XXXXXX.XXX, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
This Amended and Restated Investor Rights Agreement (the "Agreement") is
entered into as of April 8, 1999 by and among XxxxxX.xxx, Inc., a Washington
corporation (the "Company"), and the parties listed on the Schedule of Investors
attached hereto as Exhibit A (the "Investors").
RECITALS
A. The Company and certain of the Investors are parties to that certain
Second Amended and Restated Investor Rights Agreement dated as of October 1,
1998 (the "Prior Agreement"), which is being amended, restated and superseded in
its entirety by this Agreement.
B. The execution and delivery of this Agreement is a condition to the
Closing under that certain Series E Preferred Stock Purchase Agreement of even
date herewith (the "Purchase Agreement").
AGREEMENTS
In consideration of the mutual promises and covenants hereinafter set
forth, the parties agree as follows:
1. Restrictions on Transferability; Registration Rights
1.1 Certain Definitions
As used in this Agreement, the following terms shall have the following
respective meanings:
"Commission" shall mean the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
"Conversion Shares" shall mean the Common Stock issued or issuable
upon conversion of the Shares.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Holder" shall mean any Investor holding Registrable Securities and
any person holding Registrable Securities to whom the rights under this
Agreement have been transferred in accordance with Section 1.13 hereof.
"Initiating Holders" shall mean any Investors or transferees of
Investors under Section 1.13 hereof who in the aggregate are Holders of not less
than forty percent (40%) of the Registrable Securities.
1
The terms "register", "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registration Expenses" shall mean all expenses incurred by the
Company in complying with Sections 1.5, 1.6 and 1.7 hereof, including, without
limitation, all registration, qualification and filing fees, printing expenses,
escrow fees, fees and disbursements of counsel for the Company, blue sky fees
and expenses, and the expense of any special audits incident to or required by
any such registration (but excluding the compensation of regular employees of
the Company which shall be paid in any event by the Company).
"Registrable Securities" means any Common Stock of the Company
issued or issuable in respect of the Shares, Warrant Shares or Conversion Shares
or other securities issued or issuable with respect to the Shares or Conversion
Shares upon any stock split, stock dividend, recapitalization or similar event,
or any Common Stock otherwise issued or issuable with respect to the Shares or
Conversion Shares; provided, however, that shares of Common Stock or other
securities shall only be treated as Registrable Securities if and so long as
they have not been (A) sold to or through a broker or dealer or underwriter in a
public distribution or a public securities transaction, or (B) sold in a
transaction exempt from the registration and prospectus delivery requirements of
the Securities Act under Section 4(l) thereof so that all transfer restrictions
and restrictive legends with respect thereto are removed upon the consummation
of such sale.
"Restricted Securities" shall mean the securities of the Company
required to bear the legend set forth in Section 1.3 hereof.
"Securities Act" shall mean the Securities Act of 1933, as amended,
or any similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities registered by
the Holders and all fees and disbursements of counsel for the Holders (as
limited by Section 1.8).
"Shares" shall mean the shares of Series B Preferred Stock, Series C
Preferred Stock and Series D Preferred Stock outstanding as of the date hereof
and the shares of Series E Preferred Stock being issued pursuant to the Purchase
Agreement.
"Warrant Shares" shall mean the Common Stock, Series C Preferred
Stock and Series D Preferred Stock issued or issuable upon exercise of warrants
(and the Common Stock issuable upon conversion of such Series C Preferred Stock
and Series D Preferred Stock).
1.2 RESTRICTIONS
The Shares, the Conversion Shares and the Warrant Shares shall not be
sold, assigned, transferred or pledged except upon the conditions specified in
this Agreement, which conditions are intended to ensure compliance with the
provisions of the Securities Act. The Investors will
2
cause any proposed purchaser, assignee, transferee or pledgee of the Shares, the
Conversion Shares or the Warrant Shares to agree to take and hold such
securities subject to the provisions and upon the conditions specified in this
Agreement.
1.3 RESTRICTIVE LEGEND
Each certificate representing (i) the Shares, (ii) the Conversion Shares,
(iii) the Warrant Shares or (iv) any other securities issued in respect of the
securities referenced in clauses (i), (ii) and (iii) upon any stock split, stock
dividend, recapitalization, merger, consolidation or similar event shall (unless
otherwise permitted by the provisions of Section 1.4 below) bear a legend in the
form of Exhibit B attached hereto (in addition to any legend required under
applicable state securities laws). Each Investor and Holder consents to the
Company making a notation on its records and giving instructions to any transfer
agent of the Restricted Securities in order to implement the restrictions on
transfer established in this Section 1.
1.4 NOTICE OF PROPOSED TRANSFERS
The holder of each certificate representing Restricted Securities, by
acceptance thereof, agrees to comply in all respects with the provisions of this
Section 1. Prior to any proposed sale, assignment, transfer or pledge of any
Restricted Securities, unless there is in effect a registration statement under
the Securities Act covering the proposed transfer, the holder thereof shall give
written notice to the Company of such holder's intention to effect such
transfer, sale, assignment or pledge. Each such notice shall describe the manner
and circumstances of the proposed transfer, sale, assignment or pledge in
sufficient detail, and shall be accompanied at such holder's expense by either
(i) a written opinion of legal counsel who shall, and whose legal opinion shall,
be reasonably satisfactory to the Company, addressed to the Company, to the
effect that the proposed transfer of the Restricted Securities may be effected
without registration under the Securities Act, or (ii) a "no action" letter from
the Commission to the effect that the transfer of such securities without
registration will not result in a recommendation by the staff of the Commission
that action be taken with respect thereto, or (iii) any other evidence
reasonably satisfactory to counsel to the Company, whereupon the holder of such
Restricted Securities shall be entitled to transfer such Restricted Securities
in accordance with the terms of the notice delivered by the holder to the
Company. The Company shall not require such a legal opinion or "no action"
letter (a) in any transaction in compliance with Rule 144 or (b) in any
transaction in which an Investor which is a partnership distributes Restricted
Securities solely to partners thereof for no additional consideration. Each
certificate evidencing the Restricted Securities transferred as above provided
shall bear, except if such transfer is made pursuant to Rule 144, the
appropriate restrictive legend set forth in Section 1.3 above, except that such
certificate shall not bear such restrictive legend if, in the opinion of counsel
for such holder and the Company, such legend is not required in order to
establish compliance with any provisions of the Securities Act.
1.5 REQUESTED REGISTRATION
(a) Request for Registration. In case the Company shall receive from
Initiating Holders a written request that the Company effect any registration,
qualification or compliance with respect to the Registrable Securities, the
Company will:
3
(i) promptly give written notice of the proposed registration,
qualification or compliance to all other Holders; and
(ii) as soon as practicable, use its best efforts to effect
such registration, qualification or compliance (including, without limitation,
the execution of an undertaking to file post-effective amendments, appropriate
qualification under applicable blue sky or other state securities laws and
appropriate compliance with applicable regulations issued under the Securities
Act and any other governmental requirements or regulations) as may be so
requested and as would permit or facilitate the sale and distribution of all or
such portion of such Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any Holder or
Holders joining in such request as are specified in a written request received
by the Company within twenty (20) days after receipt of such written notice from
the Company; provided, however, that the Company shall not be obligated to take
any action to effect any such registration, qualification or compliance pursuant
to this Section 1.5:
(1) In any particular jurisdiction in which the Company
would be required to execute a general consent to service of process in
effecting such registration, qualification or compliance, unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Securities Act;
(2) Prior to the earlier of (a) 180 days following the
effective date of the first public offering of Common Stock of the Company to
the general public which is effected pursuant to a registration statement filed
with, and declared effective by, the Commission under the Securities Act (the
"Initial Public Offering") or (b) the third anniversary of the date of this
Agreement;
(3) Unless the proposed aggregate offering price
therefor, net of underwriting discounts and commissions, is at least
$10,000,000;
(4) If the Company is unable to arrange for the proposed
offering to be underwritten on commercially reasonable terms by an underwriting
firm of nationally recognized standing;
(5) After the Company has effected two (2) such
registrations pursuant to this subparagraph 1.5(a) and each such registration
has been declared or ordered effective and remained effective for the period
specified in Section 1.9(a) of this Agreement; or
(6) If the Company shall furnish to such Holders, within
30 days after the receipt by the Company of the demand for registration pursuant
to this Section 1.5, a certificate, signed by the President of the Company,
stating that the Company intends to file a registration statement relating to a
public offering of its securities within 90 days after the date of such
certificate, then the Company's obligation to use its best efforts to register,
qualify or comply under this Section 1.5 shall be deferred for a period not to
exceed one hundred and twenty (120) days from the date of receipt of written
request from the Initiating Holders.
