EXHIBIT 10.7
FLYCAST COMMUNICATIONS CORPORATION
AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
DECEMBER 30, 1998
FLYCAST COMMUNICATIONS CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
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This Amended and Restated Investors' Rights Agreement (the
"Agreement") is made as of the 30th day of December, 1998, by and among FlyCast
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Communications Corporation, a California corporation (the "Company"), the
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investors listed on Exhibit A hereto, each of which is herein referred to as an
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"Investor," and the holders of Common Stock listed on Exhibit B hereto, each of
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whom is herein referred to as a "Founder".
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RECITALS
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A. The Company and certain of the Investors have entered into a
Series C Preferred Stock Agreement (the "Purchase Agreement") of even date
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herewith pursuant to which the Company desires to sell to the Investors and the
Investors desire to purchase from the Company shares of the Company's Series C
Preferred Stock. A condition to the Investors' obligations under the Purchase
Agreement is that the Company, the Founders and the Investors enter into this
Agreement in order to provide the Investors with (i) certain rights to register
shares of the Company's Common Stock issuable upon conversion of the Preferred
Stock held by the Investors, (ii) certain rights to receive or inspect
information pertaining to the Company, and (iii) a right of first offer with
respect to certain issuances by the Company of its securities. The Company and
the Founders each desire to induce the Investors to purchase shares of Series C
Preferred Stock pursuant to the Purchase Agreement by agreeing to the terms and
conditions set forth herein. The Company and certain of the Investors that are
holders of the Company's Series A and Series B Preferred Stock (the "Existing
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Investors") also desire to amend that certain Investors' Rights Agreement (the
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"Prior Agreement") dated as of July 11, 1997, by and among the Company, certain
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of the Founders and the Existing Investors and restate it in its entirety with
this Agreement.
AGREEMENT
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The parties hereby agree as follows:
1. REGISTRATION RIGHTS. The Company and the Investors covenant
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and agree as follows:
1.1 DEFINITIONS. For purposes of this Section 1:
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(a) The terms "register," "registered," and
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"registration" refer to a registration effected by preparing and filing a
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registration statement or similar document in compliance with the Securities Act
of 1933, as amended (the "Act"), and the declaration or ordering of
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effectiveness of such registration statement or document;
(b) The term "Registrable Securities" means (i) the
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shares of Common Stock issuable or issued upon conversion of the Series A,
Series B and Series C
Preferred Stock, including 7,500 shares of Series A Preferred Stock issued or
issuable upon exercise of the warrant to purchase 7,500 shares of Series A
Preferred Stock issued to Cupertino National Bank ("Cupertino" and the
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"Cupertino Warrant") and 33,834 shares of Series B Preferred Stock issued or
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issuable upon exercise of a warrant to purchase 33,834 shares of Series B
Preferred Stock issued to Venture Lending ("Venture Lending" and the "Venture
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Lending Warrant"), (ii) the shares of Common Stock issued to the Founders (the
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"Founders' Stock"), provided, however, that for the purposes of Section 1.2, 1.4
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or 1.13 the Founders' Stock shall be deemed not to be Registrable Securities and
(iii) any other shares of Common Stock of the Company issued as (or issuable
upon the conversion or exercise of any warrant, right or other security which is
issued as) a dividend or other distribution with respect to, or in exchange for
or in replacement of, the shares described in (i) and (ii) above, and provided,
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further, that the foregoing definition shall exclude in all cases any
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Registrable Securities sold by a person in a transaction in which his or her
rights under this Agreement are not assigned. Notwithstanding the foregoing,
Common Stock or other securities shall only be treated as Registrable Securities
if and so long as they have not been (A) sold to or through a broker or dealer
or underwriter in a public distribution or a public securities transaction, or
(B) sold in a transaction exempt from the registration and prospectus delivery
requirements of the Act under Section 4(1) thereof so that all transfer
restrictions, and restrictive legends with respect thereto, if any, are removed
upon the consummation of such sale;
(c) The number of shares of "Registrable Securities then
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outstanding" shall be determined by the number of shares of Common Stock
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outstanding which are, and the number of shares of Common Stock issuable
pursuant to then exercisable or convertible securities which are, Registrable
Securities;
(d) The term "Holder" means any person owning or having the
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right to acquire Registrable Securities or any assignee thereof in accordance
with Section 1.12 hereof;
(e) The term "Form S-3" means such form under the Act as in
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effect on the date hereof or any successor form under the Act; and
(f) The term "SEC" means the Securities and Exchange
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Commission.
1.2 REQUEST FOR REGISTRATION.
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(a) If the Company shall receive at any time after the
earlier of: (i) December 10, 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 an SEC Rule 145 transaction), a written request from
the Holders of at least twenty percent (20%) of the Registrable Securities then
outstanding that the Company file a registration statement under the Act
covering the registration of Registrable Securities with an anticipated
aggregate offering price, before deduction of underwriting discounts and
commissions, of $10,000,000, then the Company shall, within ten (10) days of the
receipt thereof, give written notice of such request to all Holders and shall,
subject to the limitations of subsection 1.2(b), use its best efforts to effect
as soon as practicable, and in any event within sixty (60) days of the receipt
of such request, the registration under the Act of all Registrable Securities
which the Holders request to be registered within twenty (20) days of the
mailing of such notice by the Company in accordance with Section 3.5.
