NETGRAVITY, INC. EXHIBIT 4.2
SECOND AMENDED AND RESTATED
REGISTRATION AND INFORMATION RIGHTS AGREEMENT
This Second Amended and Restated Registration and Information Rights
Agreement (the "AGREEMENT") is made effective as of November 25, 1997.
RECITALS
A. In connection with the sale and issuance of its Series A Preferred
Stock (the "SERIES A FINANCING"), NetGravity, Inc. a Delaware corporation (the
"COMPANY"), entered into that certain Registration and Information Rights
Agreement dated January 12, 1996 (the "ORIGINAL AGREEMENT") with: Xxxx X.
Xxxxxx, Xxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxx and Xxxx Xxxxxx (the "FOUNDERS");
the purchasers of such Series A Preferred Stock (the "SERIES A INVESTORS") and
the holders of Common Stock (the "SEED INVESTORS") purchased from the Company
under Stock and Note Purchase Agreements between the Company and the Seed
Investors (the "STOCK AND NOTE PURCHASE AGREEMENTS").
B. In connection with the April 19, 1996 second closing of the Series A
Financing, additional purchasers of the Company's Series A Preferred Stock were
added as parties to the Original Agreement (the term "Series A Investors" shall
include such additional purchasers).
C. In connection with the sale of the Company's Series B Preferred Stock
to certain investors (the "SERIES B INVESTORS") on March 12, 1997, the Original
Agreement was amended and restated in its entirety as the Amended and Restated
Registration and Information Rights Agreement dated March 11, 1997 (the "PRIOR
AGREEMENT") in order to include the Series B Investors and to make certain other
changes.
D. The obligations of the Company and the purchasers of the Company's
Series C Preferred Stock (the "SERIES C INVESTORS") under that certain Series C
Stock Purchase Agreement of even date herewith (the "SERIES C STOCK PURCHASE
AGREEMENT") by and between the Company and the Series C Investors are
conditioned, among other things, upon the execution and delivery of this
Agreement by the Company and the Series C Investors.
E. Section 11 of the Prior Agreement provides that the consent of the
Company and a majority of the outstanding Registrable Securities is required to
amend the Prior Agreement.
F. The Company and the Series C Investors and the undersigned Founders,
Seed Investors, Series A Investors and Series B Investors who together hold not
less than a majority of the Registrable Securities (as defined under the Prior
Agreement) now desire to amend and restate
the Prior Agreement in its entirety as set forth below in order to add the
Series C Investors as parties hereto and to make certain other changes.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, all parties hereto agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the following respective meanings:
"COMMISSION" means the Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act.
"CONSENT OF THE PREFERRED DIRECTORS" means the vote or written
consent of a majority of (i) the directors entitled to be elected by the holders
of Preferred Stock (voting without the Common Stock) under the Company's
Certificate of Incorporation and (ii) the director(s) nominated by the holders
of Preferred Stock under that certain Amended and Restated Right of First
Refusal, Co-Sale and Voting Agreement dated November 25, 1997 by and among the
Company and certain stockholders of the Company. If at any time the holders of
Preferred Stock, voting without the Common Stock, are no longer specifically
entitled to elect at least one director under the Company's Certificate of
Incorporation, any requirement hereunder to obtain the Consent of the Preferred
Directors shall be deemed to have been satisfied.
"CONVERSION STOCK" means the Common Stock issued or issuable pursuant
to conversion of the Preferred Stock.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
or any similar Federal rule or statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"FOUNDERS' STOCK" means the Common Stock acquired by the Founders
pursuant to Founder's Stock Purchase Agreements with the Company, and the Common
Stock issued or issuable upon the exercise of stock options granted to the
Founders by the Company prior to the date hereof; PROVIDED, HOWEVER, that, for
the purposes of Sections 5.1, 5.2 and 5.3, Founders' Stock shall not include any
Common Stock subject to a right of repurchase in favor of the Company pursuant
to a Founder's Stock Purchase Agreement or Stock Option Agreement between the
Company and a Founder unless, until, and to the extent that such right of
repurchase has lapsed.
"HOLDER" means any Founder, Seed Investor, Series A Investor, Series B
Investor or Series C Investor holding Registrable Securities, or any person
holding Registrable Securities to whom the rights under this Agreement have been
transferred either (i) in accordance with
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Section 5.10 hereof or, (ii) prior to the date hereof, in accordance with the
corresponding provision of the Original Agreement or the Prior Agreement.
"INITIATING HOLDERS" means any Holder or Holders (other than Founders)
who, in the aggregate, hold not less than the required percentage of the
Registrable Securities (other than Registrable Securities held by Founders) then
outstanding (the "REQUIRED PERCENTAGE"). The Required Percentage shall be (i)
40% for the purposes of Section 5.1 or (ii) 20% for the purposes of Section 5.3
hereof.
"INVESTOR" means any Series A Investor, Series B Investor or Series C
Investor.
"PREFERRED STOCK" shall mean the Series A Preferred Stock, the Series
A-1 Preferred Stock, the Series B Preferred Stock, the Series B-1 Preferred
Stock, the Series C Preferred Stock or the Series C-1 Preferred Stock of the
Company.
"REGISTRABLE SECURITIES" means (i) the Conversion Stock, (ii) the
Founders' Stock, (iii) the Common Stock purchased under the Stock and Note
Purchase Agreements and (iv) any Common Stock of the Company issued or issuable
in respect of any of the foregoing upon any conversion, stock split, stock
dividend, recapitalization, or similar event; PROVIDED, HOWEVER, that securities
shall only be treated as Registrable Securities if and for so long as (i) they
have not been registered or sold to or through a broker or dealer or underwriter
in a public distribution or a public securities transaction and (ii) the
registration rights with respect to such securities have not terminated pursuant
to Section 5.11.
