EXHIBIT 10.2
XXXXXX.XXX INC.
AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
February 17, 1999
TABLE OF CONTENTS
Page
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1. Registration Rights.................................................... 2
1.1 Definitions...................................................... 2
1.2 Request for Registration......................................... 3
1.3 Company Registration............................................. 5
1.4 Form S-3 Registration............................................ 5
1.5 Obligations of the Company....................................... 6
1.6 Furnish Information.............................................. 8
1.7 Expenses of Registration......................................... 8
1.8 Underwriting Requirements........................................ 9
1.9 Delay of Registration............................................ 9
1.10 Indemnification.................................................. 9
1.11 Reports Under Securities Exchange Act of 1934.................... 12
1.12 Assignment of Registration Rights................................ 12
1.13 Limitations on Subsequent Registration Rights.................... 13
1.14 "Market Stand-Off" Agreement..................................... 13
1.15 Termination of Registration Rights............................... 14
2. Covenants of the Company............................................... 14
2.1 Delivery of Financial Statements................................. 14
2.2 Inspection....................................................... 14
2.3 Right of First Refusal........................................... 15
2.4 Termination of Covenants......................................... 16
3. Miscellaneous.......................................................... 17
3.1 Successors and Assigns........................................... 17
3.2 Amendments and Waivers........................................... 17
3.3 Notices.......................................................... 17
3.4 Severability..................................................... 18
3.5 Governing Law.................................................... 18
3.6 Counterparts..................................................... 18
3.7 Titles and Subtitles............................................. 18
3.8 Aggregation of Stock............................................. 18
3.9 Expenses......................................................... 18
3.10 Entire Agreement................................................. 18
3.11 Amendment of Original Agreement; Consent to Series C Financing... 18
3.12 Waiver of First Refusal Right on Series C Financing.............. 18
3.13 Supersedence..................................................... 19
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XXXXXX.XXX INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
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This Amended and Restated Investors' Rights Agreement (the "Agreement") is
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made as of the 17th day of February, 1999 by and among Xxxxxx.xxx Inc., a
Delaware corporation (the "Company"), holders of the Company's Series A and
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Series B Preferred Stock listed on Exhibit A hereto (the "Existing Holders"),
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purchasers of the Company's Series C Preferred Stock listed on Exhibit B hereto
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(the "Series C Investors" and together with the Existing Holders, the
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"Investors" or each an "Investor"), and Xxxxx Xxxxxx who is herein referred to
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as the "Founder".
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RECITALS
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WHEREAS, the Company (under its previous name StampMaster, Inc.), the
Existing Holders and the Founder are parties to an Investors' Rights Agreement
dated February 26, 1998 (the "Original Agreement");
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WHEREAS, the Company and the Series C Investors have entered into a Series
C Preferred Stock Purchase Agreement (the "Purchase Agreement") of even date
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herewith pursuant to which the Company desires to sell to the Series C Investors
and the Series C Investors desire to purchase from the Company shares of the
Company's Series C Preferred Stock;
WHEREAS, a condition to the Series C Investors' obligations under the
Purchase Agreement is that the Company, the Founder and the Investors enter into
this Agreement in order to provide the Investors with (i) certain rights to
register shares of the Company's Common Stock issuable upon conversion of the
Series A, Series B and Series C Preferred Stock held by the Investors, and (ii)
certain rights to receive or inspect information pertaining to the Company;
WHEREAS, the Company, the Investors and the Founder each desire to induce
the Series C Investors to purchase shares of Series C Preferred Stock pursuant
to the Purchase Agreement by amending and restating the Original Agreement
(pursuant to Section 3.2 of the Original Agreement) and agreeing to the terms
and conditions set forth herein.
AGREEMENT
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The parties hereby agree as follows:
1. Registration Rights. The Company and the Investors covenant and agree
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as follows:
1.1 Definitions. For purposes of this Section 1:
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(a) The terms "register," "registered," and "registration" refer
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to a registration effected by preparing and filing a registration statement or
similar document in
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compliance with the Securities Act of 1933, as amended (the "Securities Act"),
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and the declaration or ordering of effectiveness of such registration statement
or document;
(b) The term "Registrable Securities" means (i) the shares of
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Common Stock issuable or issued upon conversion of the Series A, Series B and
Series C Preferred Stock, (ii) the shares of Common Stock issued to the Founder
(the "Founder's Stock"), provided, however, that for the purposes of Section
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1.2, 1.4 or 1.13 the Founder's Stock shall not be deemed Registrable Securities
and the Founder shall not be deemed a Holder, and (iii) any other shares of
Common Stock of the Company issued as (or issuable upon the conversion or
exercise of any warrant, right or other security which is issued as) a dividend
or other distribution with respect to, or in exchange for or in replacement of,
the shares listed in (i) and (ii); provided, however, that the foregoing
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definition shall exclude in all cases any Registrable Securities sold by a
person in a transaction in which his or her rights under this Agreement are not
assigned. Notwithstanding the foregoing, Common Stock or other securities shall
only be treated as Registrable Securities if and so long as they have not been
(A) sold to or through a broker or dealer or underwriter in a public
distribution or a public securities transaction, or (B) sold in a transaction
exempt from the registration and prospectus delivery requirements of the
Securities Act under Section 4(1) thereof so that all transfer restrictions, and
restrictive legends with respect thereto, if any, are removed upon the
consummation of such sale;
(c) The number of shares of "Registrable Securities then
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outstanding" shall be determined by the number of shares of Common Stock
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outstanding which are, and the number of shares of Common Stock issuable
pursuant to then exercisable or convertible securities which are, Registrable
Securities;
(d) The term "Holder" means any person owning or having the
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right to acquire Registrable Securities or any assignee thereof in accordance
with Section 1.12 of this Agreement;
(e) The term "Form S-3" means such form under the Securities Act
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as in effect on the date hereof or any successor form under the Securities Act;
(f) The term "SEC" means the Securities and Exchange Commission;
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and
(g) The term "IPO" means a firm commitment underwritten public
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offering by the Company of shares of its Common Stock pursuant to a registration
statement on Form S-1 under the Securities Act.