(b) If the Holders initiating the registration request hereunder
("Initiating Holders") intend to distribute the Registrable Securities covered
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by their request by means of an underwriting, they shall so advise the Company
as a part of their request made pursuant to this Section 1.2 and the Company
shall include such information in the written notice referred to in subsection
1.2(a). The underwriter will be selected by a majority in interest of the
Initiating Holders and shall be reasonably acceptable to the Company. In such
event, the right of any Holder to include such Holder's Registrable Securities
in such registration shall be conditioned upon such Holder's participation in
such underwriting and the inclusion of such Holder's Registrable Securities in
the underwriting (unless otherwise mutually agreed by a majority in interest of
the Initiating Holders and such Holder) to the extent provided herein. All
Holders proposing to distribute their securities through such underwriting shall
(together with the Company as provided in subsection 1.5(e)) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by a majority in interest of the Initiating
Holders. Notwithstanding any other provision of this Section 1.2, if the
underwriter advises the Initiating Holders in writing that marketing factors
require a limitation of the number of shares to be underwritten, then the
Initiating Holders shall so advise all Holders of Registrable Securities which
would otherwise be underwritten pursuant hereto, and the number of shares of
Registrable Securities that may be included in the underwriting shall be
allocated among all Holders thereof, including the Initiating Holders, in
proportion (as nearly as practicable) to the amount of Registrable Securities
owned by each Holder; provided, however, that the number of shares of
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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 shareholders for such registration statement
to be filed and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer such filing
for a period of not more than sixty (60) days after receipt of the request of
the Initiating Holders; provided, however, that the Company may not utilize this
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right more than once in any twelve-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;
(ii) During the period starting with the date sixty (60)
days prior to the Company's good faith estimate of the date of filing of, and
ending on a date one hundred eighty (180) days after the effective date of, a
registration subject to Section 1.3 hereof; provided that the Company is
actively employing in good faith all reasonable efforts to cause such
registration statement to become effective; or
(iii) If the Initiating Holders propose to dispose of
shares of Registrable Securities that may be immediately registered on Form S-3
pursuant to a request made pursuant to Section 1.4 below.
1.3 COMPANY REGISTRATION. If (but without any obligation to do
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so) the Company proposes to register (including for this purpose a registration
effected by the Company for shareholders other than the Holders) any of its
stock 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 or a transaction covered by
Rule 145 under the Act, a registration in which the only stock being registered
is Common Stock issuable upon conversion of debt securities which are also being
registered, or any registration on any form which does not include substantially
the same information as would be required to be included in a registration
statement covering the sale of the Registrable Securities), the Company shall,
at such time, promptly give each Holder written notice of such registration.
Upon the written request of each Holder given within twenty (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 FORM S-3 REGISTRATION. In case the Company shall receive
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from any Holder or Holders of not less than twenty percent (20%) of the
Registrable Securities then outstanding a written request or requests that the
Company effect a registration on Form S-3 and any related qualification or
compliance with respect to all or a part of the Registrable Securities owned by
such Holder or Holders, the Company will:
(a) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all other Holders;
and
(b) as soon as practicable, effect such registration and all
such qualifications and compliances as may be so requested and as would permit
or facilitate the sale and distribution of all or such portion of such Holder's
or Holders' Registrable Securities as are specified in such request, together
with all or such portion of the Registrable Securities of any other Holder or
Holders joining in such request as are specified in a written request given
within twenty (20) 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 1.4: (i) if
Form S-3 is not available for such offering by the Holders; (ii) if the Holders,
together with the holders of any other securities of the Company entitled to
inclusion in such registration, propose to sell Registrable Securities and such
other securities (if any) at an aggregate price to the public (net of any
underwriters' discounts or commissions) of
less than $1,000,000; (iii) if the Company shall furnish to the Holders a
certificate signed by the President of the Company stating that in the good
faith judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its shareholders 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 one hundred twenty (120) days after receipt of the request of the Holder or
Holders under this Section 1.4; provided, however, that the Company shall not
utilize this right more than once in any twelve month period; (iv) if the
Company has, within the twelve (12) month period preceding the date of such
request, already effected two (2) registrations on Form S-3 for the Holders
pursuant to this Section 1.4; (v) during the period ending one hundred eighty
(180) days after the effective date of a registration subject to Section 1.3
hereof or (vi) 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.
(c) Subject to the foregoing, the Company shall file a
registration statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request or requests of the Holders. Registrations effected pursuant to this
Section 1.4 shall not be counted as demands for registration or registrations
effected pursuant to Sections 1.2 or 1.3, respectively.
1.5 OBLIGATIONS OF THE COMPANY. Whenever required under this
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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 up to one hundred twenty (120) days.
The Company shall not be required to file, cause to become effective or maintain
the effectiveness of any registration statement that contemplates a distribution
of securities on a delayed or continuous basis pursuant to Rule 415 under the
Act.
(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 for up to one hundred twenty (120) days.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may reasonably request
in order to facilitate the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall
not be required in connection therewith or as a condition thereto to qualify to
do business or to file a general consent to service of process in any such
states or jurisdictions.
(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, such
obligation to continue for one hundred twenty (120) days.
(g) Cause all such Registrable Securities registered
pursuant hereunder to be listed on each securities exchange on which similar
securities issued by the Company are then listed.
(h) Provide a transfer agent and registrar for all
Registrable Securities registered pursuant hereunder and a CUSIP number for all
such Registrable Securities, in each case not later than the effective date of
such registration.
(i) Use its best efforts to furnish, at the request of any
Holder requesting registration of Registrable Securities pursuant to this
Section 1, on the date that such Registrable Securities are delivered to the
underwriters for sale in connection with a registration pursuant to this Section
1, if such securities are being sold through underwriters, or, if such
securities are not being sold through underwriters, on the date that the
registration statement with respect to such securities becomes effective, (i) an
opinion, dated such date, of the counsel representing the Company for the
purposes of such registration, in form and substance as is customarily given to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and to the Holders requesting registration of Registrable Securities and
(ii) a letter dated such date, from the independent certified public accountants
of the Company, in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public offering,
addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities.
