EXHIBIT 10.08
SERIES B PREFERRED STOCK EXCHANGE AGREEMENT
This SERIES B PREFERRED STOCK EXCHANGE AGREEMENT (this "Agreement") is made
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and entered into as of September 30, 1997 by and among SuperCede, Inc., a
Washington corporation (the "Company") with an address for purposes of this
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Agreement at 000 - 000xx Xxxxxx XX, Xxxxx ____, Xxxxxxxx, Xxxxxxxxxx 00000 and
Asymetrix Corporation, a Washington corporation (the "Investor") with an address
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for purposes of this Agreement at 000 - 000xx Xxxxxx XX, Xxxxx 000 Xxxxxxxx,
Xxxxxxxxxx 00000.
RECITALS
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WHEREAS, the Company and the Investor desire to recapitalize the Company,
in connection with which Investor will exchange shares of the Company's Common
Stock it currently owns for shares of the Company's newly issued Series B
Preferred Stock, and to enter into certain other related agreements, on the
terms and conditions set forth in this Agreement; and
WHEREAS, in connection with such recapitalization the Company and the
Investor desire to amend that certain Asset Transfer, License and Stock Issuance
Agreement between them dated as of June 24, 1997 (the "Asset and License
Agreement") to terminate the license of certain of the Company's technology to
Investor;
Now, therefore, the parties hereby agree as follows:
1. AGREEMENT TO EXCHANGE STOCK.
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1.1 Authorization. As of the Closing (as defined below) the Company will
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have authorized the issuance, pursuant to the terms and conditions of this
Agreement, of up to 3,500,000 shares of the Company's Series B Preferred Stock,
$0.01 par value per share (the "Series B Stock") having the rights, preferences,
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privileges and restrictions set forth in the Restated Articles of Incorporation
of the Company attached to this Agreement as Exhibit A (the "Restated
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Articles").
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1.2 Agreement to Exchange. The Company and the Investor agree to exchange
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3,500,000 shares of the Company's Common Stock, $0.01 par value per share (the
"Asymetrix Shares") for an equivalent number of shares of Series B Stock. The
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shares of Series B Stock acquired by Investor pursuant to this Agreement will be
collectively hereinafter referred to as the "Series B Shares" and the shares of
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Common Stock issuable upon conversion of the Series B Shares will be
collectively hereinafter referred to as the "Conversion Shares".
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2. CLOSING.
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2.1 Time and Place. The exchange of the Asymetrix Shares for the Series B
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Shares will take place at the offices of the Company concurrently with the
execution of this Agreement
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on September 30, 1997 or at such other time and place as the Company and the
Investor mutually agree upon (which time and place are referred to in this
Agreement as the "Closing").
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2.2 Deliveries By the Company. At the Closing, the Company will deliver
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to the Investor (concurrently with the deliveries from the Investor to the
Company pursuant to Section 2.3) the following:
(a) a certificate representing the Series B Shares;
(b) a copy of the Restated Articles of Incorporation certified by the
Secretary of State of the State of Washington;
(c) a copy of the Bylaws of the Company (as amended through the date
of the Closing), certified by the Secretary of the Company as a true and correct
copy thereof as of the Closing;
(d) an opinion from Xxxxxx & Xxxxx LLP, counsel for the Company,
dated as of the date of the Closing, in the form attached hereto as Exhibit B;
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(e) the Investors' Rights Agreement in the form attached to this
Agreement as Exhibit C, executed by the Company (the "Investors' Rights
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Agreement"); and
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(f) the Voting Agreement in the form attached to this Agreement as
Exhibit D, executed by both the Company and Vulcan Ventures, Inc. (the "Voting
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Agreement").
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2.3 Deliveries By the Investor. At the Closing, the Investor will
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deliver to the Company (concurrently with the deliveries from the Company to the
Investor pursuant to Section 2.2) the following:
(a) a certificate representing the Asymetrix Shares, duly endorsed by
the Investor as requested by the Company for cancellation;
(b) the Investors' Rights Agreement, executed by the Investor; and
(c) the Voting Agreement, executed by the Investor.
3. REPRESENTATIONS, WARRANTIES AND FURTHER AGREEMENTS OF THE COMPANY.
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The Company hereby represents and warrants to the Investor that, except as set
forth in the Schedule of Exceptions ("Schedule of Exceptions") attached to this
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Agreement as Exhibit E (which Schedule of Exceptions shall be deemed to be
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representations and warranties to the Investor by the Company under this Section
3), the statements in the following paragraphs of this Section 3 are all true
and correct:
3.1 Organization, Good Standing and Qualification. The Company is a
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corporation duly organized, validly existing and in good standing under the laws
of the State of Washington
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and has all requisite corporate power and authority to own its properties and
assets and to carry on its business as now conducted and as presently proposed
to be conducted. The Company is qualified to do business as a foreign
corporation in each jurisdiction where failure to be so qualified would have a
material adverse effect on its financial condition, business, prospects or
operations.