1.2 Request for Registration.
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(a) If the Company shall receive at any time after the earlier
of (i) February 26, 2003, or (ii) six (6) months after the effective date of the
first registration statement for a public offering of securities of the Company
(other than a registration statement relating either to the sale of securities
to employees of the Company pursuant to a stock option, stock purchase or
similar plan or an SEC Rule 145 transaction), a written request from the Holders
of a
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majority of the Registrable Securities then outstanding that the Company file a
registration statement under the Securities Act covering the registration of at
least thirty percent (30%) of the Registrable Securities then outstanding (or a
lesser percent if the anticipated aggregate offering price, net of underwriting
discounts and commissions, would exceed $7,500,000), then the Company shall,
within ten (10) days of the receipt thereof, give written notice of such request
to all Holders and shall, subject to the limitations of subsection 1.2(b), use
its best efforts to effect as soon as practicable, and in any event within sixty
(60) days of the receipt of such request, the registration under the Securities
Act of all Registrable Securities which the Holders request to be registered
within twenty (20) days of the mailing of such notice by the Company in
accordance with Section 3.3.
(b) If the Holders initiating the registration request hereunder
("Initiating Holders") intend to distribute the Registrable Securities covered
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by their request by means of an underwriting, they shall so advise the Company
as a part of their request made pursuant to this Section 1.2 and the Company
shall include such information in the written notice referred to in subsection
1.2(a). The underwriter will be selected by a majority in interest of the
Initiating Holders and shall be reasonably acceptable to the Company. In such
event, the right of any Holder to include his Registrable Securities in such
registration shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting (unless otherwise mutually agreed by a majority in interest of the
Initiating Holders and such Holder) to the extent provided herein. All Holders
proposing to distribute their securities through such underwriting shall
(together with the Company as provided in subsection 1.5(e)) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by a majority in interest of the Initiating
Holders. Notwithstanding any other provision of this Section 1.2, if the
underwriter advises the Initiating Holders in writing that marketing factors
require a limitation of the number of shares to be underwritten, then the
Initiating Holders shall so advise all Holders of Registrable Securities which
would otherwise be underwritten pursuant hereto, and the number of shares of
Registrable Securities that may be included in the underwriting shall be
allocated among all Holders thereof, including the Initiating Holders, in
proportion (as nearly as practicable) to the amount of Registrable Securities of
the Company owned by each Holder; provided, however, that the number of shares
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of Registrable Securities to be included in such underwriting shall not be
reduced unless all other securities are first entirely excluded from the
underwriting.
(c) Notwithstanding the foregoing, if the Company shall furnish
to Holders requesting a registration statement pursuant to this Section 1.2, a
certificate signed by the President of the Company stating that in the good
faith judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its stockholders for such registration statement
to be filed and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer such filing
for a period of not more than one hundred twenty (120) days after receipt of the
request of the Initiating Holders; provided, however, that the Company may not
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utilize this right more than once in any twelve-month period.
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(d) In addition, the Company shall not be obligated to effect,
or to take any action to effect, any registration pursuant to this Section 1.2:
(i) After the Company has effected two (2) registrations
pursuant to this Section 1.2 and such registrations have been declared or
ordered effective;
(ii) During the period starting with the date sixty (60)
days prior to the Company's good faith estimate of the date of filing of, and
ending on a date one hundred eighty (180) days after the effective date of, a
registration subject to Section 1.3 hereof; provided that the Company is
actively employing in good faith all reasonable efforts to cause such
registration statement to become effective; or
(iii) If the Initiating Holders propose to dispose of shares
of Registrable Securities that may be immediately registered on Form S-3
pursuant to a request made pursuant to Section 1.4 below.
1.3 Company Registration. If (but without any obligation to do so)
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the Company proposes to register (including for this purpose a registration
effected by the Company for stockholders other than the Holders) any of its
stock under the Securities Act in connection with the public offering of such
securities solely for cash (other than a registration relating solely to the
sale of securities to participants in a Company stock plan or a corporate
reorganization or other transaction covered by Rule 145 under the Securities
Act, or any registration on any form which does not include substantially the
same information as would be required to be included in a registration statement
covering the sale of the Registrable Securities), the Company shall, at such
time, promptly give each Holder written notice of such registration. Upon the
written request of each Holder given within twenty-five (25) days after mailing
of such notice by the Company in accordance with Section 3.3, the Company shall,
subject to the provisions of Section 1.8, cause to be registered under the
Securities Act all of the Registrable Securities that each such Holder has
requested to be registered.
