not granted under the Company's stock and
option plans) (the "Threshold Percentage"). The Company shall promptly, in
writing, inform each Eligible Holder that purchases all the shares available to
it (each, a "Fully-Exercising Investor") of any other Eligible Holder's failure
to do likewise. During the ten (10)-day period commencing after receipt of such
information, each Fully-Exercising Investor shall be entitled to obtain that
portion of the Shares for which Eligible Holders were entitled to subscribe but
which were not subscribed for by the Eligible Holders that is equal to the
proportion that the number of shares of Common Stock
16
issued and held, or issuable upon conversion and exercise of all convertible or
exercisable securities then held, by such Fully-Exercising Investor bears to the
total number of shares of Common Stock then outstanding (assuming full
conversion and exercise of all convertible or exercisable securities), provided,
however, that in no event shall Xxxxxx.xxx be entitled to purchase under this
Section 2.3 a number of Shares that, when aggregated with the total number of
shares of Common Stock issued and held, or issuable upon conversion or exercise
of all convertible or exercisable securities then held by Xxxxxx.xxx, plus all
shares which Xxxxxx.xxx has the right to purchase under Subsection (i) of this
Section 2.3(b), equals an amount greater than the Threshold Percentage. The
right of Xxxxxx.xxx to purchase up to the Threshold Percentage pursuant to this
Section 2.3 may not be transferred to any third party or parties, other than to
a corporation or limited liability company which is a parent or subsidiary of
Xxxxxx.xxx.
(c) The Company may, during the 45-day period following the
expiration of the later of the ten-day or fifteen-day period provided in
subsection 2.3(b) hereof, offer the remaining unsubscribed portion of the Shares
to any person or persons at a price not less than, and upon terms no more
favorable to the offeree than those specified in the Notice. If the Company does
not enter into an agreement for the sale of the Shares within such period, or if
such agreement is not consummated within 60 days of the execution thereof, the
right provided hereunder shall be deemed to be revived and such Shares shall not
be offered unless first reoffered to the Eligible Holders in accordance
herewith.
(d) The right of first offer in this Section 2.3 shall not be
applicable (i) to the issuance or sale of Common Stock (or options therefor) to
employees, consultants and directors, pursuant to plans or agreements approved
by the Board of Directors for the primary purpose of soliciting or retaining
their services, (ii) to or after consummation of a Qualified IPO, except that
with respect to Xxxxxx.xxx (subject to Sections 2.3(e) through (i) below) and
with respect to Xxxxxx Capital Management or any fund over which Xxxxxx Capital
Management exercises control or is under common control with (collectively
"Xxxxxx") (subject to Sections 2.3(j) and (k) below), the right of first offer
in this Section 2.3 shall terminate immediately after consummation of a
Qualified IPO, (iii) to the issuance of securities pursuant to the conversion or
exercise of convertible or exercisable securities, (iv) to the issuance of
securities to financial institutions or lessors in connection with commercial
credit arrangements, equipment financings, or similar transactions, or (v) to
the issuance or sale of the Series A Preferred Stock or Series B Preferred
Stock.
(e) Notwithstanding anything in this Section 2.3 to the
contrary, and subject to paragraphs (f), (g), (h) and (i) below, to the extent
permissible under the federal securities laws, the rules and regulations of the
National Association of Securities Dealers, Inc. (the "NASD"), and all other
applicable laws, rules and regulations, the Company hereby agrees that in
connection with the Company's initial public offering of Common Stock pursuant
to a registration statement filed under the Securities Act (the "IPO"), the
Company shall use reasonable efforts to cause the managing underwriter or
underwriters (who were selected with the prior approval, not to be unreasonably
withheld, of Xxxxxx.xxx) for such IPO to offer to Xxxxxx.xxx the right to
purchase up to such number of shares of the Company's Common Stock to be sold in
the IPO (the "IPO Shares") sufficient to raise Xxxxxx.xxx's total equity
ownership in the Company upon consummation of the IPO to its permitted Threshold
Percentage. The IPO Shares shall be offered to Xxxxxx.xxx on the same terms and
at the same price at which they are being offered to the public. If Xxxxxx.xxx
wishes to purchase the IPO Shares, it shall promptly respond to such offer
within the time frame reasonably requested by the managing underwriter(s). The
foregoing provisions are not intended to be, and shall not be
17
construed as, an offer by the Company to sell the IPO Shares. Any such offer
will be made pursuant to applicable requirements of the federal securities laws,
the rules and regulations of the NASD, and all other applicable laws, rules and
regulations, as well as the provisions of this Section 2.3(e).