3.2 Capitalization. Immediately prior to the Closing the capitalization
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of the Company will consist of the following:
(a) Preferred Stock. A total of 7,000,000 authorized shares of
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preferred stock, $0.01 par value per share (the "Preferred Stock"), consisting
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of 3,500,000 shares designated as Series B Preferred Stock ("Series B Stock"),
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none of which will be issued and outstanding, and 3,500,000 shares designated as
Series A Preferred Stock ("Series A Stock"), none of which will be issued and
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outstanding. The rights, preferences and privileges of the Series B Stock and
the Series A Stock will be as stated in the Restated Articles and as provided by
law.
(b) Common Stock. A total of 15,000,000 authorized shares of common
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stock, $0.01 par value per share (the "Common Stock"), of which 3,500,000 shares
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will be issued and outstanding.
(c) Options, Warrants, Reserved Shares. Except for the conversion
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privileges of the Series B Stock and the Series A Stock and conversion rights
under a Convertible Secured Promissory Note dated August 13, 1997 held by Vulcan
Ventures Inc. (which rights under such Convertible Secured Promissory Note will
be canceled upon the Closing), there are not outstanding any options, warrants,
rights (including conversion or preemptive rights) or agreements for the
purchase or acquisition from the Company of any shares of its capital stock or
any securities convertible into or ultimately exchangeable or exercisable for
any shares of the Company's capital stock. Apart from the exceptions noted in
this Section 3.2(c), no shares of the Company's outstanding capital stock, or
stock issuable upon exercise or exchange of any outstanding options, warrants or
rights, or other stock issuable by the Company, are subject to any rights of
first refusal or other rights to purchase such stock (whether in favor of the
Company or any other person), pursuant to any agreement or commitment of the
Company. No more than 4,000,000 shares of the Company's Common Stock will be
reserved for issuance under any stock option plan, stock incentive plan or any
other plan relating to the grant of shares of the Company's capital stock, or of
options or other rights to purchase shares of the Company's capital stock.
(d) Outstanding Security Holders. Other than Asymetrix, there are no
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outstanding shareholders, option holders, warrant holders, convertible note
holders and other security holders of the Company as of immediately prior to the
Closing.
3.3 Subsidiaries. The Company does not presently own or control, directly
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or indirectly, any interest in any other corporation, partnership, trust, joint
venture, association, or other entity.
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3.4 Due Authorization. All corporate action on the part of the Company,
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its officers, directors and shareholders necessary for the authorization,
execution, delivery of, and the performance of all obligations of the Company
under, this Agreement, the Investors' Rights Agreement and the Voting Agreement,
and the authorization, issuance, reservation for issuance and delivery of all of
the Series B Shares being issued under this Agreement and of the Conversion
Shares has been taken, and this Agreement constitutes, and the Investors' Rights
Agreement and the Voting Agreement, when executed, will constitute, valid and
legally binding obligations of the Company, enforceable in accordance with their
respective terms, except as may be limited by (i) applicable bankruptcy,
insolvency, reorganization or others laws of general application relating to or
affecting the enforcement of creditors' rights generally and (ii) the effect of
rules of law governing the availability of equitable remedies.
3.5 Valid Issuance of Stock.
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(a) The Series B Shares, when issued, sold and delivered in
accordance with the terms of this Agreement for the consideration provided for
herein, will be duly and validly issued, fully paid and nonassessable. The
Conversion Shares have been duly and validly reserved for issuance and, upon
issuance in accordance with the terms of the Restated Articles, will be duly and
validly issued, fully paid and nonassessable.
(b) Based in part on the representations made by the Investor in
Section 4 hereof, the Series B Shares and (assuming no change in applicable law
and no unlawful distribution of Series B Shares by Investor or other parties)
the Conversion Shares will be issued in full compliance with the registration
and prospectus delivery requirements of the U.S. Securities Act of 1933, as
amended (the "1933 Act") and the registration and qualification requirements of
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the State of Washington or in compliance with applicable exemptions therefrom
(provided that, with respect to the Conversion Shares, no commission or other
remuneration is paid or given, directly or indirectly, for soliciting the
issuance of Conversion Shares upon the conversion of the Series B Shares and no
additional consideration is paid for the Conversion Shares other than surrender
of the applicable Series B Shares upon conversion thereof in accordance with the
Restated Articles).
(c) The outstanding shares of the capital stock of the Company are
duly and validly issued, fully paid and nonassessable, and such shares of such
capital stock, and all outstanding options, warrants, convertible notes and
other securities of the Company, have been issued in full compliance with the
registration and prospectus delivery requirements of the 1933 Act or in
compliance with applicable exemptions therefrom, the registration and
qualification requirements of all applicable securities laws of states of the
United States and all other provisions of applicable securities laws of States
of the United States, including, without limitation, anti-fraud provisions.
