NET PERCEPTIONS, INC.
AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
DECEMBER 18, 1997
TABLE OF CONTENTS
PAGE
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1. Registration Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Request for Registration . . . . . . . . . . . . . . . . . . . . . . 2
1.3 Company Registration . . . . . . . . . . . . . . . . . . . . . . . . 4
1.4 Obligations of the Company . . . . . . . . . . . . . . . . . . . . . 4
1.5 Furnish Information. . . . . . . . . . . . . . . . . . . . . . . . . 5
1.6 Expenses of Demand Registration. . . . . . . . . . . . . . . . . . . 6
1.7 Expenses of Company Registration . . . . . . . . . . . . . . . . . . 6
1.8 Underwriting Requirements. . . . . . . . . . . . . . . . . . . . . . 6
1.9 Delay of Registration. . . . . . . . . . . . . . . . . . . . . . . . 7
1.10 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.11 Reports Under Securities Exchange Act of 1934. . . . . . . . . . . . 9
1.12 Form S-3 Registration. . . . . . . . . . . . . . . . . . . . . . . . 9
1.13 Assignment of Registration Rights. . . . . . . . . . . . . . . . . .10
1.14 Market Stand-Off Agreement Rights. . . . . . . . . . . . . . . . . .11
1.15 Termination of Registration Rights . . . . . . . . . . . . . . . . .11
2. Covenants of the Company. . . . . . . . . . . . . . . . . . . . . . . . .11
2.1 Delivery of Financial Statements . . . . . . . . . . . . . . . . . .11
2.2 Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
2.3 Termination of Information and Inspection Covenants. . . . . . . . .12
2.4 Right of First Offer . . . . . . . . . . . . . . . . . . . . . . . .13
2.5 Proprietary Information and Inventions Agreements. . . . . . . . . .14
2.6 Certain Actions Requiring Outside Board Approval . . . . . . . . . .14
2.7 Covenant Regarding Issuance of Additional Shares of Common Stock . .14
3. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
3.1 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . .14
3.2 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . .15
3.3 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
3.4 Titles and Subtitles . . . . . . . . . . . . . . . . . . . . . . . .15
3.5 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
3.6 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
3.7 Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . .15
3.8 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
3.9 Aggregation of Stock . . . . . . . . . . . . . . . . . . . . . . . .16
3.10 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . .16
3.11 Additional Parties . . . . . . . . . . . . . . . . . . . . . . . . .16
3.12 Prior Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . .16
Schedule A Schedule of Investors
Schedule B Schedule of Founders
INVESTORS' RIGHTS AGREEMENT
THIS AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT is made as of
December 18, 1997, by and among Net Perceptions, Inc., a Delaware corporation
(the "Company"), and the investors listed on SCHEDULE A hereto, each of which is
herein referred to as an "Investor" and the founders listed on SCHEDULE B
hereto, each of which is herein referred to as a "Founder."
RECITALS
WHEREAS, certain of the Investors and the Founders possess
registration rights and certain of the Investors possess other investor rights
granted pursuant to that certain Amended and Restated Investors' Rights
Agreement, dated December 4, 1996, among the Company and the persons listed on
the Schedule of Investors attached thereto (the "Prior Agreement");
WHEREAS, certain of the Investors (the "Series C Investors") are
parties to the Series C Preferred Stock Purchase Agreement of even date herewith
(the "Series C Agreement") among the Company and the investors listed on the
Schedule of Investors attached thereto, pursuant to which the Series C Investors
are purchasing shares of Series C Preferred Stock of the Company;
WHEREAS, in order to induce the Company to enter into the Series C
Agreement and to induce the Series C Investors to invest funds in the Company
pursuant to the Series C Agreement, the Prior Investors and the Founders hereby
agree to waive their rights under the Prior Agreement, and the Investors, the
Founders and the Company hereby agree that this Agreement shall govern the
rights of the Investors and the Founders to cause the Company to register shares
of Common Stock issued or issuable to such persons, and certain other matters as
set forth herein; and
WHEREAS, the Series C Investors and the Company have agreed, pursuant
to the Series C Agreement, to enter into this Agreement;
NOW, THEREFORE, in consideration of the promises, covenants, and
conditions set forth herein, the parties hereto hereby agree as follows:
1. REGISTRATION RIGHTS. The Company covenants and agrees as
follows:
1.1 DEFINITIONS. For purposes of this Section 1:
(a) The term "Act" means the Securities Act of 1933, as amended.