1.4 Form S-3 Registration. In case the Company shall receive from
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any Holder or Holders of not less than thirty percent (30%) of the Registrable
Securities then outstanding a written request or requests that the Company
effect a registration on Form S-3 and any related qualification or compliance
with respect to all or a part of the Registrable Securities owned by such Holder
or Holders, the Company will:
(a) promptly give written notice of the proposed registration,
and any related qualification or compliance, to all other Holders; and
(b) as soon as practicable, effect such registration and all
such qualifications and compliances as may be so requested and as would permit
or facilitate the sale and distribution of all or such portion of such Holder's
or Holders' Registrable Securities as are specified in such request, together
with all or such portion of the Registrable Securities of any other Holder or
Holders joining in such request as are specified in a written request given
within 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
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registration, qualification or compliance,
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pursuant to this Section 1.4: (i) if Form S-3 is not available for such offering
by the Holders; (ii) if the Holders, together with the holders of any other
securities of the Company entitled to inclusion in such registration, propose to
sell Registrable Securities and such other securities (if any) at an aggregate
price to the public (net of any underwriters' discounts or commissions) of less
than $500,000; (iii) if the Company shall furnish to the Holders a certificate
signed by the President of the Company stating that in the good faith judgment
of the Board of Directors of the Company, it would be seriously detrimental to
the Company and its stockholders for such Form S-3 Registration to be effected
at such time, in which event the Company shall have the right to defer the
filing of the Form S-3 registration statement for a period of not more than 90
days after receipt of the request of the Holder or Holders under this Section
1.4; provided, however, that the Company shall not utilize this right more than
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once in any twelve month period; (iv) if the Company has, within the twelve (12)
month period preceding the date of such request, already effected two (2)
registrations on Form S-3 for the Holders pursuant to this Section 1.4; (v) in
any particular jurisdiction in which the Company would be required to qualify to
do business or to execute a general consent to service of process in effecting
such registration, qualification or compliance; or (vi) during the period ending
one hundred eighty (180) days after the effective date of a registration
statement subject to Section 1.3.
(c) Subject to the foregoing, the Company shall file a
registration statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request or requests of the Holders. Registrations effected pursuant to this
Section 1.4 shall not be counted as demands for registration or registrations
effected pursuant to Sections 1.2 or 1.3, respectively.
1.5 Obligations of the Company. Whenever required under this Section
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1 to effect the registration of any Registrable Securities, the Company shall,
as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, upon the request of the Holders
of a majority of the Registrable Securities registered thereunder, keep such
registration statement effective for up to one hundred twenty (120) days,
provided however, that such 120-day period shall be extended for a period of
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time equal to the period the Holder refrains from selling any securities
included in such registration at the request of an underwriter of Common Stock
(or other securities) of the Company.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement for up to one hundred twenty
(120) days.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act,
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and such other documents as they may reasonably request in order to facilitate
the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders,
provided that the Company shall not be required in connection therewith or as a
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condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Act.
(e) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) 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, such obligation to continue for one hundred twenty (120) days.
(g) Cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange on which similar securities
issued by the Company are then listed.
(h) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
(i) Use its best efforts to furnish, at the request of any
Holder requesting registration of Registrable Securities pursuant to this
Section 1, on the date that such Registrable Securities are delivered to the
underwriters for sale in connection with a registration pursuant to this Section
1, if such securities are being sold through underwriters, or, if such
securities are not being sold through underwriters, on the date that the
registration statement with respect to such securities becomes effective, (i) an
opinion, dated such date, of the counsel representing the Company for the
purposes of such registration, in form and substance as is customarily given to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and to the Holders requesting registration of Registrable Securities and
(ii) a letter dated such date, from the independent certified public accountants
of the Company, in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public offering,
addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities.
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1.6 Furnish Information. It shall be a condition precedent to the
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obligations of the Company to take any action pursuant to this Section 1 with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be required to effect the registration of such Holder's Registrable
Securities. The Company shall have no obligation with respect to any
registration requested pursuant to Section 1.2 or Section 1.4 of this Agreement
if, as a result of the application of the preceding sentence, the number of
shares or the anticipated aggregate offering price of the Registrable Securities
to be included in the registration does not equal or exceed the number of shares
or the anticipated aggregate offering price required to originally trigger the
Company's obligation to initiate such registration as specified in subsection
1.2(a) or subsection 1.4(b)(ii), whichever is applicable.
1.7 Expenses of Registration.
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(a) Demand Registration. All expenses other than underwriting
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discounts and commissions incurred in connection with registrations, filings or
qualifications pursuant to Section 1.2, including (without limitation) all
registration, filing and qualification fees, printers' and accounting fees, fees
and disbursements of counsel for the Company, and the reasonable fees and
disbursements of one counsel for the selling Holders selected by them shall be
borne by the Company; provided, however, that the Company shall not be required
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to pay for any expenses of any registration proceeding begun pursuant to Section
1.2 if the registration request is subsequently withdrawn at the request of the
Holders of a majority of the Registrable Securities to be registered (in which
case all participating Holders shall bear such expenses), unless the Holders of
a majority of the Registrable Securities agree to forfeit their right to one
demand registration pursuant to Section 1.2; provided further, however, that if
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at the time of such withdrawal, the Holders have learned of a material adverse
change in the condition, business, or prospects of the Company from that known
to the Holders at the time of their request and have withdrawn the request with
reasonable promptness following disclosure by the Company of such material
adverse change, then the Holders shall not be required to pay any of such
expenses and shall retain their rights pursuant to Section 1.2.
(b) Company Registration. All expenses other than underwriting
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discounts and commissions incurred in connection with registrations, filings or
qualifications of Registrable Securities pursuant to Section 1.3 for each Holder
(which right may be assigned as provided in Section 1.12), including (without
limitation) all registration, filing, and qualification fees, printers' and
accounting fees, fees and disbursements of counsel for the Company and the
reasonable fees and disbursements of one counsel for the selling Holder or
Holders selected by them shall be borne by the Company.
(c) Registration on Form S-3. All expenses incurred in
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connection with a registration requested pursuant to Section 1.4, including
(without limitation) all registration, filing, qualification, printers' and
accounting fees and the reasonable fees and disbursements of one counsel for the
selling Holder or Holders selected by them, and counsel for the Company, and any
underwriters' discounts or commissions associated with Registrable
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Securities, shall be borne pro rata by the Holder or Holders participating in
the Form S-3 Registration.
