Exhibit 10.24
INVESTMENT AND STOCKHOLDERS' AGREEMENT
THIS INVESTMENT AND STOCKHOLDERS' AGREEMENT (this "Agreement"), by and
among Pathnet, Inc., a Delaware corporation (the "Company"), the Series A
Investors (as defined below), the Series B Investors (as defined below) and the
Series C Investors (as defined below) (the Series A Investors, the Series B
Investors and the Series C Investors being collectively referred to herein as
the "Investors" and each an "Investor"), Xxxxx Xxxxxxxxx (the "Founder") and
Xxxxxxx X. Xxxxxx ("Jalkut") is made as of this day of July 13, 1998, and is
effective as of the Qualified Public Offering Closing (as defined below).
Unless the context otherwise requires, all references herein to the Company
shall refer to the Company and its subsidiaries on a consolidated basis.
RECITALS
A. Pursuant to that certain Investment and Stockholders' Agreement dated
as of August 28, 1995 (the "Series A Agreement") by and among the Company and
the investors named in EXHIBIT A thereto (the "Series A Investors"), (i) the
Company sold and the Series A Investors purchased that number of shares of the
Company's Series A Convertible Preferred Stock (the "Series A Preferred Stock"),
as set forth in EXHIBIT A thereto under the caption, "Number of Initial Shares"
(and the parties thereto agreed, under certain circumstances, to sell and
purchase, respectively, the Subsequent Shares, as defined in the Series A
Agreement), and (ii) the Series A Investors agreed to make available to the
Company, under certain circumstances, bridge loans in the aggregate principal
amount of $500,000.
B. Pursuant to that certain Amendment No. 1 to Investment and
Stockholders' Agreement dated as of February 8, 1996 ("Amendment No. 1") by and
among the Company and the Series A Investors, the Company, among other things,
sold and the Series A Investors purchased the Subsequent Shares.
C. Pursuant to that certain Amendment No. 2 to Investment and
Stockholders' Agreement dated as of August 2, 1996 ("Amendment No. 2") by and
among the Company and the Series A Investors, the Series A Investors, among
other things, increased the amount of their bridge loan commitments to the
Company to an aggregate principal amount of $700,000, and advanced bridge loans
to the Company in such amount, such loans evidenced by bridge loan notes
(collectively, the "Bridge Loan Notes"). In addition, the Series A Investors
agreed to make available to the Company, upon the occurrence of certain events,
additional bridge loans in the aggregate principal amount of $300,000 (the
"Additional Bridge Loan Commitment"). Pursuant to the Series B Agreement (as
defined below), the Series A Investors acquired that number of shares of Series
B Preferred Stock (as defined below) equal to the quotient of the Additional
Bridge Loan Commitment ($300,000) divided by the purchase price of $2.3944 per
share of Series B Preferred Stock.
D. Pursuant to that certain Investment and Stockholders Agreement, dated
as of December 23, 1996 (the "Series B Agreement") by and among the Company and
the investors set forth on EXHIBIT A thereto, (the "Series B Investors"), the
Company sold and the Series B Investors purchased that number of shares of the
Company's Series B Convertible Preferred Stock (the "Series B Preferred Stock"),
as set forth in EXHIBIT A thereto under the captions "Number of Shares at
Initial
Closing," "Number of Shares at Additional Closing," and "Number of B Shares on
Conversion of Bridge Loan and Payment of Additional Bridge Loan Amount."
E. Pursuant to that certain Amendment No. 3 to Investment and
Stockholders' Agreement dated as of December 23, 1996 ("Amendment No. 3") by and
among the Company and the Series A Investors the Series A Investors and the
Company agreed to certain amendments and modifications to the Series A Agreement
in connection with the execution and delivery of the Series B Agreement.
F. Pursuant to that certain Investment and Stockholders Agreement, dated
as of October 31, 1997 (the "Series C Agreement") by and among the Company the
investors set forth on EXHIBIT A thereto (the "Series C Investors") and the
other investors signatories thereto, the Company sold and certain of the
Investors purchased that number of shares of the Company's Series C Convertible
Preferred Stock (the "Series C Preferred Stock"), as set forth in EXHIBIT A
thereto under the captions "Number of Shares at Initial Closing" and "Number of
Shares at Additional Closing" and the Series A Investors, the Series B
Investors, the Series C Investors, the Founder and the Company amended and
restated in their entirety Sections 4, 4A, 5, 6 and 7 of each of the Series A
Agreement and the Series B Agreement whereby Sections 4, 4A, 5, 6 and 7 of the
Sereis C Agreement superseded each such section of the Series A Agreement and
Series B Agreement.
G. Pursuant to that certain Consent, Waiver and Amendment, dated as of
March 19, 1998 (the "March Consent") by and among the Company, the Investors and
the Founder, the Company, the Investors and the Founder amended certain
provisions of the Series C Agreement.
H. Pursuant to that certain Amendment No. 1 to Investment and
Stockholders Agreement, dated as of the date hereof (the "Jalkut Amendment"), by
and among the Company, the Investors, the Founder and Jalkut, the Company, the
Investors, the Founder and Jalkut agreed to amend SECTION 7 of the Series C
Agreement to reflect certain registration rights granted by the Company to
Jalkut.
I. The Company is in the process of consummating an initial public
offering of its stock and the Board of Directors has determined that upon
closing, such initial public offering will be a "Qualified Public Offering" as
defined below. A "Qualified Public Offering" shall mean the first firm
commitment underwritten public offering pursuant to an effective registration
statement under the Securities Act of 1933, as amended (the "Securities Act" ),
covering the offer and sale of Common Stock to the public (i) in which the
proceeds received by the Company, net of underwriting discounts and commissions,
equal or exceed $20,000,000; (ii) immediately prior to the consummation of which
the Company is valued (based on the per-share price paid in such public
offering, but without regard to any proceeds to be received by the Company in
connection with such public offering) at greater than $50,000,000; and (iii) in
which the Company uses a nationally recognized underwriter acceptable to the
Board of Directors, including a majority of the directors designated by the
Investors.
J. Upon the closing of a Qualified Public Offering (the "Qualified Public
Offering
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Closing") Sections 4, 4A, 5 and 6 of the Series C Agreement are no longer
operative by their terms.
K. The Series A Investors, the Series B Investors, the Series C
Investors, the Founder Jalkut and the Company desire to amend and restate in its
entirety the Series C Agreement effective as of the Qualified Public Offering
Closing to incorporate the March Consent, the Jalkut Amendment and to delete
Sections 4, 4A, 5 and 6 of the Series C Agreement which, as of the Qualified
Public Offering Closing, are no longer operative by their terms.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained in this Agreement, the parties hereto agree as follows:
SECTION. 1 EFFECTIVE DATE OF AGREEMENT AND TERMINATION OF SERIES C AGREEMENT
1.1 EFFECTIVE DATE OF AGREEMENT. This Agreement shall be effective
simultaneous with the Qualified Public Offering Closing; provided however, if
the Qualified Public Offering Closing does not occur on or before December 31,
1998, this Agreement and all rights and obligations hereunder shall terminate
and be of no further force and effect, and the Series C Agreement shall continue
in full force and effect, as amended by the March Consent and the Jalkut
Amendment.
