1
EXHIBIT 4.1
QUOKKA SPORTS, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
AS OF MARCH 31, 2000
2
TABLE OF CONTENTS
PAGE
Section 1. GENERAL.......................................................................1
1.1 Definitions...................................................................1
Section 2. REGISTRATION; RESTRICTIONS ON TRANSFER........................................3
2.1 Restrictions on Transfer......................................................3
2.2 Demand Registration...........................................................5
2.3 Piggyback Registrations.......................................................6
2.4 Form S-3 Registration.........................................................7
2.5 Form S-3 Registration for New Registrable Securities..........................8
2.6 Expenses of Registration.....................................................10
2.7 Obligations of the Company...................................................10
2.8 Termination of Registration Rights...........................................11
2.9 Delay of Registration; Furnishing Information................................12
2.10 Indemnification..............................................................12
2.11 Assignment of Registration Rights............................................14
2.12 Amendment of Registration Rights.............................................14
2.13 Limitation on Subsequent Registration Rights.................................14
2.14 "Market Stand-Off" Agreement.................................................14
2.15 Rule 144 Reporting...........................................................15
Section 3. AFFIRMATIVE COVENANTS OF THE INVESTORS.......................................15
3.1 Confidential Information, etc................................................15
Section 4. MISCELLANEOUS................................................................16
4.1 Governing Law................................................................16
4.2 Survival.....................................................................16
4.3 Successors and Assigns.......................................................16
4.4 Entire Agreement.............................................................16
4.5 Severability.................................................................16
4.6 Amendment and Waiver.........................................................16
4.7 Delays or Omissions..........................................................17
4.8 Notices......................................................................17
4.9 Attorneys' Fees..............................................................17
4.10 Titles and Subtitles.........................................................17
4.11 Counterparts.................................................................17
i.
3
TABLE OF CONTENTS (CONTINUED)
PAGE
4.12 Protection of Confidential Information.......................................18
4.13 Disclosure of Terms: Press Releases.........................................18
ii.
4
QUOKKA SPORTS, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
THIS AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT (the "Agreement")
is entered into as of the 31st day of March, 2000, by and among QUOKKA SPORTS,
INC., a Delaware corporation (the "Company") and the holders of the Company's
Common Stock and Warrants set forth on Exhibit A hereto (the "Investors"). This
Agreement amends, restates and supersedes in its entirety that certain Amended
and Restated Investors' Rights Agreement dated May 27, 1999 (the "Original
Investors' Rights Agreement").
RECITALS
WHEREAS, the Company and certain of its current stockholders and warrant
holders entered into the Original Investors' Rights Agreement; and
WHEREAS, the Company has issued shares of its Common Stock to the
stockholders of XxxxXxxxxxx.xxx,Inc. pursuant to that certain Agreement and Plan
of Merger dated March 1, 2000 (the "Agreement and Plan of Merger"); and
WHEREAS, pursuant to the Agreement and Plan of Merger, the Company
agreed to solicit the consent of the Investors (as such term was defined in the
Original Investors' Rights Agreement) to amend and restate the Original
Investors' Rights Agreement in order to include the shares of Common Stock
issued pursuant to the Agreement and Plan of Merger as set forth herein; and
WHEREAS, the parties hereto desire to amend the Original Investors'
Rights Agreement as described above;
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in this
Agreement and in the Purchase Agreement, the parties mutually agree as follows:
SECTION 1. GENERAL
1.1 DEFINITIONS. As used in this Agreement the following terms shall
have the following respective meanings:
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"FORM S-3" means such form under the Securities Act as in effect on the
date hereof or any successor registration form under the Securities Act
subsequently adopted by the SEC which permits inclusion or incorporation of
substantial information by reference to other documents filed by the Company
with the SEC.
1.
5
"HOLDER" means any person owning of record any shares of the Shares,
Warrants or Registrable Securities that have not been sold to the public or any
assignee of record of such Registrable Securities in accordance with Section
2.11 hereof.
"INITIAL OFFERING" means the Company's first firm commitment
underwritten public offering of its Common Stock registered under the Securities
Act.
"NEW REGISTRABLE SECURITIES" means any of the shares of the Company's
Common Stock issued pursuant to the Agreement and Plan of Merger.
"NON-VOTING COMMON STOCK" means such shares of the Company's Non-Voting
Common Stock sold pursuant to the Common Stock Purchase Agreement dated April
12, 1997 or the Common Stock Purchase Agreement dated January 31, 1997.
"OLD REGISTRABLE SECURITIES" means (i) any of the Shares, if such Shares
are shares of the Company's Voting Common Stock; (ii) any shares of the
Company's Voting Common Stock issued pursuant to the exercise of the Warrants;
and (iii) any shares of the Company's Voting Common Stock issued as (or issuable
upon the conversion or exercise of any warrants, right or other security which
is issued as) a dividend or other distribution with respect to, or in exchange
for or in replacement of, such above-described securities or the Warrants.
"REGISTER," "REGISTERED," AND "REGISTRATION" refer to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act, and the declaration or ordering of effectiveness of such
registration statement or documents.
"REGISTRABLE SECURITIES" shall mean the New Registrable Securities and
the Old Registrable Securities. Notwithstanding the foregoing, Registrable
Securities shall not include any securities (i) sold by a person to the public
either pursuant to a registration statement or Rule 144, (ii) sold in a private
transaction in which the transferor's rights under Section 2 of this Agreement
are not assigned or (iii) held by a Holder whose registration rights have
expired under Section 2.8 hereto.
"REGISTRABLE SECURITIES THEN OUTSTANDING" shall be the number of shares
that are Registrable Securities and either (1) are then issued and outstanding
or (2) are issuable pursuant to then exercisable or convertible securities.
"REGISTRATION EXPENSES" shall mean all expenses incurred by the Company
in complying with Sections 2.2, 2.3 and 2.4 hereof, including, without
limitation, all registration and filing fees, printing expenses, fees and
disbursements of counsel for the Company, reasonable fees and disbursements not
to exceed Fifteen Thousand Dollars ($15,000) of a single special counsel for the
Holders (which counsel shall be selected by the holders of a majority of the
Registrable Securities and subject to the approval of the Company, which
approval shall not be unreasonably withheld), blue sky fees and expenses and the
expense of any special audits incident to or required by any such registration
(but excluding the compensation of regular employees of the Company which shall
be paid in any event by the Company).
"SEC" OR "COMMISSION" means the Securities and Exchange Commission.
2.
6
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SELLING EXPENSES" shall mean all underwriting discounts and selling
commissions applicable to the sale.
"SERIES A PREFERRED" means the Company's Series A Preferred Stock that
was converted into Common Stock upon the initial public offering of the
Company's equity securities.
"SERIES B PREFERRED" means the Company's Series B Preferred Stock that
was converted into Common Stock upon the initial public offering of the
Company's equity securities.
"SERIES C PREFERRED" means the Company's Series C Preferred Stock that
was converted into Common Stock upon the initial public offering of the
Company's equity securities.
"SERIES D PREFERRED" means the Company's Series D Preferred Stock that
was converted into Common Stock upon the initial public offering of the
Company's equity securities.
"SHARES" shall mean (i) the Company's Common Stock issued upon
conversion of the Series D Preferred, (ii) the Company's Common Stock issued
upon conversion of the Series C Preferred, (iii) the Company's Common Stock
issued upon conversion of the Series B Preferred, (iv) the Company's Common
Stock issued upon conversion of the Series A Preferred, (v) the Company's Voting
Common Stock issued pursuant to that certain Common Stock Purchase Agreement
dated August 19, 1997 by and among the Company and the Purchasers set forth on
Exhibit A thereto, (vi) the Company's Voting Common Stock and Voting Common
Stock issued upon conversion of the Non-Voting Common Stock issued pursuant to
that certain Common Stock Purchase Agreement dated April 2, 1997 by and between
the Company and Xxxxxxx X. Xxxxxxxx and (vii) the Company's Voting Common Stock
issued pursuant to that certain Common Stock Purchase Agreement dated January
31, 1997 between the Company and Quokka Sports Pty Ltd. as trustee for Ozware
Developments Unit Trust.