The terms "REGISTER," "REGISTERED" and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"REGISTRATION EXPENSES" shall mean all expenses, except as otherwise
stated below, incurred by the Company in complying with Sections 5.1, 5.2 and
5.3 hereof, including without limitation, all registration, qualification and
filing fees, printing expenses, escrow fees, fees and disbursements of counsel
for the Company, blue sky fees and expenses, 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).
"RESTRICTED SECURITIES" shall mean the securities of the Company
required to bear the legends set forth in Section 3 hereof.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, or
any similar Federal rule or statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
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"SELLING EXPENSES" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities registered by
the Holders and all fees and disbursements of counsel for any Holder.
2. RESTRICTIONS ON TRANSFERABILITY. The Preferred Stock, the Conversion
Stock, the Founders' Stock, the Common Stock purchased in connection with the
Stock and Note Purchase Agreements and any other securities issued in respect of
such stock upon any stock split, stock dividend, recapitalization, merger, or
similar event, shall not be sold, assigned, transferred or pledged except upon
the conditions specified in this Agreement, which conditions are intended to
ensure compliance with the provisions of the Securities Act. Each Holder or
transferee will cause any proposed purchaser, assignee, transferee, or pledgee
of any such shares held by the Holder or transferee to agree to take and hold
such securities subject to the restrictions and upon the conditions specified in
this Agreement, including without limitation the restrictions set forth in
Section 9.
3. RESTRICTIVE LEGEND. Each certificate representing the Preferred
Stock, the Conversion Stock, the Founders' Stock, the Common Stock purchased in
connection with the Stock and Note Purchase Agreements or any other securities
issued in respect of such stock upon any stock split, stock dividend,
recapitalization, merger, or similar event, shall (unless otherwise permitted by
the provisions of Section 4 below) be stamped or otherwise imprinted with a
legend in substantially the following form (in addition to any legends required
by agreement or by applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND HAVE BEEN ACQUIRED
FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE
OR DISTRIBUTION THEREOF. SUCH SHARES GENERALLY MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION UNLESS THE COMPANY
RECEIVES AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO IT STATING
THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND
PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACT.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A LOCKUP
PERIOD OF 180-DAYS FOLLOWING THE EFFECTIVE DATE OF A REGISTRATION
STATEMENT OF THE COMPANY FILED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AS SET FORTH IN AN AGREEMENT BETWEEN THE ISSUER AND THE
ORIGINAL HOLDER OF THESE SHARES, A COPY OF WHICH MAY BE OBTAINED AT
THE PRINCIPAL OFFICE OF THE ISSUER. SUCH LOCKUP PERIOD IS BINDING ON
TRANSFEREES OF THESE SHARES.
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Each Holder consents to the Company making a notation on its records
and giving instructions to any transfer agent of its capital stock in order to
implement the restrictions on transfer established in this Agreement.
4. NOTICE OF PROPOSED TRANSFERS. The holder of each certificate
representing Restricted Securities by acceptance thereof agrees to comply in all
respects with the provisions of this Section 4. Without in any way limiting the
immediately preceding sentence, no sale, assignment, transfer or pledge of
Restricted Securities shall be made by any holder thereof to any person unless
such person shall first agree in writing to be bound by the restrictions of this
Agreement including, without limitation, Section 9 and this Section 4. Prior to
any proposed sale, assignment, transfer or pledge of any Restricted Securities,
unless there is in effect a registration statement under the Securities Act
covering the proposed transfer, the holder thereof shall give written notice to
the Company of such holder's intention to effect such transfer, sale, assignment
or pledge. Each such notice shall describe the manner and circumstances of the
proposed transfer, sale, assignment or pledge in sufficient detail, and, if
requested by the Company, the holder shall also provide, at such holder's
expense, either (i) a written opinion of legal counsel who shall be, and whose
legal opinion shall be, reasonably satisfactory to the Company addressed to the
Company, to the effect that the proposed transfer of the Restricted Securities
may be effected without registration under the Securities Act, or (ii) a "no
action" letter from the Commission to the effect that the transfer of such
securities without registration will not result in a recommendation by the staff
of the Commission that action be taken with respect thereto, whereupon the
holder of such Restricted Securities shall be entitled to transfer such
Restricted Securities in accordance with the terms of the notice delivered by
the holder to the Company; PROVIDED, HOWEVER, that the Company shall not request
an opinion of counsel or "no action" letter with respect to (i) a transfer not
involving a change in beneficial ownership, (ii) a transaction involving the
distribution without consideration of Restricted Securities by the holder to any
of its constituent partners or members, or (iii) a transaction involving the
transfer without consideration of Restricted Securities by an individual holder
during such holder's lifetime by way of gift or on death by will or intestacy.
Each certificate evidencing the Restricted Securities transferred as above
provided shall bear, except if such transfer is made pursuant to Rule 144, the
appropriate restrictive legend set forth in Section 3 above, except that such
certificate shall not bear such restrictive legend if in the opinion of counsel
for such holder and counsel for the Company such legend is not required in order
to establish compliance with any provision of the Securities Act.
Notwithstanding the foregoing, each holder of Restricted Securities agrees that
it will not request that a transfer of the Restricted Securities be made or that
the legend set forth in Section 3 be removed from the certificate representing
the Restricted Securities, solely in reliance on Rule 144(k) if as a result
thereof, the Company would be rendered subject to the reporting requirements of
the Exchange Act.
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5. REGISTRATION.