1.8 Underwriting Requirements. In connection with any offering
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involving an underwriting of shares of the Company's capital stock, the Company
shall not be required under Section 1.3 to include any of the Holders'
securities in such underwriting unless they accept the terms of the underwriting
as agreed upon between the Company and the underwriters selected by it (or by
other persons entitled to select the underwriters pursuant to Section 1.2), and
then only in such quantity as the underwriters determine in their sole
discretion will not jeopardize the success of the offering by the Company. If
the total amount of securities, including Registrable Securities, requested by
stockholders to be included in such offering exceeds the amount of securities
sold other than by the Company that the underwriters determine in their sole
discretion is compatible with the success of the offering, then the Company
shall be required to include in the offering only that number of such
securities, including Registrable Securities, which the underwriters determine
in their sole discretion will not jeopardize the success of the offering (the
securities so included to be apportioned pro rata among the selling stockholders
according to the total amount of securities entitled to be included therein
owned by each selling stockholder or in such other proportions as shall mutually
be agreed to by such selling stockholders) but in no event shall (i) any shares
being sold by a stockholder exercising a demand registration right similar to
that granted in Section 1.2 be excluded from such offering, (ii) the amount of
securities of the selling Holders included in the offering be reduced below
twenty five percent (25%) of the total amount of securities included in such
offering, unless such offering is the initial public offering of the Company's
securities, in which case, except as provided in (i) the selling stockholders
may be excluded if the underwriters make the determination described above and
no other stockholder's securities are included or (iii) any securities held by
the Founder be included if any securities held by any selling Holder are
excluded. For purposes of the preceding parenthetical concerning apportionment,
for any selling stockholder which is a holder of Registrable Securities and
which is a partnership or corporation, the partners, retired partners and
stockholders of such holder, or the estates and family members of any such
partners and retired partners and any trusts for the benefit of any of the
foregoing persons shall be deemed to be a single "selling stockholder," and any
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pro-rata reduction with respect to such "selling stockholder" shall be based
upon the aggregate amount of shares carrying registration rights owned by all
entities and individuals included in such "selling stockholder," as defined in
this sentence.
1.9 Delay of Registration. No Holder shall have any right to
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obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 1.
1.10 Indemnification. In the event any Registrable Securities are
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included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Holder, any underwriter (as defined in the Securities
Act) for such Holder
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and each person, if any, who controls such Holder or underwriter within the
meaning of the Securities Act or the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), against any losses, claims, damages, or liabilities (joint
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or several) to which they may become subject under the Securities Act, the
Exchange Act or other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations
(collectively a "Violation"): (i) any untrue statement or alleged untrue
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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; and the Company will pay to each
such Holder, underwriter or controlling person, as incurred, any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided, however,
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that the indemnity agreement contained in this subsection 1.10(a) shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability,
or action if such settlement is effected without the consent of the Company
(which consent shall not be unreasonably withheld), nor shall the Company be
liable to any Holder, underwriter or controlling person for any such loss,
claim, damage, liability, or action to the extent that it arises out of or is
based upon a Violation which occurs in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by any such Holder, underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the Securities Act, any underwriter,
any other Holder selling securities in such registration statement and any
controlling person of any such underwriter or other Holder, against any losses,
claims, damages, or liabilities (joint or several) to which any of the foregoing
persons may become subject, under the Securities Act, the Exchange Act or other
federal or state law, insofar as such losses, claims, damages, or liabilities
(or actions in respect thereto) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by such
Holder expressly for use in connection with such registration; and each such
Holder will pay, as incurred, any legal or other expenses reasonably incurred by
any person intended to be indemnified pursuant to this subsection 1.10(b), in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement contained
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in this subsection 1.10(b) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is effected
without the consent of the Holder, which consent shall not be unreasonably
withheld; provided, that in no event shall any indemnity under this subsection
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1.10(b) exceed the net proceeds from the offering received by such Holder,
except in the case of willful fraud by such Holder.
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(c) Promptly after receipt by an indemnified party under this
Section 1.10 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 1.10, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
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(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the reasonable fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
1.10, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 1.10.
(d) If the indemnification provided for in this Section 1.10 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage or expense as well as any other relevant equitable
considerations; provided, that in no event shall any contribution by a Holder
--------
under this Subsection 1.10(d) exceed the net proceeds from the offering received
by such Holder, except in the case of willful fraud by such Holder. The relative
fault of the indemnifying party and of the indemnified party shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified party and
the parties' relative intent, knowledge, access to information, and opportunity
to correct or prevent such statement or omission.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
(f) The obligations of the Company and Holders under this
Section 1.10 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and otherwise.
-11-
1.11 Reports Under Securities Exchange Act of 1934. With a view to
---------------------------------------------
making available to the Holders the benefits of Rule 144 promulgated under the
Securities Act and any other rule or regulation of the SEC that may at any time
permit a Holder to sell securities of the Company to the public without
registration or pursuant to a registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in SEC Rule 144, at all times after ninety (90) days
after the effective date of the first registration statement filed by the
Company for the offering of its securities to the general public so long as the
Company remains subject to the periodic reporting requirements under Sections 13
or 15(d) of the Exchange Act;
(b) take such action, including the voluntary registration of
its Common Stock under Section 12 of the Exchange Act, as is necessary to enable
the Holders to utilize Form S-3 for the sale of their Registrable Securities,
such action to be taken as soon as practicable after the end of the fiscal year
in which the first registration statement filed by the Company for the offering
of its securities to the general public is declared effective;
(c) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and
(d) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of SEC Rule 144 (at
any time after ninety (90) days after the effective date of the first
registration statement filed by the Company), the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements), or that it qualifies as a registrant whose securities may be
resold pursuant to Form S-3 (at any time after it so qualifies), (ii) a copy of
the most recent annual or quarterly report of the Company and such other reports
and documents so filed by the Company, and (iii) such other information as may
be reasonably requested in availing any Holder of any rule or regulation of the
SEC which permits the selling of any such securities without registration or
pursuant to such form.