"WARRANTS" means (i) the warrants to purchase Voting Common Stock of the
Company issued pursuant to that certain Note and Warrant Purchase Agreement
dated October 31, 1997 among the Company and the Purchasers set forth on Exhibit
A thereto and (ii) the warrants, if any, held by Intel Corporation, MediaOne
Interactive Services, Inc. ("MediaOne"), any affiliate of MediaOne to whom such
warrants have been originally issued, NBC/Quokka Ventures, LLC or its assigns,
Comdisco, Inc. or its assigns, Championship Auto Racing Teams, Inc. or its
assigns and @Home or its assigns.
SECTION 2. REGISTRATION; RESTRICTIONS ON TRANSFER
2.1 RESTRICTIONS ON TRANSFER.
(a) Each Holder agrees not to make any disposition of all or any
portion of the Non-Voting Common Stock, Shares or Registrable Securities unless
and until:
(i) There is then in effect a registration statement under
the Securities Act covering such proposed disposition and such disposition is
made in accordance with such registration statement; or
3.
7
(ii) (A) The disposition is made under Rule 144 or its
equivalent, (B) such Holder shall have notified the Company of the proposed
disposition and shall have furnished the Company with a statement of the
circumstances surrounding the proposed disposition, and (C) such Holder shall
have furnished the Company with an opinion of counsel that such disposition will
not require registration under the Securities Act if reasonably requested by the
Company, which request shall only be made in unusual circumstances; or
(iii) (A) The transferee has agreed in writing to be bound
by the terms of this Agreement, (B) such Holder shall have notified the Company
of the proposed disposition and shall have furnished the Company with a
statement of the circumstances surrounding the proposed disposition, and (C) if
reasonably requested by the Company, such Holder shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company, that
such disposition will not require registration of such shares under the
Securities Act.
(iv) Notwithstanding the provisions of paragraphs (i),
(ii) and (iii) above, no such registration statement or opinion of counsel shall
be necessary for a transfer by a Holder which is (A) a partnership to its
partners or former partners in accordance with partnership interests, (B) a
corporation to its shareholders in accordance with their interest in the
corporation, or to a wholly-owned subsidiary or an affiliate of such corporation
(the term "affiliate" being defined herein as any other person or entity
directly or indirectly controlling, controlled by or under common control with
such person or entity, with "control" meaning the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a person or entity, whether through the ownership of voting
securities or voting interests, by contract or otherwise), (C) a limited
liability company to its members or former members in accordance with their
interest in the limited liability company, or (D) to the Holder's family member
or trust for the benefit of an individual Holder, provided any such transferee
will be subject to the terms of this Agreement to the same extent as if he were
an original Holder hereunder.
(b) Each certificate representing the Shares or Registrable
Securities shall (unless otherwise permitted by the provisions of this
Agreement) be stamped or otherwise imprinted with legends substantially similar
to the following (in addition to any legend required under applicable state
securities laws or as provided elsewhere in this Agreement):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED
UNLESS AND UNTIL REGISTERED UNDER THE ACT OR UNLESS THE COMPANY
HAS RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
THE SALE, TRANSFER OR ASSIGNMENT OF THE SECURITIES REPRESENTED BY
THIS CERTIFICATE ARE SUBJECT TO THE TERMS OF AN AGREEMENT BETWEEN
4.
8
THE COMPANY AND THE REGISTERED HOLDER OR HIS PREDECESSOR IN
INTEREST. COPIES OF SUCH AGREEMENT MAY BE OBTAINED BY WRITTEN
REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE
SECRETARY OF THE COMPANY.
(c) The Company shall be obligated to reissue promptly unlegended
certificates at the request of any holder thereof if the holder shall have
obtained an opinion of counsel (which counsel may be counsel to the Company)
reasonably acceptable to the Company to the effect that the securities proposed
to be disposed of may lawfully be so disposed of without registration,
qualification or legend.
(d) Any legend endorsed on an instrument pursuant to applicable
state securities laws and the stop-transfer instructions with respect to such
securities shall be removed upon receipt by the Company of an order of the
appropriate blue sky authority authorizing such removal.
2.2 DEMAND REGISTRATION.
(a) Subject to the conditions of this Section 2.2, if the Company
shall receive a written request from the Holders of more than fifty percent
(50%) of the Registrable Securities then outstanding (the "Initiating Holders")
that the Company file a registration statement under the Securities Act covering
the registration of Registrable Securities having an aggregate offering price to
the public in excess of $10,000,000, then the Company shall, within twenty (20)
days of the receipt thereof, give written notice of such request to all Holders,
and subject to the limitations of this Section 2.2, use its best efforts to
effect, as soon as practicable, the registration under the Securities Act of all
Registrable Securities that the Holders request to be registered.
Notwithstanding any provision herein to the contrary, one hundred percent (100%)
of the New Registrable Securities held by each Holder of New Registrable
Securities, and each such Holder's permitted transferees or assignees, shall not
be included in the Registrable Securities then outstanding for the purposes of
this Section 2.2(a) until the date six (6) months from the date hereof and
thereafter fifty percent (50%) of the New Registrable Securities held by each
Holder of New Registrable Securities, and each such Holder's permitted
transferees or assignees, shall not be included in the Registrable Securities
then outstanding until the date twelve (12) months from the date hereof.
(b) If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request made pursuant to
this Section 2.2 or any request pursuant to Section 2.3 or 2.4 and the Company
shall include such information in the written notice referred to in Section
2.4(a) or Section 2.6(a), as applicable. In such event, the right of any Holder
to include its 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 enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwriting by a majority in interest
5.
9
of the Initiating Holders (which underwriter or underwriters shall be reasonably
acceptable to the Company). Notwithstanding any other provision of this Section
2.2, if the underwriter advises the Company that marketing factors require a
limitation of the number of securities to be underwritten (including Registrable
Securities) then the Company shall so advise all Holders of Registrable
Securities which would otherwise be underwritten pursuant hereto, and the number
of shares that may be included in the underwriting shall be allocated to the
Holders of such Registrable Securities which would otherwise be underwritten
pursuant hereto on a pro rata basis based on the number of Registrable
Securities held by all such Holders (including the Initiating Holders). Any
Registrable Securities excluded or withdrawn from such underwriting shall be
withdrawn from the registration.
(c) The Company shall not be required to effect a registration
pursuant to this Section 2.2:
(i) after the Company has effected two (2) registrations
pursuant to this Section 2.2, and such registrations have been declared or
ordered effective by the SEC; or
(ii) if the Company shall furnish to Holders requesting
the filing of a registration statement pursuant to this Section 2.2, a
certificate signed by the Chairman of the Board 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 effected at such time, in which event the Company shall have the right to
defer such filing for a period of not more than sixty (60) days after receipt of
the request of the Initiating Holders; provided that such right to delay a
request shall be exercised by the Company not more than twice in any twelve (12)
month period.
2.3 PIGGYBACK REGISTRATIONS. The Company shall notify all Holders of
Registrable Securities in writing at least thirty (30) days prior to the filing
of any registration statement under the Securities Act for purposes of a public
offering of securities of the Company (including, but not limited to,
registration statements relating to secondary offerings of securities of the
Company, but excluding registration statements pursuant to Section 2.5 below or
relating to employee benefit plans or with respect to corporate reorganizations
or other transactions under Rule 145 of the Securities Act) and will afford each
such Holder an opportunity to include in such registration statement all or part
of such Registrable Securities held by such Holder. Each Holder desiring to
include in any such registration statement all or any part of the Registrable
Securities held by it shall, within fifteen (15) days after the above-described
notice from the Company, so notify the Company in writing. Such notice shall
state the intended method of disposition of the Registrable Securities by such
Holder. If a Holder decides not to include all of its Registrable Securities in
any registration statement thereafter filed by the Company, such Holder shall
nevertheless continue to have the right to include any Registrable Securities in
any subsequent registration statement or registration statements as may be filed
by the Company with respect to offerings of its securities, all upon the terms
and conditions set forth herein. Notwithstanding any provision herein to the
contrary, one hundred percent (100%) of the New Registrable Securities held by
each Holder of New Registrable Securities, and each such Holder's permitted
transferees or assignees, shall not be included in the Registrable Securities
for the purposes of this Section 2.3 until the date six (6) months from the date
hereof and thereafter fifty percent (50%) of the New Registrable Securities held
by each Holder of New Registrable
6.