5.1 REQUESTED REGISTRATION.
(a) REQUEST FOR REGISTRATION. In case the Company shall receive
from Initiating Holders a written request that the Company effect any
registration with respect to shares of Registrable Securities, the Company will:
(i) promptly give written notice of the proposed
registration to all other Holders; and
(ii) as soon as practicable, use its best efforts to
effect such registration as part of a firm commitment underwritten public
offering with underwriters reasonably acceptable to the Initiating Holders and
the Company (including, without limitation, appropriate qualification under
applicable state securities laws and appropriate compliance with applicable
regulations issued under the Securities Act and any other governmental
requirements or regulations) as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such Registrable
Securities as are specified in such request, together with all or such portion
of the Registrable Securities of any Holder or Holders joining in such request
by delivering a written notice to such effect to the Company within 20 days
after the date of such written notice from the Company.
Notwithstanding the foregoing, the Company shall not be obligated to take
any action to effect or complete any such registration pursuant to this
Section 5.1:
(A) Prior to the earlier of (i) six months after
the effective date of the Company's first registered public offering of its
Stock or (ii) March 11, 2001;
(B) Unless the aggregate offering price of all
Registrable Securities sought to be registered by all Holders, net of
underwriting discounts and commissions, would exceed $10,000,000;
(C) During the period starting with the date
sixty (60) days prior to the Company's estimated date of filing of, and ending
on the date six (6) months immediately following the effective date of, any
registration statement pertaining to securities of the Company (other than a
registration of securities in a Rule 145 transaction or with respect to an
employee benefit plan), provided that the Company is actively employing in good
faith all reasonable efforts to cause such registration statement to become
effective;
(D) After the Company has effected a registration
pursuant to this subparagraph 5.1(a), and such registration has been declared or
ordered effective; or
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(E) If the Company shall furnish to the
Initiating Holders a certificate signed by the President of the Company stating
that in the good faith judgment of the Board of Directors it would be seriously
detrimental to the Company or its stockholders for a registration statement to
be filed in the near future. In such case, the Company's obligation to use its
best efforts to register, qualify or comply under this Section 5.1(a) shall be
deferred for a period not to exceed 120 days from the date of receipt of the
written request from the Initiating Holders, provided that the Company may not
exercise this deferral right more than once per twelve month period or twice
during the term of this Agreement.
Subject to the foregoing clauses (A) through (E), the Company shall file a
registration statement covering the Registrable Securities so requested to be
registered as soon as practicable after receipt of the request or requests of
the Initiating Holders.
(b) UNDERWRITING. In the event of a registration pursuant to
Section 5.1, the Company shall advise the Holders as part of the notice given
pursuant to Section 5.1(a)(i) that the right of any Holder to registration
pursuant to Section 5.1 shall be conditioned upon such Holder's participation in
the underwriting arrangements required by this Section 5.1, and the inclusion of
such Holder's Registrable Securities in the underwriting to the extent requested
shall be limited to the extent provided herein.
The Company shall, together with all Holders proposing to distribute their
securities through such underwriting, enter into an underwriting agreement in
customary form with the managing underwriter selected for such underwriting by a
majority in interest of the Initiating Holders, but subject to the Company's
reasonable approval. Notwithstanding any other provision of this Section 5.1,
if the managing underwriter advises the Initiating Holders in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then the Company shall so advise all Holders requesting to be
included in the registration and underwriting and the number of shares of
Registrable Securities that may be included in the registration and underwriting
shall be allocated among all Holders requesting to be included in the
registration and underwriting in proportion, as nearly as practicable, to the
respective amounts of Registrable Securities held by them at the time of filing
the registration statement. No Registrable Securities excluded from the
underwriting by reason of the underwriter's marketing limitation shall be
included in such registration. To facilitate the allocation of shares in
accordance with the above provisions, the Company or the underwriters may round
the number of shares allocated to any Holder to the nearest 100 shares. If any
Holder of Registrable Securities disapproves of the terms of the underwriting,
such person may elect to withdraw therefrom by written notice to the Company.
5.2 COMPANY REGISTRATION.
(a) NOTICE OF REGISTRATION. If at any time or from time to time
the Company shall determine to register any of its equity securities, either for
its own account or the account of a Holder or other holders, other than (i) a
registration relating solely to employee
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benefit plans, (ii) a registration relating solely to a Rule 145 transaction, or
(iii) a registration in which the only equity security being registered is
Common Stock issuable upon conversion of convertible debt securities which are
also being registered, the Company will:
(i) promptly give to each Holder written notice
thereof; and
(ii) include in such registration (and any related
qualifications including compliance with Blue Sky laws), and in any underwriting
involved therein, all the Registrable Securities specified in a written request
or requests, made within 20 days after the date of such written notice from the
Company, by any Holder.
(b) UNDERWRITING. If the registration of which the Company
gives notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 5.2(a)(i). In such event, the right of any Holder to
registration pursuant to Section 5.2 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of Registrable Securities
in the underwriting shall be limited to the extent provided herein.
All Holders proposing to distribute their securities through such
underwriting shall (together with the Company and the other holders distributing
their securities through such underwriting) enter into an underwriting agreement
in customary form with the managing underwriter selected for such underwriting
by the Company. Notwithstanding any other provision of this Section 5.2, if the
managing underwriter determines that marketing factors require a limitation of
the number of shares to be underwritten, the managing underwriter may limit the
Registrable Securities to be included in such registration (i) in the case of
the Company's initial public offering, to zero, and (ii) in the case of any
other offering, to an amount no less than 30% of all shares to be included in
such offering. The Company shall so advise all Holders requesting to be
included in the registration and underwriting and the number of shares of
Registrable Securities that may be included in the registration and underwriting
shall be allocated among all the Holders requesting to be included in the
registration and underwriting in proportion, as nearly as practicable, to the
respective amounts of Registrable Securities held by them at the time of filing
the registration statement. To facilitate the allocation of shares in
accordance with the above provisions, the Company or the underwriters may round
the number of shares allocated to any Holder to the nearest 100 shares. If any
Holder disapproves of the terms of any such underwriting, such person may elect
to withdraw therefrom by written notice to the Company.