1.6 FURNISH INFORMATION. It shall be a condition precedent to
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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. The Company shall have no obligation with respect to
any registration requested pursuant to Section 1.2 or Section 1.4 of this
Agreement if, as a result of the application of the preceding sentence, the
number of shares or the anticipated aggregate offering
price of the Registrable Securities to be included in the registration does not
equal or exceed the number of shares or the anticipated aggregate offering price
required to originally trigger the Company's obligation to initiate such
registration as specified in subsection 1.2(a) or subsection 1.4(b)(2),
whichever is applicable.
1.7 EXPENSES OF REGISTRATION.
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(a) DEMAND REGISTRATION. All expenses other than
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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
reasonable fees and disbursements of one counsel for the selling Holders
selected by them with the approval of the Company, which approval shall not be
unreasonably withheld, 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.
(b) COMPANY REGISTRATION. The Company shall bear and pay all
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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 1.12),
including (without limitation) all registration, filing, and qualification fees,
printers' and accounting fees relating or apportionable thereto, and the
reasonable fees and disbursements of one counsel for the selling Holders
selected by them with the approval of the Company, which approval shall not be
unreasonably withheld, but excluding underwriting discounts and commissions
relating to Registrable Securities.
(c) REGISTRATION ON FORM S-3. The Company shall bear and pay
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all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
requested pursuant to Section 1.4, including (without limitation) all
registration, filing, qualification, printers' and accounting fees, fees of
counsel for the Company and the reasonable fees and disbursements of one counsel
for the selling Holders selected by them with the approval of the Company, which
approval shall not be unreasonably withheld, but excluding any underwriters'
discounts or commissions relating to the Registrable Securities.
1.8 UNDERWRITING REQUIREMENTS. In connection with any offering
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involving an underwriting of shares of the Company's capital stock, the Company
shall not be
required under Section 1.3 to include any of the Holders' securities in such
underwriting unless they accept the terms of the underwriting as agreed upon
between the Company and the underwriters selected by it (or by other persons
entitled to select the underwriters), 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 shareholders to be included in such
offering exceeds the amount of securities sold other than by the Company that
the underwriters determine in their sole discretion is compatible with the
success of the offering, then the Company shall be required to include in the
offering only that number of such securities, including Registrable Securities,
which the underwriters determine in their sole discretion will not jeopardize
the success of the offering (the securities so included to be apportioned pro
rata among the selling shareholders according to the total amount of securities
entitled to be included therein owned by each selling shareholder or in such
other proportions as shall mutually be agreed to by such selling shareholders)
but in no event shall (i) the amount of securities of the selling Holders
included in the offering be reduced below twenty percent (20%) 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
shareholders may be excluded if the underwriters make the determination
described above and no other shareholder's securities are included or (ii)
notwithstanding (i) above, any shares being sold by a shareholder exercising a
demand registration right similar to that granted in Section 1.2 be excluded
from such offering or (iii) any securities held by a Founder be included if any
securities held by any selling Holder are excluded. For purposes of the
preceding parenthetical concerning apportionment, for any selling shareholder
which is a holder of Registrable Securities and which is a partnership or
corporation, the partners, retired partners and shareholders of such holder, or
the estates and family members of any such partners and retired partners and any
trusts for the benefit of any of the foregoing persons shall be deemed to be a
single "selling shareholder," and any pro-rata reduction with respect to
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such "selling shareholder" shall be based upon the aggregate amount of shares
carrying registration rights owned by all entities and individuals included in
such "selling shareholder," as defined in this sentence.
1.9 DELAY OF REGISTRATION. No Holder shall have any right to
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obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 1.
1.10 INDEMNIFICATION. In the event any Registrable Securities
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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 Securities Exchange Act of 1934, as amended
(the "Exchange Act"), against any losses, claims, damages, or liabilities (joint
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or several) to which they may become subject under the Act, the Exchange Act or
other federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based upon any
of the following statements, omissions or violations (collectively a
"Violation"): (i) any untrue statement or
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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 Exchange Act, any state
securities law or any rule or regulation promulgated under the Act, the Exchange
Act or any state securities law; and the Company will pay to each such Holder,
underwriter or controlling person, as incurred, any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability, or action; provided, however, 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 which occurs in reliance upon and
in conformity with written information furnished expressly for use in connection
with such registration by any such Holder, underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the 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 Exchange Act or other federal or state
law, insofar as such losses, claims, damages, or liabilities (or actions in
respect thereto) arise out of or are based upon any Violation, in each case to
the extent (and only to the extent) that such Violation occurs in reliance upon
and in conformity with written information furnished by such Holder expressly
for use in connection with such registration; and each such Holder will pay, as
incurred, any legal or other expenses reasonably incurred by any person intended
to be indemnified pursuant to this subsection 1.10(b), in connection with
investigating or defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnity agreement contained 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 net
proceeds from the offering received by such Holder, except in the case of
willful fraud 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 which may be
represented without conflict by one counsel) shall have the right to retain one
separate counsel, with the reasonable fees and expenses to be paid by the
indemnifying party, if representation of such indemnified party by the counsel
retained by the indemnifying party would be inappropriate due to actual or
potential differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time of the commencement of
any such action, if prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party under
this Section 1.10, but the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 1.10.
(d) If the indemnification provided for in this Section 1.10
is held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage, or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations; provided, that, in no event shall any contribution by a Holder
under this Subsection 1.10(d) exceed the net proceeds from the offering received
by such Holder, except in the case of willful fraud by such Holder. The relative
fault of the indemnifying party and of the indemnified party shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified party and
the parties' relative intent, knowledge, access to information, and opportunity
to correct or prevent such statement or omission.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
(f) The obligations of the Company and Holders under this
Section 1.10 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and otherwise.