1.12 Assignment of Registration Rights. The rights to cause the
---------------------------------
Company to register Registrable Securities pursuant to this Section 1 may be
assigned (but only with all related obligations) by a Holder to a transferee or
assignee of at least 50,000 shares of such securities, provided the Company is,
--------
within a reasonable time after such transfer, furnished with written notice of
the name and address of such transferee or assignee and the securities with
respect to which such registration rights are being assigned; and provided,
--------
further, that such assignment shall be effective only if immediately following
-------
such transfer the further disposition of such securities by the transferee or
assignee is restricted under the Securities Act. For the purposes of
determining the number of shares of Registrable Securities held by a transferee
or assignee, the holdings of transferees and assignees of a partnership who are
partners or retired partners of such partnership (including spouses and
ancestors, lineal descendants and siblings of such partners or spouses who
acquire Registrable Securities by gift, will or intestate succession) shall be
aggregated together and with the partnership; provided that all assignees and
transferees
-12-
who would not qualify individually for assignment of registration rights shall
have a single attorney-in-fact for the purpose of exercising any rights,
receiving notices or taking any action under Section 1.
1.13 Limitations on Subsequent Registration Rights. From and after
---------------------------------------------
the date of this Agreement, the Company shall not, without the prior written
consent of the Holders of a majority of the outstanding Registrable Securities,
enter into any agreement with any holder or prospective holder of any securities
of the Company which would allow such holder or prospective holder (a) to
include such securities in any registration filed under Section 1.2 hereof,
unless under the terms of such agreement, such holder or prospective holder may
include such securities in any such registration only to the extent that the
inclusion of his securities will not reduce the amount of the Registrable
Securities of the Holders which is included or (b) to make a demand registration
which could result in such registration statement being declared effective prior
to the earlier of either of the dates set forth in subsection 1.2(a) or within
one hundred twenty (120) days of the effective date of any registration effected
pursuant to Section 1.2.
1.14 "Market Stand-Off" Agreement. Each Holder hereby agrees that,
----------------------------
during the period of duration (up to, but not exceeding, 180 days) specified by
the Company and an underwriter of Common Stock or other securities of the
Company, following the date of the final prospectus distributed in connection
with a public offering, it shall not, to the extent requested by the Company and
such underwriter, directly or indirectly sell, offer to sell, contract to sell
(including, without limitation, any short sale), grant any option to purchase or
otherwise transfer or dispose of (other than to donees who agree to be similarly
bound) any securities of the Company held by it at any time during such period
except Common Stock included in such registration; provided, however, that:
-------- -------
(a) such agreement shall be applicable only to the first such
registration statement of the Company which covers Common Stock (or other
securities) to be sold on its behalf to the public in an underwritten offering;
and
(b) all officers and directors of the Company, all one-percent
securityholders, and all other persons with registration rights (whether or not
pursuant to this Agreement) enter into similar agreements.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Registrable Securities of each
Holder (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period, and each Holder agrees
that, if so requested, such Holder will execute an agreement in the form
provided by the underwriter containing terms which are essentially consistent
with the provisions of this Section 1.14.
Notwithstanding the foregoing, the obligations described in this
Section 1.14 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 an SEC Rule 145 transaction
on Form S-4 or similar forms which may be promulgated in the future.
-13-
1.15 Termination of Registration Rights. No Holder shall be
----------------------------------
entitled to exercise any right provided for in this Section 1 after the earlier
of (i) five (5) years following the consummation an IPO, or (ii) such time as
Rule 144 or another similar exemption under the Securities Act is available for
the sale of all of such Holder's shares during a three (3)-month period without
registration.
2. Covenants of the Company.
------------------------
2.1 Delivery of Financial Statements. The Company shall deliver to
--------------------------------
each Holder of at least 50,000 shares of Registrable Securities (other than a
Holder reasonably deemed by the Company to be a competitor of the Company):
(a) as soon as practicable, but in any event within ninety (90)
days after the end of each fiscal year of the Company, an income statement for
such fiscal year, a balance sheet of the Company and statement of stockholder's
equity as of the end of such year, and a statement of cash flows for such year,
such year-end financial reports to be in reasonable detail, prepared in
accordance with generally accepted accounting principles ("GAAP"), and audited
----
and certified by an independent public accounting firm of nationally recognized
standing selected by the Company;
(b) within thirty (30) days of the end of each month, an
unaudited income statement and a statement of cash flows and balance sheet for
and as of the end of such month, in reasonable detail;
(c) as soon as practicable, but in any event thirty (30) days
prior to the end of each fiscal year, a budget and business plan for the next
fiscal year, prepared on a monthly basis, and, as soon as prepared, any other
budgets or revised budgets prepared by the Company; and
(d) with respect to the financial statements called for in
subsection (b) of this Section 2.1, an instrument executed by the Chief
Financial Officer or President of the Company and certifying that such
financials were prepared in accordance with GAAP consistently applied with prior
practice for earlier periods (with the exception of footnotes that may be
required by GAAP) and fairly present the financial condition of the Company and
its results of operation for the period specified, subject to year-end audit
adjustment, provided that the foregoing shall not restrict the right of the
Company to change its accounting principles consistent with GAAP, if the Board
of Directors determines that it is in the best interest of the Company to do so.