(f) In the event that despite all purchases by Xxxxxx.xxx of
shares of the Company's capital stock under this Section 2.3, Xxxxxx.xxx's total
equity ownership in the Company will not reach its permitted Threshold
Percentage upon consummation of the IPO, then to the extent permissible under
the federal securities laws, the rules and regulations of the NASD, and all
other applicable laws, rules and regulations, and to the extent the managing
underwriter(s) determine that the sale of the Additional Shares (as defined
below) will not jeopardize the success of the IPO, the Company shall use its
best efforts to sell and issue to Xxxxxx.xxx, and Xxxxxx.xxx may, but shall not
be required to, purchase from the Company, in a private placement transaction
such number of shares of the Company's Common Stock ("Additional Shares")
sufficient to raise Xxxxxx.xxx's total equity ownership in the Company
(including, without limitation, any IPO Shares and Additional Shares purchased)
to its permitted Threshold Percentage upon consummation of the IPO. The price
per share paid by Xxxxxx.xxx for such Additional Shares shall be the price at
which the IPO Shares are offered to the public. The purchase of such shares
shall be contingent upon the closing of the IPO. The foregoing provisions are
not intended to be, and shall not be construed as, an offer by the Company to
sell such shares. Any such offer will be made pursuant to applicable
requirements of the federal securities laws, the rules and regulations of the
NASD, and all other applicable laws, rules and regulations, as well as the
provisions of this Section 2.3(f).
(g) Notwithstanding Sections 2.3(e) and (f) above, if the
managing underwriter(s) of the IPO determine in their sole discretion that
Xxxxxx.xxx's purchase of IPO Shares in the amount otherwise specified in Section
(e) or Xxxxxx.xxx's purchase of Additional Shares in the amount otherwise
specified in Section (f) is not compatible with the success of the IPO, then the
managing underwriter(s) may prohibit Xxxxxx.xxx from purchasing any IPO Shares
or Additional Shares or may allow Xxxxxx.xxx to purchase only that number of IPO
Shares or Additional Shares that the managing underwriter(s) determine in their
sole discretion will not jeopardize the success of the IPO; provided however
that in no event shall Xxxxxx be permitted to purchase any shares in the
Company's IPO pursuant to Section 2.3(j) below until Xxxxxx.xxx shall have been
permitted to purchase its full allocation of IPO Shares.
(h) Notwithstanding anything in this Section 2.3 to the
contrary, and subject to paragraph (i) below, to the extent Xxxxxx.xxx is not
permitted to purchase the number of shares of additional shares of the Company's
Common Stock which it has requested to purchase pursuant to Section 2.3(e) (the
"Refused Shares"), the Company hereby agrees that for a period of one year
following the IPO, the Company shall in good faith negotiate with Xxxxxx.xxx to
agree upon a means by which Xxxxxx.xxx may purchase the Refused Shares (as
adjusted for stock splits, stock dividends, recapitalizations and the like) at
the then fair market value of the Company's Common Stock. Such means may include
a private placement of shares by the Company or the sale of shares by the
Company to Xxxxxx.xxx in a secondary public offering.
18
(i) The rights of Xxxxxx.xxx under Sections 2.3(e), (f) and (h)
above shall terminate at such time as Xxxxxx.xxx has disposed of any shares of
the Company's capital stock held by it as of the time of this Agreement or
acquired thereafter, provided however, that any transfer of shares by Xxxxxx.xxx
to a corporation or limited liability company which is a parent or subsidiary of
Xxxxxx.xxx will not be deemed to trigger the terms of this Section 2.3(i).
(j) Notwithstanding anything in this Section 2.3 to the
contrary, and subject to paragraphs (g) above and (k) below, to the extent
permissible under the federal securities laws, the rules and regulations of the
NASD, and all other applicable laws, rules and regulations, the Company hereby
agrees that in connection with the Company's IPO, the Company shall use
reasonable efforts to cause the managing underwriter or underwriters for such
IPO to offer to Xxxxxx the right to purchase up to two and one-half percent
(2.5%) of the shares offered and sold by the Company in the IPO. The IPO shares
shall be offered to Xxxxxx on the same terms and at the same price at which they
are being offered to the public. If Xxxxxx wishes to purchase such shares, it
shall promptly respond to such offer within the time frame reasonably requested
by the managing underwriter(s). The foregoing provisions are not intended to be,
and shall not be construed as, an offer by the Company to sell such shares. Any
such offer will be made pursuant to applicable requirements of the federal
securities laws, the rules and regulations of the NASD, and all other applicable
laws, rules and regulations, as well as the provisions of this Section 2.3(j).