(c) RIGHT TO TERMINATE REGISTRATION. The Company shall have the
right to terminate or withdraw any registration initiated by it under this
Section 5.2 prior to the effectiveness of such registration whether or not any
Holder has elected to include securities in such registration.
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5.3 REGISTRATION ON FORM S-3.
(a) REQUEST FOR REGISTRATION. In case the Company shall receive
from Initiating Holders a written request that the Company file a registration
statement on Form S-3 (or any successor form to Form S-3) for a public offering
of shares of the Registrable Securities the aggregate price to the public of
which, net of underwriting discounts and commissions, would exceed $5,000,000,
and the Company is a registrant entitled to use Form S-3 to register the
Registrable Securities for such an offering, the Company shall use its best
efforts to cause such Registrable Securities to be registered for the offering
on such form and to cause such Registrable Securities to be qualified in such
jurisdictions as such Holder or Holders may reasonably request; provided,
however, that the Company shall not be required to effect more than one
registration pursuant to this Section 5.3 in any twelve (12) month period. If
such offer is to be an underwritten offer, the underwriters must be acceptable
to both the Initiating Holders and the Company. The Company shall inform the
other Holders of the proposed registration and offer them upon at least 20 days
written notice the opportunity to participate. In the event the registration is
proposed to be part of a firm commitment underwritten public offering, the
substantive provisions of Section 5.1(b) shall be applicable to each such
registration initiated under this Section 5.3.
(b) Notwithstanding the foregoing, the Company shall not be
obligated to take any action pursuant to this Section 5.3:
(i) If the Company, within ten (10) days of the
receipt of the request of the Initiating Holders, gives notice of its bona fide
intention to effect the filing of a registration statement with the Commission
within ninety (90) days of receipt of such request (other than with respect to a
registration statement relating to a Rule 145 transaction, an offering solely to
employees or any other registration which is not appropriate for the
registration of Registrable Securities);
(ii) During the period starting with the date sixty
(60) days prior to the Company's estimated date of filing of, and ending on the
date six (6) months immediately following the effective date of, any
registration statement pertaining to securities of the Company (other than a
registration of securities in a Rule 145 transaction or with respect to an
employee benefit plan), provided that the Company is actively employing in good
faith all reasonable efforts to cause such registration statement to become
effective; or
(iii) If the Company shall furnish to the Initiating
Holders a certificate signed by the President of the Company stating that, in
the good faith judgment of the Board of Directors, it would be seriously
detrimental to the Company or its stockholders for registration statements to be
filed in the near future, then the Company's obligation to use its best efforts
to file a registration statement shall be deferred for a period not to exceed
120 days from the receipt of the request to file such registration by such
Initiating Holder or Holders, provided that the Company may not exercise this
deferral right more than once per twelve month period.
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5.4 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. The Company shall
not enter into any agreement granting any holder or prospective holder of any
securities of the Company registration rights superior to or on a pari passu
basis with the rights granted hereunder without the written consent of the
holders of a majority of the Registrable Securities. Notwithstanding the
foregoing, the Company may, without obtaining any further consent of the holders
of Registrable Securities, amend this Agreement to the extent necessary to grant
rights and obligations on a pari passu basis with the rights and obligations of
the Series C Investors hereunder to investors in any subsequent round of
financing with respect to the securities purchased by such investors in such
financing, provided that such round of financing has an aggregate offering price
of at least $1,000,000 and an as-converted to Common Stock per share price of at
least $2.24024. Investors who purchase shares of Series C Preferred Stock in
Subsequent Closings (as such term is defined in the Series C Stock Purchase
Agreement) shall become parties to this Agreement by executing a counterpart
hereof.
5.5 EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with (i) one registration pursuant to Section 5.1, (ii) all
registrations pursuant to Section 5.2, and (iii) two registrations pursuant to
Section 5.3 shall be borne by the Company. Notwithstanding the foregoing, in
the event that Initiating Holders cause the Company to begin a registration
pursuant to Section 5.1 or Section 5.3, and the request for such registration is
subsequently withdrawn by the Initiating Holders or such registration is not
completed due to failure to meet the net proceeds requirement set forth in such
section or is otherwise not successfully completed due to no fault of the
Company, all Holders shall be deemed to have forfeited their right to a
registration under Section 5.1, or a registration at the expense of the company
under Section 5.3, as applicable, unless the Initiating Holders pay for, or
reimburse the Company for, the Registration Expenses incurred in connection with
such withdrawn or incomplete registration. Unless otherwise stated, all Selling
Expenses relating to securities registered on behalf of the Holders and all
other registration expenses shall be borne by the Holders of such securities pro
rata on the basis of the number of shares so registered or proposed to be so
registered.
5.6 REGISTRATION PROCEDURES. In the case of each registration
effected by the Company pursuant to this Agreement, the Company will keep each
Holder advised in writing as to the initiation of such registration and as to
the completion thereof. The Company will:
(a) Prepare and file with the Commission a registration
statement and such amendments and supplements as may be necessary and use its
best efforts to cause such registration statement to become and remain effective
for at least 90 days or until the distribution described in the registration
statement has been completed, whichever first occurs;
(b) Furnish to the Holders participating in such registration
and to the underwriters of the securities being registered such reasonable
number of copies of the registration statement, preliminary prospectus, final
prospectus and such other documents as such underwriters may reasonably request
in order to facilitate the public offering of such securities.
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5.7 INDEMNIFICATION.