1.2 TERMINATION OF SERIES C AGREEMENT. Except as set forth in this
SECTION 1.2 and in SECTION 1.1 hereof, the Series C Agreement shall terminate as
of the Qualified Public Offering Closing, and will be of no further force or
effect and all rights and obligations of the parties thereunder whether now or
heretofore existing and accruing, hereby will be extinguished; PROVIDED,
HOWEVER, the rights and obligations set forth in SECTION 8.2 and SECTION 8.4 of
the Series C Agreement and SECTION 2 of the Series C Agreement shall survive and
be in full force and effect for 36 months after the Closing Date (as defined in
the Series C Agreement) in accordance with SECTION 8.4 of the Series C
Agreement.
SECTION. 2 REPRESENTATIONS AND WARRANTIES OF THE COMPANY, JALKUT AND THE
FOUNDER
In order to induce the Investors to enter into this Agreement, each of the
Company, Jalkut and the Founder represent and warrant as of the date hereof and
the date of the Qualified Public Offering Closing, to each of the Investors the
following:
2.1 ORGANIZATION AND CORPORATE POWER. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and is qualified to do business as a foreign corporation in each
jurisdiction in which the failure to be so qualified would have a material
adverse effect on its business, condition or results of operations. The Company
has all required corporate power and authority to carry on its business as
presently conducted, to enter into and perform this Agreement and to carry out
the transactions contemplated hereby. The Company is not in violation of any
term of its certificate of incorporation or bylaws each as amended to date, or
in violation of any material term of any agreement, instrument, judgment,
decree, order,
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statute, rule or government regulation applicable to the Company or to which the
Company is a party. Each of Jakut and the Founder has the capacity to enter into
and perform this Agreement and the agreements contemplated hereby to which it is
a party and to carry out the transactions contemplated hereby and thereby.
2.2 AUTHORIZATION AND NON-CONTRAVENTION. This Agreement and all documents
executed pursuant hereto are valid and binding obligations of the Company,
Jalkut and the Founder, respectively, enforceable in accordance with their
terms, except as such enforcement may be limited by laws of general application
relating to bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights and the availability of equitable remedies which are
subject to the discretion of the court before which an action may be brought.
The execution, delivery and performance of this Agreement, all agreements,
documents and instruments contemplated hereby have been duly authorized by all
necessary corporate action of the Company. The execution of this Agreement and
the performance of any transaction contemplated hereby will not (i) violate,
conflict with or result in a default under any contract or obligation to which
the Company is a party or by which it or its assets are bound, or any provision
of the Company's certificate of incorporation or bylaws each as amended to date,
or cause the creation of any encumbrance upon any of the assets of the Company;
(ii) violate or result in a violation of, or constitute a default (whether after
the giving of notice, lapse of time or both) under, any provision of any law,
regulation or rule, or any order of, or any restriction imposed by, any court or
other governmental agency; (iii) require from the Company any notice to,
declaration or filing with, or consent or approval of any governmental authority
or other third party; or (iv) accelerate any obligation under or give rise to a
right of termination of, any material agreement, permit, license or
authorization to which the Company is a party or by which the Company is bound.
SECTION 2A. REPRESENTATIONS AND WARRANTIES OF THE INVESTORS
2A.1 ORGANIZATION AND CORPORATE, PARTNERSHIP OR INDIVIDUAL POWER. Each
Investor which is a partnership or a corporation has all required corporate or
partnership power and authority to carry on its business as presently conducted,
to enter into and perform this Agreement and the agreements contemplated hereby
to which it is a party and to carry out the transactions contemplated hereby and
thereby. Each Investor who is an individual has the capacity to enter into and
perform this Agreement and the agreements contemplated hereby to which it is a
party and to carry out the transactions contemplated hereby and thereby.
2A.2 AUTHORIZATION AND NON-CONTRAVENTION. This Agreement and all documents
executed pursuant hereto to which the Investors are parties are valid and
binding obligations of each of the Investors, enforceable in accordance with
their terms, except as such enforcement may be limited by (i) applicable
bankruptcy, reorganization, insolvency, moratorium or other laws affecting
creditors' rights, generally, (ii) equitable rules or principles affecting the
convenience of obligations generally, whether in law or in equity, or (iii) the
exercise of the discretionary powers of any court before whom may be brought any
proceeding seeking equitable remedies, including, without limitation, specific
performance and injunctive relief.
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SECTION. 3 REGISTRATION RIGHTS
3.1 OPTIONAL REGISTRATIONS. If at any time or times after the date
hereof, the Company shall seek to register any shares of its capital stock or
securities convertible into capital stock under the Securities Act (whether in
connection with a public offering of securities by the Company (a "primary
offering"), a public offering of securities by Founders of the Company (a
"secondary offering"), or both, but not a public offering pursuant to any demand
registration rights under the Warrant Registration Rights Agreement dated as of
April 8, 1998 by and among the Company, the Permitted Holders named therein and
the Initial Purchasers named therein (the "Warrant Registration Rights
Agreement")), the Company will promptly give written notice thereof to each
Investor holding Registrable Securities (as hereinafter defined in SECTION 3.4
below) then outstanding and to Jalkut. If within 30 days after their receipt of
such notice one or more Investors or Jalkut request the inclusion of some or all
of the Registrable Securities held by them in such registration, the Company
will use its best efforts to effect the registration under the Securities Act of
all Registrable Securities which such Investors or Jalkut may request in a
writing delivered to the Company within 30 days after the notice given by the
Company. In the case of the registration of shares of capital stock by the
Company in connection with any underwritten public offering, if the
underwriter(s) determines that marketing factors require a limitation on the
number of Registrable Securities to be offered, the Company shall not be
required to register Registrable Securities of the Investors or Jalkut in excess
of the amount, if any, of shares of the capital stock which the principal
underwriter of such underwritten offering shall reasonably and in good faith
agree to include in such offering in excess of any amount to be registered for
the Company. If any limitation of the number of shares of capital stock to be
registered by the Investors is required pursuant to this SECTION 3.1, the number
of shares that may be included in the registration on behalf of the Investors
shall be allocated among the Investors or the holders of any other registration
rights in proportion, as nearly as practicable, to their respective holdings of
Registrable Securities, after first excluding from such registration statement
all shares of Common Stock sought to be included therein by (i) any director,
officer or employee of the Company, including Jalkut, unless and until Jalkut
has been involuntarily terminated as an officer of the Company pursuant to
Sections 6(d) or 6(f) of the Employment Agreement, pro rata based on the number
of shares of Registrable Securities requested by each such individual to be
included in such registration, (ii) any holder thereof not having any such
contractual incidental registration rights, and (iii) any holder, thereof having
contractual incidental registration rights subordinate and junior to the rights
of the Investors, provided, that in connection with any registration that
includes securities pursuant to the Warrant Registration Rights Agreement, the
terms of the Warrant Registration Rights Agreement as in effect on the date
hereof shall govern the inclusion (and limitations on inclusion) of Registrable
Securities and other securities in such registration. In any event, if such
underwritten public offering is not an initial public offering, then the
Investors holding Registrable Securities (and Jalkut if he has been
involuntarily terminated as an officer of the Company pursuant to Sections 6(d)
or 6(f) of the Employment Agreement) shall be allowed to include in the
aggregate not less than thirty-five percent (35%) of the shares subject to such
registration statement, provided, that in connection with any registration that
includes securities pursuant to the Warrant Registration Rights Agreement, the
terms of the Warrant Registration Rights Agreement as in effect on the date
hereof shall govern the inclusion (and limitations on inclusion) of Registrable
Securities and other securities in such registration. The Company will not
grant any
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rights relating to the piggy-back registration of its capital stock which are
superior to or on a parity with the rights granted to the Investors and Jalkut
in this SECTION 3.1 other than pursuant to the Warrant Registration Rights
Agreement. The provisions of this SECTION 3.1 will not apply to a registration
effected solely to implement (i) an employee benefit plan, or (ii) a transaction
to which Rule 145 or any other similar rule of the Securities and Exchange
Commission (the "SEC") under the Securities Act is applicable.