4
Subject to the foregoing clauses (1) through (6), the Company shall file a
registration statement covering the Registrable Securities so requested to be
registered as soon as practicable after receipt of the request or requests of
the Initiating Holders.
(b) Underwriting. The right of any Holder to registration pursuant
to Section 1.5 shall be conditioned upon such Holder's participation in the
underwriting arrangements required by this Section 1.5 and the inclusion of such
Holder's Registrable Securities in the underwriting, to the extent requested, to
the extent provided herein. The Company shall (together with all Holders
proposing to distribute their securities through such underwriting) enter into
an underwriting agreement in customary form with the managing underwriter
selected for such underwriting by the Company (which managing underwriter shall
be reasonably acceptable to a majority in interest of the Initiating Holders).
Notwithstanding any other provision of this Section 1.5, if the managing
underwriter determines that marketing factors require a limitation of the number
of shares to be underwritten, then the Company shall so advise all Holders of
Registrable Securities in writing, and the number of shares of Registrable
Securities that may be included in the registration and underwriting shall be
allocated among all Holders thereof in proportion, as nearly as practicable, to
the respective amounts of Registrable Securities held by such Holders at the
time of filing the registration statement; provided, however, that the number of
shares of Registrable Securities to be included in such underwriting shall not
be reduced unless all other securities are first entirely excluded from the
underwriting. No Registrable Securities excluded from the underwriting by reason
of the underwriter's marketing limitation shall be included in such
registration. To facilitate the allocation of shares in accordance with the
above provisions, the Company or the underwriters may round the number of shares
allocated to any Holder to the nearest one hundred (100) shares. If any Holder
of Registrable Securities disapproves of the terms of the underwriting, such
person may elect to withdraw therefrom by written notice to the Company, the
managing underwriter and the Initiating Holders. The Registrable Securities
and/or other securities so withdrawn shall also be withdrawn from registration,
and such Registrable Securities shall not be transferred in a public
distribution prior to one hundred and eighty (180) days after the effective date
of such registration.
1.6 COMPANY REGISTRATION
(a) Notice of Registration. If at any time or from time to time
after completion of the Company's Initial Public Offering the Company shall
determine to register any of its securities, either for its own account or the
account of a security holder or holders, other than (x) a registration relating
solely to employee benefit plans or (y) a registration relating solely to a
Commission Rule 145 transaction, the Company will (but not more than five (5)
times pursuant to this Section 1.6(a)):
(i) promptly give to each Holder written notice thereof; and
(ii) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any underwriting
involved therein, all the Registrable Securities specified in a written request
or requests made within fifteen (15) days after receipt of such written notice
from the Company by any Holder.
5
(b) Underwriting. If the registration of which the Company gives
notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 1.6(a)(i). In such event, the right of any Holder to
registration pursuant to Section 1.6 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of Registrable Securities
in the underwriting, to the extent requested, to the extent provided herein. All
Holders proposing to distribute their securities through such underwriting shall
(together with the Company and the other holders distributing their securities
through such underwriting) enter into an underwriting agreement in customary
form with the managing underwriter selected for such underwriting by the
Company. Notwithstanding any other provision of this Section 1.6, if the
managing underwriter determines that marketing factors require a limitation of
the number of shares to be underwritten, the managing underwriter may limit the
number of Registrable Securities to be included in the registration and
underwriting, on a pro rata basis based on the total number of securities
(including, without limitation, Registrable Securities) entitled to registration
pursuant to registration rights granted to the participating Holders by the
Company; provided, however, that the the number of Registrable Securities to be
included in the registration shall not be reduced below 25% of the total number
of shares to be included therein, and if any Registrable Securities are so
excluded, no shares other than shares being sold by the Company may be included
in such registration. To facilitate the allocation of shares in accordance with
the above provisions, the Company or the underwriters may round the number of
shares allocated to any Holder or other holder to the nearest one hundred (100)
shares. If any Holder or other holder disapproves of the terms of any such
underwriting, he or she may elect to withdraw therefrom by written notice to the
Company and the managing underwriter. Any securities excluded or withdrawn from
such underwriting shall be withdrawn from such registration, and shall not be
transferred in a public distribution prior to one hundred eighty (180) days
after the effective date of the registration statement relating thereto.
(c) Right to Terminate Registration. The Company shall have the
right to terminate or withdraw any registration initiated by it under this
Section 1.6 prior to the effectiveness of such registration, whether or not any
Holder has elected to include securities in such registration.
1.7 REGISTRATION ON FORM S-3
(a) If any Holder or Holders of Registrable Securities requests that
the Company file a registration statement on Form S-3 (or any successor form to
Form S-3) for a public offering of Registrable Securities, the reasonably
anticipated aggregate price to the public of which, net of underwriting
discounts and commissions, would exceed $1,000,000, and the Company is a
registrant entitled to use Form S-3 to register the Registrable Securities for
such an offering, the Company shall use its best efforts to cause such
Registrable Securities to be registered for the offering on such form. The
Company will (i) promptly give written notice of the proposed registration to
all other Holders and (ii) as soon as practicable use its best efforts to effect
such registration (including, without limitation, the execution of an
undertaking to file post-effective amendments, appropriate qualification under
applicable blue sky or other state securities laws and appropriate compliance
with applicable regulations issued under the Securities Act and any other
governmental requirements or regulations) as may be so requested
6
and as would permit or facilitate the sale and distribution of all or such
portion of such Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any Holder or
Holders joining in such request as are specified in a written request received
by the Company within fifteen (15) days after receipt of such written notice
from the Company. The substantive provisions of Section 1.5(b) shall be
applicable to each registration initiated under this Section 1.7.
(b) Notwithstanding the foregoing, the Company shall not be
obligated to take any action pursuant to this Section 1.7: (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, qualification or
compliance, unless the Company is already subject to service in such
jurisdiction and except as may be required by the Securities Act; (ii) during
the period starting with the date sixty (60) days prior to the Company's
estimated date of filing of, and ending on the date six (6) months immediately
following the effective date of, a registration statement (other than with
respect to a registration statement relating to a Rule 145 transaction, an
offering solely to employees or any other registration which is not appropriate
for the registration of Registrable Securities), provided that the Company is
actively employing in good faith all reasonable efforts to cause such
registration statement to become effective; (iii) in any calendar year after the
Company has effected two (2) such registrations pursuant to this Section 1.7 in
such calendar year and each such registration has been declared or ordered
effective and has remained effective for the period specified in Section 1.9(a)
of this Agreement; or (iv) if the Company shall furnish to such Holder a
certificate signed by the President of the Company stating that, in the good
faith judgment of the Board of Directors, it would be seriously detrimental to
the Company or its shareholders for registration statements to be filed in the
near future, then the Company's obligation to use its best efforts to file a
registration statement shall be deferred for a period not to exceed one hundred
twenty (120) days from the receipt of the request to file such registration by
such Holder or Holders; provided, however, that the Company may not utilize this
right more than once in any twelve (12) month period.