(a) The Company will indemnify each Holder, each of its officers
and directors and partners, and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, with respect to which registration
has been effected pursuant to this Agreement, against all expenses, claims,
losses, damages or liabilities (or actions in respect thereof), including any of
the foregoing incurred in settlement of any litigation, commenced or threatened,
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any registration statement, prospectus, offering
circular or other document, or any amendment or supplement thereto, incident to
any such registration, or based on any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading, or any violation by the Company of the Securities Act, the
Securities Exchange Act of 1934, as amended, state securities law or any rule or
regulation promulgated under the such laws applicable to the Company in
connection with any such registration, and the Company will reimburse each such
Holder, each of its officers and directors, and each person controlling such
Holder, for any legal and any other expenses reasonably incurred, as such
expenses are incurred, in connection with investigating, preparing or defending
any such claim, loss, damage, liability or action, provided that the Company
will not be liable in any such case to the extent that any such claim, loss,
damage, liability or expense arises out of or is based on any untrue statement
or omission or alleged untrue statement or omission, made in reliance upon and
in conformity with written information furnished to the Company by an instrument
duly executed by such Holder or controlling person, and stated to be
specifically for use therein; provided, however, that the foregoing indemnity
Agreement is subject to the condition that, insofar as it relates to any such
untrue statement, alleged untrue statement, omission or alleged omission made in
a preliminary prospectus on file with the Commission at the time the
registration statement becomes effective or the amended prospectus filed with
the Commission pursuant to Rule 424(b) (the "FINAL PROSPECTUS"), such indemnity
Agreement shall not inure to the benefit of any Holder, if a copy of the Final
Prospectus was not furnished to the person asserting the loss, liability, claim
or damage at or prior to the time such action is required by the Securities Act,
and if the Final Prospectus would have cured the defect giving rise to the loss,
liability, claim or damage.
(b) Each Holder will, if Registrable Securities held by such
Holder are included in the securities as to which such registration is being
effected, indemnify the Company, each of its directors and officers, of the
Company's securities covered by such a registration statement, each person who
controls the Company within the meaning of Section 15 of the Securities Act, and
each other such Holder, each of its officers and directors and each person
controlling such Holder within the meaning of Section 15 of the Securities Act,
against all claims, losses, damages and liabilities (or actions in respect
thereof) arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any such registration statement,
prospectus, offering circular or other document, or any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse the
Company, such Holders, such directors, officers,
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persons, underwriters or control persons for any legal or any other expenses
reasonably incurred, as such expenses are incurred, in connection with
investigating or defending any such claim, loss, damage, liability or action,
but in the case of the Company or the other Holders or their officers, directors
or controlling persons, only to the extent that such untrue statement (or
alleged untrue statement) or omission (or alleged omission) is made in such
registration statement, prospectus, offering circular or other document in
reliance upon and in conformity with information furnished to the Company by
such Holder. Notwithstanding the foregoing, the liability of each Holder under
this subsection 5.7(b) shall be limited in an amount equal to the initial public
offering price of the shares sold by such Holder, unless such liability arises
out of or is based on willful misconduct by such Holder.
(c) Each party entitled to indemnification under this
Section 5.7 (the "INDEMNIFIED PARTY") shall give notice to the party required to
provide indemnification (the "INDEMNIFYING PARTY") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Agreement unless the failure to
give such notice is materially prejudicial to an Indemnifying Party's ability to
defend such action and provided further, that the Indemnifying Party shall not
assume the defense for matters as to which there is a conflict of interest or
there are separate and different defenses. No Indemnifying Party, in the
defense of any such claim or litigation, shall, except with the consent of each
Indemnified Party (whose consent shall not be unreasonably withheld), 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.
5.8 INFORMATION BY HOLDER. The Holder or Holders of Registrable
Securities included in any registration shall furnish to the Company such
information regarding such Holder or Holders, the Registrable Securities held by
them and the distribution proposed by such Holder or Holders as the Company may
request in writing and as shall be required in connection with any registration
referred to in this Agreement.
5.9 RULE 144 REPORTING. With a view to making available the benefits
of certain rules and regulations of the Commission which may at any time permit
the sale of the Restricted Securities to the public without registration, after
such time as a public market exists for the Common Stock of the Company, the
Company agrees to use all reasonable efforts to:
(a) Make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act, at all times
after the effective date that
-12-
the Company becomes subject to the reporting requirements of the Securities Act
or the Exchange Act;
(b) File with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements); and
(c) So long as a Holder owns any Restricted Securities, to
furnish to the Holder forthwith upon request a written statement by the Company
as to its compliance with the reporting requirements of said Rule 144 (at any
time after 90 days after the effective date of the first registration statement
filed by the Company for an offering of its securities to the general public),
and of the Securities Act and the Exchange Act (at any time after it has become
subject to such reporting requirements), a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents of the
Company and other information in the possession of or reasonably obtainable by
the Company as the Holder may reasonably request in availing itself of any rule
or regulation of the Commission allowing the Holder to sell any such securities
without registration.
5.10 TRANSFER OF REGISTRATION RIGHTS. The rights to cause the Company
to register securities granted Holders under Sections 5.1, 5.2 and 5.3 may be
assigned to a transferee or assignee reasonably acceptable to the Company in
connection with any transfer or assignment of Registrable Securities by the
Holder provided that: (i) such transfer is otherwise effected in accordance with
applicable securities laws and the terms of this Agreement, (ii) such assignee
or transferee acquires at least an amount equal to 10% of the Preferred Stock
and Conversion Stock, (iii) written notice is promptly given to the Company and
(iv) such transferee agrees to be bound by the provisions of this Agreement.
Notwithstanding the foregoing, the rights to cause the Company to register
securities may be assigned without compliance with item (ii) above to (w) any
constituent partner, member, or shareholder of a Holder which is a partnership,
limited liability company or corporation; (x) a family member of a Holder or
trust for the benefit of a Holder, the spouse of a Holder or issue of a Holder;
(y) any corporation, partnership, limited liability company or other entity of
which at least 75% in interest is owned or controlled, directly or indirectly,
by one or more of the persons described in (w) or (x); or (z) any affiliate of
Ziff Asset Management, L.P.