(b) The term "Form S-3" means such form under the Act as in effect
on the date hereof or any registration form under the Act subsequently adopted
by the SEC that permits inclusion or incorporation of substantial information by
reference to other documents filed by the Company with the SEC.
(c) The term "Holder" means any person owning or having the right
to acquire Registrable Securities or any assignee thereof in accordance with
Section 1.13 hereof.
(d) The term "1934 Act" shall mean the Securities Exchange Act of
1934, as amended.
(e) The term "register," "registered," and "registration" refer to
a registration effected by preparing and filing a registration statement or
similar document in compliance with the Act, and the declaration or ordering of
effectiveness of such registration statement or document.
(f) The term "Registrable Securities" means (i) the Common Stock
issuable or issued upon conversion of the Series A Preferred Stock, Series B
Preferred Stock and Series C Preferred Stock, (ii) the shares of Common Stock
issued to the Founders as of the date of this Agreement; provided, however, that
such shares of Common Stock shall not be deemed Registrable Securities and the
aforementioned individuals shall not be deemed Holders for the purposes of
Sections 1.2, 1.12 and 3.7 (except as provided therein), and (iii) any Common
Stock of the Company issued as (or issuable upon the conversion or exercise of
any warrant, right or other security that is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of the shares
referenced in (i) and (ii) above, excluding in all cases, however, any
Registrable Securities sold by a person in a transaction in which his rights
under this Section 1 are not assigned.
(g) The number of shares of "Registrable Securities then
outstanding" shall be determined by the number of shares of Common Stock
outstanding that are, and the number of shares of Common Stock issuable pursuant
to then exercisable or convertible securities that are, Registrable Securities.
(h) The term "SEC" shall mean the Securities and Exchange
Commission.
1.2 REQUEST FOR REGISTRATION.
(a) If the Company shall receive at any time after the earlier of
(i) August 2, 2000, 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 a SEC Rule 145 transaction), a written request from the Holders of a
majority of the Registrable Securities then outstanding that the Company file a
registration statement under the Act covering the registration of at least fifty
percent (50%) 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:
(i) within ten (10) days of the receipt thereof, give
written notice of such request to all Holders; and
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(ii) effect as soon as practicable, and in any event within
sixty (60) days of the receipt of such request, the registration under the Act
of all Registrable Securities that the Holders request to be registered, subject
to the limitations of subsection 1.2(b), within twenty (20) days of the mailing
of such notice by the Company in accordance with Section 3.5.
(b) If the Holders initiating the registration request hereunder
("Initiating Holders") intend to distribute the Registrable Securities covered
by their request by means of an underwriting, they shall so advise the Company
as a part of their request made pursuant to subsection 1.2(a) 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 1.4(e)) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting. Notwithstanding any other provision of this
Section 1.2, if the underwriter advises the Initiating Holders 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 that would otherwise be underwritten pursuant hereto, and
the number of shares of Registrable Securities that may be included in the
underwriting shall be allocated among all Holders thereof, including the
Initiating Holders, in proportion (as nearly as practicable) to the amount of
Registrable Securities of the Company owned by each Holder; provided, however,
that the number of shares of Registrable Securities to be included in such
underwriting shall not be reduced unless all other securities are first entirely
excluded from the underwriting.
(c) Notwithstanding the foregoing, if the Company shall furnish to
Holders requesting a registration statement pursuant to this Section 1.2, a
certificate signed by the President of the Company stating that in the good
faith judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its 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 taking action
with respect to such filing for a period of not more than ninety (90) days after
receipt of the request of the Initiating Holders; provided, however, that the
Company may not utilize this right more than once in any twelve (12) month
period.