Notwithstanding the foregoing provisions, if the managing underwriter(s) of the
IPO determine in their sole discretion that Xxxxxx'x purchase of such shares is
not compatible with the success of the IPO, then the managing underwriter(s) may
prohibit Xxxxxx from purchasing any shares in the IPO or may allow Xxxxxx to
purchase only that number of shares that the managing underwriter(s) determine
in their sole discretion will not jeopardize the success of the IPO.
(k) The rights of Xxxxxx under Section 2.3(j) above shall
terminate at such time as Xxxxxx has disposed of any shares of the Company's
capital stock held by it as of the time of this Agreement or acquired
thereafter.
2.4 REIMBURSEMENT OF DIRECTOR EXPENSES. The Company shall reimburse
the reasonable documented expenses incurred by the directors elected by the
holders of Series A Preferred Stock and Series B Preferred Stock pursuant to
that certain Amended and Restated Voting Agreement between the Company and the
Investors of even date herewith (the "Voting Agreement") in connection with such
directors' attendance of meetings of the Company's Board of Directors promptly
upon receipt of documentation of such expenses.
2.5 NOTICE OF SALE OF COMPANY. Until the Standstill Termination Date
(as defined below in Section 4.1), promptly following commencement of any
discussion with any third-party and in any event at least ten (10) days prior to
signing any letter of intent (whether binding or non-binding) or any definitive
documents, the Company shall provide Xxxxxx.xxx with written notice of its
intent to enter into an agreement to sell, convey, or otherwise dispose of all
or substantially all of its property or business or merge into or consolidate
with any other corporation (other than a wholly-owned subsidiary corporation) or
effect any other transaction or series of related transactions in which more
than fifty percent (50%) of the Company's voting
19
power would be disposed of, provided such notice shall not be required in
connection with a merger effected solely for the purpose of changing the
domicile of the Company.
2.6 VESTING UNDER 1999 STOCK PLAN. Unless otherwise approved by a
majority of the Company's Board of Directors, options and Common Stock granted
by the Company pursuant to its 1999 Stock Plan (the "Plan") will be subject to
the following vesting schedule: 25% of the shares comprising each grant to
employees shall vest on the one-year anniversary of the vesting commencement
date for such grant, and thereafter 1/48th of the shares comprising the grant
shall vest on each monthly anniversary of the vesting commencement date for such
grant. Unvested shares of Common Stock issued to employees pursuant to the Plan
will be subject to the Company's right of repurchase at the original grantee's
purchase price.
2.7 CONFLICTS OF INTERESTS. The Company shall use its best efforts
to ensure that the Company's employees, during the term of their employment with
the Company, do not engage in activities which would result in a conflict of
interest with the Company. The Company's obligations hereunder include, but are
not limited to, requiring that the Company's employees devote their primary
productive time, ability and attention to the business of the Company (provided,
however, the Company's employees may engage in other professional activity if
such activity does not materially interfere with their obligations to the
Company), requiring that the Company's employees enter into agreements regarding
proprietary information and confidentiality and inventions, and preventing the
Company's employees from engaging or participating in any business that is in
competition with the business of the Company.
2.8 QUALIFIED SMALL BUSINESS. The Company shall use its best efforts
to provide notice to the Investors of any proposed action that could affect its
qualification as a "Qualified Small Business" as defined in Section 1202(d) of
the Code, and covenants that so long as Registrable Securities are held by the
Series B Investors (or a transferee or assignee of Series B Investors), prior to
taking any such action, it will discuss such action with the Eligible Holders.
To the extent that such disqualification could be avoided by parties, other than
the Company, repurchasing shares of outstanding stock, the Eligible Holders or
any other persons or entities designated by the Company's Board of Directors may
purchase such stock in accordance with the procedures set forth in Section
1.1(b) of the Amended and Restated Right of First Refusal and Co-Sale Agreement
dated the same date herewith. The Company shall use its best efforts to comply
with the reporting requirements of the State of California regarding "Qualified
Small Business Stock" and similar federal regulations when and if promulgated.
2.9 PROPRIETARY AGREEMENTS. The Company shall have each officer,
employee and consultant of the Company execute the Company's standard form of
non-disclosure and proprietary information agreement prior to disclosing any
proprietary information to any such officer, employee and consultant. The
Company will use its best efforts to prevent any employee from violating the
confidentiality and proprietary information agreement entered into between the
Company and each of its officers, employees and consultants.
