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EXHIBIT 4.2
INVESTORS' RIGHTS AGREEMENT
THIS INVESTORS' RIGHTS AGREEMENT is made as of the 25th day of
February, 1999, by and among FairMarket, Inc., a Delaware corporation (the
"Company"), and the investors listed on SCHEDULE A hereto, each of which is
herein referred to as an "Investor."
RECITALS
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WHEREAS, certain of the Investors (the "Series A Investors") hold
shares of the Company's Series A Preferred Stock and/or shares of the Common
Stock issuable upon conversion thereof (the "Series A Preferred Stock");
WHEREAS, certain of the Investors (the "Series B Investors") hold
shares of the Company's Series B Preferred Stock and/or shares of Common Stock
issued upon conversion thereof (the "Series B Preferred Stock") and possess
information rights, rights of participation, and other rights pursuant to a
Series B Convertible Preferred Stock Agreement dated as of December 31, 1997
among the Company and such Series B Investors (the "Series B Agreement"); and
WHEREAS, the Series B Investors are holders of "Preferred Shares" (as
defined in the Series B Agreement) of the Company representing at least
two-thirds of the outstanding shares of Common Stock issued or issuable upon
conversion of the Preferred Shares, and desire to terminate Section 6.7 of the
Series B Agreement and to accept the rights created pursuant hereto in lieu of
the rights granted to them under Section 6.7 of the Series B Agreement; and
WHEREAS, certain Investors (the "Series C Investors") are parties to
the Series C Preferred Stock Purchase Agreement of even date herewith among the
Company and the Series C Investors (the "Series C Agreement"), which provides
that as a condition to the closing of the sale of the Series C Preferred Stock,
this Agreement must be executed and delivered by: (i) the Series C Investors;
(ii) the Series A Investors; (iii) Series B Investors holding "Preferred Shares"
(as defined in the Series B Agreement) of the Company representing at least
two-thirds of the outstanding shares of Common Stock issued or issuable upon
conversion of the Preferred Shares; and (iv) the Company.
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth herein, the Series B Investors hereby agree that Section 6.7 of the
Series B Agreement shall be terminated in its entirety, and all of the rights of
the Series B Investors under that Section are hereby waived by the Series B
Investors.
The parties hereto hereby further 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.
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(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 1.11 hereof.
(d) The term "Initial Offering" means the Company's first
firm commitment underwritten public offering of its Common Stock under the Act.
(e) The term "1934 Act" means the Securities Exchange Act
of 1934, as amended.
(f) 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.
(g) 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 of the Company and (ii) 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) 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.
(h) The number of shares of "Registrable Securities"
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.
(i) The term "SEC" shall mean the Securities and Exchange
Commission.
1.2 REQUEST FOR REGISTRATION.
(a) Subject to the conditions of this Section 1.2, if the
Company shall receive at any time after January 1, 2001 a written request from
the Holders of fifty percent (50%) or more of the Registrable Securities then
outstanding (the "Initiating Holders") that the Company file a registration
statement under the Act covering the registration of Registrable Securities,
then the Company shall, within twenty (20) days of the receipt thereof, give
written notice of such request to all Holders, and subject to the limitations of
this Section 1.2, use best efforts to effect, as soon as practicable, the
registration under the Act of all Registrable Securities that the Holders
request to be registered in a written request received by
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the Company within twenty (20) days of the mailing of the Company's notice
pursuant to this Section 1.2(a).
(b) If the 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
this Section 1.2 and the Company shall include such information in the written
notice referred to in Section 1.2(a). In such event, the right of any Holder to
include its 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 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 (which
underwriter or underwriters shall be reasonably acceptable to the Company).
Notwithstanding any other provision of this Section 1.2, if the underwriter
advises the Company that marketing factors require a limitation of the number of
securities underwritten (including Registrable Securities), then the Company
shall so advise all Holders of Registrable Securities that would otherwise be
underwritten pursuant hereto, and the number of shares that may be included in
the underwriting shall be allocated to the Holders of such Registrable
Securities on a pro rata basis based on the number of Registrable Securities
held by all such Holders (including the Initiating Holders). Any Registrable
Securities excluded or withdrawn from such underwriting shall be withdrawn from
the registration.