3.2 REQUIRED REGISTRATIONS. If on any three (3) occasions after the date
hereof the Investors and Jalkut (collectively, the "Holders") holding a majority
of the Registrable Securities held by all Holders notify the Company in writing
that the Holders intend to offer or cause to be offered for public sale all or
any portion of its or their Registrable Securities, the Company will notify all
of the Holders who would be entitled to notice of a proposed registration under
SECTION 3.1 above of its receipt of such notification from such Holder or
Holders and any other holder of piggyback registration rights. Upon the written
request of any such Holder or Holders delivered to the Company within 20 days
after receipt from the Company of such notification, the Company will either (i)
elect to make a primary offering in which case the rights of such Holders to
participate in such offering shall be as set forth in SECTION 3.1 above (except
that the Company shall not be permitted to limit the number of shares which may
be registered by any Holder and Holders holding a majority of the Registrable
Securities requested to be included in such required registration will have the
right to select the underwriter), or (ii) use its best efforts to cause such of
the Registrable Securities as may be requested by any Holders to be registered
under the Securities Act in accordance with the terms of this SECTION 3.2. The
Company may postpone the filing of any registration statement required hereunder
for a reasonable period of time, not to exceed 60 days during any twelve-month
period, if the Company has been advised by legal counsel that such filing would
require a special audit or the disclosure of a material impending transaction or
other matter and the Company determines reasonably and in good faith that such
disclosure would have a material adverse effect on the Company. The Company
shall not be required to cause a registration statement requested pursuant to
this SECTION 3.2 to become effective prior to the later of (a) 90 days following
the effective date of a registration statement initiated by the Company, if the
request for registration has been received by the Company subsequent to the
giving of written notice by the Company, made in good faith, to the Holders
holding Registrable Securities that the Company is commencing to prepare a
Company-initiated registration statement (other than registration effected
solely to implement an employee benefit plan or a transaction to which Rule 145
or any other similar rule of the SEC under the Securities Act is applicable) and
(b) 30 days following the end of any "lock-up" or "black out" period imposed on
the Company pursuant to or in connection with any underwriting or purchase
agreement relating to an underwritten Rule 144A or registered public offering of
securities of the Company; PROVIDED, HOWEVER, that the Company shall use its
best efforts to achieve such effectiveness promptly following the end of the
period set forth in clause (a) or (b) above, as applicable.
3.3 FORM S-3. If the Company becomes eligible to use Form S-3 under the
Securities Act or a comparable successor form, the Company shall use its best
efforts to continue to qualify at all times for registration on Form S-3 or such
successor form. One or more of the Holders holding Registrable Securities shall
have the right to request and have effected one registration per year of
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shares of Registrable Securities on Form S-3 or such successor form for a public
offering of shares of Registrable Securities and having an aggregate proposed
offering price exceeding $500,000 (such requests shall be in writing and shall
state the number of shares of Registrable Securities to be disposed of and the
intended method of disposition of such shares by such Holder or Holders). The
Company shall not be required to cause a registration statement requested
pursuant to this SECTION 3.3 to become effective prior to the later of (a) 90
days following the effective date of a registration statement initiated by the
Company, if the request for registration has been received by the Company
subsequent to the giving of written notice by the Company, made in good faith,
to the Holders of Registrable Securities to the effect that the Company is
commencing to prepare a Company-initiated registration statement (other than a
registration effected solely to implement an employee benefit plan or a
transaction to which Rule 145 or any other similar rule of the SEC under the
Securities Act is applicable) and (b) 30 days following the end of any "lock-up"
or "black out" period imposed on the Company pursuant to or in connection with
any underwriting or purchase agreement relating to an underwritten Rule 144A or
registered public offering of securities of the Company; PROVIDED, HOWEVER, that
the Company shall use its best efforts to achieve such effectiveness promptly
following the end of the period set forth in clause (a) or (b) above, as
applicable, if the request pursuant to this SECTION 3.3 has been made prior to
the expiration of such period. The Company may postpone the filing of any
Registration Statement required hereunder for a reasonable period of time, not
to exceed 60 days during any twelve-month period, if the Company has been
advised by legal counsel that such filing would require the disclosure of a
material transaction or other factor and the Company determines reasonably and
in good faith that such disclosure would have a material adverse effect on the
Company. The Company shall give notice to all Holders of Registrable Securities
of the receipt of a request for registration pursuant to this SECTION 3.3 and
shall provide a reasonable opportunity for such Holders to participate in the
registration. Subject to the foregoing, the Company will use its best efforts
to effect promptly the registration of all shares of Common Stock on Form S-3 or
such successor form to the extent requested by the Holder or Holders thereof for
purposes of disposition. If so requested by any Holder in connection with a
registration under this SECTION 3.3, the Company shall take such steps as are
required to register such Holder's Registrable Securities for sale on a delayed
or continuous basis under Rule 415, and to keep such registration effective for
the shorter of (a) six months or (b) until all of such Holder's Registrable
Securities registered thereunder are sold; provided, however, that "Registrable
Securities" shall not include any shares of Common Stock which may be sold by
the holder thereof under Rule 144(k) promulgated under the Securities Act.