1.11 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view
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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 ninety (90)
days after the effective
date of the first registration statement filed by the Company for the offering
of its securities to the general public so long as the Company remains subject
to the periodic reporting requirements under Sections 13 or 15(d) of the
Exchange Act;
(b) take such action, including the voluntary registration
of its Common Stock under Section 12 of the Exchange Act, as is necessary to
enable the Holders to utilize Form S-3 for the sale of their Registrable
Securities, such action to be taken as soon as practicable after the end of the
fiscal year in which the first registration statement filed by the Company for
the offering of its securities to the general public is declared effective;
(c) file with the SEC in a timely manner all reports and
other documents required of the Company under the Act and the Exchange Act; and
(d) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of SEC Rule 144 (at
any time after ninety (90) days after the effective date of the first
registration statement filed by the Company), the Act and the Exchange Act (at
any time after it has become subject to such reporting requirements), or that it
qualifies as a registrant whose securities may be resold pursuant to Form S-3
(at any time after it so qualifies), (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed by
the Company, and (iii) such other information as may be reasonably requested in
availing any Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration or pursuant to such form.
1.12 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the
---------------------------------
Company to register Registrable Securities pursuant to this Section 1 may be
assigned (but only with all related obligations) by a Holder to a transferee or
assignee of at least 200,000 shares of such securities, provided the Company is,
within a reasonable time after such transfer, furnished with written notice of
the name and address of such transferee or assignee and the securities with
respect to which such registration rights are being assigned; and provided,
further, that such assignment shall be effective only if immediately following
such transfer the further disposition of such securities by the transferee or
assignee is restricted under the Act. For the purposes of determining the
number of shares of Registrable Securities held by a transferee or assignee, the
holdings of transferees and assignees of a partnership who are partners or
retired partners of such partnership (including spouses and ancestors, lineal
descendants and siblings of such partners or spouses who acquire Registrable
Securities by gift, will or intestate succession) shall be aggregated together
and with the partnership; provided that all assignees and transferees who would
not qualify individually for assignment of registration rights shall have a
single attorney-in-fact for the purpose of exercising any rights, receiving
notices or taking any action under Section 1.
1.13 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and
---------------------------------------------
after the date of this Agreement, the Company shall not, without the prior
written consent of the Holders of at least two-thirds of the outstanding
Registrable Securities, enter into any agreement with any holder or prospective
holder of any securities of the Company which would (a) allow
such holder or prospective holder (i) to include such securities in any
registration filed under Section 1.2 hereof, unless under the terms of such
agreement, such holder or prospective holder may include such securities in any
such registration only to the extent that the inclusion of his securities will
not reduce the amount of the Registrable Securities of the Holders which is
included, or (ii) to make a demand registration which could result in such
registration statement being declared effective prior to the earlier of either
of the dates set forth in subsection 1.2(a) or within one hundred twenty (120)
days of the effective date of any registration effected pursuant to Section 1.2
or (b) provide such holder or prospecter holder registration rights superior to
those granted herein to the Holders.
1.14 "MARKET STAND-OFF" AGREEMENT. Each Holder hereby
----------------------------
agrees that, during the period of duration (up to, but not exceeding, 180 days
for the Company's initial public offering and 90 days for any subsequent
offerings) 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 all officers and directors of the Company,
all one-percent securityholders, and all other persons with registration rights
(whether or not pursuant to this Agreement) enter into similar agreements.
In order to enforce the foregoing covenant, the Company may
impose stop-transfer instructions with respect to the Registrable Securities of
each Holder (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period, and each Holder agrees
that, if so requested, such Holder will execute an agreement in the form
provided by the underwriter containing terms which are essentially consistent
with the provisions of this Section 1.14.
Notwithstanding the foregoing, the obligations described in this
Section 1.14 shall not apply to a registration relating solely to employee
benefit plans on Form S-1 or Form S-8 or similar forms which may be promulgated
in the future, or a registration relating solely to an SEC Rule 145 transaction
on Form S-4 or similar forms which may be promulgated in the future.
1.15 TERMINATION OF REGISTRATION RIGHTS. No Holder shall be
----------------------------------
entitled to exercise any right provided for in this Section 1 after the earlier
of (i) ten (10) 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 (ii) such time as Rule 144 or another
similar exemption under the Act is available for the sale of all of such
Holder's shares during a three (3)-month period without registration.
2. COVENANTS OF THE COMPANY.
------------------------
2.1 DELIVERY OF FINANCIAL STATEMENTS. The Company shall deliver
--------------------------------
to each member of the Board of Directors, and to each Investor holding, and to
transferees of, at least 300,000 shares of Registrable Securities (a "Major
-----
Investor"):
--------
(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
shareholder's equity as of the end of such year, and a statement of cash flows
for such year, such year-end financial reports to be in reasonable detail,
prepared in accordance with generally accepted accounting principles ("GAAP"),
----and
audited and certified by an independent public accounting firm of nationally
recognized standing selected by the Company;
(b) as soon as practicable, but in any event within thirty
(30) days after the end of each of the first three (3) quarters of each fiscal
year of the Company, an unaudited profit or loss statement, a statement of cash
flows for such fiscal quarter and an unaudited balance sheet as of the end of
such fiscal quarter;
(c) within twenty (20) days of the end of each month, an
unaudited income statement and a statement of cash flows and balance sheet for
and as of the end of such month, in reasonable detail;
(d) as soon as practicable, but in any event thirty (30)
days prior to the end of each fiscal year, a budget and business plan for the
next fiscal year, prepared on a monthly basis, including balance sheets and
sources and applications of funds statements for such months and, as soon as
prepared, any other budgets or revised budgets prepared by the Company;
(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 and certifying that such
financials were prepared in accordance with GAAP consistently applied with prior
practice for earlier periods (with the exception of footnotes that may be
required by GAAP) and fairly present the financial condition of the Company and
its results of operation for the period specified, subject to year-end audit
adjustment, provided that the foregoing shall not restrict the right of the
Company to change its accounting principles consistent with GAAP, if the Board
of Directors determines that it is in the best interest of the Company to do so;
and
(f) such other information relating to the financial
condition, business, prospects or corporate affairs of the Company as the
Investor or any assignee of the Investor may from time to time reasonably
request, provided, however, that the Company shall not be obligated under this
subsection (f) or any other subsection of Section 2.1 to provide information
which it deems in good faith to be a trade secret or similar confidential
information.