(c) The Company shall not be required to effect a
registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the
Company would be required to execute a general consent to service of process in
effecting such registration, unless the Company is already subject to service in
such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2)
registrations pursuant to this Section 1.2, and such registrations have been
declared or ordered effective; or
(iii) during the period starting with the date sixty
(60) days prior to the Company's good faith estimate of the date of the filing
of, and ending on a date one hundred eighty (180) days following the effective
date of, a Company-initiated registration subject to Section 1.3 below, provided
that the Company is actively employing in good faith all reasonable efforts to
cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of
Registrable Securities that may be registered on Form S-3 pursuant to Section
1.4 hereof; or
(v) if the Company shall furnish to Holders requesting
a registration statement pursuant to this Section 1.2, a certificate signed by
the Company's Chief Executive Officer or Chairman of the Board 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
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shareholders for such registration statement to be effected at such time, in
which event the Company shall have the right to defer such filing for a period
of not more than one hundred twenty (120) days after receipt of the request of
the Initiating Holders, provided that such right to delay a request shall be
exercised by the Company not more than once in any twelve (12)-month period; or
(vi) upon a request for registration pursuant to
Section 1.2(a) hereof, if the Company has not completed the sale of any of its
securities in a registered offering prior to its receipt of such request, such
request is for registration of less than twenty percent (20%) of the Registrable
Securities held by the Initiating Holders of such request at the time such
request is received, and the Company's good faith estimate of the aggregate
offering price, net of underwriting discounts and commissions, is $5,000,000 or
less.
1.3 COMPANY REGISTRATION.
(a) If (but without any obligation to do 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 or other
securities under the Act in connection with the public offering of such
securities (other than a registration relating solely to the sale of securities
to participants in a Company stock plan, a registration relating to a corporate
reorganization or other transaction under Rule 145 of the Act, 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 1.3(c), use all reasonable efforts to cause to be registered under the
Act all of the Registrable Securities that each such Holder has requested to be
registered.
(b) RIGHT TO TERMINATE REGISTRATION. The Company shall have
the right to terminate or withdraw any registration initiated by it under this
Section 1.3 prior to the effectiveness of such registration whether or not any
Holder has elected to include securities in such registration. The expenses of
such withdrawn registration shall be borne by the Company in accordance with
Section 1.7 hereof.
(c) 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 this 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 enter into an
underwriting agreement in customary form with an underwriter or underwriters
selected by the Company, 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
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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 Holders according to the total amount of securities entitled
to be included therein owned by each selling Holder or in such other proportions
as shall mutually be agreed to by such selling Holders), but in no event shall
(i) the amount of securities of the selling Holders included in the offering be
reduced below thirty-five percent (35%) 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 Holders 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. For
purposes of the preceding parenthetical concerning apportionment, for any
selling shareholder that is a Holder of Registrable Securities and that 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 Holder," and any pro rata reduction with respect
to such "selling Holder" shall be based upon the aggregate amount of Registrable
Securities owned by all such related entities and individuals.
1.4 FORM S-3 REGISTRATION. In case the Company shall receive
from any Holders of more than two percent (2%) of the Registrable Securities 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 shall:
(a) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all other Holders;
and
(b) use best efforts to effect, as soon as practicable,
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 Holders' Registrable Securities as are specified in such
request, together with all or such portion of the Registrable Securities of any
other 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
1.4:
(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;
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(iii) if the Company shall furnish to the Holders a
certificate signed by the Chief Executive Officer or Chairman of the Board 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) 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 requests for registration effected pursuant
to Sections 1.2.
1.5 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 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, if earlier, 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;
(d) use 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;
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(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;
(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 or 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; and
(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.
1.6 INFORMATION FROM HOLDER. 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.
1.7 EXPENSES OF REGISTRATION. All expenses (other than
underwriting discounts and commissions) incurred in connection with
registrations, filings or qualifications pursuant to Sections 1.2, 1.3 and 1.4,
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
shall be borne by the Company. Notwithstanding the foregoing, the Company shall
not be required to pay for any expenses of any registration proceeding begun
pursuant to Section 1.2 or Section 1.4 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 pro rata based upon the number of Registrable
Securities that were to be requested in the withdrawn registration), unless, in
the case of a registration requested under Section 1.2, the Holders of a
majority of the Registrable Securities agree to forfeit their right to one
demand registration pursuant to Section 1.2, provided, 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 or 1.4.
1.8 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
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controversy that might arise with respect to the interpretation or
implementation of this Section 1.