1.8 EXPENSES OF REGISTRATION
All Registration Expenses incurred in connection with any registration
pursuant to Sections 1.5 and 1.6, and up to one registration in any calendar
year after the date hereof under Section 1.7, and the reasonable cost of one
special legal counsel to represent all of the Holders together in any such
registration (not to exceed $15,000), shall be borne by the Company. All
Registration Expenses incurred in connection with any registration pursuant to
Section 1.7 of this Agreement above and beyond one registration in any calendar
year after the date hereof, and the cost of any counsel for the Holders in any
such registration, shall be borne by the Holders pro rata according to the
number of Registrable Securities included by them in such registration. If a
registration proceeding is begun upon the request of Initiating Holders pursuant
to Section 1.5 or Section 1.7 (if the first request under Section 1.7 in any
calendar year), but such request is subsequently withdrawn, then the Holders of
Registrable Securities to have been registered may either: (i) bear all
Registration Expenses of such proceeding, pro rata on the basis of the number of
shares to have been registered, in which case the Company shall be deemed not to
have effected a registration pursuant to subparagraph 1.5(a) or 1.7, as the case
may be, of this Agreement, or (ii) require the Company to bear all Registration
Expenses of such proceeding, in
7
which case the Company shall be deemed to have effected a registration pursuant
to subparagraph 1.5(a) or 1.7, as the case may be, of this Agreement. The
preceding sentence shall not apply 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. Unless otherwise stated, all other Selling Expenses relating to
securities registered on behalf of the Holders shall be borne by the Holders of
the securities included in such registration pro rata on the basis of the number
of shares so registered.
1.9 REGISTRATION PROCEDURES
In the case of each registration, qualification or compliance effected by
the Company pursuant to this Section 1, the Company will:
(a) Prepare and file with the Commission a registration statement
with respect to such securities and use its best efforts to cause such
registration statement to become and remain effective until the distribution
described in the registration statement has been completed, but in no event
longer than ninety (90) days; and
(b) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement.
(c) Furnish to the Holders participating in such registration and to
the underwriters, if any, of the securities being registered such reasonable
number of copies of the registration statement, preliminary prospectus, final
prospectus and such other documents as such underwriters may reasonably request
in order to facilitate the public offering of such securities.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders;
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions, unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Securities Act.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering. Each Holder participating
in such underwriting shall also enter into and perform its obligations under
such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event as a result
of which the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing.
8
(g) Cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange or other trading market 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, (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 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
and to the Holders requesting registration of Registrable Securities.
1.10 INDEMNIFICATION
(a) The Company will indemnify each Holder, each of its officers and
directors and partners, and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, with respect to which registration,
qualification or compliance has been effected pursuant to this Section 1, and
each underwriter, if any, and each person who controls any underwriter within
the meaning of Section 15 of the Securities Act, against all actual
out-of-pocket expenses, claims, losses, damages or liabilities (or actions in
respect thereof), including any of the foregoing incurred in any litigation or
in settlement of any litigation, commenced or threatened, arising out of or
based on any untrue statement (or alleged untrue statement) of a material fact
contained in any registration statement, prospectus, preliminary prospectus,
offering circular or other document, or any amendment or supplement thereto,
incident to any such registration, qualification or compliance, or based on any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, or any violation or any
alleged violation by the Company of the Securities Act or the Exchange Act or
any state securities law, or of any rule or regulation promulgated under any of
the foregoing applicable to the Company in connection with any such
registration, qualification or compliance, and the Company will reimburse each
such Holder, each of its officers and directors, and each person controlling
such Holder, each such underwriter and each person who controls any such
underwriter, for any legal and any other actual out-of-pocket expenses
reasonably incurred in connection with investigating, preparing or defending any
such claim, loss, damage, liability or action, as such expenses are incurred;
provided, however, that the indemnity agreement contained in this Section
1.10(a) shall not apply to amounts paid in settlement of any such matter if the
settlement is effected without the consent of the Company, which consent shall
not be unreasonably withheld; and provided further that the Company will not be
liable in any such case
9
to the extent that any such claim, loss, damage, liability or expense arises out
of or is based on any untrue statement or omission or alleged untrue statement
or omission, made in reliance upon and in conformity with written information
furnished to the Company by such Holder, controlling person or underwriter
specifically for use therein.
(b) Each Holder will, if Registrable Securities held by such Holder
are included in the securities as to which such registration, qualification or
compliance is being effected, indemnify the Company, each of its directors and
officers, each underwriter, if any, of the Company's securities covered by such
a registration statement, each person who controls the Company or such
underwriter within the meaning of Section 15 of the Securities Act, and each
other such Holder, each of its officers and directors and each person
controlling such Holder within the meaning of Section 15 of the Securities Act,
against all actual out-of-pocket expenses, claims, losses, damages and
liabilities (or actions in respect thereof), including any of the foregoing
incurred in settlement of any litigation, commenced or threatened, arising out
of or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any such registration statement, prospectus, offering circular
or other document, or any amendment or supplement thereto, incident to any such
registration, qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein, in
light of the circumstances in which they were made, or necessary to make the
statements therein not misleading, and will reimburse the Company, such Holders,
such directors, officers, persons, underwriters or control persons for any legal
and any other actual out-of pocket expenses reasonably incurred in connection
with investigating or defending any such claim, loss, damage, liability or
action, as such expenses are incurred, in each case to the extent, but only to
the extent, that such untrue statement (or alleged untrue statement) or omission
(or alleged omission) is made in such registration statement, prospectus,
offering circular or other document in reliance upon and in conformity with
written information furnished to the Company by such Holder specifically for use
therein; provided, however, that the indemnity agreement contained in this
Section 1.10(b) shall not apply to amounts paid in settlement of any matter if
the settlement is effected without the consent of the Holder, which consent
shall not be unreasonably withheld; and provided further that the maximum
liability of each selling Holder under this Section 1.10(b) shall be equal to
the total cash proceeds to such selling Holder as a result of such registration
and offering.
(c) Each party entitled to indemnification under this Section 1.10
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not unreasonably be
withheld), and the Indemnified Party may participate in such defense at such
party's expense; 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 of such counsel 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
10
Party and any other party represented by such counsel in such proceeding. The
failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this Section 1.10 unless
the failure to give such notice is materially prejudicial to an Indemnifying
Party's ability to defend such action. No Indemnifying Party, in the defense of
any such claim or litigation, shall, except with the consent of each Indemnified
Party (not to be unreasonably withheld), consent to entry of any judgment or
enter into any settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such Indemnified Party of a
release from all liability in respect to such claim or litigation.
(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 INFORMATION BY HOLDER
The Holder or Holders of Registrable Securities included in any
registration shall furnish to the Company such information regarding such Holder
or Holders, the Registrable Securities held by them and the distribution
proposed by such Holder or Holders as the Company may request in writing and as
shall be required in connection with any registration, qualification or
compliance referred to in this Section 1.
1.12 RULE 144 REPORTING
With a view to making available the benefits of certain rules and
regulations of the Commission which may at any time permit the sale of the
Restricted Securities to the public
11
without registration, after such time as a public market exists for the Common
Stock of the Company, the Company agrees to use its best efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all times after
the effective date that the Company becomes subject to the reporting
requirements of the Exchange Act.
(b) File with the Commission in a timely manner all reports and
other documents required of the Company under the Exchange Act (at any time
after it has become subject to such reporting requirements); and
(c) So long as an Investor owns any Restricted Securities, to
furnish to the Investor forthwith upon request a written statement by the
Company as to its compliance with the reporting requirements of Rule 144 (at any
time after ninety (90) days after the effective date of the first registration
statement filed by the Company for an offering of its securities to the general
public), and of the Exchange Act (at any time after it has become subject to
such reporting requirements), a copy of the most recent annual or quarterly
report of the Company, and such other reports and documents of the Company and
other information in the possession of or reasonably obtainable by the Company
as an Investor may reasonably request in availing itself of any rule or
regulation of the Commission allowing an Investor to sell any such securities
without registration.
1.13 TRANSFER OF REGISTRATION RIGHTS
The rights to cause the Company to register securities granted Investors
under Sections 1.5, 1.6 and 1.7 may be assigned to a transferee or assignee in
connection with any transfer or assignment of Registrable Securities by an
Investor (together with any affiliate); provided that (a) such transfer may
otherwise be effected in accordance with applicable securities laws, (b) notice
of such assignment is given to the Company, and (c) such transferee or assignee
(i) is a wholly owned subsidiary or constituent partner (including limited
partners, retired partners, spouses and ancestors, lineal descendants and
siblings of such partners or spouses who acquire Registrable Securities by gift,
will or intestate succession) of such Investor, or (ii) acquires from such
Investor at least 250,000 Shares (as appropriately adjusted for stock splits and
the like or Common Stock issued upon conversion thereof).