3.6 Governmental Consents. No consent, approval, order or authorization
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of, or registration, qualification, designation, declaration or filing with, any
federal, state or local governmental authority on the part of the Company is
required in connection with the consummation of the transactions contemplated by
this Agreement, the Investors' Rights
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Agreement or the Voting Agreement, except for such qualifications or filings
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under the 1933 Act and the regulations thereunder and all other applicable
securities laws of States of the United States as may be required in connection
with the transactions contemplated by this Agreement. All such qualifications
and filings will, in the case of qualifications, be effective on the Closing and
will, in the case of filings, be made within the time prescribed by law.
3.7 Litigation. There is no action, suit, proceeding, claim, arbitration
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or investigation ("Action") pending (or, to the best of the Company's knowledge,
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currently threatened) against the Company, its activities, properties or assets
or, to the best of the Company's knowledge, against any officer, director or
employee of the Company in connection with such officer's, director's or
employee's relationship with, or actions taken on behalf of, the Company. To
the best of the Company's knowledge, there is no factual or legal basis for any
such Action that might result, individually or in the aggregate, in any material
adverse change in the business, properties, assets, financial condition, affairs
or prospects of the Company. By way of example but not by way of limitation,
there are no Actions pending or, to the best of the Company's knowledge,
threatened (or any basis therefor known to the Company) relating to the prior
employment of any of the Company's employees or consultants, their use in
connection with the Company's business of any information, technology or
techniques allegedly proprietary to any of their former employers, clients or
other parties, or their obligations under any agreements with prior employers,
clients or other parties. The Company is not a party to or subject to the
provisions of any order, writ, injunction, judgment or decree of any court or
government agency or instrumentality and there is no Action by the Company
currently pending or which the Company intends to initiate.
3.8 Status of Proprietary Assets.
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(a) Ownership. The Company has full title and ownership of, or has
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license to, all patents, patent applications, trademarks, service marks, trade
names, copyrights, moral rights, mask works, trade secrets, confidential and
proprietary information, compositions of matter, formulas, designs, proprietary
rights, know-how and processes (all of the foregoing collectively hereinafter
referred to as the "Proprietary Assets") necessary to enable it to carry on its
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business as now conducted and as presently proposed to be conducted, without any
conflict with or infringement of the rights of others. To the best of the
Company's knowledge, no third party has any ownership right, title, interest,
claim in or lien on any of the Company's Proprietary Assets and the Company has
taken all steps reasonably necessary to preserve its legal rights in, and the
secrecy of, all its Proprietary Assets, except those for which disclosure is
required for legitimate business or legal reasons.
(b) Licenses; Other Agreements. Except for licenses to use the
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SuperCede Products granted to customers in the ordinary course of business and
except as set forth on Schedule 3.8(b), the Company has not granted, and, to the
best of the Company's knowledge, there are not outstanding, any options,
licenses or agreements of any kind relating to any Proprietary Asset of the
Company, nor is the Company bound by or a party to any option, license or
agreement of any kind with respect to any of its Proprietary Assets.
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(c) No Infringement. To the best of the Company's knowledge, the
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Company has not violated or infringed, and is not currently violating or
infringing, and the Company has not received any communications alleging that
the Company (or any of its employees or consultants) has violated or infringed
or, by conducting its business as proposed, would violate or infringe, any
Proprietary Asset of any other person or entity.
(d) No Breach by Employee. The Company is not aware that any
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employee or consultant of the Company is obligated under any agreement
(including licenses, covenants or commitments of any nature) or subject to any
judgment, decree or order of any court or administrative agency, or any other
restriction that would interfere with the use of his or her best efforts to
carry out his or her duties for the Company or to promote the interests of the
Company or that would conflict with the Company's business as proposed to be
conducted. The carrying on of the Company's business by the employees and
contractors of the Company and the conduct of the Company's business as
presently proposed, will not, to the best of the Company's knowledge, conflict
with or result in a breach of the terms, conditions or provisions of, or
constitute a default under, any contract, covenant or instrument under which any
of such employees or contractors or the Company is now obligated. The Company
does not believe it is or will be necessary to utilize any inventions of any
employees of the Company (or persons the Company currently intends to hire) made
prior to their employment by the Company. At no time during the conception of or
reduction of any of the Company's Proprietary Assets to practice was any
developer, inventor or other contributor to such patents operating under any
grants from any governmental entity or agency or private source, performing
research sponsored by any governmental entity or agency or private source or
subject to any employment agreement or invention assignment or nondisclosure
agreement or other obligation with any third party that could adversely affect
the Company's rights in such Proprietary Assets.