1.9 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, the partners or officers, directors and
shareholders of each Holder, legal counsel and accountants for 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 any state
securities laws, 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 laws or any rule or regulation promulgated under the Act, the
1934 Act or any state securities laws; and the Company will reimburse each such
Holder, underwriter or controlling person for 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 l.9(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;
provided further, however, that the foregoing indemnity agreement with respect
to any preliminary prospectus shall not inure to the benefit of any Holder or
underwriter, or any person controlling such Holder or underwriter, from whom the
person asserting any such losses, claims, damages or liabilities purchased
shares in the offering, if a copy of the prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Holder or underwriter to
such person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the shares to such person, and if the
prospectus (as so amended or supplemented) would have cured the defect giving
rise to such loss, claim, damage or liability.
(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, legal counsel and
accountants for the Company, 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 any
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state securities laws, 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 reimburse any person intended to be indemnified pursuant to this
subsection l.9(b), for any legal or other expenses reasonably incurred by such
person in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the indemnity agreement
contained in this subsection l.9(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 l.9(b) exceed the gross proceeds from the offering
received by such Holder.
(c) Promptly after receipt by an indemnified party under
this Section 1.9 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 1.9, 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
1.9, 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 1.9.
(d) If the indemnification provided for in this Section 1.9
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
herein, 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 1.9 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and otherwise.
1.10 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 use its best
efforts 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 Initial Offering;
(b) 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
(c) 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.
1.11 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 that (i) is a subsidiary, parent, partner, limited
partner, retired partner or shareholder of a Holder, (ii) is a Holder's family
member or trust for the benefit of an individual Holder, or (iii) after such
assignment or transfer, holds at least twenty percent (20%) of the number of
Registrable Securities held by the transferring Holder immediately prior to the
transfer, 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 1.13 below;
(c) such transferee is acceptable to the Company, provided that such acceptance
shall not be unreasonably withheld; and (d) such assignment shall be
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effective only if immediately following such transfer the further disposition of
such securities by the transferee or assignee is restricted under the Act.
1.12 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and
after the date of this Agreement, the Company shall not, without the prior
written consent of the Holders of a majority of the Registrable Securities,
enter into any agreement with any holder or prospective holder of any securities
of the Company that would allow such holder or prospective holder (a) to include
such securities in any registration filed under Section 1.3 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
such securities will not reduce the amount of the Registrable Securities of the
Holders that are included or (b) to demand registration of their securities.
1.13 "MARKET STAND-OFF" AGREEMENT. Each Holder hereby agrees that
it will not, without the prior written consent of the managing underwriter,
during the period commencing on the date of the final prospectus distributed in
connection with a registration statement of the Company filed under the Act and
ending on the date specified by the Company and the managing underwriter (such
period not to exceed one hundred eighty (180) days in the case of the Company's
initial public offering and ninety (90) days in the case of any offering of
securities other than the Company's initial public offering) (i) lend, offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock (whether such shares or any such securities are
then owned by the Holder or are thereafter acquired), or (ii) enter into any
swap or other arrangement that transfers to another, in whole or in part, any of
the economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise. The foregoing
provisions of this Section 1.13 shall apply only to the Company's initial public
offering of equity securities and to offerings commenced during the one year
period following the date of the final prospectus distributed in connection with
the Company's initial public offering of securities, shall not apply to the sale
of any shares to an underwriter pursuant to an underwriting agreement, and shall
only be applicable to the Holders if all officers and directors and greater than
five percent (5%) shareholders of the Company enter into similar agreements. The
underwriters in connection with the Company's initial public offering are
intended third party beneficiaries of this Section 1.13 and shall have the
right, power and authority to enforce the provisions hereof as though they were
a party hereto.
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.
1.14 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 Initial Offering or, as to any Holder,
such earlier time at which all Registrable Securities held by such Holder (and
any affiliate of the Holder with whom such Holder must aggregate its
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sales under Rule 144) 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:
(a) to each holder of Series C Preferred Stock holding at
least 500,000 shares of Series C Preferred Stock or of the shares of Common
Stock then issued upon conversion thereof (a "Major Investor"), 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
independent public accountants of nationally recognized standing selected by the
Company;
(b) to each Major Investor, 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
as of the end of such fiscal quarter.