2.2 INSPECTION. The Company shall permit each Major Investor,
----------
at such Major 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 which 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 Sections 2.1 and 2.2 shall terminate as to Investors and
be of no further force or effect when the Company first becomes subject to the
periodic reporting requirements of Sections 13 or 15(d) of the Exchange Act.
2.4 RIGHT OF FIRST OFFER. Subject to the terms and conditions
--------------------
specified in this Section 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 who chooses to exercise the right of
first offer may designate as purchasers under such right itself or its partners
or 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) Within 30 calendar days after delivery 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 which equals the
proportion that the number of shares of Common Stock issued and held, or
issuable upon conversion and exercise of all convertible or exercisable
securities then held, by such Investor bears to the total number of shares of
Common Stock then outstanding (assuming full conversion and exercise of all
convertible or exercisable securities). The Company shall promptly, in writing,
inform each Investor that purchases all the shares available to it (each, a
"Fully-Exercising Investor") of any other Investor's failure to do likewise.
-------------------------
During the 15 calendar day period commencing after receipt of such information,
each Fully-Exercising Investor shall be entitled to obtain that portion of the
Shares for which Investors were entitled to subscribe but which were not
subscribed for by the Investors that is equal to the proportion that the number
of shares of Common Stock issued and held, or issuable upon conversion and
exercise of all convertible or exercisable securities then held, by such Fully-
Exercising Investor bears to the total number of shares of Common Stock then
outstanding (assuming full conversion and exercise of all convertible or
exercisable securities).
(c) The Company may, during the 45-day period following the
expiration of the period provided in subsection 2.4(b) hereof, offer the
remaining unsubscribed
portion of the Shares to any person or persons at a price not less than, and
upon terms no more favorable to the offeree than those specified in the Notice.
If the Company does not enter into an agreement for the sale of the Shares
within such period, or if such agreement is not consummated within 60 days of
the execution thereof, the right provided hereunder shall be deemed to be
revived and such Shares shall not be offered unless first reoffered to the
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 shares of Common Stock (or options
therefor) to employees, consultants and directors, pursuant to plans or
agreements approved by the Board of Directors 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 (except as provided in
paragraph 2.5) (iii) to the issuance of securities pursuant to the conversion or
exercise of convertible or exercisable securities, (iv) to the issuance of
securities in connection with a bona fide business acquisition of or by the
Company, whether by merger, consolidation, sale of assets, sale or exchange of
stock or otherwise, (v) to the issuance of securities to financial institutions
or lessors in connection with commercial credit arrangements, equipment
financings, or similar transactions, or (vi) to the issuance or sale of the
Series C Preferred Stock.
(e) The Existing Investors hereby waive their rights of
first offer, including the notice provisions thereof, set forth in Section 2.4
of the Prior Agreement.
2.5 IPO ALLOCATION. In the event of a bona fide, firm
--------------
commitment underwritten initial public offering of the capital stock of the
Company (the "IPO"), the Company shall, or shall require that the managing
underwriters of the IPO, establish a directed share program (the "Program") in
connection with the IPO. The Program shall consist of at least that number of
shares of capital stock (the "Program Shares") equal to nine percent (9%) of the
shares offered in the IPO (exclusive of shares subject to any overallotment
option on behalf of the underwriters). The Company shall cause the managing
underwriters to give priority to the Investors with respect to the Program
Shares in allocating the shares available for purchase in the Program. The
Investors shall have the option, but not the obligation, to purchase all or any
portion of the Program Shares at the initial price to public set forth on the
cover page of the final prospectus distributed in connection with the IPO.
2.6 OBSERVER RIGHTS . So long as 500,000 shares of Series C
----------------
Preferred Stock shall remain outstanding, the Series C Preferred Stock, voting
together as a class, shall be entitled to appoint one individual to observe
meetings of the Company's Board of Directors. Such observer will have the right
to attend at least two Board meetings in 1999, specifically, those meetings
where the forecast and the annual budget for the Company's 2000 fiscal year are
discussed. Beginning January 1, 2000, such observer shall be entitled to attend
all meetings of the Company's Board of Directors and Board Committees as an
active participant and shall be welcomed and invited to make comments and
suggestions. Such observer shall not be entitled to participate in portions of
meetings where such observer's presence would in the opinion of the Company's
counsel, adversely affect the Company's attorney-client privilege.
Such observer shall also, upon request, execute the Company's standard non-
disclosure agreement concerning its proprietary information.
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 of the Series A, Series B or Series C Preferred
Stock or any Common Stock issued upon conversion thereof). Nothing in this
Agreement, express or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
3.2 GOVERNING LAW. This Agreement and all acts and transactions
-------------
pursuant hereto shall be governed, construed and interpreted in accordance with
the laws of the State of California, without giving effect to principles of
conflicts of laws.
3.3 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 by this Agreement shall be in writing and shall be deemed sufficient
upon delivery, when delivered personally or by overnight courier or sent by
telegram or fax, or forty-eight (48) hours after being deposited in the U.S.
mail, as certified or registered mail, with postage prepaid, and addressed (a)
if to the Company, at its principal office and (b) if to an Investor, at such
party's address as set forth on Exhibit A hereto or as subsequently modified by
---------
written notice and (c) if to a Founder, at such party's address as set forth on
Exhibit B hereto or subsequentially modified by written notice.