(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;
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(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 1.12 below.
1.3 COMPANY REGISTRATION. If (but without any obligation to do
so) the Company proposes to register (including for this purpose a registration
effected by the Company for stockholders other than the Holders) any of its
stock or other securities under the 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, a registration
on any form that 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 or a registration in which the only Common Stock being
registered is Common Stock issuable upon conversion of debt securities that are
also being registered), the Company shall, at such time, promptly give each
Holder written notice of such registration. Upon the written request of each
Holder given within twenty (20) days after mailing of such notice by the Company
in accordance with Section 3.5, the Company shall, subject to the provisions of
Section 1.8, cause to be registered under the Act all of the Registrable
Securities that each such Holder has requested to be registered.
1.4 OBLIGATIONS OF THE COMPANY. Whenever required under this
Section 1 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, upon the request of the Holders
of a majority of the Registrable Securities registered thereunder, keep such
registration statement effective for a period of up to one hundred twenty (120)
days or until the distribution contemplated in the Registration Statement has
been completed.
(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
Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Act, and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities owned by them.
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(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or blue sky
laws of such jurisdictions as shall be reasonably requested by the Holders;
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions, 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 Act of the happening of any event as a result
of which the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing.
(g) 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.
1.5 FURNISH INFORMATION.
(a) It shall be a condition precedent to the obligations of the
Company to take any action pursuant to this Section 1 with respect to the
Registrable Securities of any selling Holder that such Holder shall furnish to
the Company such information regarding itself, the Registrable Securities held
by it, and the intended method of disposition of such securities as shall be
required to effect the registration of such Holder's Registrable Securities.
(b) The Company shall have no obligation with respect to any
registration requested pursuant to Section 1.2 or Section 1.12 if, due to the
operation of subsection 1.5(a), 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
1.12(b)(2), whichever is applicable.
1.6 EXPENSES OF DEMAND REGISTRATION. All expenses other than
underwriting discounts and commissions incurred in connection with
registrations, filings or qualifications pursuant to Section 1.2, including
(without limitation) all registration, filing and qualification fees, printers'
and accounting fees, fees and disbursements of counsel for the Company and the
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reasonable fees and disbursements of one counsel for the selling Holders shall
be borne by the Company; provided, however, that the Company shall not be
required to pay for any expenses of any registration proceeding begun pursuant
to Section 1.2 if the registration request is subsequently withdrawn at the
request of the Holders of a majority of the Registrable Securities to be
registered (in which case all participating Holders shall bear such expenses),
unless the Holders of a majority of the Registrable Securities agree to forfeit
their right to one demand registration pursuant to Section 1.2; provided
further, however, that if at the time of such withdrawal, the Holders have
learned of a material adverse change in the condition, business, or prospects of
the Company from that known to the Holders at the time of their request and have
withdrawn the request with reasonable promptness following disclosure by the
Company of such material adverse change, then the Holders shall not be required
to pay any of such expenses and shall retain their rights pursuant to
Section 1.2.
1.7 EXPENSES OF COMPANY REGISTRATION. The Company shall bear and
pay all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
pursuant to Section 1.3 for each Holder (which right may be assigned as provided
in Section 1.13), including (without limitation) all registration, filing, and
qualification fees, printers and accounting fees relating or apportionable
thereto and the fees and disbursements of one counsel for the selling Holders
selected by them, but excluding underwriting discounts and commissions relating
to Registrable Securities.
1.8 UNDERWRITING REQUIREMENTS In connection with any offering
involving an underwriting of shares of the Company's capital stock, the Company
shall not be required under Section 1.3 to include any of the Holders'
securities in such underwriting unless they accept the terms of the underwriting
as agreed upon between the Company and the underwriters selected by it (or by
other persons entitled to select the underwriters), and 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, that 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) 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 the selling stockholders may be excluded if the underwriters make the
determination described above and no other stockholder's securities are included
or (ii) notwithstanding (i) above, 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. For purposes of the preceding parenthetical
concerning apportionment, for any selling stockholder that is a holder of
Registrable Securities and that is a partnership or corporation, the partners,
retired partners and stockholders of such holder, or the estates and
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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 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
obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 1.