(c) to each Major Investor, as soon as practicable, but in
any event at least 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, income statements and statements of cash flows for
such months and, as soon as prepared, any other budgets or revised budgets
prepared by the Company;
(d) to each Major Investor, with respect to the financial
statements called for in subsection (b) of this Section 2.1, an instrument
executed by the Chief Financial Officer or President of the Company 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; and
(e) such other information relating to the financial
condition, business, prospects or corporate affairs of the Company as the Major
Investor or any assignee of the Major Investor may from time to time request,
provided, however, that the Company shall not be obligated under this subsection
(e) or any other subsection of Section 2.1 to provide information that 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 Major Investor; provided, however, that the Company shall not
be obligated pursuant to this Section 2.2 to provide access
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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 Sections 2.1 and 2.2 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
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 Major
Investor a right of first offer with respect to future sales by the Company of
its Shares (as hereinafter defined). For purposes of this Section 2.4, Major
Investor includes any general partners and affiliates of a Major Investor. A
Major 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 exchangeable 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 Major Investor in accordance with the following provisions.
(a) The Company shall deliver a notice in accordance with
Section 3.5 ("Notice") to the Major 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 upon which it proposes to offer such Shares.
(b) By written notification received by the Company, within
twenty (20) calendar days after receipt of the Notice, the Major 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 C Preferred Stock (the "Series C Preferred Stock") then held, by such
Major Investor bears to the total number of shares of Common Stock of the
Company then outstanding (assuming full conversion of all convertible
securities). The Company shall promptly, in writing, inform each Major Investor
that elects to purchase all the shares available to it (a "Fully-Exercising
Investor") of any other Major Investor's failure to do likewise. During the ten
(10) day period commencing after such information is given, each
Fully-Exercising Investor may elect to purchase that portion of the Shares for
which Major Investors were entitled to subscribe but which were not subscribed
for by the Major Investors that is equal to the proportion that the number of
shares of Common Stock issued and held, or issuable upon conversion of Series C
Preferred Stock then held, by such Fully-Exercising Investor bears to the total
number of shares of Common Stock issued and held, or issuable upon conversion of
the Series Preferred Stock then held, by all Fully-Exercising Investors who wish
to purchase some of the unsubscribed shares.
(c) If all Shares that Major Investors are entitled to
obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided
in subsection 2.4(b)
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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 ninety (90) 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 Major Investors in accordance herewith.
(d) The right of first offer in this paragraph 2.4 shall
not be applicable to (i) the issuance or sale of up to 4,171,237 shares of
Common Stock (or options therefor) to employees, directors and consultants for
the primary purpose of soliciting or retaining their services; (ii) the issuance
of securities pursuant to a bona fide, firmly underwritten public offering of
shares of Common Stock, registered under the Act, at an offering price of at
least $5.14 per share (appropriately adjusted for any stock split, dividend,
combination or other recapitalization) and resulting in proceeds to the Company
of at least $15,000,000 in the aggregate, (iii) the issuance of securities
pursuant to the conversion or exercise of convertible or exercisable securities,
or (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 or (v) securities issued as a
result of any stock split, stock dividend, or reclassification of the Company's
capital stock.
2.5 DIRECTORS' AND OFFICERS' INSURANCE. The Company has as of
the date hereof or shall within sixty (60) days of the date hereof use its best
efforts to obtain from financially sound and reputable insurers a Directors' and
Officers' insurance policy covering the directors and officers of the Company in
the amount of at least $5,000,000.
2.6 VOTING OF SHARES FOR ELECTION OF DIRECTORS OF THE COMPANY.
With respect to each election or removal of members of the Board of Directors of
the Company (including, without limitation, any replacement members), whether at
an annual or special meeting of shareholders or by written consent of
shareholders, each of the parties to this Agreement (including all transferees
of shares purchased hereunder) agrees to vote his, her or its shares of capital
stock of the Company (and any shares over which he, she or it exercises voting
control), whether now owned or later acquired, and to take such other action as
may be necessary to effect the following:
(a) The Company's Board of Directors shall consist of five
(5) members.
(b) For as long as a majority of the outstanding shares of
Series C Preferred Stock are owned by the Series C Investors or their
affiliates, the holders of a majority of the outstanding shares of Series C
Preferred Stock shall have the right to designate one person to be elected as
Director of the Company.
(c) The holders of a majority of the outstanding shares of
Series B Preferred Stock shall have the right to designate one person to be
elected as Director of the Company.
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(d) Xxxxx X. Xxxxxxx shall have the right to be elected as
a Director of the Company and shall have the right to select two other persons
to be selected as Directors of the Company, one of whom must be reasonably
acceptable to the holders of a majority of the outstanding shares of Series C
Preferred Stock for as long as a majority of the outstanding shares of Series C
Preferred Stock is owned by Series C Investors or their affiliates.