10
Securities, and each such Holder's permitted transferees or assignees, shall not
be included in the Registrable Securities until the date twelve (12) months from
the date hereof.
(a) UNDERWRITING. If the registration statement under which the
Company gives notice under this Section 2.3 is for an underwritten offering, the
Company shall so advise the Holders of Registrable Securities. In such event,
the right of any such Holder to be included in a registration pursuant to this
Section 2.3 shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting to the extent provided herein. All Holders proposing to distribute
their Registrable Securities through such underwriting shall enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by the Company. Notwithstanding any other
provision of the Agreement, if the underwriter determines in good faith that
marketing factors require a limitation of the number of shares to be
underwritten, the number of shares that may be included in the underwriting
shall be allocated first, to the Company; second, to the Holders on a pro rata
basis based on the total number of Registrable Securities held by the Holders
who wish to sell in such offering; and third, to any shareholder of the Company
(other than a Holder of Registrable Securities) on a pro rata basis.
Notwithstanding the immediately preceding sentence, in no event shall the amount
of securities of the selling Holders included in the registration be reduced
below twenty-five percent (25%) of the total amount of securities included in
such registration. In no event will shares of any other selling shareholder be
included in any such registration which would reduce the number of shares which
may be included by Holders without the written consent of Holders of more than
fifty percent (50%) of the Registrable Securities proposed to be sold in the
offering.
(b) RIGHT TO TERMINATE REGISTRATION. The Company shall have the
right to terminate or withdraw any registration initiated by it under this
Section 2.3 prior to the effectiveness of such registration whether or not any
Holder has elected to include securities in such registration. The Registration
Expenses of such withdrawn registration shall be borne by the Company in
accordance with Section 2.6 hereof.
2.4 FORM S-3 REGISTRATION. In the event the Company shall receive a
written request from the Holders of more than fifty percent (50%) of the
Registrable Securities then outstanding (the "Initiating Holders") that the
Company effect a registration on Form S-3 (or any successor to Form S-3) or any
similar short-form registration statement 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 of Registrable
Securities; and
(b) as soon as practicable, effect such registration and all such
qualifications and compliances as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such Initiating
Holder's or Initiating 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 to the Company by any such other Holder or Holders within fifteen
(15) days after receipt of such written notice from the Company; provided,
however, that the Company shall not
7.
11
be obligated to effect any such registration, qualification or compliance
pursuant to this Section 2.4:
(i) if Form S-3 (or any successor or similar form) is not
available for such offering by the Holders, or
(ii) if the Holders, together with the holders of any
other securities of the Company entitled to inclusion in such registration,
propose to sell Registrable Securities and such other securities (if any) at an
aggregate price to the public of less than $1,000,000, or
(iii) if the Company shall furnish to the Holders a
certificate signed by the Chairman of the Board of Directors of the Company
stating that in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company for 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) a
period of not more than sixty (60) days after receipt of the request of the
Initiating Holder or Initiating Holders under this Section 2.4; and (b) a period
of not more than thirty (30) days after the lapse of the sixty (60) day deferral
referenced in Section 2.4(b)(iii)(a) immediately above; provided, that such
rights to delay a request shall be exercised by the Company not more than once
in any twelve (12) month period, or
(iv) if the Company has, within the twelve (12) month
period preceding the date of such request, already effected one (1) registration
on Form S-3 for the Holders pursuant to this Section 2.4,
(v) in any particular jurisdiction in which the Company
would be required to qualify to do business or to execute a general consent to
service of process in effecting such registration, qualification or compliance,
unless the Registered Securities would not, on account of this limitation, be
available for offer and sale in at least twenty states, or
(vi) if the Company has, within the one hundred eighty
(180) day period preceding the date of such request, effected a Company
initiated registration (other than a registration effected solely to qualify an
employee benefit plan or to effect a business combination pursuant to Rule 145).
(c) Subject to the foregoing, the Company shall file a Form S-3
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.
Notwithstanding any provision herein to the contrary, one hundred percent (100%)
of the New Registrable Securities held by each Holder of New Registrable
Securities, and each such Holder's permitted transferees or assignees, shall not
be included in the Registrable Securities then outstanding for the purposes of
this Section 2.4 until the date six (6) months from the date hereof and
thereafter fifty percent (50%) of the New Registrable Securities held by each
Holder of New Registrable Securities, and each such Holder's permitted
transferees or assignees, shall not be included in the Registrable Securities
then outstanding until the date twelve (12) months from the date hereof.
8.
12
2.5 FORM S-3 REGISTRATION FOR NEW REGISTRABLE SECURITIES. Following the
date six months from the date hereof, in the event the Company shall receive a
written request from the Holders of more than fifty percent (50%) of the New
Registrable Securities then outstanding (the "New Initiating Holders") that the
Company effect a registration on Form S-3 (or any successor to Form S-3) or any
similar short-form registration statement and any related qualification or
compliance with respect to all or a part of the New 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 of New
Registrable Securities; and
(b) as soon as practicable, effect such registration and all such
qualifications and compliances as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such New
Initiating Holder's or New Initiating Holders' New Registrable Securities as are
specified in such request, together with all or such portion of the New
Registrable Securities of any other Holder or Holders joining in such request as
are specified in a written request given to the Company by any such other Holder
or Holders within fifteen (15) days after receipt of such written notice from
the Company; provided, however, that the Company shall not be obligated to
effect any such registration, qualification or compliance pursuant to this
Section 2.5:
(i) if Form S-3 (or any successor or similar form) is not
available for such offering by the Holders, or
(ii) if the Holders propose to sell New Registrable
Securities at an aggregate price to the public of less than $10,000,000, or
(iii) if the Company shall furnish to the Holders a
certificate signed by the Chairman of the Board of Directors of the Company
stating that in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company for 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) a
period of not more than sixty (60) days after receipt of the request of the New
Initiating Holder or New Initiating Holders under this Section 2.5; and (b) a
period of not more than thirty (30) days after the lapse of the sixty (60) day
deferral referenced in Section 2.5(b)(iii)(a) immediately above; provided, that
such rights to delay a request shall be exercised by the Company not more than
once in any twelve (12) month period, or
(iv) if the Company has already effected two (2)
registrations on Form S-3 for the Holders pursuant to this Section 2.5,
(v) in any particular jurisdiction in which the Company
would be required to qualify to do business or to execute a general consent to
service of process in effecting such registration, qualification or compliance,
unless the Registered Securities would not, on account of this limitation, be
available for offer and sale in at least twenty states, or
(vi) if the Company has, within the one hundred eighty
(180) day period preceding the date of such request, effected a Company
initiated registration (other than a
9.
13
registration effected solely to qualify an employee benefit plan or to effect a
business combination pursuant to Rule 145).
Subject to the foregoing, the Company shall file a Form S-3 registration
statement covering the New Registrable Securities and other securities so
requested to be registered as soon as practicable after receipt of the request
or requests of the Holders. Notwithstanding any provision herein to the
contrary, in the event the Company so elects, the Company shall be able to
include other equity securities of the Company is such Form S-3 registration
statement, provided that such inclusion does not reduce the number of New
Registrable Securities included therein.
Notwithstanding any provision herein to the contrary, fifty percent (50%) of the
New Registrable Securities held by each Holder of New Registrable Securities,
and each such Holder's permitted transferees or assignees, shall not be included
in the New Registrable Securities then outstanding for the purposes of this
Section 2.5 until the date twelve (12) months from the date hereof.
2.6 EXPENSES OF REGISTRATION. Except as specifically provided in this
Section 2.6, all Registration Expenses incurred in connection with any
registration under Section 2.2, Section 2.3, Section 2.4 or Section 2.5 herein
shall be borne by the Company. All Selling Expenses incurred in connection with
any registrations hereunder shall be borne by the holders of the securities so
registered pro rata on the basis of the number of shares sold. The Company shall
not, however, be required to pay for expenses of any registration proceeding
begun pursuant to Section 2.2, the request of which has been subsequently
withdrawn by the Initiating Holders unless (a) the withdrawal is based upon
material adverse information concerning the Company of which the Initiating
Holders were not aware at the time of such request or (b) the Holders of a
majority of Registrable Securities agree to forfeit their right to one requested
registration pursuant to Section 2.2, in which event such right shall be
forfeited by all Holders). Additionally, the Company shall not be required to
pay for expenses in any registration proceeding begun pursuant to Section 2.4 or
Section 2.5, the request of which has been subsequently withdrawn by the
Initiating Holders unless (a) the withdrawal is based upon material adverse
information concerning the Company of which the Initiating Holders were not
aware at the time of such request or (b) the Holders of a majority of
Registrable Securities agree that such registration shall be deemed a completed
registration for the purpose of Section 2.4(b)(ii) or 2.5(b)(ii), as applicable.