1.14 STANDOFF AGREEMENT
Each Holder agrees in connection with any registration of the Company's
securities (other than a registration of securities in a Rule 145 transaction or
with respect to an employee benefit plan), upon request of the underwriters
managing any underwritten offering of the Company's securities, not to sell,
make any short sale of, loan, pledge (or otherwise encumber or hypothecate),
grant any option for the purchase of, or otherwise directly or indirectly
dispose of any Registrable Securities (other than those included in the
registration) without the prior written consent of the Company and such managing
underwriters for such period of time (not to exceed 180 days) as the Board of
Directors establishes pursuant to its good faith negotiations with such managing
underwriters; provided, however, that the Investors shall not be subject to such
lockup unless the officers and directors of the Company who own stock of the
Company and all other
12
persons with registration rights (whether or not pursuant to this Agreement)
shall also be bound by such restrictions. This Section 1.14 shall apply only to
the first such registration statement of the Company which covers Common Stock
(or other securities) to be sold on its behalf to the public in an underwritten
offering.
1.15 TERMINATION OF RIGHTS
The rights of any particular Holder to cause the Company to register
securities under Sections 1.5, 1.6 and 1.7 shall terminate with respect to such
Holder on the earlier of (a) the fifth anniversary of the effective date of the
Company's Initial Public Offering or (b) such time as Rule 144 or another
similar exemption under the Securities Act is available for the sale of all such
Holder's securities during a three (3)-month period without registration or (c)
the seventh anniversary of the date of this Agreement.
1.16 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS
From and after the date of this Agreement, except as provided in the
following sentences of this paragraph, the Company shall not, without the prior
written consent of the Holders of at least sixty percent (60%) of the
Registrable Securities, enter into any agreement with any holder or prospective
holder of any securities of the Company which would allow such holder or
prospective holder (a) to include such securities in any registration filed
under Section 1.5 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 are included or (b) to make a
demand registration which could result in such registration statement being
declared effective prior to the earlier of either of the dates set forth in
subsection 1.5(a)(ii)(2) or within one hundred twenty (120) days of the
effective date of any registration effected pursuant to Section 1.5.
Notwithstanding any other provision of this Agreement, the parties acknowledge
that the Company is obligated to grant registration rights as contemplated
herein (a) to certain parties pursuant to that certain Asset Purchase Agreement
dated as of February 23, 1999 (the "Asset Purchase Agreement") with respect to
the shares of Common Stock issuable to such parties thereunder(the "Keystone
Shares"), (b) to Xxxxxxxx X. Xxxxxxx with respect to the warrant issuable to Xx.
Xxxxxxx in connection with the transactions contemplated in the Asset Purchase
Agreement (together with the Keystone Shares, the "Acquisition Shares") and (c)
to XX Xxxxx Securities Corporation with respect to the warrants issuable to such
party pursuant to its engagement letter with the Company dated as of December
11, 1998 (the "Placement Agent Warrants"). The parties acknowledge that the
Company shall be authorized, in connection with the issuance of such Acquisition
Shares and Placement Agent Warrants, to add the persons to whom such securities
are issued to this Agreement by having such parties execute a counterpart
signature page hereto, and that such persons shall thereby become parties
hereto, they shall be considered Investors hereunder, the Acquisition Shares and
the shares of Common Stock issuable upon exercise of the Placement Agent
Warrants shall be considered Registrable Securities and Restricted Securities
hereunder, and such parties and such securities shall otherwise be treated as if
they had been original parties hereto. No consent of the original parties hereto
shall be required to carry the foregoing into effect.
13
2. Affirmative Covenants of the Company
The Company hereby covenants and agrees as follows:
2.1 FINANCIAL INFORMATION
The Company will furnish to each Investor who holds Shares, Warrant Shares
or Conversion Shares the following reports:
(a) As soon as practicable after the end of each fiscal year, and in
any event within ninety (90) days thereafter, audited consolidated balance
sheets and statements of shareholders' equity of the Company and its
subsidiaries, if any, as of the end of such fiscal year, and consolidated
statements of income and cash flows of the Company and its subsidiaries, if any,
for such fiscal year, prepared in accordance with generally accepted accounting
principles and setting forth in each case in comparative form the figures for
the previous fiscal year, all in reasonable detail and certified by independent
public accountants of national standing selected by the Company;
(b) 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, unaudited balance sheets of the Company and its subsidiaries, if
any, as of the end of each such quarter, and consolidated statements of income
and cash flows of the Company and its subsidiaries, if any, for each such
quarter, all prepared in accordance with generally accepted accounting
principles;
(c) As soon as practicable after the end of each calendar month, and
in any event within 30 days thereafter, consolidated balance sheets of the
Company and its subsidiaries, if any, as of the end of each calendar month, and
consolidated statements of income and cash flows for such period and for the
current fiscal year to date, all prepared in accordance with generally accepted
accounting principles, together with a comparison of such statements to the
Company's operating plan then in effect; provided however, that the Company
shall have no obligation to furnish reports pursuant to this subsection (c) to a
Holder of less than 500,000 Shares, Warrant Shares or Conversion Shares (or a
combination thereof).
2.2 OPERATING PLAN AND BUDGET
The Company will furnish to each Holder of at least 500,000 Shares,
Warrant Shares or Conversion Shares (or a combination thereof) (as adjusted for
any stock splits, consolidations and the like) a budget and operating plan
(including projected balance sheets and profit and loss and cash flow
statements) for each fiscal year, as soon as practicable after approval or
adoption thereof by the Company's Board of Directors, but in any event no later
than 30 days before the beginning of the fiscal year covered thereby.
2.3 ASSIGNMENT OF RIGHTS TO FINANCIAL INFORMATION
The rights granted pursuant to Sections 2.1(c) and 2.2 may be assigned by
an Investor to a third party who acquires at least 500,000 Shares, Warrant
Shares or Conversion Shares (as adjusted for any stock splits, consolidations
and the like) and who is not an actual or potential
14
competitor, or affiliated in any manner with a competitor, of the Company,
provided (a) that the Company receives notice fifteen (15) days prior to such
assignment and (b) that a transferee which owns less than 5% of the outstanding
equity securities of a competitor and is an affiliated entity of the Investor,
shall not be considered affiliated with a competitor if such transferee has no
other relationship with such competitor. If the Company reasonably believes it
necessary to protect proprietary information, the Company may require any
transferee or assignee of the rights under this Section 2 to execute a
confidentiality agreement as a condition receiving such information.
2.4 PREEMPTIVE RIGHT
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 Securities (as hereinafter defined).
Each time the Company proposes to offer, subsequent to the issuance of
Series E Preferred (and certain warrants therefor) contemplated by the Purchase
Agreement and excluding the issuances of the Acquisition Shares and the
Placement Agent Warrants, any shares of, or securities convertible into or
exercisable for any shares of, any class of its capital stock ("Securities"),
the Company shall first make an offering of such Securities to each Investor in
accordance with the following provisions:
(a) The Company shall deliver a notice ("Notice") to each Investor
stating (i) its bona fide intention to offer such Securities, (ii) the number of
such Securities to be offered, (iii) the price, if any, for which it proposes to
offer such Securities, and (iv) any other material terms of such offer.
(b) Within fifteen (15) calendar days after receipt of the Notice,
the Investor may elect, by notice delivered to the Company, to purchase or
obtain, at the price and on the terms specified in the Notice, up to an amount
of such Securities equal to that portion of such Securities which equals the
proportion that the number of shares of Common Stock then held by such Investor
or issuable to the Investor upon conversion of Shares or exercise of warrants
then held by the Investor bears to the sum of the number of shares of Common
Stock then issued and outstanding plus the number of shares of Common Stock
issuable upon (i) conversion of all convertible securities of the Company then
outstanding and (ii) exercise of all options and warrants then outstanding. An
Investor shall be entitled to apportion the right of first offer hereby granted
among itself and its partners and affiliates in such proportions as it deems
appropriate. In the event that any Investors do not elect to purchase their full
pro rata shares of the Securities pursuant to this Section, the Company shall
notify all Investors who have elected to purchase Securities hereunder of the
number of unsubscribed Securities and each such participating Investor may
elect, by notice to the Company within five days after the effective date of the
Company's notice of the amount of unsubscribed Securities, to purchase such
Investor's pro rata share of such Securities (calculated according to the
relative ownership of all Investors who elect to purchase such unsubscribed
Securities).