2.2 Inspection. The Company shall permit each Holder of at least
----------
50,000 shares of Registrable Securities except for a Holder reasonably deemed by
the Company to be a competitor of the Company, at such Holder's expense, to
visit and inspect the Company's properties, to examine its books of account and
records and to discuss the Company's affairs, finances and accounts with its
officers, all at such reasonable times as may be requested by the Investor;
provided, however, that the Company shall not be obligated pursuant to this
-------- -------
Section 2.2
-14-
to provide access to any information which it reasonably considers to be a trade
secret or similar confidential information.
2.3 Right of First Refusal. Subject to the terms and conditions
----------------------
specified in this paragraph 2.3, the Company hereby grants to each Holder (other
than the Founder or any assignee of or successor in interest to the Founder) a
right of first refusal with respect to future sales by the Company of its Shares
(as hereinafter defined). For purposes of this Section 2.3, a Holder shall mean
any Investor who holds at least 180,000 shares of the Company's Common Stock
(assuming conversion of convertible securities) at the time the Company proposes
to sell Shares. For purposes of this Section 2.3, Investor includes any general
partners and affiliates of an Investor. An Investor shall be entitled to
apportion the right of first offer hereby granted it among itself and its
partners and affiliates in such proportions as it deems appropriate.
Each time the Company offers any shares of, or securities convertible
into or exercisable for any shares of, any class of its capital stock
("Shares"), the Company shall make an offering of such Shares to each Holder
before offering such shares to any other person, entity or association, in
accordance with the following provisions:
(a) The Company shall deliver a notice by certified mail
("Notice") to each Holders standing (i) its bona fide intention to offer such
Shares, (ii) the number of such Shares to be offered, and (iii) the price and
terms upon which such Shares shall be offered.
(b) By written notification received by the Company, within
fifteen (15) calendar days after giving of the Notice, each Holder may elect to
purchase or obtain, at the price and on the terms specified in the Notice, up to
that portion of such Shares which equals the proportion that the number of
shares of common stock issued and held, or issuable upon conversion of any
capital stock or warrants of the Company then held, by such Holder bears to the
total number of shares of common stock of the Company issued and outstanding
(assuming conversion or exercise of all of the Company's outstanding convertible
securities, options or warrants).
(c) If all Shares which Holders are entitled to obtain pursuant
to subsection 2.3(b) are not elected to be obtained as provided in subsection
2.3(b) hereof, the Company may, during the 60-day period following the
expiration of the period provided in subsection 2.3(b) hereof, offer the reaming
unsubscribed portion of such Shares to any person or persons at a price not less
than, and upon terms no more favorable to the offeree than those specified in
the Notice. If the Company does not enter into an agreement for the sale of the
Shares within such period, or if such agreement is not consummated within 60
days of the execution thereof, the right provided hereunder shall be deemed to
be revived and such Shares shall not be offered unless first reoffered to the
Holders in accordance herewith.
(d) The right of first refusal in this paragraph 2.3 shall not
be applicable (i) to the issuance or sale of shares of common stock (or options
therefor) to employees, officers, directors or consultants of the Company or any
wholly-owned subsidiary, pursuant to plans or agreements approved by the Board
of Directors; (ii) to or after consummation of a bona fide, firmly underwritten
public offering of shares of common stock,
-15-
registered under the Act pursuant to a registration statement on Form S-1; (iii)
to the issuance of securities pursuant to the conversion or exercise of
convertible or exercisable securities; (iv) to the issuance of securities in
connection with a bona fide business acquisition of or by the Company, whether
by merger, consolidation, sale of assets, sale or exchange of stock or
otherwise; (v) to the issuance of securities to financial institutions or
lessors in connection with commercial credit arrangements, equipment financings
or similar transactions; (vi) to the issuance of stock, warrants or other
securities or rights to persons or entities with which the Company has business
relationships; provided such issuances are for other than primarily equity
financing purposes and provided that at the time of any such issuance, the
aggregate of such issuance and similar issuances in the preceding twelve month
period do not exceed 1% of the then outstanding Common Stock of the Company
(assuming full conversion and exercise of all convertible and exercisable
securities) or (vii) to the issuance or sale of the Series A Preferred Stock,
the Series B Preferred Stock and the Series C Preferred Stock authorized as of
the date hereof.
(e) The right of first refusal set forth in this Section 2.3 may
not be assigned or transferred, except that (i) such right is assignable by each
Holder to any wholly owned subsidiary or parent of, or to any corporation or
entity that is, within the meaning of the Act, controlling, controlled by or
under common control with, any such Holder, or to any partner or retired partner
of the Holder and (ii) such right is assignable between and among any of the
Holders.
2.4 Termination of Covenants.
------------------------
The covenants set forth in Section 2.1, Section 2.2 and Section 2.3
shall terminate as to each Holder and be of no further force or effect on the
earlier of (a) immediately prior to the consummation of an IPO or (b) when the
Company first becomes subject to the periodic reporting requirements of Sections
13 or 15(d) of the Exchange Act.