20
2.10 DIRECTORS AND OFFICERS INSURANCE. The Company will use its best
efforts to maintain directors and officers insurance, upon a determination by
the Company's Board of Directors that such insurance is economically feasible.
2.11 DIRECTORS' LIABILITY AND INDEMNIFICATION. The Company's Second
Amended and Restated Articles of Incorporation (the "Restated Articles") and
Bylaws shall provide (a) for elimination of the liability of director to the
maximum extent permitted by law and (b) for indemnification of directors for
acts on behalf of the Company to the maximum extent permitted by law. In
addition, the Company shall indemnify such directors to the maximum extent
permissible under California law pursuant to an indemnification agreement.
2.12 AUDITORS. The Company will retain independent public
accountants of recognized national standing (i.e., a firm acknowledged to be
among the Big Five or their successors) who shall audit the Company's financial
statements at the end of each fiscal year.
2.13 EXTRAORDINARY REMUNERATION. The Board of Directors may not
approve any plan or action to grant extraordinary remuneration to management in
connection with the sale of the Company or any subsidiary of the Company, or the
termination of employment or otherwise, unless such plan or action has been
approved by the non-employee members of the Board of Directors.
2.14 APPROVAL OF HOLDERS OF PREFERRED STOCK. The Company shall
disclose all terms, including those provided in side letters, relating to the
issuances described in Article III(B), Sections 6(b)(ii) and 6(c)(ii) of the
Restated Articles to the holders of Preferred Stock before such holders are to
vote on such issuances.
2.15 ISSUANCE OF SERIES B PREFERRED STOCK. After the date of the
Closing (as defined in the Purchase Agreement), the Company shall not issue any
shares of Series B Preferred Stock to any person or entity not referenced in
Article III(B), Section 4(d)(i)(B)(3) of the Restated Articles.
2.16 TERMINATION OF COVENANTS.
(a) The covenants set forth in Sections 2.1 through 2.3 and 2.6
through 2.15 shall terminate as to each Investor and be of no further force or
effect (i) immediately prior to the consummation of a Qualified IPO (except as
otherwise noted in Section 2.3), or (ii) when the Company shall sell, convey, or
otherwise dispose of or encumber all or substantially all of its property or
business or merge into or consolidate with any public corporation (other than a
wholly-owned subsidiary corporation) or effect any other transaction or series
of related transactions in which more than fifty percent (50%) of the voting
power of the Company is disposed of, provided that this subsection (ii) shall
not apply to a merger effected exclusively for the purpose of changing the
domicile of the Company.
(b) The covenants set forth in Sections 2.1 and 2.2 shall
terminate as to each Holder and be of no further force or effect when the
Company first becomes subject to the
21
periodic reporting requirements of Sections 13 or 15(d) of the Exchange Act, if
this occurs earlier than the events described in Section 2.16(a) above.
(c) The covenant set forth in Section 2.4 shall terminate and be
of no further force or effect at such time as the Voting Agreement terminates
pursuant to its terms.
3. COVENANTS OF THE INVESTORS.
3.1 NOTICE OF PROPOSED TRANSFER. Prior to any transfer of
Registrable Securities, the Holder of such Registrable Securities (the "Seller")
must give to the Company a written notice signed by the Seller (the "Seller's
Notice") stating (a) the Seller's bona fide intention to transfer such
Registrable Securities (the "Offered Stock") and the name and address of the
proposed transferee (the "Transferee"); (b) the number of shares of the Offered
Stock; and (c) the bona fide cash price or, in reasonable detail, other
consideration, per share for which the Seller proposes to transfer such Offered
Stock (the "Offered Price"). Upon the request of the Company, the Seller will
promptly furnish information to the Company as may be reasonably requested to
establish that the offer and proposed transferee are bona fide.
3.2 RIGHT OF FIRST REFUSAL.
(a) The Company shall have the right of first refusal to
purchase all or any part of the Offered Stock, if the Company gives written
notice of the exercise of such right to the Seller within thirty (30) days (the
"Company's Refusal Period") after the date of the Seller's Notice to the
Company, provided however, that for purposes of this Section 3.2, Offered Stock
shall not include proposed transfers of stock to any Transferee who is either
(i) a partner or affiliate of the Seller or (ii) a corporation or limited
liability company which is a parent or subsidiary of the Seller.