1.10 INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, any underwriter (as defined in the Act) for such
Holder, and each person, if any, who controls such Holder or underwriter within
the meaning of the Act or the 1934 Act, against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject under the Act,
the 1934 Act or other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations
(collectively a "Violation"): (i) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Act, the 1934 Act, any state securities law or
any rule or regulation promulgated under the Act, the 1934 Act or any state
securities law; and the Company will pay to each such Holder, underwriter or
controlling person, as incurred, any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the indemnity agreement
contained in this subsection 1.10(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld), nor shall the Company be liable in any such case
for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation that 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 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 Act, the 1934 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
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to the extent (and only to the extent) that such Violation occurs in reliance
upon and in conformity with written information furnished by such Holder
expressly for use in connection with such registration; and each such Holder
will pay, as incurred, any legal or other expenses reasonably incurred by any
person intended to be indemnified pursuant to this subsection 1.10(b) in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the indemnity agreement
contained in this subsection 1.10(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder, which consent shall
not be unreasonably withheld; provided, that, in no event shall any indemnity
under this subsection 1.10(b) exceed the gross proceeds from the offering
received by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 1.10 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 1.10, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties that may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. 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. 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.
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(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
(f) The obligations of the Company and Holders under this Section
1.10 shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 1, and otherwise.
1.11 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view to
making available to the Holders the benefits of Rule 144 promulgated under the
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 the effective date of
the first registration statement filed by the Company for the offering of its
securities to the general public;
(b) take such action, including the voluntary registration of its
Common Stock under Section 12 of the 1934 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 Act and the 1934 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 Act and the 1934 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 that permits the
selling of any such securities without registration or pursuant to such form.
1.12 FORM S-3 REGISTRATION. In case the Company shall receive a
written request or requests from the Holder or Holders of at least twenty
percent (20%) of the Registrable Securities 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;
9
(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
registration, qualification or compliance, pursuant to this section 1.12: (1) if
Form S-3 is not available for such offering by the Holders; (2) 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; (3) 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 ninety (90) days after
receipt of the request of the Holder or Holders under this Section 1.12;
provided, however, that the Company shall not utilize this right more than once
in any twelve (12) month period; (4) 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 1.12; or (5)
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; and
(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. All expenses incurred in connection with a
registration requested pursuant to Section 1.12, including (without limitation)
all registration, filing, qualification, printer's and accounting fees and the
reasonable fees and disbursements of counsel for the selling Holder or Holders
and counsel for the Company and including any underwriters' discounts or
commissions associated with Registrable Securities, shall be borne pro rata by
the Holder or Holders participating in the Form S-3 Registration.
1.13 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the
Company to register Registrable Securities pursuant to this Section 1 may be
assigned (but only with all related obligations) by a Holder to a transferee or
assignee of such securities who, after such assignment or transfer, holds at
least 100,000 shares of Registrable Securities (subject to appropriate
adjustment for stock splits, stock dividends, combinations and other
recapitalizations), provided: (a) 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; (b) such transferee or assignee agrees
in writing to be bound by and subject to the terms and conditions of this
Agreement, including without limitation the provisions of Section 1.14 below;
and (c) 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 Act. For the purposes of
10
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 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 this Section 1.
1.14 "MARKET STAND-OFF" AGREEMENT RIGHTS. Each Investor hereby
agrees that, during the period of duration specified by the Company and an
underwriter of Common Stock or other securities of the Company, following the
effective date of a registration statement of the Company filed under the Act,
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 that covers Common Stock (or other
securities) to be sold on its behalf to the public in an underwritten offering;
(b) all officers and directors of the Company and all other
persons with registration rights (whether or not pursuant to this Agreement)
enter into similar agreements; and
(c) such market stand-off time period shall not exceed one hundred
eighty (180) days.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Registrable Securities of each
Investor (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period.