3.9 Compliance with Law and Charter Documents. The Company is not in
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violation or default of any provisions of its Articles of Incorporation or
Bylaws, both as amended, and to the best of the Company's knowledge, except for
any violations that individually and in the aggregate would have no material
adverse impact on the Company's business, the Company is in compliance with all
applicable statutes, laws, regulations and executive orders of the United States
of America and all states, foreign countries or other governmental bodies and
agencies having jurisdiction over the Company's business or properties. The
Company has not received any notice of any violation of such statutes, laws,
regulations or orders which has not been remedied prior to the date hereof. The
execution, delivery and performance of this Agreement, the Investors' Rights
Agreement and the Voting Agreement and the consummation of the transactions
contemplated hereby or thereby will not result in any such violation or default,
or be in conflict with or constitute, with or without the passage of time or the
giving of notice or both, either a default under the Company's Articles of
Incorporation or Bylaws, or any agreement or contract of the Company, or, to the
best of the Company's knowledge, a violation of any statutes, laws, regulations
or orders, or an event which results in the creation of any lien, charge or
encumbrance upon any asset of the Company.
3.10 Material Agreements. The Company has not breached, nor does the
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Company have any knowledge of any claim or threat that the Company has breached,
any term or condition
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of any agreement, contract, lease, license, instrument or commitment that,
individually or in the aggregate, is material to the business, properties,
financial condition, results of operations or affairs or prospects of the
Company ("Material Agreements"). Each Material Agreement is in full force and
effect and, to the Company's knowledge, no other party to such Material
Agreement is in default thereunder. The Company is not a party to any agreement
that restricts its ability to market or sell any of its products (whether by
territorial restriction or otherwise).
3.11 Registration Rights. Except as provided in the Investors' Rights
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Agreement, the Company has not granted or agreed to grant to any person or
entity any rights (including piggyback registration rights) to have any
securities of the Company registered with the United States Securities and
Exchange Commission ("SEC") or any other governmental authority.
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3.12 Title to Property and Assets. The Company owns its properties and
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assets free and clear of all mortgages, deeds of trust, liens, encumbrances,
security interests and claims except for statutory liens for the payment of
current taxes that are not yet delinquent and liens, encumbrances and security
interests which arise in the ordinary course of business and which do not affect
material properties and assets of the Company. With respect to the property and
assets it leases, the Company is in compliance with such leases and, to the best
of the Company's knowledge, the Company holds valid leasehold interests in such
assets free of any liens, encumbrances, security interests or claims of any
party other than the lessors of such property and assets.
3.13 Financial Statements. Attached to this Agreement as Exhibit F is an
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unaudited balance sheet of the Company dated August 31, 1997 (the "Balance Sheet
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Date") and an unaudited income statement of the Company for the two-month period
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ended August 31, 1997 (all such financial statements being collectively referred
to herein as the "Financial Statements"). Such financial statements (i) are in
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accordance with the books and records of the Company, (ii) are true, correct and
complete and present fairly the financial condition of the Company at the date
or dates therein indicated and the results of operations for the period or
periods therein specified, and (iii) have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis, for the
omission of notes thereto and normal year-end audit adjustments. Specifically,
but not by way of limitation, the balance sheet discloses all of the Company's
material debts, liabilities and obligations of any nature, whether due or to
become due, as of their respective dates (including, without limitation,
absolute liabilities, accrued liabilities, and contingent liabilities) to the
extent such debts, liabilities and obligations are required to be disclosed in
accordance with generally accepted accounting principles. The Company has good
and marketable title to all assets set forth on the balance sheet, except for
such assets as have been spent, sold or transferred in the ordinary course of
business since their respective dates.
3.14 Certain Actions. Since the Balance Sheet Date, the Company has not:
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(i) declared or paid any dividends, or authorized or made any distribution upon
or with respect to any class or series of its capital stock; (ii) incurred any
indebtedness for money borrowed or incurred any other liabilities individually
in excess of $10,000 or in excess of $25,000 in the aggregate; (iii) made any
loans or advances to any person, other than ordinary advances for travel
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expenses; (iv) sold, exchanged or otherwise disposed of any material assets or
rights other than the sale of inventory in the ordinary course of its business;
or (v) entered into any transactions with any of its officers, directors or
employees or any entity controlled by any of such individuals.
3.15 Activities Since Balance Sheet Date. Since the Balance Sheet Date,
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there has not been:
(a) any damage, destruction or loss, whether or not covered by
insurance, materially and adversely affecting the assets, properties, financial
condition, operating results, prospects or business of the Company (as presently
conducted and as presently proposed to be conducted);
(b) any waiver by the Company of a valuable right or of a material
debt owed to it;
(c) any satisfaction or discharge of any lien, claim or encumbrance
or payment of any obligation by the Company, except such a satisfaction,
discharge or payment made in the ordinary course of business that is not
material to the assets, properties, financial condition, operating results or
business of the Company;
(d) any material change or amendment to a material contract or
arrangement by which the Company or any of its assets or properties is bound or
subject, except for changes or amendments which are expressly provided for or
disclosed in this Agreement;
(e) any material change in any compensation arrangement or agreement
with any present or prospective employee, contractor or director not approved by
the Company's board of directors; or
(f) to the Company's knowledge, any other event or condition of any
character which would materially and adversely affect the assets, properties,
financial condition, operating results or business of the Company.