If the Holders are required to pay the Registration Expenses, such expenses
shall be borne by the holders of securities (including Registrable Securities)
requesting such registration in proportion to the number of shares for which
such registration was requested.
2.7 OBLIGATIONS OF THE COMPANY. Whenever required 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 all reasonable 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 ninety (90) days or, if earlier,
until the Holder or Holders have completed the distribution related thereto.
10.
14
(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.
(c) Furnish to the Holders such number of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in order
to facilitate the disposition of Registrable Securities being registered by
them.
(d) Use all reasonable 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, unless the Registered
Securities would not, on account of this limitation, be available for offer and
sale in at least twenty states.
(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(s) of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
(g) Furnish, at the request of a majority of the Holders
participating in the registration, on the date that such Registrable Securities
are delivered to the underwriters for sale, 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 as of 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 as of 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 if permitted by applicable accounting standards, to the Holders
requesting registration of Registrable Securities.
2.8 TERMINATION OF REGISTRATION RIGHTS. All registration rights granted
under this Section 2 shall terminate and be of no further force and effect ten
(10) years after the date of the Company's Initial Offering. In addition, a
Holder's registration rights shall expire if (i) the Company has completed its
Initial Offering and is subject to the provisions of the Exchange Act, (ii) such
Holder (together with its affiliates, partners and former partners) holds less
than 1% of
11.
15
the Company's outstanding Common Stock (treating all shares of convertible
Preferred Stock on an as converted basis) and (iii) all Registrable Securities
held by and issuable to such Holder may be sold under Rule 144(k) or all
Registrable Securities held by and issuable to such Holder may be sold under
Rule 144 during any ninety (90) day period.
2.9 DELAY OF REGISTRATION; FURNISHING INFORMATION
(a) 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 2.
(b) It shall be a condition precedent to the obligations of the
Company to take any action pursuant to Section 2.2, 2.3 or 2.4 that the selling
Holders shall furnish to the Company such information regarding themselves, the
Registrable Securities held by them and the intended method of disposition of
such securities as shall be required to effect the registration of their
Registrable Securities.
2.10 INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under Section 2.2, 2.3 or 2.4:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Holder, the partners, officers, affiliates, directors and
legal counsel of 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") by the Company: (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 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 in
connection with the offering covered by such registration statement; and the
Company will reimburse each such Holder, partner, officer or director,
underwriter or controlling person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the indemnity
agreement contained in this Section 2.10(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 in any such case
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 such Holder, partner, officer, affiliate, director,
underwriter or controlling person of such Holder.
12.
16
(b) To the extent permitted by law, each Holder will, severally
and not jointly, if Registrable Securities held by such Holder are included in
the securities as to which such registration qualifications or compliance is
being effected, indemnify and hold harmless the Company, each of its directors,
its officers, affiliates and legal counsel and each person, if any, who controls
the Company within the meaning of the Securities Act, any underwriter and any
other Holder selling securities under such registration statement or any of such
other Holder's partners, directors or officers or any person who controls such
Holder, against any losses, claims, damages or liabilities (joint or several) to
which the Company or any such director, officer, affiliate, controlling person,
underwriter or other such Holder, or partner, director, officer or controlling
person of such other Holder 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 under an instrument duly executed by such
Holder and stated to be specifically for use in connection with such
registration; and each such Holder, severally and not jointly, will reimburse
any legal or other expenses reasonably incurred by the Company or any such
director, officer, controlling person, underwriter or other Holder, or partner,
officer, director or controlling person of such other Holder in connection with
investigating or defending any such loss, claim, damage, liability or action if
it is judicially determined that there was such a Violation; provided, however,
that the indemnity agreement contained in this Section 2.10(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 further, that in no event
shall any indemnity under this Section 2.10 exceed the net proceeds from the
offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 2.10 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 2.10, 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 shall
have the right to retain its own counsel, with the 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 due to actual
or potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding or if the counsel retained
by the indemnifying party fails to assume the representation of the indemnified
party. The failure to deliver written notice to the indemnifying party within a
reasonable time of the commencement of any such action, shall not relieve such
indemnifying party of any liability to the indemnified party under this Section
2.10, except to the extent that the indemnifying party is materially prejudiced
by such delay, 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 2.10.
(d) If the indemnification provided for in this Section 2.10 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any losses,
13.
17
claims, damages or liabilities referred to herein, the indemnifying party, in
lieu of indemnifying such indemnified party thereunder, shall to the extent
permitted by applicable law contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability 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 Violation(s) that resulted in such loss, claim, damage or liability, as
well as any other relevant equitable considerations. The relative fault of the
indemnifying party and of the indemnified party shall be determined by a court
of law 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; provided, that in no event
shall any contribution by a Holder hereunder exceed the proceeds from the
offering received by such Holder.
(e) The obligations of the Company and Holders under this Section
2.10 shall survive completion of any offering of Registrable Securities in a
registration statement. No Indemnifying Party, in the defense of any such claim
or litigation, shall, except with the consent of each Indemnified Party, consent
to entry of any judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation.
2.11 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the Company
to register Registrable Securities pursuant to this Section 2 may be assigned by
a Holder to any transferee or assignee of Registrable Securities which (i) is a
person or entity which holds Registrable Securities pursuant to a transfer
permitted by Section 2.1(a)(iii) or section 2.1(a)(iv), or (ii) acquires at
least fifty thousand (50,000) shares of Registrable Securities (as adjusted for
stock splits and combinations); provided, however, (A) the transferor shall
furnish to the Company 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, it being understood that, until such time as the Company
receives such written notice, the Company is under no obligation to treat such
transferee or assignee as a holder of registration rights, and (B) such
transferee shall agree to be subject to all restrictions set forth in this
Agreement.
2.12 AMENDMENT OF REGISTRATION RIGHTS. Any provision of this Section 2
may be amended and the observance thereof may be 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 more than fifty percent (50%)
of the Registrable Securities then outstanding, provided that such amendment or
waiver does not differentiate among similarly situated stockholders. Any
amendment or waiver effected in accordance with this Section 2.12 shall be
binding upon each Holder and the Company. By acceptance of any benefits under
this Section 2, Holders of Registrable Securities hereby agree to be bound by
the provisions hereunder.
2.13 LIMITATION ON SUBSEQUENT REGISTRATION RIGHTS. After the date of
this Agreement, the Company shall not, without the prior written consent of the
Holders of more than fifty percent (50%) of the Registrable Securities, enter
into any agreement with any holder or prospective holder of any securities of
the Company that would grant such holder registration rights senior to those
granted to the Holders hereunder.
14.
18
2.14 "MARKET STAND-OFF" AGREEMENT. Each Holder hereby agrees that such
Holder shall not sell or otherwise transfer or dispose of any Common Stock (or
other securities) of the Company held by such Holder (other than those included
in the registration) for a period specified by the representative of the
underwriters of Common Stock (or other securities) of the Company not to exceed
ninety (90) days following the effective date of each registration statement
filed by the Company, provided that all officers and directors of the Company
enter into similar agreements and that, to the extent that any such officer or
director is released from any such agreement, the Holders shall also be released
to such extent from the restriction contained in this Section 2.14.
Each Holder agrees to execute and deliver such other agreements as may
be reasonably requested by the Company or the underwriter which are consistent
with the foregoing or which are necessary to give further effect thereto. The
obligations described in this Section 2.14 shall not apply to a registration
relating solely to employee benefit plans on Form S-1 or Form S-8 or similar
forms that may be promulgated in the future, or a registration relating solely
to a Commission Rule 145 transaction on Form S-4 or similar forms that may be
promulgated in the future. The Company may impose stop-transfer instructions
with respect to the shares of Common Stock (or other securities) subject to the
foregoing restriction until the end of said ninety (90) day period.