(b) The purchase price for the Offered Stock to be purchased by
the Company exercising its right of first refusal under this Agreement will be
the Offered Price, and will be payable as set forth in Section 3.2(c) hereof. If
the Offered Price includes consideration other than cash, the cash equivalent
value of the non-cash consideration will be determined by the Board of Directors
of the Company in good faith, which determination will be binding upon the
Company and the Seller, absent fraud or error.
(c) Payment of the purchase price for the Offered Stock
purchased by the Company exercising its right of first refusal will be made
within fifteen (15) days after the end of the Company's Refusal Period. Payment
of the purchase price will be made, at the option of the Company (i) in cash (by
check), (ii) by cancellation of all or a portion of any outstanding indebtedness
of the Seller to the Company, or (iii) by any combination of the foregoing.
(d) If the Company exercises its right of first refusal to
purchase the Offered Stock, then, upon the date the notice of such exercise is
given by the Company, the Seller will have no further rights as a holder of the
Offered Stock except the right to receive payment for the Offered Stock from the
Company in accordance with the terms of this
22
Agreement and the Seller will forthwith cause all certificate(s) evidencing such
Offered Stock to be surrendered for transfer to the Company.
(e) The right of the Company to purchase any part of the Offered
Stock may be assigned in whole or in part to any third party in the Company's
sole discretion.
(f) If the Company (or its designated assignee) has not elected
to purchase all of the Offered Stock, then the Seller may transfer the remaining
shares of Offered Stock to the Transferee at the Offered Price or at a higher
price, provided that such transfer (i) is consummated within thirty (30) days
after the end of the Company's Refusal Period, (ii) is on terms no more
favorable than the terms proposed in the Seller's Notice and (iii) is in
accordance with all the terms of this Agreement. If the Offered Stock is not so
transferred during such thirty (30) day period, then the Seller may not transfer
any of such Offered Stock without complying again in full with the provisions of
this Agreement.
3.3 RESTRICTIVE LEGEND AND STOP-TRANSFER ORDERS.
(a) Each Investor understands and agrees that the Company will
cause the legend set forth below, or a legend substantially equivalent thereto,
to be placed upon any certificate(s) or other documents or instruments
evidencing ownership of the Registrable Securities:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RIGHTS
OF FIRST REFUSAL AS SET FORTH IN AN AGREEMENT ENTERED INTO BY THE HOLDER
OF THESE SHARES AND THE COMPANY. A COPY OF SUCH AGREEMENT IS ON FILE AT
THE PRINCIPAL OFFICE OF THE COMPANY. SUCH RIGHTS OF FIRST REFUSAL ARE
BINDING ON CERTAIN TRANSFEREES OF THESE SHARES.
(b) Each Investor agrees, to ensure compliance with the
restrictions referred to herein, that the Company may issue appropriate "stop
transfer" certificates or instructions and that, if the Company transfers its
own securities, it may make appropriate notations to the same effect in its
records.
3.4 TRANSFERS. No securities shall be transferred unless (i) such
transfer is made in compliance with applicable federal and state securities laws
and (ii) prior to such transfer, the transferees sign a counterpart to this
Agreement pursuant to which it or they agree to be bound by the terms of this
Agreement. The Company shall not be required (a) to transfer on its books any
shares that shall have been sold or transferred in violation of any of the
provisions of this Agreement or (b) to treat as the owner of such shares or to
accord the right to vote as such owner or to pay dividends to any transferee to
whom such shares shall have been so transferred.
3.5 TERMINATION OF RIGHT OF FIRST REFUSAL. The Company's right of
first refusal pursuant to Section 3.2 hereof shall terminate immediately prior
to the closing of: (i) a Qualified IPO or (ii) the sale, conveyance, disposal,
or encumbrance of all or substantially all of the Company's property or business
or the Company's merger into or consolidation with any
23
other corporation (other than a wholly-owned subsidiary corporation) or any
other transaction or series of related transactions in which more than fifty
percent (50%) of the voting power of the Company is disposed of, provided that
this Section 3.5 shall not apply to a merger effected exclusively for the
purpose of changing the domicile of the Company.