3.16 ERISA Plans. The Company does not have any Employee Pension Benefit
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Plan as defined in Section 3 of the Employee Retirement Income Security Act of
1974, as amended.
3.17 Insurance. The Company has in full force and effect fire and
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casualty insurance policies, with extended coverage, sufficient in amount
(subject to reasonable deductibles) to allow it to replace any of its properties
that might be damaged or destroyed.
3.18 Tax Returns and Payments. The Company has timely filed all tax
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returns and reports required by law and has never been audited by any state or
federal taxing authority. All tax returns and reports of the Company are true
and correct in all material respects. The Company has paid all taxes and other
assessments due, except those, if any, currently being contested by it in good
faith which are listed in the Schedule of Exceptions.
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3.19 Employees. The Company is not aware that any officer or employee
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intends to terminate their employment with the Company, nor does the Company
have any present intention to terminate the employment of any of its officers or
employees.
3.20 Disclosure. This Agreement and the Exhibits hereto (when read
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together) do not contain any untrue statement of a material fact and do not omit
to state a material fact necessary to make the statements therein or herein not
misleading.
4. REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF INVESTOR.
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The Investor hereby represents and warrants to, and agrees with, the Company
that:
4.1 Authorization. This Agreement constitutes Investor's valid and
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legally binding obligation, enforceable in accordance with its terms except as
may be limited by (i) applicable bankruptcy, insolvency, reorganization or other
laws of general application relating to or affecting the enforcement of
creditors' rights generally and (ii) the effect of rules of law governing the
availability of equitable remedies. Investor represents that Investor has full
power and authority to enter into this Agreement, the Investors' Rights
Agreement and the Voting Agreement.
4.2 Purchase for Own Account. The Series B Shares to be acquired by
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Investor hereunder will be acquired for investment for Investor's own account,
not as a nominee or agent, and not with a view to the public resale or
distribution thereof within the meaning of the 1933 Act, and Investor has no
present intention of selling, granting any participation in, or otherwise
distributing the same.
4.3 Disclosure of Information. Investor has received or has had full
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access to all the information it considers necessary or appropriate to make an
informed investment decision with respect to the Series B Shares to be purchased
by Investor under this Agreement. Investor further has had an opportunity to ask
questions and receive answers from the Company regarding the terms and
conditions of the offering of the Series B Shares and to obtain additional
information (to the extent the Company possessed such information or could
acquire it without unreasonable effort or expense) necessary to verify any
information furnished to Investor or to which Investor had access. The
foregoing, however, does not in any way limit or modify the representations and
warranties made by the Company in Section 3.
4.4 Investment Experience. Investor understands that the purchase of the
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Series B Shares involves substantial risk. Investor: (i) has experience as an
investor in securities of companies in the development stage and acknowledges
that Investor is able to fend for itself, can bear the economic risk of
Investor's investment in the Series B Shares and has such knowledge and
experience in financial or business matters that Investor is capable of
evaluating the merits and risks of this investment in the Series B Shares and
protecting its own interests in connection with this investment and/or (ii) has
a preexisting personal or business relationship with the Company and certain of
its officers, directors or controlling persons of a nature and duration that
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enables Investor to be aware of the character, business acumen and financial
circumstances of such persons.
4.5 Accredited Investor Status. Investor is an "accredited investor"
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within the meaning of Regulation D promulgated under the 1933 Act.
4.6 Restricted Securities. Investor understands that the Series B Shares
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are characterized as "restricted securities" under the 1933 Act inasmuch as they
are being acquired from the Company in a transaction not involving a public
offering and that under the 1933 Act and applicable regulations thereunder such
securities may be resold without registration under the 1933 Act only in certain
limited circumstances. In this connection, Investor represents that Investor is
familiar with Rule 144 of the U.S. Securities and Exchange Commission, as
presently in effect, and understands the resale limitations imposed thereby and
by the 1933 Act. Investor understands that the Company is under no obligation
to register any of the securities sold hereunder except as provided in the
Investors' Rights Agreement. Investor understands that no public market now
exists for any of the Series B Shares and that it is uncertain whether a public
market will ever exist for the Series B Shares or the Conversion Shares.