(e) The parties hereto will take such action as may be
necessary or appropriate to cause the designees to be nominated, elected and
continued as Directors of the Company as set forth in clauses (b) through (d)
above and not to be removed for any reason other than for cause or in connection
with the designation and election of a successor. Each of the parties hereto
agrees to vote any securities of the Company over which they exercise voting
control to effect the provisions of this Section 2.6 and to take such actions as
shall be necessary or appropriate to ensure that any vacancy of a Director's
seat on the Board of Directors (occurring for any reason) shall be filled only
in accordance with this Section 2.6.
(f) Each of the parties hereto agrees, as a condition to
any transfer of voting securities of the Company held by them, to cause the
transferee to agree to the provisions of this Section 2.6. If any transfer is
made and the transferee has not expressly agreed to be bound by this Section
2.6, then such transferee shall be deemed to have so agreed.
(g) Any failure by any of the parties hereto to fully
exercise their rights to designate one or more Directors under this Section 2.6
at any time shall not be construed to waive or limit their rights to designate
such Director(s) hereunder at any time thereafter.
2.7 TERMINATION OF CERTAIN COVENANTS. The covenants set forth in
Section 2.4 through 2.6 shall terminate and be of no further force or effect
upon the consummation of the sale of securities pursuant to a bona fide, firmly
underwritten public offering of shares of common stock, registered under the
Act, at an offering price of at least $5.14 per share (appropriately adjusted
for any stock split, dividend, combination or other recapitalization) and
resulting in proceeds to the Company of at least $15,000,000.
2.8 LOCK-UP AGREEMENTS. The Company shall use its best efforts
to cause all employees of the Company who have been granted stock options
pursuant to the Company's Amended and Restated 1997 Stock Option Plan to enter
into a standard form lock up agreement with the following language:
"The undersigned hereby agrees that he/she will not, without the prior written
consent of the managing underwriter, during the period commencing on the date of
the final prospectus relating to the Company's initial public offering and
ending on the date specified by the Company and the managing underwriter (such
period not to exceed one hundred eighty (180) days) (i) lend, offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock (whether such shares or any such securities are then owned by the
undersigned or are thereafter acquired), or (ii) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the economic
consequences of
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ownership of the Common Stock, whether any such transaction described in clause
(i) or (ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The underwriters in connection with the
Company's initial public offering are intended third party beneficiaries of this
Agreement and shall have the right, power and authority to enforce the
provisions hereof as though they were a party hereto. In order to enforce the
foregoing covenant, the Company may impose stop-transfer instructions with
respect to the securities of the Founder until the end of such period."
If the Company fails to receive lock-up agreements from at least a majority of
the employees who have been granted stock options pursuant to the Company's
Amended and Restated 1997 Stock Option Plan within ninety (90) days of the date
of this agreement, then the Investors shall not be subject to Section 1.13 of
this agreement.
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 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 Delaware as applied to agreements among
Delaware residents entered into and to be performed entirely within Delaware.
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. All notices and other communications required or
permitted hereunder shall be in writing, shall be effective when given, and
shall in any event be deemed to be given (a) five (5) days after deposit with
the U.S. Postal Service or other applicable postal service, if delivered by
first class mail, postage prepaid, (b) upon delivery, if delivered by hand, (c)
one business day after the business day of deposit with Federal Express or
similar overnight courier, freight prepaid, or (d) one day after the business
day of delivery by facsimile transmission, if deliverable by facsimile
transmission, with a copy by first class mail, postage prepaid, and shall be
addressed, if to Investor, at each Investor's address as set forth beneath the
Investor's signature to this Agreement, and, if to the Company, at the address
of its principal corporate offices (attention: Secretary), or at such other
address as such party may designate by ten (10) days' advance written notice to
the other parties hereto.
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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 ENTIRE AGREEMENT: AMENDMENTS AND WAIVERS. This Agreement
(including the Exhibits hereto, if any) constitutes the full and entire
understanding and agreement among the parties with regard to the subjects hereof
and thereof. 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 and in the case of Section 2.7, Xxxxx X. Xxxxxxx. Any amendment or
waiver effected in accordance with this paragraph shall be binding upon each
holder of any Registrable Securities 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.
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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
COMPANY:
FairMarket, Inc.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Xxxxx X. Xxxxxxx, President
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
19
INVESTORS:
SIERRA VENTURES VENTURES VII, L.P.
By: Sierra Ventures Associates
VII, L.L.C.