5.11 TERMINATION OF REGISTRATION RIGHTS. The rights granted pursuant
to Sections 5.1, 5.2 and 5.3 of this Agreement shall terminate as to any Holder
upon the earlier of (i) the date five years after the effective date of the
Company's initial public offering and (ii) such time as a public market for the
Company's Common Stock exists and the Holder may sell all Registrable Securities
held by the Holder within two successive three-month periods under Rule 144.
-13-
6. FINANCIAL INFORMATION AND INSPECTION RIGHTS.
(a) The Company will provide the following reports to each
Investor who continues to hold at least 400,000 shares of Preferred Stock:
(i) As soon as practicable after the end of the fiscal
year ending March 31, 1998 and each fiscal year thereafter, and in any event
within 120 days after the end of each such fiscal year, consolidated balance
sheets of the Company and its subsidiaries, if any, as of the end of such fiscal
year, and consolidated statements of operations and consolidated statements of
cash flows and stockholders' equity of the Company and its subsidiaries, if any,
for such year, prepared in accordance with generally accepted accounting
principles and setting forth in each case in comparative form the figures for
the previous fiscal year, all in reasonable detail and audited by independent
public accountants of national standing selected by the Company, and a
capitalization table in reasonable detail for such fiscal year.
(ii) As soon as practicable after the end of each of
the first eleven months of each fiscal year of the Company and in any event
within 15 days thereafter, a consolidated balance sheet of the Company and its
subsidiaries, if any, as of the end of each such monthly period, and
consolidated statements of operations and consolidated statements of cash flows
of the Company and its subsidiaries, if any, for such period and for the current
fiscal year to date, prepared in accordance with generally accepted accounting
principles (other than accompanying notes), subject to changes resulting from
year-end audit adjustments, in reasonable detail and signed by the principal
financial or accounting officer of the Company, and a capitalization table in
reasonable detail for such monthly period; and
(iii) At least 30 days prior to the beginning of each
fiscal year, commencing with the fiscal year beginning April 1, 1998, a budget
as adopted by the Company's Board of Directors for the fiscal year.
(b) The Company will afford to each Investor who continues to
hold at least 400,000 shares of Preferred Stock (as adjusted for stock splits,
stock dividends, stock combinations and the like) reasonable access during
normal business hours to the Company's accounting books and records and minutes
of proceedings of the stockholders and the Board of Directors and committees of
the Board of Directors, and all information distributed to the Board of
Directors, for a purpose reasonably related to such Investor's interests as a
stockholder of the Company. The Company shall not be required to disclose
details of transactions where to do so would violate confidentiality obligations
of the Company. The Company will afford to each Investor who continues to hold
at least 400,000 shares of Preferred Stock (as adjusted for stock splits, stock
dividends, stock combinations and the like) the right to meet periodically with
the Company's executive officers during normal business hours to discuss and
make recommendations regarding the conduct of the Company's business and
affairs.
-14-
(c) For purposes of determining the minimum holdings pursuant to
this Section 6, any Investor that is a partnership or limited liability company
shall be deemed to hold any Preferred Stock originally purchased by such
Investor and subsequently distributed to constituent partners or members of such
Investor, but which have not been resold by such partners or members. If the
partnership or limited liability company is still in existence, the Company may
satisfy any obligation to distribute reports to individual partners of the
partnership or members of a limited liability company by delivering a single
copy of each report to the partnership or limited liability company as agent for
the constituent partners or members.
(d) The rights granted pursuant to Section 6 may be assigned to
any transferee, other than a competitor or potential competitor of the Company
(as reasonably determined by the Company's Board of Directors), who (i) acquires
at least an amount equal to 10% of the shares of Preferred Stock and Conversion
Stock, (ii) is a member of the immediate family of the transferor or a trust for
the benefit of the transferor, (iii) if the transferor is a partnership, its
constituent partners or a retired partner of such partnership who retires after
the date hereof, or to the estate of any such partner or retired partner or
transfer by gift, will, or intestate succession to any such partner's spouse or
lineal descendants or ancestors, or (iv) is an affiliate of Ziff Asset
Management, L.P., so long as, in each case, such transferee agrees in writing to
be bound by the provisions of Section 6(e), below.
(e) Each Investor or transferee of rights under this Section 6
acknowledges and agrees that any information obtained pursuant to this Section 6
which may be considered nonpublic information will be maintained in confidence
by such Investor or transferee and will not be utilized by such Investor or
transferee in connection with purchases or sales of the Company's securities
except in compliance with applicable state and Federal securities laws.
7. TERMINATION OF COVENANTS. The covenants of the Company set forth
above in Sections 6 shall terminate and be of no further force or effect upon
the closing of a firm commitment underwritten public offering or at such time as
the Company is required to file reports pursuant to Section 13 or 15(d) of the
Exchange Act, whichever shall occur first.
8. LOCKUP AGREEMENT. Each Investor, Seed Investor, Founder, Holder and
transferee hereby agrees that, in connection with the first two registrations of
the offering of any securities of the Company under the Securities Act for the
account of the Company, if so requested by the Company or any representative of
the underwriters (the "MANAGING UNDERWRITER"), such Investor, Seed Investor,
Founder, Holder or transferee shall not sell or otherwise transfer any
securities of the Company during the period specified by the Company's Board of
Directors at the request of the Managing Underwriter, with such period not to
exceed 180 days, (the "MARKET STANDOFF PERIOD") following the effective date of
a registration statement of the Company filed under the Securities Act;
PROVIDED, HOWEVER, that the restriction contained in this Section 8 shall not
apply to the Series B or Series C Preferred Stock (or Common Stock issuable on
conversion thereof) unless all officers and directors of the Company are bound
by similar lockup provisions as
-15-
of the time of such registration. The Company may impose stop-transfer
instructions with respect to securities subject to the foregoing restrictions
until the end of such Market Standoff Period. The Company shall use its best
efforts to place similar contractual lockup restrictions on all capital stock
issued now or hereafter to (i) officers, directors, employees and consultants of
the Company, (ii) holders of one percent or more of the Company's outstanding
capital stock acquired prior to the closing of the Company's first registered
public offering and (iii) holders of registration rights with respect to capital
stock of the Company, in each case unless determined otherwise by the Company's
Board of Directors (including the Consent of the Preferred Directors).