3.4 REGISTRABLE SECURITIES. For the purposes this SECTION 3, the term
"Registrable Securities" shall mean (i) any shares of the Common Stock purchased
by, or issued to, an Investor, or issuable upon conversion of the Series A
Preferred Stock, the Series B Preferred Stock and the Series C Preferred Stock
(collectively, the "Preferred Shares"), including without limitation any Series
A Conversion Shares, Series B Conversion Shares or Series C Conversion Shares
issued or issuable upon conversion of any and all of the Preferred Shares and
including any Common Stock issued by way of a stock dividend or stock split or
in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization; provided, however, that if an Investor
owns Preferred Shares, the Investor shall not be required to cause such
Preferred Shares to be converted to Common Stock until immediately prior to the
effective date of any applicable
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registration statement pursuant to which such shares will be sold and (ii) any
shares of Common Stock, including any Common Stock issued by way of a stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization, issued or
issuable to Jalkut upon exercise of options granted to him by the Company,
provided that if Jalkut has not exercised an option, he shall not be required to
exercise such option until immediately prior to the effective date of any
applicable registration statement pursuant to which such shares will be sold;
provided, however, that "Registrable Securities" shall not include any shares of
Common Stock which may be sold by the holder thereof under Rule 144(k) under the
Securities Act.
3.5 FURTHER OBLIGATIONS OF THE COMPANY. Whenever the Company is required
hereunder to register any Registrable Securities, it agrees that it shall also
do the following:
(a) Pay all expenses of such registrations and offerings (exclusive
of underwriting discounts and commissions) and the reasonable fees and expenses,
not to exceed $60,000 per offering, of not more than one independent counsel for
the Holders satisfactory to a majority in interest of the Registrable Securities
included in such registration, voting as a single class;
(b) Use its best efforts (with due regard to management of the
ongoing business of the Company and the allocation of managerial resources)
diligently to prepare and file with the SEC a registration statement and such
amendments and supplements to said registration statement and the prospectus
used in connection therewith as may be necessary to keep said registration
statement effective at least 90 days and to comply with the provisions of the
Securities Act with respect to the sale of securities covered by said
registration for the period necessary to complete the proposed public offering;
(c) Furnish to each selling Holder such copies of each preliminary
and final prospectus and such other documents as such Holder may reasonably
request to facilitate the public offering of its Registrable Securities;
(d) Enter into any reasonable underwriting agreement required by the
proposed underwriter for the selling Holders, if any, in such form and
containing such terms as are customary; PROVIDED, HOWEVER, that no Holder shall
be required to make any representations or warranties other than with respect to
its title to the Registrable Securities and any written information provided by
the Holders to the Company, and if the underwriter requires that representations
or warranties be made, the Company shall make all such representations and
warranties relating to the Company;
(e) Use its best efforts to register or qualify the securities
covered by said registration statement under the securities or blue-sky laws of
such jurisdictions as any selling Holder may reasonably request, provided that
the Company shall not be required to register or qualify the securities in any
jurisdictions which require it to qualify to do business therein;
(f) Immediately notify each selling Holder, at any time when a
prospectus
8
relating to his Registrable Securities is required to be delivered under the
Securities Act, of the happening of any event as a result of which such
prospectus contains an untrue statement of a material fact or omits any material
fact necessary to make the statements therein not misleading, and, at the
request of any such selling Holder, prepare a supplement or amendment to such
prospect so that, as thereafter delivered to the purchasers of such Registrable
Securities, such prospectus will not contain any untrue statement of a material
fact or omit to state any material fact necessary to make the statements therein
not misleading;
(g) Cause all such Registrable Securities to be listed on each
securities exchange or quotation system on which similar securities issued by
the Company are then listed or quoted;
(h) Otherwise use its best efforts to comply with the securities laws
of the United States and other applicable jurisdictions and all applicable rules
and regulations of the SEC and comparable governmental agencies in other
applicable jurisdictions and make generally available to its holders, in each
case as soon as practicable, but not later than 45 days after the close of the
period covered thereby, an earnings statement of the Company which will satisfy
the provisions of Section 11(a) of the Securities Act;
(i) Obtain and furnish to each selling Holder, immediately prior to
the effectiveness of the registration statement (and, in the case of an
underwritten offering, at the time of delivery of any Registrable Securities
sold pursuant thereto), a cold comfort letter from the Company's independent
public accountants in customary form and covering such matters of the type
customarily covered by cold comfort letters as the holders of a majority of the
Registrable Securities being sold may reasonably request; and
(j) Otherwise cooperate with the underwriter or underwriters, the
Commission and other regulatory agencies and take all actions and execute and
deliver or cause to be executed and delivered all documents necessary to effect
the registration of any Registrable Securities under this SECTION 3.
3.6 INDEMNIFICATION; CONTRIBUTION.
(a) Incident to any registration statement referred to in this
SECTION 3, and subject to applicable law, the Company will indemnify and hold
harmless each underwriter, each Holder who offers or sells any such Registrable
Securities in connection with such registration statement (including its
partners (including partners of partners and stockholders of any such
partners)), and directors, officers, employees and agents of any of them (a
"Selling Holder"), and each person who controls any of them within the meaning
of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act") (a "Controlling Person")), from and
against any and all losses, claims, damages, expenses and liabilities, joint or
several (including any investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claim asserted), to which they, or any of them, may become
subject under the Securities Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities
9
arise out of or are based on (i) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement (including
any related preliminary or definitive prospectus, or any amendment or supplement
to such registration statement or prospectus), (ii) any omission or alleged
omission to state in such document a material fact required to be stated in it
or necessary to make the statements in it not misleading, or (iii) any violation
by the Company of the Securities Act, any state securities or blue sky laws or
any rule or regulation thereunder in connection with such registration;
PROVIDED, HOWEVER, that the Company will not be liable to the extent that such
loss, claim, damage, expense or liability arises from and is based on an untrue
statement or omission or alleged untrue statement or omission made in reliance
on and in conformity with information furnished in writing to the Company by
such underwriter, Selling Holder or Controlling Person expressly for use in such
registration statement. With respect to such untrue statement or omission or
alleged untrue statement or omission in the information furnished in writing to
the Company by such Selling Holder expressly for use in such registration
statement, such Selling Holder will indemnify and hold harmless each
underwriter, the Company (including its directors, officers, employees and
agents), each other Holder (including its partners (including partners of
partners and stockholders of such partners)) and directors, officers, employees
and agents of any of them) so registered, and each person who controls any of
them within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages, expenses and
liabilities, joint or several, to which they, or any of them, may become subject
under the Securities Act, the Exchange Act or other federal or state statutory
law or regulation, at common law or otherwise to the same extent provided in the
immediately preceding sentence. In no event, however, shall the liability of a
Selling Holder for indemnification under this SECTION 3.6(A) in its capacity as
such (and not in its capacity as an officer or director of the Company) exceed
the lesser of (i) that proportion of the total of such losses, claims, damages
or liabilities indemnified against equal to the proportion of the total
securities sold under such registration statement which is being sold by such
Selling Holder or (ii) the proceeds received by such Selling Holder from its
sale of Registrable Securities under such registration statement.