15
(c) If all Securities which the Investors are entitled to purchase
pursuant to this Section 2.4 are not elected to be obtained as provided in
subsection 2.4(b) hereof, the Company may, during the one hundred eighty (180)
day period following the expiration of the period provided in subsection 2.4(b)
hereof, offer such unsubscribed Securities to any person or persons at a price
not less than, and upon terms not materially 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 Securities within such period, or if such agreement is not
consummated within thirty (30) days of the execution thereof, the right provided
hereunder shall be deemed to be revived.
(d) The right of first offer in this Section 2.4 shall not be
applicable (i) to the issuance or sale of shares of capital stock (or options
therefor) to employees, officers, directors, consultants or other parties
eligible to receive options under the Company's stock option plan or plans, (ii)
to the issuance or sale of the Company's securities to leasing entities or
financial institutions in connection with commercial leasing or borrowing
transactions, (iii) to, or after consummation of, the Company's Initial Public
Offering, (iv) to conversions of convertible securities or exercises of
exercisable securities, (v) to any issuances of any of the shares of Series E
Preferred authorized as of the date of this Agreement, (vi) to any issuance of
securities in connection with any acquisition, business combination,
reorganization, merger or similar event, (vii) after the tenth anniversary of
this Agreement, or (viii) to the issuance of the Acquisition Shares or the
Placement Agent Warrants.
2.5 PROPRIETARY INFORMATION AGREEMENT
The Company shall require each person employed by, or who consults for,
the Company to execute an appropriate proprietary information, confidentiality
and nondisclosure agreement.
2.6 KEY MAN INSURANCE
The Company shall maintain a key man insurance policy on the life of
Xxxxxxx X. Xxxxxx in the amount of $1,000,000, with benefits payable to the
Company.
2.7 TERMINATION OF COVENANTS
The covenants set forth in Sections 2.1 through 2.5 shall terminate on,
and be of no further force or effect after, the closing of the Company's Initial
Public Offering.
3. MISCELLANEOUS
3.1 ASSIGNMENT
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 hereto.
16
3.2 THIRD PARTIES
Nothing in this Agreement, express or implied, is intended to confer upon
any party, other than the parties hereto, and their respective successors and
assigns, any rights, remedies, obligations or liabilities under or by reason of
this Agreement, except as expressly provided herein.
3.3 GOVERNING LAW
This Agreement shall be governed by and construed under the laws of the
State of Washington in the United States of America without regard to the
conflict or choice of law provisions of such State.
3.4 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.
3.5 NOTICES
All notices and other communications required or permitted hereunder shall
be in writing and shall be mailed by first class mail, postage prepaid, or
otherwise delivered by hand or by messenger, facsimile or courier, addressed (a)
if to an Investor, at such Investor's address set forth on Exhibit A, or at such
other address as such Investor shall have furnished to the Company in writing,
with a copy to Xxxxxx X. Xxxxxxx, Xxxxxx Godward LLP, Five Palo Alto Square,
0000 Xx Xxxxxx Xxxx, Xxxx Xxxx, XX 00000, or (b) if to the Company, at its
principal executive office, attention President, or at such other address as the
Company shall have furnished to the Investors, with a copy to Xxxxx X. Xxxxxx,
Xxxxxxx Coie LLP, 0000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, XX 00000. If notice is
provided by mail, it shall be deemed to be given three (3) business days after
proper deposit in the U.S. Mail, and if notice is given by hand or by messenger,
facsimile or courier, it shall be deemed to be given upon receipt.
3.6 SEVERABILITY
If one or more provisions of this Agreement are held to be unenforceable
under applicable law, portions of such provisions, or such provisions in their
entirety, to the extent necessary, shall be severed from this Agreement, and the
balance of this Agreement shall be enforceable in accordance with its terms.
3.7 AMENDMENT AND WAIVER
Any provision of this Agreement may be amended with the written consent of
the Company and the Holders of at least sixty percent (60%) of the Registrable
Securities (or securities convertible into or exercisable for Registrable
Securities). Any amendment or waiver effected in accordance with this paragraph
shall be binding upon party hereto or Holder of securities subject hereto and
the Company. In addition, the Company may waive performance of any obligation
owing to it, as to some or all of the Investors, Holders of Registrable
Securities or
17
other parties subject hereto, or agree to accept alternatives to such
performance, without obtaining the consent of any other party hereto or other
Holder of Registrable Securities. In the event that an underwriting agreement is
entered into between the Company and any Holder, and such underwriting agreement
contains terms differing from this Agreement, as to any such Holder the terms of
such underwriting agreement shall govern.
3.8 EFFECT OF AMENDMENT OR WAIVER
The Investors and their successors and assigns acknowledge that by the
operation of Section 3.7 hereof the holders of sixty percent (60%) of the
Registrable Securities (or securities convertible into or exercisable for
Registrable Securities), acting in conjunction with the Company, will have the
right and power to diminish or eliminate any or all rights or increase any or
all obligations pursuant to this Agreement.
3.9 RIGHTS OF HOLDERS
Each party hereto or other holder of Registrable Securities shall have the
absolute right to exercise or refrain from exercising any right or rights that
such party or holder may have by reason of this Agreement, including, without
limitation, the right to consent to the waiver or modification of any obligation
under this Agreement, and such holder shall not incur any liability to any other
holder of any securities of the Company as a result of exercising or refraining
from exercising any such right or rights.
3.10 DELAYS OR OMISSIONS
No delay or omission to exercise any right, power or remedy accruing to
any party to this Agreement, upon any breach or default of the other party,
shall impair any such right, power or remedy of such non-breaching party nor
shall it be construed to be a waiver of any such breach or default, or an
acquiescence therein, or of or in any similar breach or default thereafter
occurring; nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring. Any
waiver, permit, consent or approval of any kind or character on the part of any
party of any breach or default under this Agreement, or any waiver on the part
of any party of any provisions or conditions of this Agreement, must be made in
writing and shall be effective only to the extent specifically set forth in such
writing. All remedies, either under this Agreement, or by law or otherwise
afforded to any holder, shall be cumulative and not alternative.
3.11 AGGREGATION OF SHARES
All Shares and Registrable Securities held or acquired by affiliated
persons or entities shall be aggregated together for the purpose of determining
the availability of any rights under this Agreement.
3.12 ENTIRE AGREEMENT
This Agreement is being executed by the Company, the purchasers of Series
E Preferred Stock pursuant to the Purchase Agreement, and the holders of a
majority in voting power of the
18
Series B Preferred Stock, Series C Preferred Stock and Series D Preferred
Stock, considered as a single class. The Company and such holders agree that,
pursuant to Section 3.7 of the Prior Agreement, the Prior Agreement is hereby
amended and restated in its entirety as set forth herein. All parties to the
Prior Agreement who are not signatories hereto shall nevertheless be considered
"Investors" as such term is defined herein by virtue either of (i) such parties
having executed and delivered the Prior Agreement, which is being amended and
restated in its entirety as set forth herein and in accordance with its terms or
(ii) such parties having executed and delivered a prior version of the Prior
Agreement, which was amended and restated in its entirety and in accordance with
its terms by the Prior Agreement, which is being amended and restated in its
entirety as set forth herein and in accordance with its terms. The parties to
this Agreement hereby agree that this Agreement constitutes the full and entire
understanding of the parties with regard to the matters set forth herein and
supersedes any prior or contemporaneous agreements or understandings with
respect hereto.