4. COVENANTS OF XXXXXX.XXX. Xxxxxx.xxx hereby covenants and agrees as
follows:
4.1 LIMITATION ON OWNERSHIP. Except with the prior written consent
of a majority of the Company's Board of Directors (excluding the vote of any
director designated by Xxxxxx.xxx), Xxxxxx.xxx shall not, directly or
indirectly, acquire beneficial ownership of any capital stock of the Company,
any securities convertible into or exchangeable for capital stock of the
Company, or any other right to acquire capital stock of the Company (except, in
any case, by way of stock dividends or other distributions or offerings made
available to holders of any capital stock generally) if the effect of such
acquisition would be to increase the capital stock owned by Xxxxxx.xxx to more
than the Threshold Percentage; provided, however, that Xxxxxx.xxx may acquire
additional shares of capital stock of the Company without regard to the
foregoing limitation upon the earliest to occur of the following (the
"Standstill Termination Date"):
(a) the second anniversary of the closing date of a Qualified
IPO;
(b) immediately following the effective date on which the
Company shall sell, convey, or otherwise dispose of or encumber all or
substantially all of its property or business or merge or consolidate with any
other corporation (other than a wholly-owned subsidiary corporation) or effect
any other transaction or series of related transactions in which more than fifty
percent (50%) of the voting power of the Company is disposed of, except in each
case a merger effected exclusively for the purpose of changing the domicile of
the Company; or
(c) April 22, 2003.
Notwithstanding the foregoing, if the Company repurchases or recapitalizes any
of its shares and such repurchases or recapitalization result in Xxxxxx.xxx
owning more than the Threshold Percentage at the effective time of such
repurchases or recapitalization, Xxxxxx.xxx shall not be obligated to divest
itself of shares of capital stock of the Company to meet the foregoing the
Threshold Percentage, but shall not acquire any additional shares of capital
stock of the Company unless such acquisition would otherwise be permitted under
this Section 4.1.
4.2 NOTICE OF CAPITAL STOCK PURCHASES. Xxxxxx.xxx shall notify the
Company as to any future acquisition of beneficial ownership of capital stock,
or rights thereto, within ten (10) business days after such action in order for
the Company to monitor compliance with the terms of this Agreement. All
purchases of capital stock of the Company by Xxxxxx.xxx shall be made in
compliance with applicable laws and regulations.
4.3 ACQUISITION BY POOLING. In the event the Company enters into any
agreement providing for the acquisition of the Company by merger, sale of assets
or otherwise in a negotiated transaction approved by the Board of Directors of
the Company, then if such
24
agreement provides, as a condition to closing, that the transaction shall be
treated as a pooling of interests under generally accepted accounting
principles, Xxxxxx.xxx shall (i) refrain from exercising any right of appraisal;
and (ii) not sell or otherwise reduce its risk relative to any securities
received in such combination until such time as financial results covering at
least 30 days of post-transaction combined operations have been published.
4.4 PERMITTED TRANSACTION. Notwithstanding the provisions of this
Section 4, on and after the eleventh business day after the commencement of a
proxy contest, tender offer or exchange offer which could result in a "Change of
Control Transaction" (as defined below) for the outstanding shares of capital
stock of the Company or on or after the public announcement that the Company has
entered into an agreement with a third party not affiliated with the Company
that would result in a Change of Control Transaction, Xxxxxx.xxx shall be
permitted to make a proposal to the Company's Board of Directors or shareholders
or to tender or exchange shares of capital stock beneficially owned by it
pursuant to such transaction. As used herein, "Change of Control Transaction"
shall mean (a) any tender or exchange offer, merger, consolidation,
recapitalization or other business combination or transaction pursuant to which
either (1) the holders of the outstanding voting power immediately prior to the
transaction would hold less than 50% of the outstanding voting power outstanding
immediately after the transaction or (2) 50% of the assets of the Company would
be transferred to or controlled by a third party not affiliated with the
Company, excluding in each case a merger effected exclusively for the purpose of
changing the domicile of the Company, or (b) any action by the shareholders of
the Company that results in the directors, who as of the date of Closing
constitute the Company's Board of Directors (the "Incumbent Board"), ceasing to
constitute at least a majority of the Company's Board of Directors; provided,
however that any individual becoming a director subsequent to the date of
Closing whose nomination for election by the shareholders of the Company was
approved by the vote of the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board.
5. MISCELLANEOUS.
5.1 SUCCESSORS AND ASSIGNS. Except as otherwise provided in this
Agreement, the terms and conditions of this Agreement shall inure to the benefit
of and be binding upon the respective permitted successors and assigns of the
parties (including transferees of any of the Series A Preferred Stock, Series B
Preferred Stock or any Common Stock issued upon conversion thereof). Subject to
the threshold provisions generally included above herein, the parties agree that
the Investors may assign their rights and obligations under this Agreement to
any of their current or former partners, members or affiliates, including to any
corporation or limited liability company which is a parent or subsidiary of such
Investor. Nothing in this Agreement, express or implied, is intended to confer
upon any party other than the parties hereto or their respective successors and
assigns any rights, remedies, obligations, or liabilities under or by reason of
this Agreement, except as expressly provided in this Agreement.