(b) If the indemnification provided for in SECTION 3.6(A) above for
any reason is held by a court of competent jurisdiction to be unavailable to an
indemnified party in respect of any losses, claims, damages, expenses or
liabilities referred to therein, then each indemnifying party under this SECTION
3.6, in lieu of indemnifying such indemnified party thereunder, shall contribute
to the amount paid or payable by such indemnified party as a result of such
losses, claims, damages, expenses or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, the other
Selling Holders and the underwriters from the offering of the Registrable
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company, the other Selling Holders and the underwriters in
connection with the statements or omissions which resulted in such losses,
claims, damages, expenses or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company, the
Selling Holders and the underwriters shall be deemed to be in the same
respective proportions that the net proceeds from the offering (before deducting
expenses) received by the Company and the Selling Holders and the underwriting
discount received by the underwriters, in each case as set forth in the table on
the cover page of the applicable prospectus,
10
bear to the aggregate public offering price of the Registrable Securities. The
relative fault of the Company, the Selling Holders and the underwriters shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, the Selling
Holders or the underwriters and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company, the Selling Holders and the underwriters agree that it would
not be just and equitable if contribution pursuant to this SECTION 3.6(B) were
determined by pro rata or per capita allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in the immediately preceding paragraph. In no event, however, shall a
Selling Holder be required to contribute any amount under this SECTION 3.6(B) in
excess of the lesser of (i) that proportion of the total of such losses, claims,
damages or liabilities indemnified against equal to the proportion of the total
Registrable Securities sold under such registration statement which are being
sold by such Selling Holder or (ii) the proceeds received by such Selling Holder
from its sale of Registrable Securities under such registration statement. No
person found guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not found guilty of such fraudulent misrepresentation.
(c) The amount paid by an indemnifying party or payable to an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in this SECTION 3.6 shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim, payable as the same are incurred. The indemnification and
contribution provided for in this SECTION 3.6 will remain in full force and
effect regardless of any investigation made by or on behalf of the indemnified
parties or any officer, director, employee, agent or controlling person of the
indemnified parties.
3.7 RULE 144 AND RULE 144A REQUIREMENTS. In the event that the Company
becomes subject to Section 13 or Section 15(d) of the Exchange Act, the Company
shall use its best efforts to take all action as may be required as a condition
to the availability of Rule 144 or Rule 144A under the Securities Act (or any
successor or similar exemptive rules hereafter in effect). The Company shall
furnish to any Holder holding Registrable Securities, within 15 days of a
written request, a written statement executed by the Company as to the steps it
has taken to comply with the current public information requirement of Rule 144
or Rule 144A or such successor rules.
3.8 TRANSFER OF REGISTRATION RIGHTS. The registration rights and related
obligations under this SECTION 3 of the Investors with respect to their
Registrable Securities may be assigned to any transferee of Registrable
Securities held by them, and upon such transfer the relevant transferee shall
11
be deemed to be included within the definition of an Investor, for purposes of
this SECTION 3. The relevant Investor as the case may be, shall notify the
Company at the time of such transfer.
3.9 MARKET STAND-OFF AGREEMENT. The Investors and the Founder, if
requested by the underwriter of the Company's securities, shall agree not to
sell, pledge, encumber or otherwise transfer or dispose of any Common Stock (or
other securities) of the Company held by such Investors and the Founder during
the 180-day period following the effective date of the Company's initial public
offering or any subsequent underwritten offering hereunder in which the
Investors are participating. Such agreement shall be in writing in form
reasonably satisfactory to the Company and such underwriter. The Company may
impose stop-transfer instructions with respect to the shares (or securities)
subject to the foregoing restriction until the end of such 180-day period.
SECTION. 4 GENERAL
4.1 AMENDMENTS, WAIVERS AND CONSENTS. For the purposes of this Agreement
and all agreements executed pursuant hereto, no course of dealing between the
Company and any Investor and no delay on the part of any party hereto in
exercising any rights hereunder shall operate as a waiver of the rights hereof.
No provision hereof may be waived otherwise than by a written instrument signed
by the party so waiving such covenant or other provision; PROVIDED, HOWEVER,
changes in or additions to, and any consents required by, this Agreement may be
made, and compliance with any term, covenant, condition or provision set forth
herein may be omitted or waived (either generally or in a particular instance
and either retroactively or prospectively) by a consent of the holders of a
majority of the Preferred Shares; PROVIDED that any amendment, waiver or consent
that adversely affects the Series A Investors, the Series B Investors or the
Series C Investors or affects any rights specifically granted to the Series A
Investors, the Series B Investors or the Series C Investors shall not be
approved without the approval of the holders of a majority of the issued and
outstanding Series A Preferred Stock, Series B Preferred Stock or Series C
Preferred Stock, respectively; PROVIDED FURTHER, that any amendment, waiver or
consent that adversely affects one Investor, or affects any rights specifically
granted to such Investor, in a manner different than all other Investors holding
the same series of Preferred Shares shall not be approved without such
Investor's consent. Any amendment or waiver effected in accordance with this
SECTION 4.1 shall be binding upon each holder of the Preferred Shares at the
time outstanding, each future holder of Preferred Shares and Securities, the
Founder, Jalkut and the Company.