2.15 RULE 144 REPORTING. With a view to making available to the Holders
the benefits of certain rules and regulations of the SEC which may permit the
sale of the Registrable Securities to the public without registration, the
Company agrees to use its best efforts to:
(a) Make and keep public information available, as those terms
are understood and defined in SEC Rule 144 or any similar or analogous rule
promulgated under the Securities Act, at all times after the effective date of
the first registration filed by the Company for an offering of its securities to
the general public;
(b) File with the SEC, in a timely manner, all reports and other
documents required of the Company under the Exchange Act;
(c) So long as a Holder owns any Registrable Securities, furnish
to such Holder forthwith upon request: a written statement by the Company as to
its compliance with the reporting requirements of said Rule 144 of the
Securities Act, and of the Exchange Act (at any time after it has become subject
to such reporting requirements); a copy of the most recent annual or quarterly
report of the Company; and such other reports and documents as a Holder may
reasonably request in availing itself of any rule or regulation of the SEC
allowing it to sell any such securities without registration.
SECTION 3. AFFIRMATIVE COVENANTS OF THE INVESTORS
3.1 CONFIDENTIAL INFORMATION, ETC. In addition to the provision set
forth in Sections 6.12 and 6.13, each Investor agrees that (a) all information
received by such Investor pursuant to the Original Investor Rights Agreement or
any predecessor thereof and (b) any other information, including without
limitation information relating to the Company's customers, technology,
processes or formulas, that (i) is disclosed by the Company to such Investor and
15.
19
(ii) is identified by the Company as being confidential or proprietary, shall be
considered confidential information. Each Investor further agrees that such
Investor shall hold all such confidential information in confidence and shall
not disclose any such confidential information to any third party other than
such Investor's counsel or accountants nor shall such Investor use such
confidential information for any purpose other than evaluation of such
Investor's investment in the Company; provided, however, that the foregoing
obligation to hold in confidence and not to disclose confidential information
shall not apply to any such information that (1) was available to the public
prior to disclosure by the Company, (2) becomes available to the public through
no fault of such Investor, (3) is disclosed to such Investor on a
non-confidential basis by a third party, provided that the Investor determines
after reasonable inquiry that the third party has a legal right to make such
disclosure or (4) is independently developed by such Investor.
SECTION 4. MISCELLANEOUS
4.1 GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of California as applied to agreements among
California residents entered into and to be performed entirely within
California.
4.2 SURVIVAL. The representations, warranties, covenants, and agreements
made herein shall survive any investigation made by any Holder and the closing
of the transactions contemplated hereby. All statements as to factual matters
contained in any certificate or other instrument delivered by or on behalf of
the Company pursuant hereto in connection with the transactions contemplated
hereby shall be deemed to be representations and warranties by the Company
hereunder solely as of the date of such certificate or instrument.
4.3 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors, and administrators of the
parties hereto and shall inure to the benefit of and be enforceable by each
person who shall be a holder of Registrable Securities from time to time;
provided, however, that prior to the receipt by the Company of adequate written
notice of the transfer of any Registrable Securities specifying the full name
and address of the transferee, the Company may deem and treat the person listed
as the holder of such shares in its records as the absolute owner and holder of
such shares for all purposes, including the payment of dividends or any
redemption price.
4.4 ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subject
matter hereof.
4.5 SEVERABILITY. In case any provision of this Agreement shall be
invalid, illegal, or unenforceable, the validity, legality, and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
4.6 AMENDMENT AND WAIVER.
(a) Except as otherwise expressly provided, this Agreement may be
amended or modified only upon the written consent of the Company and the holders
of more than fifty
16.
20
percent (50%) of the Registrable Securities, provided that such amendment or
waiver does not differentiate among similarly situated stockholders.
(b) Except as otherwise expressly provided, the obligations of
the Company and the rights of the Holders under this Agreement may be waived
only with the written consent of the holders of more than fifty percent (50%) of
the Registrable Securities, provided that such amendment or waiver does not
differentiate among similarly situated stockholders.
(c) Each Holder acknowledges that by the operation of this
Section 4.6, the holders of more than fifty percent (50%) of the Registrable
Securities may have the right and power to diminish or eliminate all rights of
such Holder under this Agreement.
(d) Notwithstanding the foregoing, this Agreement may be amended
with only the written consent of the Company to include additional purchasers of
Shares as "Investors," "Holders" and parties hereto.
4.7 DELAYS OR OMISSIONS. It is agreed that no delay or omission to
exercise any right, power, or remedy accruing to any Holder, upon any breach,
default or noncompliance of the Company under this Agreement shall impair any
such right, power, or remedy, nor shall it be construed to be a waiver of any
such breach, default or noncompliance, or any acquiescence therein, or of any
similar breach, default or noncompliance thereafter occurring. It is further
agreed that any waiver, permit, consent, or approval of any kind or character on
any Holder's part of any breach, default or noncompliance under this Agreement
or any waiver on such Holder's part of any provisions or conditions of this
Agreement must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement, by law, or otherwise afforded to Holders, shall be cumulative and not
alternative.
4.8 NOTICES. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (i) upon personal delivery to the
party to be notified, (ii) when sent by confirmed telex or facsimile if sent
during normal business hours of the recipient; if not, then on the next business
day, (iii) five (5) days after having been sent by registered or certified mail,
return receipt requested, postage prepaid, (iv) one (1) day after deposit with a
nationally recognized overnight courier, specifying next day delivery, with
written verification of receipt, or (v) if earlier, upon receipt. All
communications shall be sent to the party to be notified at the address as set
forth on Exhibit A hereto or at such other address as such party may designate
by ten (10) days advance written notice to the other parties hereto.
4.9 ATTORNEYS' FEES. In the event that any dispute among the parties to
this Agreement should result in litigation, the prevailing party in such dispute
shall be entitled to recover from the losing party all fees, costs and expenses
of enforcing any right of such prevailing party under or with respect to this
Agreement, including without limitation, such reasonable fees and expenses of
attorneys and accountants, which shall include, without limitation, all fees,
costs and expenses of appeals.
4.10 TITLES AND SUBTITLES. The titles of the sections and subsections of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
17.
21
4.11 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
4.12 PROTECTION OF CONFIDENTIAL INFORMATION. The investment in the
Company by Intel Corporation ("Intel"), including the specific terms thereof,
shall be considered confidential information (the "Confidential Information")
and shall not be disclosed by the Company or any other party to this Agreement
to any third party, subject to Section 4.13 below. Each party shall immediately
notify the other parties of any information that comes to its attention which
might indicate that there has been a loss of confidentiality with respect to the
Confidential Information. In the event that the Company or any other party
becomes legally compelled (by statute or regulation or by oral questions,
interrogatories, request for information or documents, subpoena, criminal or
civil investigative demand or similar process, including without limitation, in
connection with any public or private offering of the Company's capital stock)
to disclose any of the Confidential Information, such party (the "Disclosing
Party") shall provide the other party (the "Non-Disclosing Party") with prompt
written notice of that fact so that the appropriate party may seek (with the
cooperation and commercially reasonable efforts of the other parties) a
protective order, confidential treatment or other appropriate remedy. In such
event, the Disclosing Party shall furnish only that portion of the Confidential
Information which is legally required and shall exercise commercially reasonable
efforts to obtain reliable assurance that confidential treatment will be
accorded the Confidential Information to the extent reasonably requested by the
Non-Disclosing Party. The provisions of this Section 4.12 shall be in addition
to, and not in substitution for, the provisions of any separate nondisclosure
agreement executed by Intel and the Company with respect to any collaboration or
similar agreement.