Notwithstanding the foregoing, the provisions of this Section 8 shall not apply
to a registration relating solely to employee benefit plans on Form S-1 or Form
S-8 or similar forms which may be promulgated in the future, or a registration
relating solely to a transaction within Rule 145 of the Securities Act on Form
S-4 or similar form which may be promulgated in the future.
9. REQUIRED APPROVAL FOR CERTAIN ACTIONS. For so long as the holders of
Preferred Stock, voting without the Common Stock, are specifically entitled,
under the Company's Certificate of Incorporation, to elect at least one
director, the Board of Directors of the Company shall not take any of the
actions set forth below without the Consent of the Preferred Directors:
(a) amend or waive the terms of any agreement with any officer,
director, or Founder of the Company or take any other action primarily for the
purpose of accelerating either (i) the vesting of options granted to such person
or (ii) the lapsing of the Company's right to repurchase securities held by such
person;
(b) increase the level of salary or bonus compensation of any
officer or Founder of the Company beyond the level currently paid or the level
the Company has previously agreed to pay as disclosed on the Schedule of
Exceptions to the Series B Stock Purchase Agreement, if such increased level of
compensation would be deemed excessive by then current industry standards; or
(c) engage in any material transaction with any officer,
director, or Founder of the Company, or any family member or affiliate of such
officer, director, or Founder, unless the terms of such transaction are no less
favorable to the Company than terms available to the Company from unrelated
third parties.
For the purpose of Section 9(c), the issuance of securities of the
Company after the date hereof to any Founder or family member or affiliate of a
Founder shall be deemed to be a "material transaction" with such person unless
(i) such issuance is pursuant to an option outstanding as of the date hereof or
(ii) such issuance is pursuant to a stock split, stock dividend or the like in
which all holders of such securities participate on a pro rata basis.
10. EFFECTIVENESS; AMENDMENT AND RESTATEMENT OF PRIOR AGREEMENT. This
Agreement constitutes an amendment and restatement of the Prior Agreement
pursuant to Section 11 thereof and shall become effective and binding on all
parties thereto and persons bound by
-16-
the terms thereof upon obtaining the consent, evidenced by execution of this
Agreement, of the Company and a majority of the outstanding Registrable
Securities (as such term is defined in the Prior Agreement).
11. AMENDMENT. Except as otherwise provided above, any provision of this
Agreement may be amended or 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
a majority of the Registrable Securities then outstanding. Notwithstanding the
foregoing, no amendment shall be made to this Agreement which by its terms
adversely affects, or which was motivated primarily by an intent to adversely
affect, a particular class of Holders (i.e., Founders, Seed Investors or
Investors) in a manner differently from the other Holders without the written
consent of a majority of the Registrable Securities held by the Holders in such
adversely affected class. Any amendment or waiver effected in accordance with
Section 5.4 or Section 11, as applicable, shall be binding upon each Investor,
Seed Investor, Founder, Holder of Registrable Securities at the time
outstanding, each future holder of any of such securities, and the Company.
12. GOVERNING LAW. This Agreement shall be governed in all respects by
the internal laws of the State of California without regard to conflict of laws
provisions.
13. ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and Agreement among the parties regarding the matters set forth
herein. Except as otherwise expressly provided herein, the provisions hereof
shall inure to the benefit of, and be binding upon the successors, assigns,
heirs, executors and administrators of the parties hereto.
14. NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, or otherwise delivered by facsimile
transmission, by hand or by messenger, addressed:
(a) if to a Holder, at such Holder's address as set forth in EXHIBIT
A, or at such other address as such Holder shall have furnished to the Company.
(b) if to the Company, to:
NetGravity, Inc.
0000 X. Xxxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxx X. Xxxxxx
-17-
or at such other address as the Company shall have furnished to the Holders,
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxxx, Esq.
Xxxxx X. Xxxxxxxxxxx, Esq.
Fax: (000) 000-0000
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective or having been given when delivered if
delivered personally or by facsimile transmission, or, if sent by mail, at the
earlier of its receipt or 72 hours after the same has been deposited in a
regularly maintained receptacle for the deposit of the United States mail,
addressed and mailed as aforesaid.
15. 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.
-18-
(COUNTERPART SIGNATURE PAGE TO REGISTRATION AND INFORMATION RIGHTS AGREEMENT)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date written below.
NetGravity, Inc.