2.5 Regulatory Matters.
------------------
(a) Cooperation of Other Stockholders. Each party hereto agrees
---------------------------------
to cooperate with the Company in all commercially reasonable respects in
complying with the terms and provisions of the letter agreement between the
Company and Chase Venture Capital Associates, L.P. ("CVCA"), a copy of which is
attached to this Agreement as Exhibit C, regarding small business matters (the
---------
"Small Business Sideletter"), including without limitation, voting to approve
-------------------------
amending the Company's Certificate of Incorporation, the Company's by-laws or
this Agreement in a manner reasonably acceptable to such party and CVCA or any
Regulated Holder (as defined in the Small Business Sideletter) entitled to make
such request pursuant to the Small Business Sideletter in order to remedy a
Regulatory Problem (as defined in the Small Business Sideletter). Anything
contained in this Section 2.5 to the contrary notwithstanding, no party to this
Agreement shall be required under this Section 2.5 to take any action that would
adversely affect in any material respect such Person's rights under this
Agreement or as a stockholder of the Company.
-16-
(b) Covenant Not to Amend. The Company and each party hereto
---------------------
agree not to amend or waive the voting or other provisions of the Company's
Restated Certificate, the Company's bylaws or this Agreement if such amendment
or waiver would cause any Regulated Holder to have a Regulatory Problem (as
defined in the Small Business Sideletter) unless the failure to do such would
adversely affect in any material respect any parties' rights, privileges and
preferences under the Company's Restated Certificate, the Company's bylaws or
this Agreement. CVCA agrees to notify the Company as to whether or not it would
have a Regulatory Problem promptly after CVCA has notice of such amendment or
waiver.
2.6 Section 1202.
------------
The Company hereby covenants and agrees that it will not take, and
each of the parties hereto agrees to use reasonable efforts to cause the Company
not to take, any action reasonably expected to make the Company or its
shareholders ineligible for the qualified small business stock tax reduction
under Section 1202 of the Internal Revenue Code of 1986, as amended (the "Code")
or fail to file any filing required under Section 1202 of the Code or any
regulation promulgated thereunder required to enable any Holder to take
advantage of such Code provision.
3. Miscellaneous.
-------------
3.1 Successors and Assigns. Except as otherwise provided in this
----------------------
Agreement, the terms and conditions of this Agreement shall inure to the benefit
of and be binding upon the respective permitted successors and assigns of the
parties (including transferees of any Registrable Securities). Nothing in this
Agreement, express or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
3.2 Amendments and Waivers. Any term of this Agreement may be
----------------------
amended or waived in writing and only with the written consent of the Company
and the holders of a majority of the Registrable Securities then outstanding,
not including the Founder's Stock; provided that if such amendment has the
effect of affecting the Founder's Stock (i) in a manner different than
securities issued to the Investors and (ii) in a manner adverse to the interests
of the holders of the Founder's Stock, then such amendment shall require the
consent of the holder or holders of a majority of the Founder's Stock. Any
amendment or waiver effected in accordance with this paragraph shall be binding
upon each holder of any Registrable Securities then outstanding, each future
holder of all such Registrable Securities, and the Company.
3.3 Notices. Unless otherwise provided, any notice required or
-------
permitted by this Agreement shall be in writing and shall be deemed sufficient
upon delivery, when delivered personally or by overnight courier or sent by
telegram or fax, or forty-eight (48) hours after being deposited in the U.S.
mail, as certified or registered mail, with postage prepaid, and addressed to
the party to be notified at such party's address or fax number as set forth
below or on Exhibit A hereto or as subsequently modified by written notice.
---------
-17-
3.4 Severability. If one or more provisions of this Agreement are
------------
held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (a) such
provision shall be excluded from this Agreement, (b) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (c) the
balance of the Agreement shall be enforceable in accordance with its terms.
3.5 Governing Law. This Agreement and all acts and transactions
-------------
pursuant hereto shall be governed, construed and interpreted in accordance with
the laws of the State of California, without giving effect to principles of
conflicts of laws.
3.6 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
3.7 Titles and Subtitles. The titles and subtitles used in this
--------------------
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
3.8 Aggregation of Stock. All shares of the Preferred Stock held
--------------------
or acquired by affiliated entities or persons shall be aggregated together for
the purpose of determining the availability of any rights under this Agreement.
3.9 Expenses. If any action at law or in equity is necessary to
--------
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, cost and necessary disbursements in
addition to any other relief to which such party may be entitled.
3.10 Entire Agreement. This Agreement (including the Exhibits
----------------
hereto, if any) constitutes the full and entire understanding and agreement
between the parties with regard to the subjects hereof and thereof.
3.11 Amendment of Original Agreement; Consent to Series C Financing.
--------------------------------------------------------------
The undersigned Existing Holders, constituting the holders of a majority of
the Registrable Securities under the Original Agreement, hereby agree to amend
and restate the Original Agreement in accordance with Section 3.2 of the
Original Agreement and hereby consent to the issuance of the Series C Preferred
Stock pursuant to the Company's Second Amended and Restated Certificate of
Incorporation and the grant of registration rights to the Series C Investors
under this Agreement.
3.12 Waiver of First Refusal Right on Series C Financing. The
---------------------------------------------------
undersigned Existing Holders, constituting the holders of a majority of the
Registrable Securities under the Original Agreement, hereby agree that the right
of first refusal set forth at Section 2.3 of the Original Agreement shall not be
applicable to the sale of Series C Preferred Stock by the Company pursuant to
the Purchase Agreement.
-18-
3.13 Supersedence. This Agreement supersedes in its entirety the
------------
Original Agreement and the Original Agreement shall be of no further force and
effect.
-19-
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first above written.
COMPANY:
XXXXXX.XXX INC.
By: /s/ Xxxx X. Xxxxx
--------------------------
Xxxx X. Xxxxx, President
Address: 0000 00xx Xxxxxx,
Xxxxx 000
Xxxxx Xxxxxx, XX 00000
FOUNDER:
/s/ Xxxxx Xxxxxx
---------------------------------
Xxxxx Xxxxxx
Address: 000 Xxxxxxxx Xxxxxx Xxxx
Xxxxxxxx Xxxxxxx, XX 00000
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first written above.