5.2 AMENDMENTS AND WAIVERS. This Agreement (including the Exhibit
hereto) constitutes the full and entire understanding and agreement among the
parties with regard to the subjects hereof and supersedes and terminates in its
entirety the Investors' Rights
25
Agreement dated as of April 22, 1999. Any term of this Agreement may be amended
or waived (either generally or in a particular instance and either retroactively
or prospectively) only with the written consent of the Company and the holders
of at least seventy percent (70%) of the Registrable Securities then
outstanding, not including the Founders' Stock; provided that if such amendment
has the effect of affecting the Founders' Stock (i) in a manner different than
securities issued to the Investors and (ii) in a manner adverse to the interests
of the holders of the Founders' Stock, then such amendment shall also require
the consent of the holder or holders of a majority of the Founders' Stock. Any
amendment or waiver effected in accordance with this paragraph shall be binding
upon each holder of any Registrable Securities then outstanding, each future
holder of all such Registrable Securities, and the Company. Notwithstanding the
foregoing, this Agreement (including Exhibit A hereto) may be amended with only
the written consent of the Company to include additional purchasers of Series B
and/or Series B-1 Preferred Stock as "Investors" or "Holders."
5.3 NOTICES. Unless otherwise provided, any notice required or
permitted by this Agreement shall be in writing and shall be deemed sufficient
upon delivery, when delivered personally or by overnight courier or sent by fax
(with confirmation of successful electronic transmission), or forty-eight (48)
hours after being deposited in the U.S. mail, as certified or registered mail,
with postage prepaid, and addressed to the party (with a copy to such party's
counsel at such counsel's address or fax number as set forth in the Purchase
Agreement or the Prior Purchase Agreement, whichever applicable) to be notified
at such party's address or fax number as set forth on the signature page or on
Exhibit A hereto or as subsequently modified by written notice.
5.4 SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (a) such
provision shall be excluded from this Agreement, (b) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (c) the
balance of the Agreement shall be enforceable in accordance with its terms.
5.5 GOVERNING LAW. This Agreement and all acts and transactions
pursuant hereto shall be governed, construed and interpreted in accordance with
the laws of the State of California, without giving effect to principles of
conflicts of laws.
5.6 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.
5.7 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
5.8 AGGREGATION OF STOCK. All shares of the Preferred Stock held or
acquired by affiliated entities or persons shall be aggregated together for the
purpose of determining the availability of any rights under this Agreement.
26
5.9 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.
5.10 WAIVER OF RIGHT OF FIRST OFFER IN PRIOR RIGHTS AGREEMENT. By
executing this Agreement, the undersigned agrees that it hereby waives on behalf
of itself and all other Investors (as defined in the Prior Rights Agreement) the
right of first offer contained in Section 2.3 of the Prior Rights Agreement to
purchase additional Shares of the Company to which such Investors would
otherwise be entitled.
5.11 TERMINATION OF PRIOR RIGHTS AGREEMENT. Upon the execution of
this Agreement by the Company, the Founders and the Investors, the Prior Rights
Agreement shall be amended and restated in its entirety as set forth herein, and
the terms of the Prior Rights Agreement shall be of no further force or effect.
[Signature Page Follows]
27
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first above written.
COMPANY:
XXXX.XXX, INC.
By: /s/ Xxxxx Xxxxxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxxxxx
-------------------------------------
(print)
Title: CEO
-------------------------------------
Address: 000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
FOUNDER:
/s/ Xxxx XxXxxxxx
-------------------------------------------
Xxxx XxXxxxxx
Address: 00 X. Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Fax: 000-000-0000
SIGNATURE PAGE TO AMENDED AND
RESTATED INVESTORS' RIGHTS AGREEMENT
28
INVESTORS:
SPINNAKER TECHNOLOGY FUND LP
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxxxx
-------------------------------------
(print)
Title: Managing Director of Operations
------------------------------------
Address: 0000 Xxxxx Xxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Tel: (000) 000-0000
Fax:
SPINNAKER TECHNOLOGY OFFSHORE FUND LTD.