4.13 DISCLOSURE OF TERMS: PRESS RELEASES. Notwithstanding the provisions
of Section 4.12 above, from and after the Closing (as defined in that certain
Series C Preferred Stock Purchase Agreement dated December 23, 1998) the Company
may disclose the Confidential Information, (i) solely to the Company's
investors, investment bankers, lenders, accountants, legal counsel, business
partners, and bona fide prospective investors, employees, lenders and business
partners, in each case only where such persons or entities are under appropriate
nondisclosure obligations and (ii) as may be required pursuant to the Securities
Act or Exchange Act. In addition, the Company may disclose the fact that Intel
is an investor in the Company to third parties without the requirement for
nondisclosure agreements. Within sixty (60) days of the Closing, the Company may
issue a press release disclosing that Intel has invested in the Company,
provided that the release does not disclose the amount or other specific terms
of the investment and is approved in advance in writing by Intel. Intel, at its
sole discretion, may provide an executive quote or other material regarding its
investment in the Company. Except for such disclosure and press release, no
other announcement regarding Intel's investment in the Company in a press
conference, in any professional or trade publication, in any marketing materials
or otherwise to the general public may be made without the prior written consent
of Intel, which consent may be withheld at the sole discretion of Intel.
Notwithstanding the foregoing and the provisions of Section 4.12 above, from and
after the Closing, Intel may disclose its investment in the Company and the
terms thereof to third parties or to the public at its discretion, and the
Company shall have the right to disclose to third parties any information
disclosed by Intel in a press release or other public announcement or document.
If the Company or Intel determines that any disclosure not otherwise authorized
by this Section 4.13 is required by law or regulation, then the provisions of
Section 4.12 regarding
18.
22
disclosure of Confidential Information by a Disclosing Party shall govern.
Notwithstanding the provisions of Section 4.12 above, from and after the
Closing, any party hereunder may disclose the Confidential Information as may be
required pursuant to the Securities Act or Exchange Act.
19.
23
IN WITNESS WHEREOF, the parties hereto have executed this AMENDED AND
RESTATED INVESTORS' RIGHTS AGREEMENT as of the date set forth in the first
paragraph hereof.
COMPANY:
QUOKKA SPORTS, INC.
/s/ Xxxx Xxxxxxx
By:_____________________________
Xxxx Xxxxxxx
President
[AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
24
EXHIBIT A
ADDRESSES
THE COMPANY
Quokka Sports, Inc.
000 Xxxxxxx Xxxxxx, Xxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xx. Xxxx Xxxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
INVESTORS
Xx. Xxxxxxx X. Xxxxxxxx
Incline Village
000 Xxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxx Xxxxxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
Bayview Investors Ltd.
c/x Xxxxxxxxx, Xxxxxxxx & Company
000 Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xx Xxxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
Wakefield Group II LLC
0000 Xxxx Xxxxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
Xxxxxxx Revocable Trust u/a/d 8/21/92
Xxxxxx X. Xxxxxxx, ttee
Xxxxxxx X. Xxxxxxx, ttee
0000 Xxxxx xx xx Xxxxxx
Xxx Xxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
1.
25
EXHIBIT A
ADDRESSES (CONTINUED)
Xxxx Xxxxxx
Koninklijke Philips Electronics
Xxxxxxxx Xxxxx XXX00
Xxxxxxxxxxx 0
XX-0000XX Xxxxxxxxx
Xxxxxxxxxxx
Telephone: x00 (00) 00 00 000
Fax: x00 (00) 00 00 000
Xxxx Xxxxxxx
c/o Quokka Sports, Inc.
Ground Floor
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
Pogmohane Partners, L.P.
c/o Xxxx Xxxxxxx, General Partner
Quokka Sports, Inc.
Ground Floor
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
(with a copy to: Xxxx X. Xxxxxxx
Altheimer & Xxxx Law Offices
00 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Telephone: 000-000-0000
Fax: 000-000-0000)
Xxxx Xxxxxxxx
c/o Quokka Sports, Inc.
Ground Floor
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
2.
26
EXHIBIT A
ADDRESSES (CONTINUED)
Intel Corporation
c/o Xxxxxx Xxxxxxxxxx
0000 Xxxxxxx Xxxxxxx Xxxx. XX0-000
Xxxxx Xxxxx, XX 00000-0000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Xxxxx Xxxxxx
c/o Quokka Sports, Inc.
Ground Floor
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
Media Technology Ventures, L.P.
Media Technology Ventures Entrepreneurs Fund, L.P.
Media Technology Equity Partners, L.P.
Xxx Xxxxx Xxxxxx, Xxxxx Xxx
Xxx Xxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
Trinity Ventures Ltd.
Trinity Ventures V, L.P.
Trinity V, side-by-side fund, L.P.
c/o Xx. Xxxxx X. Xxxxxxx, Xx.
0000 Xxxx Xxxx Xxxx
Xxxx. 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
GC&H Investments
c/o Cooley Godward LLP
Xxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000-0000
Attn: Xxxx Xxxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
3.
27
EXHIBIT A
ADDRESSES (CONTINUED)
Stanford University
Stanford Management Company
c/o Xxxxx Xxxxxx
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
Accel VI L.P.
Accel Internet Fund II L.P.
Accel Keiretsu VI L.P.
Accel Investors '98 L.P.
000 Xxxxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
(Copy to: Accel Partners
Xxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: X. Xxxxxx Sednaoui
Telephone: (000) 000-0000
Fax: (000) 000-0000)
MediaOne Interactive Services, Inc.
0000 X. Xxxxxxx Xxx., Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
The Xxxx Family 1982 Trust, dated 12/1/82,as amended
Attn: Xxxxxx Xxxx
0000 Xxxxx Xxxxx, #000
Xxx Xxxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
Outcast Communications, Inc.
c/o Xxxxx Xxxxxxxx
0000X Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
4.
28
EXHIBIT A
ADDRESSES (CONTINUED)
The Xxx Xxxxxxx and XxXxxx X. Xxxxxx Family Trust U/T/D 4/8/92
c/o Quokka Sports, Inc.
000 Xxxxxxx Xxxxxx, Xxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxx Xxxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
The Xxxxxxx Family Irrevocable Trust Dtd. 12/27/95 FBO Xxxxx X. Xxxxxxx
The Xxxxxxx Family Irrevocable Trust Dtd. 12/27/95 FBO Xxxxx X. Xxxxxxx
The Xxxxxxx Family Irrevocable Trust Dtd. 12/27/95 FBO Xxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxx, Trustee
c/o Quokka Sports, Inc.
000 Xxxxxxx Xxxxxx, Xxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxx Xxxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
Xxxxxxx Xxxxx Xxxxxxxx Trust
Xxxxx Xxxxxxx Xxxxxxx Xxxxxxxx Trust
Xxxx Xxxxxxxx Xxxxx Xxxxxxxx Trust
Xxxx Xxxxxxx Xxxxxxxx Trust
Xxxxxx, Xxxxxx & Xxxxxxx, LLP
Xxx Xxxxxxxx Xxxx., Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Telephone: 000-000-0000
Attn: Xxxxxx X. Xxxxxx
The Ignite Group
c/o Xxxxx Xxxxx, Venture Partner
000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Omega Ventures II, L.P.
Omega Ventures II Cayman, L.P.
Crossover Fund II, L.P.
Crossover Fund IIA, L.P.
c/o Xx Xxxxxxx
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
5.
29
EXHIBIT A
ADDRESSES (CONTINUED)
Xxxxxxx Xxxxxx
x/x Xxxxxx Xxxxx Europe Ltd.
00 Xxxxxxxxxx Xxxxxxx
Xxxxxx, Xxxxxxx X0 0XX
(With a copy to:
Growth Phase Europe
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000)
Xxxxxxx Xxxxxxxx
00 Xxxxxxx Xxxxxx
Xxxxxx XX0, Xxxxxxx
-- Send documents DHL to:
SeeligerY Conde
Xxxxxxxxx, 00
00000 Xxxxxx, Xxxxxx
Xxxxx
Telephone: x00 0 000 00 00
Fax: x00 (0) 000 00 00
Xxxxxx 1991 Revocable Trust
Xxxxx Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
M. Xxxxxxxxx Xxxxxxx
c/o Quokka Sports, Inc.
000 Xxxxxxx Xxxxxx, Xxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxx Xxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
6.
30
EXHIBIT A
ADDRESSES (CONTINUED)
Liberty QS, Inc.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxxxx@xxxxxxxxxxxx.xxx
(with a copy to General Counsel at the same Address)
Hearst Communications, Inc.
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxx, Vice President
Phone: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxxxxxxx@xxxxxx.xxx
MeriTech Capital Partners LP
000 Xxxxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn: Xxx Xxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxxxx@xxxxxxxxxxxxxxx.xxx
Comcast Interactive Investments, Inc.