1.15 TERMINATION OF REGISTRATION RIGHTS. No Holder shall be
entitled to exercise any right provided for in this Section 1 after five
(5) years following the consummation of the sale of securities pursuant to a
registration statement filed by the Company under the Act in connection with the
initial firm commitment underwritten offering of its securities to the general
public or, as to any Holder, such earlier time at which all Registrable
Securities held by such Holder can be sold in any three (3) month period without
registration in compliance with Rule 144 of the Act.
2. COVENANTS OF THE COMPANY.
2.1 DELIVERY OF FINANCIAL STATEMENTS. The Company shall deliver
to each Investor:
11
(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 independent public accountants of nationally recognized
standing selected by the Company;
(b) so long as such Investor holds at least 100,000 shares of
Preferred Stock (either in the form of Series A, Series B or Series C Preferred
Stock or Common Stock issued upon conversion thereof, and as adjusted for
subsequent stock splits, recombinations or reclassifications), as soon as
practicable, but in any event within forty-five (45) days after the end of each
of the first three (3) quarters of each fiscal year of the Company, an unaudited
income statement, statement of cash flows for such fiscal quarter and an
unaudited balance sheet and a statement of stockholder's equity as of the end of
such fiscal quarter;
(c) so long as such Investor holds at least 100,000 shares of
Preferred Stock (either in the form of Series A, Series B or Series C Preferred
Stock or Common Stock issued upon conversion thereof, and as adjusted for
subsequent stock splits, recombinations or reclassifications), within thirty
(30) days of the end of each month, an unaudited income statement and statement
of cash flows and balance sheet for and as of the end of such month, in
reasonable detail;
(d) so long as such Investor holds at least 100,000 shares of
Preferred Stock (either in the form of Series A, Series B or Series C Preferred
Stock or Common Stock issued upon conversion thereof, and as adjusted for
subsequent stock splits, recombinations or reclassifications), as soon as
practicable, but in any event thirty (30) days prior to the end of each fiscal
year, a budget for the next fiscal year; and
(e) with respect to the financial statements called for in
subsections (b) and (c) of this Section 2.1, an instrument executed by the Chief
Financial Officer or President of the Company 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.
2.2 INSPECTION. The Company shall permit each Investor, at such
Investor's expense, to visit and inspect the Company's properties, to examine
its books of account and records and to discuss the Company's affairs, finances
and accounts with its officers, all at such reasonable times as may be requested
by the Investor; provided, however, that the Company shall not be obligated
pursuant to this Section 2.2 to provide access to any information that it
reasonably considers to be a trade secret or similar confidential information.
2.3 TERMINATION OF INFORMATION AND INSPECTION COVENANTS. The
covenants set forth in Section 2.1, Section 2.2, Section 2.4, Section 2.5,
Section 2.6 and Section 2.7 shall terminate and be of no further force or effect
when the sale of securities pursuant to a registration statement filed by the
Company under the Act in connection with the firm commitment
12
underwritten offering of its securities to the general public is consummated
or when the Company first becomes subject to the periodic reporting
requirements of Sections 12(g) or 15(d) of the 1934 Act, whichever event
shall first occur.
2.4 RIGHT OF FIRST OFFER. Subject to the terms and conditions
specified in this paragraph 2.4, the Company hereby grants to each Investor a
right of first offer with respect to future sales by the Company of its Shares
(as hereinafter defined). 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 proposes to offer any shares of, or securities
convertible into or exercisable for, any shares of any class of its capital
stock ("Shares"), the Company shall first make an offering of such Shares to
each Investor in accordance with the following provisions:
(a) The Company shall deliver a notice by certified mail
("Notice") to the Investors stating (i) its bona fide intention to offer such
Shares, (ii) the number of such Shares to be offered, and (iii) the price and
terms, if any, upon which it proposes to offer such Shares.
(b) By written notification received by the Company within twenty
(20) calendar days after giving of the Notice, the Investor may elect to
purchase or obtain, at the price and on the terms specified in the Notice, up to
that portion of such Shares that equals the proportion that the number of shares
of Common Stock issued and held, or issuable upon conversion of the Series A,
Series B and Series C Preferred Stock then held, by such Investor bears to the
total number of shares of Common Stock of the Company then outstanding (assuming
full conversion, exercise and exchange of all convertible, exercisable or
exchangeable securities).