3.13 UPDATING OF EXHIBIT A
The parties acknowledge and agree that the Company shall periodically
update Exhibit A hereto in respect of transfers of securities by the parties
hereto and other events which result in a change in the parties hereto or the
relative holdings of the parties hereto. The parties further acknowledge and
agree that any future purchasers of additional shares of Series E Preferred
Stock pursuant to the Purchase Agreement, by execution and delivery to the
Company of a counterpart signature page to this Agreement, shall be made parties
to this Agreement as "Investors" and "Holders" as if such purchasers had entered
into this Agreement on the date hereof. The parties further acknowledge that
Exhibit A shall be updated in respect of the transactions contemplated by
Section 1.16 above.
[This space intentionally left blank.]
19
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
XXXXXX.XXX, INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Xxxxxxx X. Xxxxxx, President
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
20
INVESTOR:
INTERNET VENTURES, LLC
By: /s/ Xxxxx Xxxxx
-------------------------------
Name: Xxxxx Xxxxx
-----------------------------
Title: President of Acorn Ventures, Inc.
-----------------------------------
Managing member of Internet Ventures,
---------------------------------------------
LLC
---------------------------------------------
Tax I.D. No.: 00-0000000
--------------------------------
Address: 0000 000XX Xxx. XX
Xxxxx 000
Xxxxxxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
Name: /s/ Xxxxxxxx Xxxxxxx Xxxxxx, Xx.
------------------------------------
Xxxxxxxx Xxxxxxx Xxxxxx, Xx.
Tax I.D. No.: ###-##-####
----------------------------
Address: 0 Xxxx Xxxxxxxxx
Xxxxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
Name: /s/ Xxxx Xxxxx
-------------------------------------
Xxxx Xxxxx
Tax I.D. No.: ###-##-####
-----------------------------
Address: 0 Xxxxxxxxx Xxx
Xxxxxxxx 00
Xxxxxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
Name: /s/ Xxx Xxxxxx
--------------------------------------
Xxx Xxxxxx
Tax I.D. No.: ###-##-####
------------------------------
Address: 0000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
Name: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx
Tax I.D. No.: ###-##-####
-----------------------------
Address: X.X. Xxx 000
Xxxx Xxxxxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
Name: /s/ Xxxx X. Xxxxxx
--------------------------------------
Xxxx X. Xxxxxx
Tax I.D. No.: ###-##-####
------------------------------
Address: 0000 000xx Xx. XX
Xxxxxxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
GALAXY INVESTMENT PARTNERS
By: /s/ Xxxx Xxxxxxxxx
----------------------------------
Name: Xxxx Xxxxxxxxx
--------------------------------
Title: Managing Partner
-------------------------------
Tax I.D. No.: 00-0000000
------------------------
Address: 0000 000xx Xxxxxx XX
Xxxxxxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
Name: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Xxxxxx Xxxxxxxxx
Tax I.D. No.: ###-##-####
---------------------------
Address: 000 00xx Xxxxxx
Xxxxxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
IRONWOOD CAPITAL, LLC
By: /s/ Xxx Xxxx
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Tax I.D. No.:
----------------------------
Address: 000 Xxx Xxxx Xxxx
Xxx 0000
Xxxxxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
Name: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx X. Xxxxxx
Tax I.D. No.: ###-##-####
----------------------------
Address: 0000 000xx Xxxxxx XX
Xxxxxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
Name: /s/ Xxxx Xxxxxx
----------------------------------
Xxxx Xxxxxx
Tax I.D. No.: ###-##-####
-------------------------
Address: 0000 Xxxxx Xxxxx
Xxxxxxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
Name: /s/ Xxxxxxx Xxxxxx
------------------------------------
Xxxxxxx Xxxxxx
Name: /s/ Xxx Xxxxxx
------------------------------------
Xxx Xxxxxx
Tax I.D. No.: ###-##-####
----------------------------
Address: x/x Xxxxx Xxxxxx
0000 Xxxxxx Xxxx
Xxxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
Name: /s/ Xxxxxxxx X. Xxxxxx
----------------------------------
Xxxxxxxx X. Xxxxxx
Tax I.D. No.: ###-##-####
---------------------------
Address: 00000 Xxxxxxxx Xxxxx Xxxxx
XXX Xxxx
XxXxxxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
Name: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Xxxxxxx Xxxxxxxxx
Name: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Xxxxxxx Xxxxxxxxx
Tax I.D. No.: 223569568
----------------------------
Address: 0 Xxxxx Xxx
Xxxxxx Xxxxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
Name: /s/ Xxxxx Xxxxx
----------------------------------
Xxxxx Xxxxx
Tax I.D. No.: ###-##-####
--------------------------
Address: 0000 000xx Xxxxxx XX
Xxxxx 000
Xxxxxxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
SunAmerica Investments Inc.
----------------------------------------
By: /s/ Xxxxxx Xxxxx
-------------------------------------
Name: Xxxxxx Xxxxx
-----------------------------------
Title: Authorized Agent
----------------------------------
Tax I.D. No.: 00-0000000
---------------------------
Address: 0 XxxXxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000-0000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
Name: /s/ Xxx Xxxxxx
----------------------------------
Xxx Xxxxxx
Tax I.D. No.: ###-##-####
--------------------------
Address: 0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
Name: /s/ Xxxxxx X. Cable
-----------------------------------
Xxxxxx X. Cable
Tax I.D. No.: ###-##-####
---------------------------
Address: 00000 Xxxxx 000xx Xxxxx
Xxxxxxxxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
WESTERN INVESTMENTS CAPITAL LLC
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name: Xxxxx X. Xxxxx
------------------------------------
Title: Managing Member
-----------------------------------
Tax I.D. No.: 00-0000000
----------------------------
Address: XX Xxx 0000
000 Xxxx Xxxx., Xxxxx 00
Xxxxxxx Xxxxxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
XXXXX FAMILY PARTNERSHIP
By: /s/ Xxxxxx X. Xxxxx, Xx
------------------------------------.
Name: Xxxxxx X. Xxxxx, Xx
-----------------------------------
Title: General Partner
----------------------------------
Tax I.D. No.: 00-0000000
---------------------------
Address: 0000 00XX Xxxxxx XX
Xxxxxx Xxxxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
ALTA CALIFORNIA PARTNERS II, L.P.
By: Alta California Management Partners, L.P.
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxx
------------------------------------
Title: General Partner
Tax I.D. No.: 00-0000000
----------------------------
Address: Xxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
ALTA EMBARCADERO PARTNERS II, LLC.
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
----------------------------------
Title: Member
Tax I.D. No.: 00-0000000
--------------------------
Address: Xxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
VBW RAPTOR FUND, LLC
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
----------------------------------
Title: Managing Member
---------------------------------
Tax I.D. No.: Applied For
--------------------------
Address: Xxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
XXXXXXX PARTNERS LP
By: /s/ Xxxx Xxxxxx
----------------------------------
Name: Xxxx Xxxxxx
--------------------------------
Title: CFO
-------------------------------
Tax I.D. No.: 00-0000000
------------------------
Address: 000 Xxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
Name: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxxx
Tax I.D. No.: ###-##-####
----------------------------
Address: 000 0xx Xxxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
WS INVESTMENTS COMPANY 99A
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------------
Title: General Partner
--------------------------------
Tax I.D. No.:
-------------------------
Address: 000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
Name: /s/ Xxxxxxx Xxxxxxx, Xx.
-----------------------------------
Xxxxxxx Xxxxxxx, Xx.