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; TERMINATION OF PRIOR AGREEMENT. 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 at least two-thirds of the Registrable Securities then
outstanding, not including the Founders' Stock; provided that if such amendment
has the effect of affecting the Founders' Stock (i) in a manner different than
securities issued to the Investors and (ii) in a manner adverse to the interests
of the holders
of the Founders' Stock, then such amendment shall require the consent of the
holder or holders of a majority of the Founders' Stock. Any amendment or waiver
effected in accordance with this paragraph shall be binding upon each holder of
any Registrable Securities then outstanding, each future holder of all such
Registrable Securities, and the Company. The Company and the Existing Investors,
constituting the holders of a majority of the Registrable Securities (as defined
in the Prior Agreement) now outstanding, not including the Founders' Stock,
agree that the Prior Agreement has been amended and restated in its entirety by
this Agreement.
3.8 SEVERABILITY. If one or more provisions of this Agreement
------------
are held to be unenforceable under applicable law, the parties agree to
renegotiate such provision in good faith. In the event that the parties cannot
reach a mutually agreeable and enforceable replacement for such provision, then
(x) such provision shall be excluded from this Agreement, (y) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (z) the
balance of the Agreement shall be enforceable in accordance with its terms.
3.9 AGGREGATION OF STOCK. All shares of the Preferred Stock
--------------------
held or acquired by affiliated entities or persons shall be aggregated together
for the purpose of determining the availability of any rights under this
Agreement.
[Signature Page Follows]
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first above writtenLPLFinancial Printing GroupThe
parties have executed this Amended and Restated Investors' Rights Agreement as
of the date first above written.
COMPANY:
FLYCAST COMMUNICATIONS CORPORATION
By: /s/ Xxxxxx Xxxxxxx
------------------------------
Xxxxxx Xxxxxxx, President
Address: 000 Xxxxxxx Xxxxxx; Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
INVESTORS:
BESSEMER VENTURE PARTNERS IV LP
By: Deer IV & Co. LLC
Its General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Xxxxxx X. Xxxxxxxx, Manager
BESSEMER VENTURE INVESTORS LP
By: Deer IV & Co. LLC
Its General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Xxxxxx X. Xxxxxxxx, Manager
Address: 0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
XXXXXXX RIVER PARTNERSHIP VIII, A LIMITED
PARTNERSHIP
By: Xxxxxxx River VIII GP Limited
SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
Partnership, General Partner
By: /s/
------------------------------
General Partner
Address: 0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
INTELLIGENT MEDIA VENTURES, INC.
By: /s/ Xxxxxxx Xxxxxx
------------------------------
Xxxxxxx Xxxxxx
Attorney in Fact
Address: 59 Executive Park Dr. South,
N.E. Xxxxxxx, XX 00000
SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
PACIFIC TELESIS GROUP
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Xxxxxx X. Xxxxxxx,
Executive Vice President, Chief
Financial Officer
Address: Pacific Telesis Group
000 X. Xxxxxxx
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
ATTN: General Attorney, M & A
Legal
Facsimile: 000-000-0000
SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
/s/ Xxxxx X. Xxxxx
-----------------------------
Xxxxx X. Xxxxx
Address: MachOne Communications, Inc.
000 Xxxxx XxXxxx Xxxxxxxxx
Xxx Xxxx, XX 00000
XXXX XXXXX & SONS, CUSTODIAN FBO XXXXX X.
XXXXX
By: /s/ Xxxxx X. Xxxxx
--------------------------
Xxxxx X. Xxxxx
SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
XXXX XXXXX & SONS, CUSTODIAN FBO XXXXXXXX X.
XXXXXXXX
By: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------------
Xxxxxxxx X. Xxxxxxxx
Address: 000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
XXXX XXXXX & SONS, CUSTODIAN FBO XXXXXXX X.
XXXXXXXX
By:_______________________________
Xxxxxxx X. Xxxxxxxx
Address: 000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
__________________________________
Xxxxxxx X. Xxxxxxxx
Address: 000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
_________________________________
Xxxx X. Xxxxxxx
Address: 00000 0xx Xxxxxx Xxxxx, #000
Xxxxxx, XX 00000
SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
_______________________________
Xxxx Xxxxxxxx
_______________________________
Xxxxxxx Xxxxxxxx
Address: c/x Xxxxx, Xxxxx Xxxxxxxx
0000 000xx X.X., Xxxx X
Xxxxx Xxxx Xxxxxxx, XX 00000
SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
_______________________________
Xxxx Xxxxxxxx
_______________________________
Xxxxxxx Xxxxxxxx
Address: 00000 Xxxx Xxxxx
Xxxxxx, XX 00000
SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
XXXX XXXXX & SONS, CUSTODIAN FBO XXXXXX
XXXXXXXX
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------
Xxxxxx Xxxxxxxx
Address: 0000 Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
/s/ Xxxxx Xxxxxx
-------------------------------
Xxxxx Xxxxxx
Address: 000 Xxxx Xxxxxx Xxxx
Xxx. # 0000
Xxx Xxxxxxxxx, XX 00000
SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
/s/ Xxxxxxx X. Xxxx
--------------------------------
Xxxxxxx X. Xxxx
Address: c/o Venture Law Group
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
VLG INVESTMENTS 1997
By: /s/ Xxxxxx Xxxxxx
----------------------------
Title: General Partner
-------------------------
Print Name: Xxxxxx Xxxxxx
--------------------
SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
FOUNDERS:
/s/ Xxxxxxxx X. Xxxxxxxx
----------------------------------
Xxxxxxxx X. Xxxxxxxx
/s/ Xxxxx X. Xxxxx
----------------------------------
Xxxxx X. Xxxxx
----------------------------------
Xxxxx X. Xxxx
/s/ Xxxxxxx Xxxxxxx
----------------------------------
Xxxxxxx Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Xxxxxxx X. Xxxxxxxx
----------------------------------
Miles Xxxxx
SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
WESTERN INVESTMENTS CAPITAL, LLC
By: /s/ Xxxxx Xxxxx
----------------------------------
Title: Managing Member
-------------------------------
Print Name: Xxxxx Xxxxx
--------------------------
Address: 000 Xxxx Xxxxxx #00
Xxxxxxx Xxxxxxx, XX 000000
Attn: Xxxxx Xxxxx
SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
/s/ Xxxxxx X. Xxxxxxxx (Atty-In-Fact)
-------------------------------------
Xxxxxxx X. Xxxxxx
BRIMSTONE ISLAND CO. L.P.