4.7 Further Limitations on Disposition. Without in any way limiting the
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representations set forth above, Investor further agrees not to make any
disposition of all or any portion of the Series B Shares or the Conversion
Shares unless and until:
(a) there is then in effect a registration statement under the 1933
Act covering such proposed disposition and such disposition is made in
accordance with such registration statement; or
(b) (i) Investor shall have notified the Company of the proposed
disposition and shall have furnished the Company with a statement of the
circumstances surrounding the proposed disposition, and (ii) Investor shall have
furnished the Company, at the expense of Investor or its transferee, with an
opinion of counsel, reasonably satisfactory to the Company, that such
disposition will not require registration of such securities under the 1933 Act.
4.8 Legends. It is understood that the certificates evidencing the Series
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B Shares and the Conversion Shares will bear the legends set forth below:
(a) THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"). THE SECURITIES MAY NOT BE OFFERED, SOLD, PLEDGED, OR TRANSFERRED UNLESS
(1) A REGISTRATION STATEMENT UNDER THE SECURITIES ACT (AND CURRENT PROSPECTUS)
IS IN EFFECT AS TO THE SECURITIES, (2) AN EXEMPTION THEREFROM IS AVAILABLE, OR
(3) THE SECURITIES ARE SOLD PURSUANT TO RULE 144 OF THE SECURITIES ACT. THE
ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR
RESALE IS IN COMPLIANCE WITH THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAWS.
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(b) Any legend required by the laws of the State of Washington.
The legend set forth in (a) above shall be removed by the Company from any
certificate evidencing Series B Shares or Conversion Shares upon delivery to the
Company of an opinion by counsel, reasonably satisfactory to the Company, that a
registration statement under the 1933 Act is at that time in effect with respect
to the legended security or that such security can be freely transferred in a
public sale without such a registration statement being in effect and that such
transfer will not jeopardize the exemption or exemptions from registration
pursuant to which the Company issued the Series B Shares or Conversion Shares.
5. AMENDMENTS TO LICENSE AGREEMENT.
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In order to terminate the license previously granted by the Company to the
Investor, the Asset and License Agreement is hereby amended as follows:
(a) Section 1(e), entitled "Competing Product" is deleted in its
entirety;
(b) Article 4, entitled "License to SuperCede Technology" and
including Sections 4(a), 4(b), 4(c) and 4(d), is hereby deleted in its entirety;
(c) Section 11(g), entitled "Injunctive Relief" is amended by
deleting the following from the first sentence: "or any action by Asymetrix with
respect to the SuperCede Technology outside the scope of the license granted in
Section 4" and is further amended by deleting the following from the second
sentence: "and SuperCede may seek a restraining order and/or an injunction
prohibiting any action by Asymetrix with respect to the SuperCede Technology
outside the scope of the license granted in Section 4,".
The remaining terms and conditions of the Asset and License Agreement shall
continue in full force and effect in accordance with their terms.
6. MISCELLANEOUS.
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6.1 Survival of Warranties. The representations, warranties and covenants
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of the Company and the Investor contained in or made pursuant to this Agreement
shall survive the execution and delivery of this Agreement and the Closing and
shall in no way be affected by any investigation of the subject matter thereof
made by or on behalf of the Investor or the Company, as the case may be.
6.2 Successors and Assigns. 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.
6.3 Governing Law. This Agreement shall be governed by and construed
-------------
under the internal laws of the State of Washington as applied to agreements
among Washington residents entered into and to be performed entirely within
Washington, without reference to principles of conflict of laws or choice of
laws.
-11-
6.4 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.
6.5 Headings. The headings and captions used in this Agreement are used
--------
for convenience only and are not to be considered in construing or interpreting
this Agreement. All references in this Agreement to sections, paragraphs,
exhibits and schedules shall, unless otherwise provided, refer to sections and
paragraphs hereof and exhibits and schedules attached hereto, all of which
exhibits and schedules are incorporated herein by this reference.
6.6 Notices. Any notice or other communication required or permitted to
-------
be given under this Agreement will be in writing, will be delivered personally,
by registered or certified mail, postage prepaid, by confirmed facsimile or by
nationally recognized courier service, and will be deemed given upon delivery,
if delivered personally, or five days after deposit in the mails, if mailed, or
upon receipt if delivered by confirmed facsimile or by nationally recognized
courier service, to the address indicated for such party set forth above or to
such other address as a party may have furnished to the other parities in
writing pursuant to this Section 6.6.
6.7 No Finder's Fees. Each party represents that it neither is nor will
----------------
be obligated for any finder's or broker's fee or commission in connection with
this transaction. The Investor agrees to indemnify and to hold harmless the
Company from any liability for any commission or compensation in the nature of a
finders' or broker's fee (and any asserted liability) for which the Investor or
any of its officers, partners, employees, or representatives is responsible.
The Company agrees to indemnify and hold harmless the Investor from any
liability for any commission or compensation in the nature of a finder's or
broker's fee (and any asserted liability) for which the Company or any of its
officers, employees or representatives is responsible.
6.8 Attorneys' Fees. If any action at law or in equity is necessary to
---------------
enforce or interpret the terms of this Agreement, the Investors' Rights
Agreement, the Voting Agreement or the Restated Articles, 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.