Name: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxx
Tax I.D. No.: ###-##-####
---------------------------
Address: 000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
Name: /s/ Xxxxx Drum
---------------------------------
Xxxxx Drum
Tax I.D. No.: 469546566
-------------------------
Address: 00000 Xxxxxxxxx 00xx Xxxxx
Xxxxxxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
Name: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxx
Tax I.D. No.:
---------------------------
Address: 00000 000xx Xxxxxx XX
Xxxxxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
Name: /s/ Xxxxx Xxxxxx
----------------------------------
Xxxxx Xxxxxx
Name: /s/ Xxxx Xxxxxx
----------------------------------
Xxxx Xxxxxx
Tax I.D. No.: ###-##-####
--------------------------
Address: 000 000xx Xxxxxx XX
Xxxxx 0000
Xxxxxxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
Name: /s/ Xxxxx Xxxxx
--------------------------------------
Xxxxx Xxxxx
Tax I.D. No.: ###-##-####
------------------------------
Address: 00000 XX 00xx Xxxxxx
Xxxxxxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
XXXXXX X. AND XXXXX X. XXXXXX JTWROS
/s/ Xxxxxx X. Xxxxxx
--------------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxx
--------------------------------------
Xxxxx X. Xxxxxx
Tax I.D. No.: ###-##-####
--------------------------
Address: Xxx Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
/s/ Nanda Xxxxxx Xxxxx
--------------------------------------
Nanda Xxxxxx Xxxxx
/s/ Xxxxxx Xxxxxxxx Xxxxx
--------------------------------------
Xxxxxx Xxxxxxxx Xxxxx
Tax I.D. No.: ###-##-####
-------------------------
Address: 00000 XX 00xx Xxxxxx
Xxxxxxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
TECHNOLOGY PARTNERS FUND V, L.P.
By: /s/ X.X. Xxxxxx, III
----------------------------------
Name: X.X. Xxxxxx, III
--------------------------------
Title: General Partner
-------------------------------
Tax I.D. No.: 00-0000000
------------------------
Address: 0000 Xxxxxxx Xxxx.
Xxxxxxxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
TECHNOLOGY PARTNERS FUND VI, L.P.
By: /s/ X.X. Xxxxxx, III
----------------------------------
Name: X.X. Xxxxxx, III
--------------------------------
Title: Managing Member
-------------------------------
Tax I.D. No.: 00-0000000
------------------------
Address: 0000 Xxxxxxx Xxxx.
Xxxxxxxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
CLEAR FIR PARTNERS, LP
By: /s/ Xxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxx
---------------------------------
Title: CFO
--------------------------------
Tax I.D. No.: 00-0000000
-------------------------
Address: 000 Xxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
/s/ Xxxx Xxxxxx
--------------------------------------
Xxxx Xxxxxx
Tax I.D. No.: ###-##-####
-------------------------
Address: 000 Xxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
XXXXXXXXX & XXXXX CALIFORNIA
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------------
Title: Tax Director, Attorney-in-Fact
----------------------------------
Tax I.D. No.: 00-0000000
---------------------------
Address: Xxx Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
XXXXXXXXX & XXXXX EMPLOYEE VENTURE FUND, X.X.
XX
By: H&Q VENTURE MANAGEMENT, L.L.C
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------------
Title: Tax Director, Attorney-in-Fact
----------------------------------
Tax I.D. No.: 00-0000000
------------------------------
Address: Xxx Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
ACCESS TECHNOLOGY PARTNERS, L.P.
By: ACCESS TECHNOLOGY MANAGEMENT, L.L.C.
Its: General Partner
By: H&Q VENTURE MANAGEMENT, L.L.C.
Its: Managing Member
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
----------------------------------
Title: Tax Director, Attorney-in-Fact
---------------------------------
Tax I.D. No.: 00-0000000
-----------------------------
Address: Xxx Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
ACCESS TECHNOLOGY PARTNERS BROKERS FUND, L.P.
By: H&Q VENTURE MANAGEMENT, L.L.C.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
--------------------------------
Title: Tax Director, Attorney-in-Fact
-------------------------------
Tax I.D. No.: 00-0000000
---------------------------
Address: Xxx Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
VANGUARD V, L.P.
By: /s/ X.X. Xxxxx
------------------------------------
Name: X.X. Xxxxx
----------------------------------
Title: Member
---------------------------------
Tax I.D. No.:
--------------------------
Address: 000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
ACORN VENTURES IV, LLC
By: /s/ Xxxxx Xxxxx
---------------------------------------
Name: Xxxxx Xxxxx
-------------------------------------
Title: President of Acorn Ventures, Inc.
------------------------------------
only member of the LLC
Tax I.D. No.: 00-0000000
-----------------------------
Address: 0000 000xx Xxxxxx XX
Xxxxx 000
Xxxxxxxx, XX 00000
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
VEBER PARTNERS, LLC
By: /s/ Xxxxx Xxxxx
--------------------------------------
Name: Xxxxx Xxxxx
------------------------------------
Title: President
-----------------------------------
Tax I.D. No.:
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
INVESTOR:
Name: /s/ Xxxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxxx X. Xxxxxxx
Tax I.D. No.: ###-##-####
------------------------------
Address: c/o Stanley Investment and
Management
000 XX Xxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
[SIGNATURE PAGE FOR AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
EXHIBIT A
SCHEDULE OF INVESTORS
EXHIBIT A
SHAREHOLDERS
Common Common Series B Series D Series E Total No. of
No. of Warrant No. of Series C No. of No. of Preferred
Investor Shares No. of Shares Shares No. of Shares Shares Shares Shares
----------------------- ------ ------------- -------- ------------- -------- -------- -----------
SunAmerica Investments,Inc. 0 0 0 0 750,000 714,286 1,464,286
c/o Xxxxx XxXxxxx
0 XxxXxxxxxx Xxxxxx
Xxxxxxx Xxxx, XX
00000-0000
Xxxxxxxxx Lufkin Xxxxxxxx 0 0 0 0 25,000 0 25,000
Securities Corp.
(TIN 00-0000000),
Custodian F/B/O
Xxxx Xxxx, XXX
0000 000xx Xxxxxx XX
Xxxxxxxx XX 00000
Galaxy Investment Partners 0 0 0 0 125,000 119,048 244,048
x/x Xxxx Xxxxxxxxx
0000 000xx Xxx XX
Xxxxxxxx, XX 00000
Xxxxx Xxxxxxxx & Xxxx Xxx 0 0 0 0 32,500 0 32,500
Xxxxxx
000 Xxxxxxxxx Xxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Xxxxxxx and 0 0 0 0 25,000 16,667 41,667
Xxxxxxx Xxxxxxxxx
0 Xxxxx Xxx
Xxxxxx Xxxxxx, XX 00000
Western Investments
Capital LLC 0 0 0 0 50,000 100,000 150,000
c/o Xxxxx Xxxxx
Managing Member
PO Box 7952
000 Xxxx Xxxx., Xxxxx 00
Xxxxxxx Xxxxxxx, XX 00000
1
Common Common Series B Series D Series E Total No. of
No. of Warrant No. of Series C No. of No. of Preferred
Investor Shares No. of Shares Shares No. of Shares Shares Shares Shares
----------------------- ------ ------------- -------- ------------- -------- -------- -----------
Technology Partners 0 0 1,750,000 946,667 201,380 0 2,898,047
Fund V, L.P.
c/o Xxx Xxxxxx
0000 Xxxxxxx Xxxx.
Xxxxx X
Xxxxxxxxx, XX 00000
Vanguard V, L.P. 0 0 1,000,000 546,667 101,613 0 1,648,280
c/o Xxx Xxxxxx
000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxx, XX 00000
Xxxxxx Xxxxxxxxx 0 0 50,000 66,667 0 47,619 164,286
000 - 00xx Xxxxxx
Xxxxxxx, XX 00000
Acorn Ventures IV, LLC 0 0 0 1,316,667 0 0 1,316,667
c/o Xxxxxx Xxxxx
0000 - 000xx Xxxxxx XX
Xxxxx 000
Xxxxxxx, XX 00000
Xxxxx Family Partnership 0 0 125,000 73,334 0 130,952 329,286
c/o Xxxxxx X. Xxxxx, Xx.