By: /s/ Xxxxxx X. Xxxxxxxx (Atty-In-Fact)
-------------------------------------
Name:
------------------------------------
Its:
-------------------------------------
/s/ Xxxxxx X. Xxxxxxxx (Atty-In-Fact)
-------------------------------------
Neill X. Xxxxxxxxxx
/s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxxxx (Atty-In-Fact)
-------------------------------------
G. Xxxxx Xxxxxxxx
/s/ Xxxxxx X. Xxxxxxxx (Atty-In-Fact)
-------------------------------------
Xxxxxxxxxxxx Xxxxxxxx
SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
GABRIELI FAMILY FOUNDATION
By: /s/ Xxxxxx X. Xxxxxxxx (Atty-In-Fact)
-------------------------------------
Name:
------------------------------------
Its:
-------------------------------------
/s/ Xxxxxx X. Xxxxxxxx (Atty-In-Fact)
-------------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxxxx (Atty-In-Fact)
-------------------------------------
Xxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxxxxx (Atty-In-Fact)
-------------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxxxx (Atty-In-Fact)
-------------------------------------
Xxxxx X. XxXxxxxxx
/s/ Xxxxxx X. Xxxxxxxx (Atty-In-Fact)
-------------------------------------
Xxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxxxx (Atty-In-Fact)
-------------------------------------
Xxxxxx X. Xxxxxxx
SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
/s/ Xxxxxx X. Xxxxxxxx (Atty-In-Fact)
-------------------------------------
Xxxx X. Xxxx
/s/ Xxxxxx X. Xxxxxxxx (Atty-In-Fact)
-------------------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxxxx (Atty-In-Fact)
-------------------------------------
Xxxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxxxxx (Atty-In-Fact)
-------------------------------------
Xxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxxxxx (Atty-In-Fact)
-------------------------------------
Xxxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxxxxx (Atty-In-Fact)
-------------------------------------
Xxxx X. Xxxxxxx
XXXXXXX 1994 FAMILY PARTNERSHIP, L.P.
By: /s/ Xxxxxx X. Xxxxxxxx (Atty-In-Fact)
-------------------------------------
Name:
------------------------------------
Its:
-------------------------------------
SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
/s/ Xxxxxx X. Xxxxxxxx (Atty-In-Fact)
-------------------------------------
Xxxx X. XxxXxxxxx
/s/ Xxxxxx X. Xxxxxxxx (Atty-In-Fact)
-------------------------------------
Xxxxxx X. Xxxxxxxxx
/s/ Xxxxxx X. Xxxxxxxx (Atty-In-Fact)
-------------------------------------
Xxxxxx X. X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxxxx (Atty-In-Fact)
-------------------------------------
Xxxxxx X. Xxxxxxxxxx
XXXXX 1994 FAMILY PARTNERSHIP, L.P.
By: /s/ Xxxxxx X. Xxxxxxxx (Atty-In-Fact)
-------------------------------------
Name:
------------------------------------
Its:
-------------------------------------
BVP IV SPECIAL SITUATIONS L.P.
By: /s/ Xxxxxx X. Xxxxxxxx (Atty-In-Fact)
-------------------------------------
Name:
------------------------------------
Its:
-------------------------------------
Address: c/o Bessemer Partners IV L.P.
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
ST. XXXX VENTURE CAPITAL IV, LLC
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Xxxxx X. Xxxxxx, General Partner
ST. XXXX VENTURE CAPITAL AFFILIATES FUND I,
LLC
By: St. Xxxx Venture Capital, Inc.
Its: Manager
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Xxxxx X. Xxxxxx, Executive Vice
President
Address: St. Xxxx Venture Capital
0000 Xxxxxxxxxx Xxxx Xxxx.
Xxxxx 0000
Xxxxxxxxxxx, XX 1940
SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
/s/ Xxxx Xxxxxxx
------------------------------
Xxxx Xxxxxxx
Address: 000 Xxxxxxxxxxx Xxxxxx, #000
Xxxxxxxx Xxxx, XX 00000
SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
/s/ Xxx Xxxxxxxxx
-----------------------------
Xxx Xxxxxxxxx
Address: 0000 Xxxxxxxx
Xxx Xxxxxxxxx, XX 00000
SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
COMDISCO, INC.
By: /s/ Xxxxx Xxxx
---------------------------------
Name: Xxxxx Xxxx
-------------------------------
Title: President, Comdisco Ventures
------------------------------
Division
------------------------------
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxxxxx Xxxx
SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
BESSEC VENTURES IV L.P.
By: Deer IV & Co. LLC, It's General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx, Manager
SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
XXXXX X. XXXXXXX
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxx
Address: 00 Xxxxxxxx Xxx.
Xxxxxxxx, XX 00000
Facsimile: 000-000-0000
SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
D.F.L.L.C.