(c) If all Shares that Investors are entitled to obtain pursuant
to subsection 2.4(b) are not elected to be obtained as provided in subsection
2.4(b) hereof, the Company may, during the ninety (90) day period following the
expiration of the period provided in subsection 2.4(b) hereof, offer the
remaining 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 sixty (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 Investors in accordance herewith.
(d) The right of first offer in this paragraph 2.4 shall not be
applicable (i) to the issuance or sale of 861,304 shares of Common Stock (or
options therefor) after the date of this Agreement (excluding shares of Common
Stock repurchased at cost by the Company in connection with the termination of
service) to employees or directors of or consultants to the Company for the
primary purpose of soliciting or retaining their services, (ii) to or after
consummation of a bona fide, firmly underwritten public offering of shares of
Common Stock, registered under the Act pursuant to a registration statement on
Form S-1, at an offering price of at least $6.21 per share (appropriately
adjusted for any stock split, dividend, combination or other
13
recapitalization) and $7,500,000 in the aggregate, (iii) the issuance of
securities pursuant to the conversion, exercise or exchange of convertible,
exercisable or exchangeable securities, (iv) 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) 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, or (vi) shares of Series C Preferred Stock issued
pursuant to the Series C Agreement.
2.5 PROPRIETARY INFORMATION AND INVENTIONS AGREEMENTS. The
Company will cause each person with access to confidential information now or
hereafter employed by it or any subsidiary to enter into a proprietary
information and inventions agreement substantially in the form approved by the
Board of Directors.
2.6 CERTAIN ACTIONS REQUIRING OUTSIDE BOARD APPROVAL. The Company
covenants and agrees that it will not take any of the following actions without
obtaining the approval of the director of the Company that the Company's Amended
and Restated Certificate of Incorporation provides is to be elected by the
holders of Series A Preferred Stock, which director shall initially be Xxx
Xxxxxxx:
(a) enter into any transaction with any director, officer or ten
percent (10%) or greater stockholder of the Company, excluding a director or
stockholder that is affiliated with Hummer Winblad Venture Partners II, LP; or
(b) enter into any transaction that provides for the sale or
exclusive license of technology that is material to the Company's business.
2.7 COVENANT REGARDING ISSUANCE OF ADDITIONAL SHARES OF COMMON
STOCK. The Company covenants and agrees that it will not, without obtaining the
prior consent of the director of the Company elected by the holders of Series A
Preferred Stock (which director shall initially be Xxx Xxxxxxx), issue or sell
more than 861,304 additional shares of Common Stock (or options therefor) after
the date of this Agreement (excluding shares of Common Stock repurchased at cost
by the Company in connection with the termination of service). In addition, the
Company covenants and agrees that, unless the Company has obtained the prior
consent of the director of the Company elected by the holders of Series A
Preferred Stock, any shares of Common Stock (or options therefor) issued after
the date of this Agreement will be subject to a four year vesting schedule, with
25% of the shares vesting on the first anniversary of the vesting commencement
date and the balance of the shares vesting in equal monthly installments over
the next thirty-six months.
3. MISCELLANEOUS.
3.1 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein,
the terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties (including
transferees of any shares of Registrable Securities). Nothing in this
Agreement, express or implied, is intended to confer upon any party
14
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 GOVERNING LAW. This Agreement shall be governed by and
construed under the laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely within
California.
3.3 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.
3.4 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.
3.5 NOTICES. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given (i) upon personal delivery to the party to be notified, (ii)
upon deposit with the United States Post Office, by registered or certified
mail, postage prepaid and addressed to the party to be notified at the address
indicated for such party on the signature page hereof, or at such other address
as such party may designate by ten (10) days' advance written notice to the
other parties, or (iii) upon delivery by facsimile transmission to the party to
be notified at the facsimile number indicated for such party on the signature
page hereof, or at such other facsimile number as such party may designate by
ten (10) days' advance written notice to the other parties.