INVESTORS:
XXXXXXXX COMMUNICATIONS AND INFORMATION
FUND, INC.
By: J. & X. Xxxxxxxx & Co. Incorporated,
Its Investment Advisor
By: /s/ SMS Boswick
-------------------------
Name: SMS Boswick
Title: Managing Director
Address: 000 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first written above.
INVESTORS:
INTEL CORPORATION
By: /s/ Xxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxx
Title: Treasurer
Address: 0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, Xxxxxxxxxx 00000
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first written above.
INVESTORS:
XXXXXX XXXXXX
/s/ Xxxxxx Xxxxxx
_________________________________
Address:
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first written above.
INVESTORS:
CHASE VENTURE CAPITAL ASSOCIATES L.P.
By: Chase Capital Partners
Its General Partner
By: /s/ I. Xxxxxx Xxxxxx
___________________________
Name: I. Xxxxxx Xxxxxx
Title:
Address: 000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first written above.
INVESTORS:
VULCAN VENTURES INC.
By: /s/ Xxxxxxx X. Xxxxx
_________________________________
Name: Xxxxxxx X. Xxxxx
Title: Vice President
Address: 000 000xx Xxxxxx, Xxxxxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
BAYVIEW INVESTORS, LTD
By: /s/ Xxxxx Xxxxx
_________________________________
Name: Xxxxx Xxxxx
Title: Chief Financial Officer
Address: 000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx
00000
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first written above.
INVESTORS:
XXXXXXX, XXXXXXX & XXXXXXXX LLP
By: /s/ Xxxxx X. Xxxxxxx
_________________________________
Name: Xxxxx X. Xxxxxxx
Title: Partner
Address: 00 Xxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first written above.
INVESTORS:
XXXXX X. XXXXXXX AS TRUSTEE OF THE XXXXX X.
XXXXXXX LIVING TRUST UNDER DECLARATION OF
TRUST DATED NOVEMBER 22, 1996
/s/ Xxxxx X. Xxxxxxx
_________________________________
Xxxxx X. Xxxxxxx, Trustee
Address: 0000 Xxxxxxx Xxx
Xxxxxxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
MAGELLEN TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
_________________________________
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President
Treasury, Strategy Support
and New Ventures
Address: Galileo International
0000 X. Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, XX 00000
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first above written.
INVESTORS AND EXISTING HOLDERS:
BRENTWOOD ASSOCIATES VIII L.P.
By: Brentwood VIII Ventures, LLC
Its General Partner
By: /s/ G. Xxxxxxxx Xxxxx
______________________________________
Managing Member
Address: 00000 Xxxxx Xxxxxx Xxxx.,
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
BRENTWOOD AFFILIATES FUND L.P.
By: Brentwood VII Ventures, L.P.
Its General Partner
By: /s/ G. Xxxxxxxx Xxxxx
______________________________________
General Partner
Address: 00000 Xxxxx Xxxxxx Xxxx.,
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first above written.
INVESTORS AND EXISTING HOLDERS:
ENTERPRISE PARTNERS IV, L.P.
By: Enterprise Management Partners IV,
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
______________________________
Name: Xxxxxxx X. Xxxxxx
Title: General Partner
Address: 0000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Facsimile Number: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Venture Partner
ENTERPRISE PARTNERS IV ASSOCIATES, L.P.
By: Enterprise Management Partners, IV,
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
_______________________________
Name: Xxxxxxx X. Xxxxxx
Title: General Partner
Address: 0000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Facsimile Number: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Venture Partner
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first above written.
INVESTORS AND EXISTING HOLDERS:
SBIC PARTNERS, L.P.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
By: Xxxxxxx Xxxxxxx & Xxxxx, X.X.,
General Partner
By: Xxxxxxx Xxxxxxx & Xxxxx Venture Co.,
General Partner
By: /s/ Xxxxxxx X. Xxxxx
-------------------------
Xxxxxxx X. Xxxxx
Office of the President
By: SL-SBIC Partners, L.P.,
General Partner
By: FW-SBIC, Inc.,
General Partner
By: /s/ Xxxxx Xxxxxxxx
-------------------------
Xxxxx Xxxxxxxx
Chairman
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first above written.
EXISTING HOLDERS:
VLG INVESTMENTS 1998
By: /s/ Xxxxx X. Xxxxxx, Partner
----------------------------
Xxxxx X. Xxxxxx, Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
XXXX X. XXXXXXXX
By: /s/ Xxxx X. Xxxxxxxx
----------------------------
Xxxx X. Xxxxxxxx
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
EXHIBIT A
---------
EXISTING HOLDERS
----------------
Brentwood Associates VIII, L.P.
Brentwood Affiliates Fund L.P.
Enterprise Partners IV, L.P.
Enterprise Partners IV Associates, L.P.
SBIC Partners, L.P
VLG Investments 1998
Xxxx X. Xxxxxxxx
EXHIBIT B
---------
SERIES C INVESTORS
------------------
Vulcan Ventures Inc.
Chase Venture Capital Associates L.P.
Intel Corporation
Brentwood Associates VIII, L.P.
Brentwood Affiliates Fund, L.P.
SBIC Partners, L.P.
Enterprise Partners IV, L.P.
Enterprise Partners IV and Associates, X.X.
Xxxxxxxx Communications and Information Fund, Inc.
Magellen Technologies, Inc.
Xxxxxx Xxxxxx
Xxxxx X. Xxxxxxx Living Trust
Bayview Investors, Ltd.
Xxxxxxx, Phleger & Xxxxxxxx LLP
Irell & Xxxxxxx LLP Trustee