6.9 Costs, Expenses. Each party will bear its respective expenses and
---------------
fees of its own accountants, attorneys and other professionals incurred with
respect to this Agreement and the transactions contemplated hereby.
6.10 Amendments and Waivers. Any term of this Agreement may be amended
----------------------
and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), only
with the written consent of the Company and the Investor. Any amendment or
waiver effected in accordance with this Section shall be binding upon each
holder of any Series B Shares and/or Conversion Shares at the time outstanding,
each future holder of such securities, and the Company.
6.11 Severability. If one or more provisions of this Agreement are held
------------
to be unenforceable under applicable law, such provision(s) shall be excluded
from this Agreement
-12-
and the balance of the Agreement shall be interpreted as if such provision(s)
were so excluded and shall be enforceable in accordance with its terms.
6.12 Entire Agreement. This Agreement, together with all exhibits and
----------------
schedules hereto, constitutes the entire agreement and understanding of the
parties with respect to the subject matter hereof and supersedes any and all
prior negotiations, correspondence, agreements, understandings duties or
obligations between the parties with respect to the subject matter hereof.
6.13 Further Assurances. From and after the date of this Agreement, upon
------------------
the request of Investor or the Company, the Company and the Investor shall
execute and deliver such instruments, documents or other writings as may be
reasonably necessary or desirable to confirm and carry out and to effectuate
fully the intent and purposes of this Agreement.
6.14 Assignment of Rights in SuperCede Technology. To the extent that
--------------------------------------------
Asymetrix has acquired any rights in and to the SuperCede Technology (as defined
in the License Agreement), whether pursuant to the terms of any Employee
Invention, Confidentiality, Nonraiding and Noncompetition Agreement (an
"Employee Agreement") between Asymetrix and any employee providing services to
SuperCede or otherwise, which rights were not assigned to SuperCede pursuant
pursuant to the License Agreement, Asymetrix and hereby assigns all such rights
to SuperCede. Asymetrix hereby assigns to SuperCede the right to enforce any
Employee Agreement to the extent it relates to SuperCede Products or SuperCede
Technology, and agrees not to amend or waive any such rights arising under an
Employee Agreement with respect to SuperCede Products or SuperCede Technology
without SuperCede's express written consent.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
THE COMPANY: INVESTOR:
----------- --------
SUPERCEDE, INC. ASYMETRIX CORPORATION
By: /s/ Xxxxxxx Xxxxx By: /s/ X. Xxxxxxxxx
------------------------------------ ----------------------------------
Name: Xxxxxxx Xxxxx Name: Xxxxx X. Xxxxxxxxx
---------------------------------- --------------------------------
Title: Vice President & General Manager Title: CEO
--------------------------------- -------------------------------
-13-
SERIES B PREFERRED STOCK EXCHANGE AGREEMENT
LIST OF EXHIBITS
----------------
Exhibit A - Restated Articles of Incorporation
Exhibit B - Opinion of Company Counsel
Exhibit C - Investors' Rights Agreement
Exhibit D - Voting Agreement
Exhibit E - Schedule of Exceptions
Exhibit F - Unaudited Financial Statement
-00-
Xxxxxx & Xxxxx XXX/Xxxxxxx Xxxxxxxx X.X.
September 30, 1997
Asymetrix Corporation
000-000xx Xxx. X. X., Xxx. 000
Xxxxxxxx, XX 00000
Attention: General Counsel
Re: Purchase of Series B Preferred Stock of SuperCede, Inc.
Gentlemen:
We have served as counsel to SuperCede, Inc. (the "Company"), a Washington
corporation (the "Company"), in connection with the purchase by Asymetrix
Corporation, a Washington corporation ("Asymetrix"), of 3,500,000 shares of
Series B Preferred Stock of the Company pursuant to that certain Series B
Preferred Stock Exchange Agreement by and among Asymetrix and the Company dated
as of September 30, 1997 (the "Agreement"). This opinion is delivered to you
pursuant to Section 1.2(a) of the Agreement. Unless otherwise defined herein,
capitalized terms used in this letter shall have the same meanings as set forth
in the Agreement.