4.2 INDEMNIFICATION; EXPENSES.
(a) Without limitation of any other provision of this Agreement, the
Company agrees to defend, indemnify and hold the Investors and their affiliates
and their respective direct and indirect partners, members, stockholders,
directors, officers, employees and agents and each person who controls any of
them within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act (parties receiving the benefit of the indemnification agreement
herein shall be referred to collectively as "Indemnified Parties" and
individually as an "Indemnified Party") harmless from and against any and all
losses, claims, damages, obligations, liens, assessments, judgments, fines,
liabilities, and other costs and expenses (including, without limitation,
interest,
12
penalties and any investigation, legal and other expenses incurred in connection
with, and any amount paid in settlement of, any action, suit or proceeding or
any claim asserted, as the same are incurred) of any kind or nature whatsoever
which may be sustained or suffered by any such Indemnified Party, without regard
to any investigation by any of the Indemnified Parties, based upon, arising out
of, by reason of or otherwise in respect of or in connection with (a) any
inaccuracy in or breach of any representation or warranty made by the Company in
this Agreement or in any agreement or instrument or other document delivered
pursuant to this Agreement, (b) any breach of any covenant or agreement made by
the Company in this Agreement or in any agreement or instrument delivered
pursuant to this Agreement and (c) any action taken or omitted to be taken or
alleged to have been taken or omitted to have been taken by any Indemnified
Party as Founder, director, agent, representative or controlling person of the
Company including, without limitation, any and all losses, claims, damages,
expenses and liabilities, joint or several (including any investigation, legal
and other expenses incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted, as the same
may be incurred) arising or alleged to arise under the Securities Act, the
Exchange Act or other federal or state statutory law or regulation, at common
law or otherwise; provided, however, that the Company will not be liable to the
extent that such loss, claim, damage, expense or liability arises from and is
based on (i) an untrue statement or omission or alleged untrue statement or
omission in a registration statement or prospectus which is made in reliance on
and in conformity with written information furnished to the Company in an
instrument duly executed by or on behalf of such Indemnified Party specifically
stating that it is for use in the preparation thereof or (ii) a knowing and
willful violation of the federal securities laws by an Indemnified Party, as
finally determined by a court of competent jurisdiction.
(b) If the indemnification provided for in SECTION 4.2(A) above for
any reason is held by a court of competent jurisdiction to be unavailable to a
Indemnified Party in respect of any losses, claims, damages, expenses or
liabilities referred to therein, then the Company, in lieu of indemnifying such
Indemnified Party thereunder, shall contribute to the amount paid or payable by
such Indemnified Party as a result of such losses, claims, damages, expenses or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Investors, or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the
Investors in connection with the action or inaction which resulted in such
losses, claims, damages, expenses or liabilities, as well as any other relevant
equitable considerations. In connection with any registration of the Company's
securities, the relative benefits received by the Company and the Investors
shall be deemed to be in the same respective proportions that the net proceeds
from the offering (before deducting expenses) received by the Company and the
Investors, in each case as set forth in the table on the cover page of the
applicable prospectus, bear to the aggregate public offering price of the
securities so offered. The relative fault of the Company and the Investors
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or the
Investors and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
13
The Company and the Investors agree that it would not be just and equitable
if contribution pursuant to this SECTION 4.2(B) were determined by pro rata or
per capita allocation or by any other methods of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. In connection with the registration of the Company's securities, in
no event shall a Investor be required to contribute any amount under this
SECTION 4.2(B) in excess of the lesser of (i) that proportion of the total of
such losses, claims, damages or liabilities indemnified against equal to the
proportion of the total securities sold under such registration statement which
is being sold by such Investor or (ii) the proceeds received by such Investor
from its sale of securities under such registration statement. No person found
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not found guilty of such fraudulent misrepresentation.
(c) The indemnification and contribution provided for in this SECTION
4.2 will remain in full force and effect regardless of any investigation made by
or on behalf of the Indemnified Parties or any officer, director, employee,
agent or controlling person of the Indemnified Parties.
(d) The provisions of this SECTION 4.2, are in addition to and shall
supplement those set forth in SECTION 3.5, which shall apply in the case of the
registration and sale of Registrable Securities held by any of the Investors
registered pursuant to SECTION 3 hereof.
4.3 SURVIVAL OF REPRESENTATIONS; WARRANTIES AND COVENANTS; ASSIGNABILITY
OF RIGHTS. All covenants, agreements, representations and warranties of the
Company and, to the extent applicable, Jalkut and the Founder, made herein, and
in the certificates, lists, exhibits, schedules or other written information
delivered or furnished to any Investor in connection herewith (a) shall be
deemed to have been relied upon by such Investor, and shall survive for a period
of 36 months after the date hereof and (b) shall bind the Company's, Jalkut's
and the Founders' respective successors and assigns, whether so expressed or
not, and, except as otherwise provided in this Agreement, all such covenants,
agreements, representations and warranties shall inure to the benefit of the
Investors' successors and assigns and to transferees of the Series A Shares, any
shares of Common Stock or any successor class of capital stock of the Company
hereafter issued or issuable upon the conversion of the Series A Shares (the
"Series A Conversion Shares"), Series B Shares, any shares of Common Stock or
any successor class of capital stock of the Company hereafter issued or issuable
upon the conversion of the Series B Shares (the "Series B Conversion Shares"),
Series C Shares and any shares of Common Stock or any successor class of capital
stock of the Company hereafter issued or issuable upon the conversion of the
Series C Shares (the "Series C Conversion Shares") (such Series A Shares, Series
A Conversion Shares, Series B Shares, Series B Conversion Shares, Series C
Shares and Series C Conversion Shares are collectively referred to herein as the
"Securities."), whether so expressed or not. For purposes of this Agreement the
Company's successors shall include any corporation in to which the Company is
merged in connection with its reincorporation, and as a condition to the
consummation of such a transaction, the Investors shall receive an opinion of
counsel that the successor corporation will be bound by his Agreement and that
the Investors may tack their holding period with respect to the Securities for
purposes of Rule 144.
14
4.4 GOVERNING LAW. This Agreement shall be deemed to be a contract made
under, and shall be construed in accordance with, the laws of the State of
Delaware, without giving effect to conflict of laws principles thereof.
4.5 SECTION HEADINGS AND GENDER. The descriptive headings in this
Agreement have been inserted for convenience only and shall not be deemed to
limit or otherwise affect the construction of any provision thereof or hereof.
The use in this Agreement of the masculine pronoun in reference to a party
hereto shall be deemed to include the feminine or neuter, as the context may
require.
4.7 COUNTERPARTS. This Agreement may be executed simultaneously in any
number of counterparts, each of which when so executed and delivered shall be
taken to be an original; but such counterparts shall together constitute but one
and the same document.
4.8 NOTICES AND DEMANDS. Any notice or demand which is required or
provided to be given under this Agreement shall be deemed to have been
sufficiently given and received for all purposes when delivered by hand,
telecopy, telex or other method of facsimile, or five days after being sent by
certified or registered mail, postage and charges prepaid, return receipt
requested, or two days after being sent by overnight delivery providing receipt
of delivery, to the following addresses: If to the Company, the Founder or
Jalkut, at 0000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, or at any other
address designated by the Company, the Founder or Jalkut, to the Investors in
writing; if to an Investor, at its or his mailing address as shown on EXHIBIT A
hereto, or at any other address designated by such Investor to the Company and
the Investors in writing.
4.9 SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be deemed
prohibited or invalid under such applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, and such
prohibition or invalidity shall not invalidate the remainder of such provision
or the other provisions of this Agreement.