Its: General Partner
By: /s/ Xxxx Xxxxxx
-----------------------------
Managing Member
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
SIERRA VENTURES ASSOCIATES VII,
L.L.C.
By: /s/ Xxxx Xxxxxx
-----------------------------
Managing Member
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
20
INVESTORS:
Xxxxxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxxx
--------------------------
Xxxxxxx Xxxxxxx
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
21
INVESTORS:
Equities Enterprises
By:_______________________________
Name:_____________________________
Title (if applicable):____________
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
22
INVESTORS:
Mercator Ventures Fund
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
----------------------------
Title (if applicable): Manager
-----------
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
23
INVESTORS:
Xxxxxxx Xxxxxx & Xxxxx Xxxxxx
/s/ Xxxxxxx Xxxxxx & Xxxxx Xxxxxx
---------------------------------
Xxxxxxx Xxxxxx & Xxxxx Xxxxxx
Address:
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
24
INVESTORS:
Xxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxx
-------------------------
Address:
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
25
INVESTORS:
MLPF&S Custodian FBO
Xxxx X. Xxxxxx XXX
By: /s/ Xxxx Xxxxxx
---------------------------
Name: Xxxx X. Xxxxxx
-------------------------
Title (if applicable):____________
Address:
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
26
INVESTORS:
Xxxxx Defined Benefit Trust
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
--------------------------------------
Title (if applicable): Trustee and Fiduciary
---------------------
Address:
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
27
INVESTORS:
Xxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxx
-----------------------
Xxxxxx X. Xxxxxx
Address:
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
28
INVESTORS:
Xxxxxx and Xxxx Xxxxxx
/s/ Xxxxxx Xxxxxx
----------------------------------
/s/ Xxxx Xxxxxx
----------------------------------
Address:
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
29
INVESTORS:
Xxxxxx Xxxxxxxxx, Xx.
/s/ Xxxxxx Xxxxxxxxx
----------------------------------
Address:
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
30
INVESTORS:
Xxxxxxxx X. Xxxxx and Xxxxx X.
Xxxxx
/s/ Xxxxxxxx X. Xxxxx
----------------------------------
/s/ Xxxxx X. Xxxxx
----------------------------------
Address:
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
31
INVESTORS:
Xxx X. Xxxxxx
/s/ Xxx X. Xxxxxx
----------------------------------
Address:
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
32
INVESTORS:
RKG Associates
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxx
--------------------------------
Title (if applicable): General Partner
---------------
Address:
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
33
INVESTORS:
F. Xxxxxxx Xxxxxxx III
/s/ F. Xxxxxxx Xxxxxxx III
----------------------------------
Address:
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
34
INVESTORS:
Xxxxxxxx X. XxXxx
__________________________________
Address:
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
35
INVESTORS:
Noreaster Research Partners
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx
-----------------------------
Title (if applicable): Partner
------------
Address:
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
36
INVESTORS:
Xxxxx X. Xxxxx & Xxx X. Xxxxx
/s/ Xxxxx X. Xxxxx
----------------------------------
/s/ Xxx X. Xxxxx
----------------------------------
Address:
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
37
INVESTORS:
Xxxx and Xxxxxxxx Xxxxxxxxx
/s/ Xxxxxxxx Xxxxxxxxx
----------------------------------
/s/ Xxxx Xxxxxxxxx
----------------------------------
Address:
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
38
INVESTORS:
Xxxxxxx X. Xxxxxxxxx
/s/ Xxxxxxx Xxxxxxxxx
----------------------------------
Address:
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
39
INVESTORS:
J. Xxxxx Xxxxxx
__________________________________
Address:
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
40
INVESTORS:
Xxxx X. Xxxxxx and Xxxxxx X.
Xxxxxx
/s/ Xxxx X. Xxxxxx
----------------------------------
/s/ Xxxxxx X. Xxxxxx
----------------------------------
Address:
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
41
INVESTORS:
Xxxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Address:
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
42
INVESTORS:
Xxxxxx & Xxxx Xxxxxxxxx
__________________________________
__________________________________
Address:
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
43
INVESTORS:
Xxxxxxx X. Xxx & Xxxxx X. Xxx
/s/ Xxxxxxx X. Xxx
----------------------------------
/s/ Xxxxx X. Xxx
----------------------------------
Address:
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
44
INVESTORS:
Xxxxxx Xxxxxx
/s/ Xxxxxx Xxxxxx
----------------------------------
Address:
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