0000 00xx Xxxxxx XX
Xxxxxx Xxxxxx, XX 00000
Xxxxxxx 0 0 0 333,333 50,000 238,095 621,428
Towers
0000 - 000xx Xx. XX
Xxxx Xxxxx, XX 00000
Xxxxxx Xxxxxx 0 0 50,000 33,333 0 0 83,333
0000 Xxxxxx Xxxxxx XX
Xxxxxx Xxxxxx, XX 00000
2
Common Common Series B Series D Series E Total No. of
No. of Warrant No. of Series C No. of No. of Preferred
Investor Shares No. of Shares Shares No. of Shares Shares Shares Shares
----------------------- ------ ------------- -------- ------------- -------- -------- -----------
Ironwood Capital, LLC 0 0 450,000 0 0 238,095 688,095
x/x Xxx Xxxx
Xxx 0000
000 Xxx Xxxx Xxxx
Xxxxxxx, XX 00000
Xxxxx Land 0 0 25,000 0 0 0 25,000
0000 000xx Xxxxxx XX
Xxxxxxx, XX 00000
Xxxx X. Xxxxxx 0 0 25,000 0 0 13,333 38,333
0000 Xxxxx Xxxxx Xx.
Xxxxxxxx, XX 00000
Xxxxxx X. Cable 0 0 25,000 0 0 16,667 41,667
0000 Xxxxx Xxx
Xxxxxx Xxxxxx, XX 00000
Internet Ventures, LLC 0 0 0 66,667 0 2,857,143 2,923,810
c/o Xxxxxx Xxxxx
0000 - 000xx Xxxxxx XX
Xxxxx 000
Xxxxxxx, XX 00000
Xxxxxxxx X. Xxxxxx 0 0 0 166,667 0 238,095 404,762
00000 Xxxxxxxx Xxxxx Xxxxx
XXX Xxxx
Xx Xxxxxx, XX 00000
Xxxx X. Xxxxxx 0 0 0 166,667 0 142,857 309,524
6413 - 000xx Xx. XX
Xxxxxxxx, XX 00000
3
Common Common Series B Series D Series E Total No. of
No. of Warrant No. of Series C No. of No. of Preferred
Investor Shares No. of Shares Shares No. of Shares Shares Shares Shares
----------------------- ------ ------------- -------- ------------- -------- -------- -----------
Xxxxxxxx Xxxxxxx Xxxxxx, Xx. 0 0 0 83,333 0 142,857 226,190
0 Xxxx Xxxxxxxxx
Xxxxxx, XX 00000
Xxx X. Xxxxxx 0 0 0 66,666 0 35,714 102,380
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Xxxxxxx X. Xxxx, Xx. 0 0 0 33,333 0 0 33,333
0000 Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
Xxxxx X. Xxxxxxx 0 0 0 33,333 0 0 33,333
0000 X. Xxxx
Xxxxxxxxx Xx. XX
Xxxxxxxx, XX 00000
Xxxx Xxxxxxxxxx 0 0 0 66,666 0 0 66,666
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Xxx Xxxxxx 0 0 0 0 200,629 289,872 490,501
0000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx X. Xxxxxxx 0 0 0 0 200,628 289,873 490,501
X.X. Xxx 000
Xxxx Xxxxxxxx, XX 00000
Xxxx Xxxxx 0 0 0 0 25,000 25,000 50,000
0000 00xx Xxx. XX
Xxxxxxxx, XX 00000
4
Common Common Series B Series D Series E Total No. of
No. of Warrant No. of Series C No. of No. of Preferred
Investor Shares No. of Shares Shares No. of Shares Shares Shares Shares
----------------------- ------ ------------- -------- ------------- -------- -------- -----------
Xxxxxxx X. Xxxxxx 0 0 0 0 0 35,714 35,714
0000 000xx Xxxxxx XX
Xxxxxxx, XX 00000
Xxxxx Xxxxx 0 0 0 0 0 71,429 71,429
0000 000xx Xxxxxx XX
Xxxxx 000
Xxxxxxxx, XX 00000
Alta California 0 0 0 0 0 2,830,966 2,830,966
Partners II, LP
c/o Xxxxxxx X. Xxxxxxx
Xxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Alta Embarcadero 0 0 0 0 0 26,177 26,177
Partners II, LLC
c/o Xxxxxxx X. Xxxxxxx
Xxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxxx X. Xxxxxxxx, Xx. 0 0 0 0 0 14,286 14,286
000 0xx Xxxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
WS Investment Company 99A 0 0 0 0 0 4,762 4,762
c/o Xxxxx Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
5
Common Common Series B Series D Series E Total No. of
No. of Warrant No. of Series C No. of No. of Preferred
Investor Shares No. of Shares Shares No. of Shares Shares Shares Shares
----------------------- ------ ------------- -------- ------------- -------- -------- -----------
Xxxxxxx Xxxxxxx 0 0 0 0 0 6,437 6,437
Jr. and Xxxxxx X.
Xxxxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Xxxxx Drum 0 0 0 0 0 6,436 6,436
00000 XX 00xx Xxxxx
Xxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx 0 0 0 0 0 4,762 4,762
00000 000xx Xxxxxx XX
Xxxxxxx, XX 00000
Xxxxx and Xxxx 0 0 0 0 0 4,762 4,762
Xxxxxx
0000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Xxxxx Xxxxxx 0 0 0 0 0 4,762 4,762
00000 XX 00xx Xxxxxx
Xxxxxxxx, XX 00000
Technology 0 0 0 0 0 1,904,762 1,904,762
Partners Fund VI, L.P.
c/o Xxx Xxxxxx
0000 Xxxxxxx Xxxx. Xxxxx X
Xxxxxxxxx, XX 00000
Xxxxxxx Partners LP 0 0 0 0 0 404,761 404,761
c/o Xxxx Xxxxxx
000 Xxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, XX 00000
6
Common Common Series B Series D Series E Total No. of
No. of Warrant No. of Series C No. of No. of Preferred
Investor Shares No. of Shares Shares No. of Shares Shares Shares Shares
----------------------- ------ ------------- -------- ------------- -------- -------- -----------
Clear Fir 0 0 0 0 0 47,619 47,619
Partners, LP
c/o Xxxx Xxxxxx
000 Xxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Xxxx Xxxxxx 0 0 0 0 0 23,810 23,810
000 Xxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Nanda Xxxxxx Xxxxx 0 0 0 0 0 47,619 47,619
and Xxxxxx Xxxxxxxx
Xxxxx
00000 XX 00xx Xxxxxx
Xxxxxxxx, XX 00000
VWB Raptor Fund, LLC
[Address] 0 0 0 0 0 95,238 95,238
Xxxxxxxxx & Xxxxx 0 0 0 0 0 178,572 178,572
California
c/o Xxxxx X. Xxxxx
Xxx Xxxx Xxxxxx
Xxxx Xxxxxxxxx, XX 00000
Xxxxxxxxx & Xxxxx 0 0 0 0 0 178,572 178,572
Employee Venture
Fund, L.P.
c/o Xxxxx X. Xxxxx
Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Access Technology 0 0 0 0 0 178,571 178,571
Partners, L.P.
c/o Xxxxx X. Xxxxx
Xxx Xxxx Xxxxxx
Xxxx Xxxxxxxxx, XX 00000
7
Common Common Series B Series D Series E Total No. of
No. of Warrant No. of Series C No. of No. of Preferred
Investor Shares No. of Shares Shares No. of Shares Shares Shares Shares
----------------------- ------ ------------- -------- ------------- -------- -------- -----------
Access Technology 0 0 0 0 0 178,571 178,571
Partners Brokers Fund, L.P.
c/o Xxxxx X. Xxxxx
Xxx Xxxx Xxxxxx
Xxxx Xxxxxxxxx, XX 00000
Veber Partners LLC 37,500 0 0 0 0 0 37,500
The River Forum
Suite 250
0000 XX Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Xxxxxxxx X. Xxxxxxx 150,000 150,000 0 0 0 0 300,000
c/o Stanley Investment and
Management
000 XX Xxxxxx
Xxxxx 0000
Xxxxxxxx, XX 00000
TOTAL 187,500 150,000 3,500,000 4,000,000 1,786,750 11,904,761 21,529,011
------- ------- --------- --------- --------- ---------- ----------
8
EXHIBIT B
RESTRICTIVE LEGEND
THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND
CONDITIONS OR AN AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT DATED APRIL ___,
1999. A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICE OF THE CORPORATION, AND
MAY NOT BE SOLD, TRANSFERRED OR ENCUMBERED EXCEPT IN ACCORDANCE WITH THE TERMS
AND PROVISIONS OF SAID AGREEMENT AS SAID AGREEMENT MAY FROM TIME TO TIME BE
AMENDED AND SUPPLEMENTED.