4.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES ANY RIGHT WHICH
IT MAY OTHERWISE HAVE AT LAW OR IN EQUITY TO A TRIAL BY JURY IN CONNECTION WITH
ANY SUIT OR PROCEEDING AT LAW OR IN EQUITY BROUGHT BY ANY PARTY HERETO AGAINST
ANOTHER WAIVING PARTY OR WHICH OTHERWISE RELATES TO THIS AGREEMENT.
4.11 TAX TREATMENT OF SERIES C PREFERRED STOCK. The Company and the Series
C Investors agree that the Series C Preferred Stock is a common stock for
federal income tax purposes and the Company and the Series C Investors agree to
file all reports, returns, statements and other documents consistently with the
foregoing and otherwise to treat the Series C Preferred Stock as a common stock
for federal income tax purposes.
15
4.12 LEGEND ON SECURITIES. The Company, the Investors, Jalkut and the
Founder acknowledge and agree that the following legend shall be typed on each
certificate evidencing any of the Securities issued hereunder held at any time
by the Investors, Jalkut or the Founder:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE ACT) OR ANY STATE SECURITIES OR BLUE SKY
LAWS AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE
ASSIGNED EXCEPT (1) PURSUANT TO A REGISTRATION STATEMENT WITH RESPECT TO SUCH
SECURITIES WHICH IS EFFECTIVE UNDER THE ACT OR (2) PURSUANT TO AN AVAILABLE
EXEMPTION FROM REGISTRATION UNDER THE ACT RELATING TO THE DISPOSITION OF
SECURITIES AND (3) IN ACCORDANCE WITH APPLICABLE STATE SECURITIES AND BLUE SKY
LAWS. THESE SECURITIES ARE ALSO SUBJECT TO THE PROVISIONS OF A CERTAIN
INVESTMENT AND STOCKHOLDERS' AGREEMENT DATED AS OF ___________, 1998. A
COMPLETE AND CORRECT COPY OF THIS AGREEMENT IS AVAILABLE FOR INSPECTION AT THE
PRINCIPAL OFFICE OF THE COMPANY AND WILL BE FURNISHED UPON WRITTEN REQUEST AND
WITHOUT CHARGE.
THE COMPANY WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO REQUESTS
THE POWERS, DESIGNATIONS PREFERENCES AND RELATIVE PARTICIPATING, OPTIONAL OR
OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OR SERIES THEREOF AND THE
QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS."
16
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first above written.
PATHNET, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President and Chief Executive
Officer
/s/ Xxxxx Xxxxxxxxx
-----------------------------------
Xxxxx Xxxxxxxxx, Individually
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxx, Individually
INVESTORS:
SPECTRUM EQUITY INVESTORS, L.P.
By: Spectrum Equity Associates, L.P.
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: Attorney-In-Fact
SPECTRUM EQUITY INVESTORS II, L.P.
By: Spectrum Equity Associates II, L.P.
By: /s/ Xxxxx Xxxxxx
----------------------------
Name: Xxxxx Xxxxxx
Title: General Partner
NEW ENTERPRISE ASSOCIATES VI, LIMITED
PARTNERSHIP
By: NEA Partners VI, Limited
Partnership
By: /s/ Xxxxx Xxxxxx
----------------------------
Name: Xxxxx Xxxxxx
Title: General Partner
ONSET ENTERPRISE ASSOCIATES II, L.P.
By: OEA II Management, LLC
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: General Partner
ONSET ENTERPRISE ASSOCIATES III, L.P.
By: OEA III Management, LLC
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
XXXXXX FOUNDATION, INCORPORATED
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Name: Xxxxx X. Xxxxxx
Title: President
18
IAI INVESTMENT FUNDS VIII, INC. (IAI VALUE
FUND)
By: /s/ Xxxxx Xxxxx
---------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
IAI INVESTMENT FUNDS VI, INC. (IAI BALANCED
FUND)
By: /s/ Xxxxx Xxxxx
---------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
/s/ Xxxxxx Xxxxxxxxx
------------------------------------
Xxxxxx Xxxxxxxxx, Individually
/s/ Xxxxxx X. Xxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxx, Individually
GROTECH PARTNERS IV, L.P.
By: Grotech Capital Group IV, LLC,
General Partner
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
TORONTO DOMINION CAPITAL (U.S.A.), INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Secretary/Treasurer
19
UTECH CLIMATE CHALLENGE FUND, L.P.
By: ARETE CLIMATE CHALLENGE PARTNERS, L.L.C.
General Partner
By: ARETE VENTURES, INC.
Managing Member
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
UTILITY COMPETITIVE ADVANTAGE FUND, L.L.C.
By: ARETE COMPETITIVE ADVANTAGE
PARTNERS, L.L.C.
General Partner
By: ARETE VENTURES, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
FBR TECHNOLOGY VENTURE PARTNERS L.P.
By: FBR Venture Capital Managers, Inc.,
its General Partner
By: /s/ Xxxx Xxxxxxxx
----------------------------
Name: Xxxx Xxxxxxxx
Title: Managing Director
/s/ Xxxxx X. Colo
------------------------------------
Xxxxx X. Colo, Individually
20
/s/ Xxxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxxx X. Xxxxxxxx, Individually
/s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxxx, Individually
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxx, Individually
/s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxxxx, Individually
/s/ Xxxx Xxxx
------------------------------------
Xxxx Xxxx, Individually
21
EXHIBIT A
---------------------------- ------------------------------ --------------------
STOCKHOLDER ADDRESS PHONE
---------------------------- ------------------------------ --------------------
New Enterprise Associates Xxxxx Xxxxxx TEL: 000 000 0000
VI, Limited Partnership General Partner FAX: 000 000 0000
New Enterprise Associates
00000 Xxxxxxx Xxxxx
Xxx Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
XXXXXXX@XXX.XXX
---------------------------- ------------------------------ --------------------
Spectrum Equity Xxxxx Xxxxxx TEL: 000.000.0000
Investors, L.P. General Manager FAX: 000.000.0000
Spectrum Equity Investors, L.P.
Xxx Xxxxxxxxxxxxx Xxxxx,
00xx Xxxxx
Xxxxxx, XX 00000
XXXXX@XXXXXXXXXXXXXX.XXX
---------------------------- ------------------------------ --------------------
Spectrum Equity Xxxxx Xxxxxx TEL: 000.000.0000
Investors II, L.P. General Manager FAX: 000.000.0000
Spectrum Equity Investors, L.P.