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxxxx
-------------------------------------
(print)
Title: Managing Director of Operations
------------------------------------
Address: 0000 Xxxxx Xxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
SPINNAKER FOUNDERS FUND LP
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxxxx
-------------------------------------
(print)
Title: Managing Director of Operations
-------------------------------------
Address: 0000 Xxxxx Xxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
-1-
29
SPINNAKER OFFSHORE FOUNDERS FUND LTD
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxxxx
--------------------------------------
(print)
Title: Managing Director of Operations
-------------------------------------
Address: 0000 Xxxxx Xxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
XXXXXX.XXX, INC.
By: /s/ Xxxxx Xxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxx
-------------------------------------
(print)
Title: VP, Corp. Dev.
-------------------------------------
Address: 0000 - 00xx Xxx. X., Xxxxx 0000
Xxxxxxx, XX 00000
HUMMER WINBLAD VENTURE PARTNERS IV, L.P.
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxx
--------------------------------------
(print)
Title: Member
-------------------------------------
Address: 0 Xxxxx Xxxx
Xxx Xxxxxxxxx, XX 00000
-2-
30
THE PHOENIX PARTNERS IV LIMITED PARTNERSHIP
By: The Phoenix Management IV, LLC
---------------------------------------
its General Partner
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
-------------------------------------
(print)
Title: Managing Member
-------------------------------------
Address: 0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
THE XXXXX XXXXXX TRUST
By: /s/ Xxxxx Xxxxxx trust
---------------------------------------
Name: Xxxxx Xxxxxx
-------------------------------------
(print)
Title: Trustee
-------------------------------------
Address: c/o The Xxxxx Xxxxxx Company
000 Xxxxxxxxxx Xx., 00xx Xx.
Xxx Xxxxxxxxx, XX 00000
(000) 000-0000
COMCAST INTERACTIVE CAPITAL, L.P.
By: CIC Venture Management L.P.
---------------------------------------
By: /s/ Xxxxx X. Patlore
---------------------------------------
Name: Xxxxx X. Patlore
-------------------------------------
(print)
-3-
31
Title: Vice President
------------------------------------
Address: 0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
CYBER CONTROL DEVELOPMENT LIMITED
By: /s/ Xxxx Xxxxx
---------------------------------------
Name: Xxxx Xxxxx
-------------------------------------
(print)
Title: Director
------------------------------------
Address: 00xx Xxxxx, Xxxxxxxx Xxxxx,
Xxxxxxxx Plaza
0 Xxxxxx Xxxx, Xxxxxxx
Xxxx Xxxx
ASIA PACIFIC TECHNOLOGY & FINANCE 1 N.V.
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Name: Pleadis Investment Management B.V.
By Xxxxxx Xxxxxx, Managing Director
(print)
Title:
------------------------------------
Address: 00 xx Xxxxxxxxxx, Xxxxxxx
Xxxxxxxxxxx Antilles
With a copy: ETF Group, Xxx
Xxxxxxxxx, Xxx Xxxxxxxxx Xxxxxxxx
XX-0000 Xxxxx, Xxxxxxxxxxx
Fax number: 00 00 000 00 00
Attention: Counsel and Secretary
BAYSTAR INTERNATIONAL LTD, a British
Virgin Islands Corporation
-4-
32
By: BayStar International Management,
LLC
Its General Partner
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Fax: 000-000-0000
WORLD ONLINE INTERNATIONAL B.V.
By: [SIGNATURES ILLEGIBLE]
---------------------------------------
Name: [SIGNATURES ILLEGIBLE]
-------------------------------------
Title: Director/COO/CFO
-------------------------------------
Address: Xxxxxxxx 00
X X Xxx ____
0000 XX Xxxxxxxxx,
Xxxxxxxxxxx
THE XXXXXXXX FAMILY LIMITED PARTNERSHIP
DTD 1/7/99
/s/ Xxxxxxxx Xxxxxxxx
/s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Xxxx X. Xxxxxxxx
------------------------------------
Title: General Partners
------------------------------------
Address: 00 Xxxxx Xx.
Xxxxxx, XX 00000
-5-
33
XXXXX X. (XXXX) XXXXXXX
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
-------------------------------------
Address: 0000 XX 00xx Xx.
Xxxxxx Xxxxxx, XX 00000
XXXXXXX X. XXXXX
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Address: 0000 X. Xxxx Xx.
Xxxxxxx, XX 00000
XXXXX XXXXXXXXX
By: /s/ Xxxxx Xxxxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxxxx
-------------------------------------
XXXX XXXXXXX PARTNERSHIP
By: /s/ Xxxx Xxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxx
-------------------------------------
Address: The Highlands
Xxxxxxx, XX 00000
-6-