a Delaware corporation
By:
------------------------------
Xxxx X. Xxxxxx, President
London Pacific Life & Annuity Company
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
ZAM Venture Capital, L.P.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Hummer Winblad Venture Partners II,
L.P., a Delaware limited partnership
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Hummer Winblad Technology Fund II,
L.P., a Delaware limited partnership
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
(COUNTERPART SIGNATURE PAGE TO REGISTRATION AND INFORMATION RIGHTS AGREEMENT)
Hummer Winblad Technology Fund IIA,
L.P., a Delaware limited partnership
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Redleaf Venture I, L.P.,
a Delaware limited partnership
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Xxxxxxxx Xxxxxxx
--------------------------------------
Xxxxxxx Xxxx
--------------------------------------
Xxxx Xxxxxxxx
--------------------------------------
Xxxx X. Xxxxxxxx
--------------------------------------
Xxx Xxxxxxxx
--------------------------------------
(COUNTERPART SIGNATURE PAGE TO REGISTRATION AND INFORMATION RIGHTS AGREEMENT)
Xxxx Xxxxx
--------------------------------------
Xxxxx X. Xxxxxx and Xxx X. Xxxxxx, as
trustees of the Xxxxx X. and Xxx Xxxxxx
1989 Trust U/D/T dated May 8, 1989
--------------------------------------
--------------------------------------
Xxxx X. Xxxxxx
--------------------------------------
Xxxxx Xxxxx
--------------------------------------
Xxxxxx Xxxx
--------------------------------------
Xxxx Xxxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxxxx and Xxxx X. Xxxxxxxxx
--------------------------------------
--------------------------------------
(COUNTERPART SIGNATURE PAGE TO REGISTRATION AND INFORMATION RIGHTS AGREEMENT)
Xxxxxxx X. Xxxxxx and Xxxx Xxxxxxx Xxxxxx,
trustees of the Xxxxxx Family Trust U/D/T
dated February 7, 1996
--------------------------------------
--------------------------------------
Xxxx X.X. Xxxxxx as trustee of The Kohler
Family Trust U/D/T dated February 12, 1993
--------------------------------------
Xxxx Xxxxxxxxx
--------------------------------------
Xxxxxxxx X. Xxxx Xx.
--------------------------------------
Xxxx Xxxxxx
--------------------------------------
Xxxxx Xxxxxx
--------------------------------------
Xxxxxxx Xxxxx
--------------------------------------
(COUNTERPART SIGNATURE PAGE TO REGISTRATION AND INFORMATION RIGHTS AGREEMENT)
Xxxx Xxxxxxxx
--------------------------------------
Xxxx X. Xxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxx
--------------------------------------
Xxxxx X. Xxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxx, trustee of the Xxxxxx
X. Xxxxxxx Trust dated March 21, 1984
--------------------------------------
Stanford University
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Xxxxx Wear
--------------------------------------
(COUNTERPART SIGNATURE PAGE TO REGISTRATION AND INFORMATION RIGHTS AGREEMENT)
WS Investment Company 95B
By:
---------------------------------
Name: Xxxxx Xxxxxxx
Title: General Partner
Xxxx Xx
--------------------------------------
EXHIBIT A
(to the Registration and Information Rights Agreement)
SCHEDULE OF HOLDERS
ZAM Venture Capital, L.P.
c/o Ziff Brothers Investments, LLC
000 Xxxx 00xx Xxxxxx., 00xx Xxxxx
Xxx Xxxx, XX 00000
Thomson U.S. Inc.
x/x XXX Xxxxxxxx
0 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
London Pacific Life & Annuity Company
0000 Xxxxxxxxxx Xxxxx, Xxxxx #000
Xxxxxxx, XX 00000
Ziff Asset Management, L.P.
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Hummer Winblad Venture Partners II,
L.P., a Delaware limited partnership
0 Xxxxx Xxxx, Xxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Hummer Winblad Technology Fund,
L.P., a Delaware limited partnership
0 Xxxxx Xxxx, Xxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Hummer Winblad Technology Fund IIA,
L.P., a Delaware limited partnership
0 Xxxxx Xxxx, Xxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxx X. and Xxx Xxxxxx 1989 Trust U/D/T dated May 8, 1989
00000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Xxxxxx X. Xxxxxxx Trust dated March 21, 1984
000 Xxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
Xxxxxxx X. Xxxxxxx
000 Xxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
Xxxx X. Xxxxxxx
000 Xxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
Xxxx X. Xxxxxxxx
000 Xxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
Xxxx Xxxxxxxx
000 Xxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
The Kohler Family Trust U/D/T dated February 12, 1993
00000 Xxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Xxxxxxx Family Limited Partnership,
a Michigan limited partnership
Attn: Xxxxx X. Xxxxxxx
00000 Xxxx Xxxxx Xxxxx Xxxxx
Xxxx Xxxx, XX 00000
Xxxxxx & Xxxx Xxxxxxxxx
00 Xxxxxxx
Xxxxxx, XX 00000
Xxxxx Xxxxxx
c/o Xxxxxx Xxxxx
000 0xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
-26-
Xxxxxx X. Xxxxxxx
000 Xxxxxxx Xxxx
Xxxxxx Xxxx, XX 00000
The Xxxxxx Family Trust U/D/T dated February 7, 1996
0000 Xxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Xxxx Xxxxxx
000 Xxxxxx Xxxxxx #0
Xxx Xxxxxxxxx, XX 00000
Xxxxx Wear
0000 Xxxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Xxxx Xxxxxxxx
000 Xxxxx Xxxxx, #00
Xxxxxxx, XX 00000
Xxxx Xxxxxxxxx
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
WS Investment Company 95B
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Xxxxx Xxxxx
00 Xx Xxxxxxx Xxx
Xxxxxxxxxx, XX 00000
Xxxxxxx Xxxxx
0000 Xxxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
-27-
Xxxx Xx
00000 Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Stanford University
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Xxxxxxxx X. Xxxx Xx.
000 Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Xxxx Xxxxx
0000 Xxxxx Xxx Xxx
Xxx Xxxxx, XX 00000
Xxx Xxxxxxxx
000 Xxxxxxxxx Xxxx.
Xxxxxxxxx, XX 00000
Xxxxxx Xxxx
000 Xxxxxx Xxxxxx, # 000
Xxxxxxxx Xxxx, XX 00000
Xxxx Xxxxxxxx
00000 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Xxxxxxx Xxxx
0000 Xxxxxxxx Xx.
Xxxxxxx, XX 00000
Xxxxxxxx Xxxxxxx
00 Xxxxx Xxxx
Xxxxxx Xxxxxx, XX 00000
-28-