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx, Vice President
Phone: (000) 000-0000
Fax: (000) 000-0000
E-Mail: xxxxx_xxxxxxxx@xxxxxxx.xxx
7.
31
EXHIBIT A
ADDRESSES (CONTINUED)
AtHome Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
(with a copy to:
Xxxx Xxxxxxx
Excite @Home
000 Xxxxxxxx Xxxxxx
Xxxxxxx Xxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Crossover Fund II
c/o Omega Ventures
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxx Xxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxx_xxxx@xxxx.xxx
Pivotal Partners, L.P.
0 Xxxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxxxxxxx Xxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxxxx@xx.xxxxxxxx.xxx
BT (Netherlands) Holdings B.V.
Xxxxxxxxxxxxxxx 00
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Attn: Company Secretary
(with a copy to:
Xxxxx Xxxxxxx
Phone: 000-00-000-000-0000
Fax: 000-00-000-000-0000
E-mail: xxxxx.x.xxxxxxx@xx.xxx
8.
32
EXHIBIT A
ADDRESSES (CONTINUED)
Xxxxxxx Xxxxxxx
0000 00xx Xxxxxx XX. Xxx. X
Xxxxxxx, XX 00000
Xxxx Xxxxxxxx
0000 X. Xxxxx Xx.
Xxxxxxx Xxxxxxxxx, XX 00000
Phone: 000-000-0000
Xxxxxx Armor
0000 Xxxxx Xxx Xxxxx
Xxxx Xxxxx, XX 00000
Tel: 000-000-0000
Xxxxxx Xxxxxx
0000-0xx Xxxxxx Xxxxx, #0000
Xxxxxxx, XX 00000
Phone: 000-000-0000
Xxxxx Xxxxxx
XX Xxx 0000
Xxxxxxx, XX 00000
Jolie Backer
XX Xxx 0000
Xxxxxxx, XX 00000
Xxxx Xxxxxxxxxx
0000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Phone: 000-000-0000
Xxxxxx X. Xxxxxx
0000 Xxxx Xxxxxxxxxx Xxxx. #0X
Xxxxxxx, XX 00000
Xxxxxxxxx Xxxxx
0000 Xxx Xxxxx Xx.
Xxxxxxx, XX 00000-0000
Phone: 000-000-0000
9.
33
EXHIBIT A
ADDRESSES (CONTINUED)
Xxxxxx Xxxxxxxxxxx
Xxx Xxxxx & Asso
0000 00xx Xxx. XX
Xxxxxx Xxxxxx, XX 00000
Phone: 000-000-0000
BMK Investments
c/o Xxxx Xxxxx
0000 XX Xxxxxx Xx.
Xxxxxxxxxx Xxxxxx, XX 00000
Phone: 000-000-0000
Xxxxxxx Xxxxxxxx
0000 0xx Xxxxxx X, #0000
Xxxxxxx, XX 00000
Xxxxxx & Xxxxxx Bridge
XX Xxx 0000
Xxxxxxx, XX 00000
Phone: 000-000-0000
Xxxxx Xxxxxx
0000 X. Xxxxxx Xxxx Xx. XX
Xxxxxxxx, XX 00000
Phone: 000-000-0000
Xxxxx Xxxxxx
000 Xxxx. Xxxxxx Xxxx., #00
Xxxx Xxxxx, XX 00000
Phone: 000-000-0000
Xxxx Xxxxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Xxxx Xxxxxxx
000 Xxxxxx Xxxxxx, #0
Xxxxxxxx, XX 00000
Xxx Xxxxxx
Xxxxxxxx.xxx
00 Xxxxxxx
Xxxxxxx, XX 00000
Phone: 000-000-0000 x 000
10.
34
EXHIBIT A
ADDRESSES (CONTINUED)
Xxxxx Xxxx
CobWeb, Inc.
0000 00xx Xxxxxx XX, Xxxxx X0
Xxxxxxxx, XX 00000
Tel: 000-000-0000
Xxxx Xxxxx
0000 XX 00xx, #000
Xxxxxx Xxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
Xxxxxx Xxxxx
0000 Xxxxxxxxx Xxx
Xxxxxxxx, XX 00000
Phone: 000-000-0000
Xxxxx Xxxxxx
iTango Software
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Phone: 000-000-0000 x000
Fax: 000-000-0000
Xxxx Xxxxxxxx
Dawntreader
000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
Xxxxx Xxxxxx
0000 Xxxxxx Xxxxx
Xxxxxx Xxxxxx, XX 00000
Xxx Xxxxxxxx
00000 000xx Xx XX
Xxxxxxxxxxx, XX 00000
Phone: 000-000-0000
11.
35
EXHIBIT A
ADDRESSES (CONTINUED)
Xxxx Xxx
XX Xxx 0000
Xxxxx Xxxxxx, XX 00000
Tel: 000-000-0000
Evergreen Partners
0000 Xxxxx Xxx., #0000
Xxxxxxx, XX 00000
Xxxx Xxxxxxxx
00000 XX 00xx Xxxxx
Xxxxxxxx, XX 00000
Phone: 000-000-0000
Fingerhut Companies, Inc.
c/o Xxxxxxx Xxxxxxx
0000 Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
Phone: 000-000-0000
Fax: (000) 000-0000
Xxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxx, XX 00000
Phone: 000-000-0000
Xxxx Xxxxxxxxxxx
00000-000xx Xxxxx XX
Xxxxxxxxxxx, XX 00000-0000
Phone: 000-000-0000 x000
Skip Franklin
Xxxxxxxxxx.xxx
0000-000xx Xxxxxx XX, #000
Xxxxxxxx, XX 00000
Phone: 000-000-0000
Fax: (000) 000-0000
Xx. Xxxxxxx Xxxxx
00 Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
12.
36
EXHIBIT A
ADDRESSES (CONTINUED)
Xxxxxxxx Xxxxx
00000 Xxxxxxxxx Xx. XX
Xxxxxxx, XX 00000
Phone: 000-000-0000
Xxxxx Xxxxxxx
The Genesis Group
c/o eTranslate
000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Phone: 000-000-0000
Xxxx Xxxxxxxxxx
00000 XX 000xx Xx.
Xxxxxxxxxxx, XX 00000
Phone: 000-000-0000
Xxxxxxx Xxxxxxxx
0000 0xx Xxx. #0000
Xxxxxxx, XX 00000
Phone: 000-000-0000
Xxxxx Xxxxxxxxxx
XxxxXxxxxxx.xxx
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Tel: 000-000-0000 x000
Fax: 000-000-0000
Xxxxx Xxxxxxxxx
0000 0xx Xxx., Xxxxx 0000
Xxxxxxx, XX 00000
Phone: 000-000-0000
Xxxx Xxxxx
Bear Xxxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Phone: 000-000-0000
Xxx Xxxxxxx
00000 XX 00xx Xxx
Xxxxxxxx, XX 00000
Phone: 000-000-0000
13.
37
EXHIBIT A
ADDRESSES (CONTINUED)
Xxxxxx Xxxxx
0000 Xxxxxxx Xxx.
Xxxxxxx, XX 00000
Phone: 000-000-0000
Xxxxx Xxxxxxx
0000 0xx Xxx. #0000
Xxxxxxx, XX 00000
Xxxx Xxxxxxx
00000 XX 0xx, #X-000
Xxxxxxxx, XX 00000
Phone: 000-000-0000
Xxxx (Nick) Xxxxxx
0000 00xx Xxx. X
Xxxxxx Xxxxxx, XX 00000
Phone: 000-000-0000
Xxxxxxx Xxxxxxx
000 Xxxx Xxxx Xxxxxx
Xxxxxxx, XX 00000
Phone: 000-000-0000
Xxxxxx Investments, LLC
Attn. Xxxxxx Xxxxxx
Xxxxx & Company
000 0xx Xxxxxx
Xxx Xxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
Xxxxx Xxxxxxxx
0000 Xxxxx Xxx., #0000
Xxxxxxx, XX 00000
Phone: 000-000-0000
X.X. Xxxxx
c/o Design Variations
000 X Xxxxxx, Xxxxx 000
Xxx Xxxxxx, XX 00000
14.