By: /s/ Xxxxxx Xxxxx
------------------------------
Name: Xxxxxx Xxxxx
Address: 000 X. Xx. Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
ABS EMPLOYEE VENTURE FUND, LP
By: /s/ Xxxxxxxx-Xxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxxx-Xxxx X. Xxxxxxx
----------------------------
Title: VP of Alex. Xxxxx Investments, Inc.
-----------------------------------
GP of the Partnership
------------------------------------------
Address:
Facsimile:
SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
U.S. DEVELOPMENT CAPITAL INVESTMENT COMPANY
By: /s/ Xxxxxxx Xxxx
--------------------------
Name: Xxxxxxx Xxxx
Title: Secretary
Address: Xxxx Moss Kline & Xxxxx LLP
000 Xxxxxxxxx Xxxx Xxxxxx,
Xxxxx 000
Xxxxxxx XX 00000
SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
US WEST DEX HOLDINGS
By: /s/ Xxxxx X. Xxxxx
---------------------------
Address: 0000 Xxxxxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Facsimile: 000-000-0000
c/o Xxxxx Xxxxxxx
XXXXX XXXXXXXXXXXXX
By: /s/ Xxxxx Xxxxxxxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxxxxxxx
Title: Principal
Address: 0000 Xxxx
Xxx Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
EXHIBIT A
---------
INVESTORS
Investor
Bessemer Venture Partners IV LP
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Bessemer Venture Investors LP
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxxx River Partnership VIII
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Xxxxx X. Xxxxx
H3D Entertainment
00000 Xxxxxxx Xxxxx Xxxx.
Xxxxxxxxx, XX 00000
Xxxx Xxxxxxx
00000 0xx Xxxxxx Xxxxx, #000
Xxxxxx, XX 00000
Xxxx and Xxxxxxx Xxxxxxxx
c/x Xxxxx, Xxxxx Xxxxxxxx
0000 000xx X.X., Xxxx X
Xxxxx Xxxx Xxxxxxx, XX 00000
Xxxx and Xxxxxxx Xxxxxxxx
00000 Xxxx Xxxxx
Xxxxxx, XX 00000
SECOND CLOSING - Additional Investors
-------------------------------------
Second Closing - Bessemer Investors
Investor
--------
Xxxxxxx X. Xxxxxx
Brimstone Island Co. X.X.
Xxxxx X. Xxxxxxxxxx
Xxxxxx X. Xxxxxxxx
G. Xxxxx Xxxxxxxx
Xxxxxxxxxxx Xxxxxxxx
Gabrieli Family Foundation
Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxx
Xxxxx X. Xxxxxx
Xxxxx X. XxXxxxxxx
Xxxx X. Xxxxxx
Xxxxxx X. Xxxxxxx
Xxxx X. Xxxx
Xxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Xxxx X. Xxxxxxx
Xxxxxxx 1994 Family Partnership, L.P.
Xxxx X. XxxXxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxx X. X. Xxxxxxxx
Xxxxxx X. Xxxxxxxxxx
Xxxxx 1994 Family Partnership, L.P.
Bessemer Venture Partners IV L.P.
BVP IV Special Situations L.P.
Address: c/o Bessemer Partners IV L.P.
0000 Xxx Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attn. Xxxxxx X. Xxxxxxxx
Second Closing - Friends of the Company:
----------------------------------------
Investor
--------
VLG Investments 1997
Address: c/o Venture Law Group
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Attn. Xxxxx X. Xxxxxxx
UMB, N.A., as Trustee For Xxxxxxx, Phleger &
Xxxxxxxx Savings Trust FBO Xxxxxxx X. Xxxx
Address: 0000 Xxxxx Xxxx.
Xxxxxx Xxxx, XX 00000
Attn. Xxxxx Longrace
Third Closing - Additional Corporate Investors
----------------------------------------------
and Friends of the Company
--------------------------
St. Xxxx Venture Capital IV, LLC
St. Xxxx Venture Capital Affiliates Fund I, LLC
Address: 0000 Xxxxxxxxxx Xxxx Xxxx.
Xxxxx 0000
Xxxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
Xxxx Xxxxxxx
Address: 000 Xxxxxx Xxx.
Xxxx Xxxx Xxx, XX 00000
Xxx Xxxxxxxxx
Address: 0000 Xxxxxxxx
Xxx Xxxxxxxxx, XX 00000
Comdisco Closing:
-----------------
Comdisco, Inc.
Address: 0000 Xxxx Xxxx Xxxx.
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxxxxx Xxxx
Series C Closings--Additional Investors
---------------------------------------
ABS Employee Venture Fund, LP
Address: BT Alex. Xxxxx
000 Xxxx Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
Xxxxx Xxxxxxxxxxxxx
Address: 0000 Xxxx
Xxx Xxxxxxxxx, XX 00000
Intelligent Media Ventures, Inc.
Address: 00 Xxxxxxxxx Xxxx Xx. Xxxxx
X.X. Xxxxxxx, XX 00000
Pacific Telesis Group
Address: 000 X. Xxxxxxx
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: General Attorney, M&A
Legal
Xxxxx X. Xxxxxxx.
Address: 00 Xxxxxxxx Xxx.
Xxxxxxxx, XX 00000
XX West Dex Holding, Inc.
Address: 0000 Xxxxxxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
U.S. Development Capital Investment Company
Address: Xxxx Xxxx Xxxxx & Xxxxx LLP
000 Xxxxxxxxx Xxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
EXHIBIT B
---------
FOUNDERS
Xxxxxxxx X. Xxxxxxxx
Xxxxx X. Xxxxx
Xxxxx X. Xxxx
Xxxxxxx Xxxxxxx
Xxxxxxx X. Xxxxxxxx
Miles Xxxxx