Xxx Xxxxxxxxxxxxx Xxxxx,
00xx Xxxxx
Xxxxxx, XX 00000
XXXXX@XXXXXXXXXXXXXX.XXX
---------------------------- ------------------------------ --------------------
Grotech Partners IV, L.P. Xxxxxxx Xxxxxx TEL: 000.000.0000
Managing Director FAX: 410 560.1910
Grotech Capital Group
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
xxxxxxx@xxxxxxx.xxx
---------------------------- ------------------------------ --------------------
Utech Climate Challenge Xxxxxxx X. Xxxxxx TEL: 000.000.0000
Fund, L.P. Managing Partner FAX: 000.000.0000
Arete Ventures, Inc.
0 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxxx 00000
(No e-mail)
---------------------------- ------------------------------ --------------------
Utility Competitive Xxxxxxx X. Xxxxxx TEL: 000.000.0000
Advantage Fund, L.L.C Managing Partner FAX: 000.000.0000
Arete Ventures, Inc.
0 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxxx 00000
(No e-mail)
---------------------------- ------------------------------ --------------------
22
---------------------------- ------------------------------ --------------------
Toronto Dominion Capital Xxxxxxx X. Xxxxxxxxxxxx TEL: 000.000.0000
(USA), Inc. Director FAX: 000.000.0000
Toronto Dominion Capital Group
00 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
XXXXXX@XXXXX.XXX
---------------------------- ------------------------------ --------------------
Copy to: Xxxxxx Xxxxxxx TEL: 000.000.0000
Toronto Dominion Capital Group FAX: 000.000.0000
000 Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
XXXXXX@XXXXX.XXX
---------------------------- ------------------------------ --------------------
Onset Enterprise Associates Xxxxxx X. Xxxxxx TEL: 000.000.0000
II, L.P. General Partner FAX: 000 000 0000
Onset Ventures
0000 Xxxxxxx xx Xxxxx Xxxxxxx,
Xxxxx 0000
Xxxxxx, Xxxxx 00000
XXX@XXXXX.XXX
---------------------------- ------------------------------ --------------------
Onset Enterprise Associates Xxxxxx X. Xxxxxx TEL: 000.000.0000
III, L.P. General Partner FAX: 000 000 0000
Onset Ventures
0000 Xxxxxxx xx Xxxxx Xxxxxxx,
Xxxxx 0000
Xxxxxx, Xxxxx 00000
XXX@XXXXX.XXX
---------------------------- ------------------------------ --------------------
Xxxxxx Foundation Xxx Xxxxxx TEL: 000.000.0000
Incorporated Xxxxxx Foundation FAX: 000.000.0000
000 Xxxxxxxxx Xxxx
Xxxxxx, XX 00000
XXXXXXX@XXXXXX.XXXX.XXX
---------------------------- ------------------------------ --------------------
IAI Investment Funds VIII, Xxxxx Xxxxxx TEL: 000 000 0000
Inc. (IAI Value Fund) Investment Advisors FAX: 000.000.0000
Incorporated
3700 First Bank Place
000 0xx Xxx. Xxxxx
Xxxxxxxxxxx, XX 00000
XXXXXXX@XXXXXXXXXXX.XXX
---------------------------- ------------------------------ --------------------
IAI Investment Funds VI, Xxxxx Xxxxxx TEL: 000.000.0000
Inc. (IAI Balanced Fund) Investment Advisors FAX: 000.000.0000
Incorporated
3700 First Bank Place
000 0xx Xxx. Xxxxx
Xxxxxxxxxxx, XX 00000
XXXXXXX@XXXXXXXXXXX.XXX
---------------------------- ------------------------------ --------------------
Xxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxxx TEL: 000.000.0000
000 Xxxxxxxxxx Xxxxxx FAX: 000.000.0000
Xxxxxxxxxx, XX 00000
FLORIDA: FLORIDA:
000 Xxxxx Xxxxx Xx TEL: 000.000.0000
Hobbe Xxxxx, Xxxxxxx 00000 FAX: 000.000.0000
[Please send copies of all
documents to BOTH addresses]
---------------------------- ------------------------------ --------------------
23
---------------------------- ------------------------------ --------------------
Xxxxxx X. Xxxxxxx Xxxxxx X. Xxxxxxx TEL: 202.312-1360
President and CEO FAX: 202.312-1361
Xxxxxxx Communications, Inc.
0000 Xxxxxxxxxxxx Xxx., XX
Xxxxx 000 Secretary: Xxxxxxxx
Xxxxx Xxxxx Xxxxxxx
Xxxxxxxxxx, X.X. 00000
XXXXXXXXX0@XXX.XXX
---------------------------- ------------------------------ --------------------
Xxxx Xxxxxxx Xxxx Xxxxxxx TEL: 000.000.0000
Spectrum Equity FAX: 000.000.0000
Investors, L.P.
000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxx, XX 00000
XXXX@XXXXXXXXXXXXXX.XXX
---------------------------- ------------------------------ --------------------
Xxxxx Xxxx Xxxxx Xxxx TEL: 000.000.0000
Spectrum Equity Investors, L.P. FAX: 000.000.0000
000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxx, XX 00000
XXXXX@XXXXXXXXXXXXXX.XXX
---------------------------- ------------------------------ --------------------
Xxxx Xxxx Xxxx Xxxx TEL: 000.000.0000
Spectrum Equity Investors, L.P. FAX: 000.000.0000
000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxx, XX 00000
XXXX@XXXXXXXXXXXXXX.XXX
---------------------------- ------------------------------ --------------------
Xxxxxxxx X. Xxxxxxxx Xxxxxxxx X. Xxxxxxxx TEL: 000.000.0000
Spectrum Equity Investors, L.P. FAX: 000.000.0000
Xxx Xxxxxxxxxxxxx Xxxxx,
00xx Xxxxx
Xxxxxx, XX 00000
XXX@XXXXXXXXXXXXXX.XXX
---------------------------- ------------------------------ --------------------
Xxxxxx X. Xxxxxxxxx Xxxxxx X. Xxxxxxxxx TEL: 000.000.0000
Spectrum Equity Investors, L.P. FAX: 000.000.0000
Xxx Xxxxxxxxxxxxx Xxxxx,
00xx Xxxxx
Xxxxxx, XX 00000
XXXXXX@XXXXXXXXXXXXXX.XXX
---------------------------- ------------------------------ --------------------
Xxxxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxxxxx TEL: 000.000.0000
Spectrum Equity Investors, L.P. FAX: 000.000.0000
Xxx Xxxxxxxxxxxxx Xxxxx,
00xx Xxxxx
Xxxxxx, XX 00000
XXXX@XXXXXXXXXXXXXX.XXX
---------------------------- ------------------------------ --------------------
FBR Technology Venture Xxxx Xxxxxxxx TEL: 000.000.0000
Partners, L.P. Friedman, Billings, FAX: 000.000.0000
Xxxxxx & Co., Inc.
0000 00xx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
XXXXXXXXX@XXX.XXX
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