3.6 EXPENSES. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
3.7 AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders of
a majority of the Registrable Securities then outstanding; provided, however,
that in the event such amendment or waiver adversely affects the rights and/or
obligations of the Founders under this Agreement in a different manner than the
other Holders, such amendment or waiver shall also require the written consent
of a majority of the Common Stock held by the Founders then employed by the
Company. 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.
3.8 SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
15
3.9 AGGREGATION OF STOCK. All shares of Registrable Securities
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.
3.10 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 ADDITIONAL PARTIES. In the event of a subsequent closing with
an investor as provided for in Section 1.3 of the Series C Agreement, such
investor shall become a party to this Agreement as an "Investor" upon receipt
from such investor of a fully executed signature page.
3.12 PRIOR AGREEMENT. The Prior Agreement is hereby superseded in
its entirety and shall be of no further force or effect.
16
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
NET PERCEPTIONS, INC.
By:
---------------------------------------------
Xxxxxx X. Xxxxxx
President and Chief Executive Officer
Address: 00000 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SIGNATURE PAGE TO NET PERCEPTIONS, INC. SERIES C
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS:
LONDON PACIFIC LIFE & ANNUITY COMPANY
By:
-----------------------------------------
Print Name:
---------------------------------
Title:
--------------------------------------
Address: 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SIGNATURE PAGE TO NET PERCEPTIONS, INC. SERIES C
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
ST. XXXX VENTURE CAPITAL IV, LLC
By:
-----------------------------------------
Print Name:
---------------------------------
Title:
--------------------------------------
ST. XXXX FIRE AND MARINE INSURANCE COMPANY
By:
-----------------------------------------
Print Name:
---------------------------------
Title:
--------------------------------------
Address: 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SIGNATURE PAGE TO NET PERCEPTIONS, INC. SERIES C
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
VULCAN VENTURES INC.
By:
-----------------------------------------
Print Name:
---------------------------------
Title:
--------------------------------------
Address: 000 000xx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SIGNATURE PAGE TO NET PERCEPTIONS, INC. SERIES C
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
HUMMER WINBLAD VENTURE PARTNERS III, L.P.
By:
-----------------------------------------
Print Name:
---------------------------------
Title:
--------------------------------------
HUMMER WINBLAD TECHNOLOGY FUND III, L.P.
By:
-----------------------------------------
Print Name:
---------------------------------
Title:
--------------------------------------
HUMMER WINBLAD VENTURE PARTNERS II, L.P.
By:
-----------------------------------------
Print Name:
---------------------------------
Title:
--------------------------------------
HUMMER WINBLAD TECHNOLOGY FUND II, L.P.
By:
-----------------------------------------
Print Name:
---------------------------------
Title:
--------------------------------------
HUMMER WINBLAD TECHNOLOGY FUND IIA, L.P.
By:
-----------------------------------------
Print Name:
---------------------------------
Title:
--------------------------------------
Address: Xxx Xxxxx Xxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SIGNATURE PAGE TO NET PERCEPTIONS, INC. SERIES C
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
STANFORD UNIVERSITY
By:
-----------------------------------------
Print Name:
---------------------------------
Title:
--------------------------------------
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Telephone:
-------------------------------------------------
Facsimile: (000) 000-0000
SIGNATURE PAGE TO NET PERCEPTIONS, INC. SERIES C
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
CHRISTIAN & TIMBERS
By:
-----------------------------------------
Print Name:
---------------------------------
Title:
--------------------------------------
Address: One Corporate Exchange
00000 Xxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SIGNATURE PAGE TO NET PERCEPTIONS, INC. SERIES C
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
G & H PARTNERS
By:
-----------------------------------------
Partner
Print Name:
---------------------------------
Address: 000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SIGNATURE PAGE TO NET PERCEPTIONS, INC. SERIES C
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
SILICON VALLEY BANK
By:
-----------------------------------------
Print Name:
---------------------------------
Title:
--------------------------------------
Address: 0000 Xxxxxx Xxxxx, XX000
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SIGNATURE PAGE TO NET PERCEPTIONS, INC. SERIES C
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
JAFCO AMERICA VENTURES
By:
-----------------------------------------
Print Name:
---------------------------------
Title:
--------------------------------------
Address: Xxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telephone:
-------------------------------------------------
Facsimile:
-------------------------------------------------
SIGNATURE PAGE TO NET PERCEPTIONS, INC. SERIES C
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
--------------------------------------------
Xxxx Xxxxxxx, Xx.