38
EXHIBIT A
ADDRESSES (CONTINUED)
Xxxxxxx Xxxxxxx
000 0xx Xxxxxx X.
Xxxxxxx, XX 00000
Tel: 000-000-0000
Xxxxx Xxxxx
0000 00xx Xxx. X
Xxxxxxx, XX 00000
Phone: 000-000-0000
Johan Liedgren
0000 00xx Xxx. X
Xxxxxxx, XX 00000
Phone: 000-000-0000
Xxxx Xxxxxx
0000 Xxxxx Xxxxx Xx.
Xxxxxxxx, XX 00000
Xxxxx Xxxx-Xxxxxxx
0000 Xxxxxxxx Xxxxx X.
Xxxxxxx, XX 00000
Tel: 000-000-0000 x000
Fax: 000-000-0000
Xxxxxxx X. Xxx
0000 000xx Xxx. XX
Xxxxxxxx, XX 00000
Phone: 000-000-0000
Xxxxx Xxxxxxxxx
c/o Xxxxx Xxxxxxxxx
0000 XX 0xx Xxxxxx
Xxxxxx, XX 00000
Phone: 000-000-0000
Xxxxx Xxxxxxxxx
0000 XX 0xx Xxxxxx
Xxxxxx, XX 00000
Phone: 000-000-0000
15.
39
EXHIBIT A
ADDRESSES (CONTINUED)
Xxxx Xxxxxxx
0000 Xxxxxxxxxx #0
Xxxxxxx, XX 00000
Tel: 000-000-0000 x000
Fax: 000-000-0000
Marketwave, Inc.
Attn. Xxxxxx Xxxxxxxxxx
000 Xxxxx Xxxx Xxx. #000
Xxxxxxx, XX 00000
Phone: 000-000-0000
Xxxxx Xxxxx
0000 Xxxxxxx Xxx
Xxx Xxxxxxxxx, XX
Tel: 000-000-0000
Xxxxxx XxXxxx
0000 Xxxxxxx Xxx. X
Xxxxxxx, XX 00000
Phone: 000-000-0000
Xxxxx XxXxxxxx
00000 XX 00xx Xxxxx
Xxxxxxx, XX 00000
Phone: 000-000-0000
Xxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxx, XX 00000
Phone: 000-000-0000
Xxxxxx Xxxxx Partners
Attn. Xxxxx Xxxxx
000 Xxxxxxxxx Xxx., 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Phone: 000-000-0000
Xxxxxx & Xxxxx Xxxxxxx
000 00xx Xxx. X
Xxxxxxx, XX 00000
Phone: 000-000-0000
16.
40
EXHIBIT A
ADDRESSES (CONTINUED)
MST Partnership
c/o Tote
0000 Xxxxx Xxx, Xxxxx 0000
Xxxxxxx, XX 00000
Phone: 000-000-0000
Xxxxxxx Xxxxxx
0000-000xx Xxxxx XX
Xxxxxxxx, XX 00000
Tel: 000-000-0000 x000
Xxxxxx Xxxxxxxx
000 0xx Xxx. X
Xxxxxxx, XX 00000
Phone: 000-000-0000
Xxxxxx Xxxxxxxx
Timeless Toys
0000 Xxxxx Xxxxx, #X
Xxx Xxxxx, XX 00000-0000
Phone: 000-000-0000
Fax: 000-000-0000
Xxxxxx Xxxxxxxxx
Nordstrom's
000 Xxxxxxxxxx Xxx, #000
Xxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
Xxxx Xxxxxx
000 Xxxxxx Xxxxx XX
Xxxxxxxx, XX 00000
Phone: 000-000-0000
Xxxxx O'Dell
00000 XX 000xx Xx.
Xxxxxxx, XX 00000
Phone: 000-000-0000
Xxxxxxx X'Xxxxx
X.X. Xxx 0000
Xxxxxxxx, XX 00000
Phone: 000-000-0000
17.
41
EXHIBIT A
ADDRESSES (CONTINUED)
Xxx X'Xxxxx
0000 Xxxxxxxxx Xxxxx Xx.
Xxxxxx, XX 00000
Phone: 000-000-0000
X. X. Xxxxx
0000 Xxxx Xxxxxx Xx. XX
Xxxx Xxxxx, XX 00000
Phone: 000-000-0000
Xxxxxxx Xxxxx
C/o CobWeb
0000 00xx Xxxxxx XX, Xxxxx X0
Xxxxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
Xxxxx Xxxxxxxx
00 Xxxxx Xxx Xx.
Xxxxxx Xxxxxx, XX 00000-0000
Phone: 000-000-0000
Xxxxx Xxxxxxxxx
0000 00xx Xxx. X
Xxxxxxx, XX 00000
Phone: 000-000-0000
Xxxx Xxxxxx
0000 00xx Xxx. XX
Xxxxxx Xxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
Xxxxx Xxxxxx
000 X. Xxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Tel: 000-000-0000
Xxxx Xxxxx
0000 X 00xx
Xxxxxxx, XX 00000
Phone: 000-000-0000 x000
Fax: 000-000-0000
18.
42
EXHIBIT A
ADDRESSES (CONTINUED)
Xxxx Xxxxx
000 Xxxxxxx Xxxxxx, #0
Xxxxxxxxxx Xxxxx, XX 00000
Xxxxxxxxx Xxxxxxx
000 X 00xx
Xxxxxxx, XX 00000
Xxxxxx Xxxxx
0000 0xx Xxxxxx, #000
Xxxxxxx, XX 00000
Xxxxxx Xxxxxxxxx
000 Xxxxxx
Xxxx Xxxxxx, XX 00000
Xxxxxxx Xxxxxxxxx
0000 000 Xxx., XX
Xxxxxxx, XX 00000
Phone: 000-000-0000
Xxxx Xxxxxxx
0000 Xxxxxx Xxxxxx Xx.
Xxxxxx, XX 00000
Xxxxxxx Xxxxxxxx
00000 XX 000xx Xx.
Xxxxxxx, XX 00000
Phone: 000-000-0000
Xxxx Xxxxxxxxxx
J-Max Capital
0000 0xx Xxx., #0000
Xxxxxxx, XX 00000
Phone: 000-000-0000
Xxxxxx Xxxxxxxxxx
Access Long Distance
000 Xxxxx Xxxxxx, #0000
Xxxxxxx, XX 00000
Phone: 000-000-0000
Fax: (000) 000-0000
19.
43
EXHIBIT A
ADDRESSES (CONTINUED)
Xxxx Xxxxxxx
Xxxxxxxxxx.xxx
0000 XX 0xx Xxx
Xxxx Xxxxxxxxxx, XX 00000
Tel: 000-000-0000
Xxx Xxxxxx
0000 Xxxxxx Xxxxxx, XX, #000
Xxxxxxx, XX 00000
Phone: 000-000-0000
The Stusser Group
Attn. Xxxxxx Xxxxxxx
0000 0xx Xxx., #0000
Xxxxxxx, XX 00000
Phone: 000-000-0000
Xxxxxx & Xxxx Xxxxxx
000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Phone: 000-000-0000
Xxxx Xxxxxxxx
0000 00xx Xxx. XX
Xxxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
Xxxx Xxxxxxxx
00000-0xx Xxxxxx XX
Xxxxxxx, XX 00000
Tel: 000-000-0000 x000
Fax: 000-000-0000
Vans, Inc.
Attn. Xxxxx Xxxxxxxx
00000 Xxxxxxxxx Xxx.
Xxxxx Xx Xxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
20.
44
EXHIBIT A
ADDRESSES (CONTINUED)
Xxxxxxx Xxxx
0000 Xxxx Xxxxx Xxxxxx #000
Xxxxxxxx, XX 00000
Tel: 000-000-0000
Xxxxxxx Xxxxxx
0000 Xxxx Xxxxxx Xxx
Xxxxxx Xxxxxx, XX 00000
Phone: 000-000-0000
Xxxxx Xxxxxx
0 Xxxxxxx Xxxxx
Xxxxxx, XX 00000
Phone: 000-000-0000
Xxxx Xxxxxxxxx
0000 Xxxxxxxxx Xxxxxx X., #000
Xxxxxxx, XX 00000
Tel: 000-000-0000 x000
Fax: 000-000-0000
21.