Address: 00000 Xxxxxx Xxxx Xxxx, #0000
Xxxxxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile:
-------------------------------------------------
SIGNATURE PAGE TO NET PERCEPTIONS, INC. SERIES C
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
--------------------------------------------
(Name of Investor as it should appear on the
Series C Preferred Stock Certificate)
--------------------------------------------
(Signature of Investor or Authorized
Signatory)
--------------------------------------------
(Print or Type Name and Title if Investor is
not an individual)
Address:
--------------------------------------------
--------------------------------------------
--------------------------------------------
Telephone:
--------------------------------------------
Facsimile:
--------------------------------------------
PLEASE PROVIDE ALL OF THE ABOVE-REQUESTED INFORMATION
SIGNATURE PAGE TO NET PERCEPTIONS, INC. SERIES C
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
FOUNDERS:
--------------------------------------------
Xxxxxx X. Xxxxxx, Ph.D.
Address: 00000 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SIGNATURE PAGE TO NET PERCEPTIONS, INC. SERIES C
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
--------------------------------------------
Xxxx X. Xxxxx
Address: 00000 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SIGNATURE PAGE TO NET PERCEPTIONS, INC. SERIES C
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
--------------------------------------------
Xxxxxxx X. Xxxxxx
Address: 00000 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SIGNATURE PAGE TO NET PERCEPTIONS, INC. SERIES C
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
--------------------------------------------
Xxxxx X. Xxxxxxxx
Address: 00000 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SIGNATURE PAGE TO NET PERCEPTIONS, INC. SERIES C
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
--------------------------------------------
Xxxxxx X. Xxxxxxx
Address: 00000 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SIGNATURE PAGE TO NET PERCEPTIONS, INC. SERIES C
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
SCHEDULE A
SCHEDULE OF INVESTORS
London Pacific Life & Annuity Company
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
With a copy to:
Berkeley International Capital Corporation
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
St. Xxxx Venture Capital IV, LLC
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Vulcan Ventures Inc.
000 000xx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Hummer Winblad Venture Partners III, L.P.
Hummer Winblad Technology Fund III, L.P.
Xxx Xxxxx Xxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Christian & Timbers
One Corporate Exchange
00000 Xxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, Xxxx 00000
Stanford University
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
G & H Partners
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Silicon Valley Bank
0000 Xxxxxx Xxxxx, XX000
Xxxxx Xxxxx, Xxxxxxxxxx 00000
ADDENDUM NO. 1 TO SCHEDULE A
SCHEDULE OF INVESTORS
JAFCO Co., Ltd.
JAFCO G-6(A) Investment Enterprise Partnership
JAFCO G-6(B) Investment Enterprise Partnership
US Information Technology No. 2 Investment
Enterprise Partnership
Tekko Bldg., 0-0-0 Xxxxxxxxxx
Xxxxxxx-xx, Xxxxx 000, Xxxxx
Attn: Xxxxxxx Xxxxx
Xxxx Xxxxxxx, Xx.
00000 Xxxxxx Xxxx Xxxx, #0000
Xxxxxxxxxx, Xxxxxxxxx 00000
SCHEDULE B
SCHEDULE OF FOUNDERS
Xxxxxx X. Xxxxxx, Ph.D.
00000 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Xxxx X. Xxxxx
00000 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Xxxxxxx X. Xxxxxx
00000 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Xxxxx X. Xxxxxxxx
00000 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Xxxxxx X. Xxxxxxx
00000 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxx, Xxxxxxxxx 00000