For purposes of this opinion, we have reviewed the following documents the
("Documents"):
(a) The Agreement, including the Schedules and Exhibits thereto;
(b) The Investors Rights Agreement, dated September 30, l997, by and among
Asymetrix, Vulcan Ventures, Inc. ("Vulcan") and the Company;
(c) The Voting Agreement, dated September 30, 1997, by and among
Asymetrix, Vulcan and the Company;
(d) The Series A Stock Purchase Agreement, dated September 30, 1997, by
and among Vulcan and the Company (the "Series A Agreement");
(e) A Certificate of Existence/Authorization dated September 30, 1997,
issued by the Secretary of State of the State of Washington with respect to the
Company;
(f) Amended and Restated Articles of Incorporation of the Company dated
September 30, 1997 (the "Articles"), and Amended and Restated Bylaws of the
Company (the "Bylaws") dated September 30, 1997, each certified by an officer of
the Company as being in full force and effect as of the date of this letter;
Asymetrix Corporation
September 30, 1997
Page 2
(g) Stock records and records of proceedings and actions of the Board of
Directors and shareholders of the Company relating to the formation and
operation of the Company prior to the date hereof, including, without
limitation, the transactions contemplated by the Agreement;
(h) A certificate (the "Certificate") executed by an officer of the
Company with respect to certain other matters, a copy of which is attached
hereto;
(i) That certain Asset Transfer, License and Stock Issuance Agreement
dated effective as of June 24, 1997 by and among Asymetrix and the Company.
Items (a) - (c) are referred to as the "Transaction Documents." We express
no opinion with respect to any document other than the Transaction Documents,
the Articles and the Bylaws, and we have not reviewed any documents for the
purposes of this opinion other than the Documents identified as items (a)
through (i) above.
The term "Parties" means all of the parties to the Transaction Document.
Assumptions
-----------
For purposes of this opinion, we have assumed the following:
A. Parties. All Parties who are natural persons are over the age of 18,
-------
are not operating under any legal disability or incapacity, and are fully
competent to act on their own behalf in executing, delivering and performing the
Transaction Documents. All Parties who are not natural persons, other than the
Company: (i) are duly organized and validly existing; and (ii) have qualified to
do business in any necessary jurisdiction and have all necessary authority, and
all necessary governmental or other consents and authorizations, to enter into,
execute, deliver and perform the Transaction Documents and to effect the
transactions required of them by the Transaction Documents. The Transaction
Documents have been duly executed and delivered by all of the Parties, other
than the Company, by an authorized agent or official of the Parties acting
within the scope of his authority in accordance with applicable law. The
Transaction Documents constitutes the valid and binding obligation of all of the
Parties, other than the Company.
B. Authenticity and Recording. All signatures contained on the Documents
--------------------------
are genuine, and the Transaction Documents submitted to us as originals are
authentic. All copies of the Documents submitted to us as copies actually
executed or to be executed are the same as the originally executed and delivered
Documents.
C. Complete Agreement. There are no facts, agreements or understandings
------------------
among the Parties, written or oral, and there is no usage of trade or course of
prior dealing among the Parties that would, in either case, define, supplement,
modify or supersede the terms of the Transaction Documents.
Asymetrix Corporation
September 30, 1997
Page 3
D. Governing Law. Washington law (without regard to Washington law
-------------
regarding choice of law or conflicts of law) will apply to the interpretation,
validity and enforceability of the Transaction Documents.
The term "actual knowledge" or "our actual knowledge" means such current,
conscious knowledge as we have obtained from our examination of the Documents
and of attorneys presently in our office who have been involved in substantive
legal representation of the Company prior to the date of this letter.
In connection with the opinions set forth below, we have examined and
relied exclusively as to certain factual matters upon the items referred to in
Items (a) through (i) above, including without imitation the accuracy and
completeness of the representations and warranties of the parties to the
Agreement. We have not verified any actual matters in connection with or apart
from our review of the Documents and matters listed above, and, accordingly, we
do not express any opinion or belief as to matters that might have been
disclosed by such verification.
Opinion
-------
Based solely upon the foregoing and on our examination of such questions of law
we have deemed necessary or appropriate for the purpose of this opinion, and
subject to the Assumptions and Qualifications contained herein, it is our
opinion that:
1. The Company is a duly organized and validly existing corporation under
the laws of the State of Washington. The Company has all requisite corporate
power and corporate authority to own its properties and assets and to carry on
its business as now conducted and is presently proposed to be conducted.
2. The authorized capital stock of the Company consists of a total of
30,000,000 authorized shares of Common Stock, $0.0001 par value, none of which,
immediately after the execution of and consummation of the transactions
contemplated by the Agreement and the Series A Agreement, will be issued and
outstanding, and 7,000,000 authorized shares of Preferred Stock, $0.0001 par
value, 3,500,000 of which are designated as "Series A Preferred Stock" and
3,500,000 of which are designated as "Series B Preferred Stock," all of which,
immediately after execution of and consummation of the transactions contemplated
by the Agreement and the Series A Agreement, will be issued and outstanding.
3. All corporate action on the part of the Company, its officers,
directors and shareholders necessary for the authorization, execution, delivery
of, and the performance of all obligations of the Company under the Transaction
Documents, and the authorization, issuance, reservation or issuance and delivery
of all of the Series B Preferred Stock has been taken, and the Transaction
Documents constitute valid and legally binding obligations of the Company,
enforceable in accordance with their respective terms.
Asymetrix Corporation
September 30, 1997
Page 4
4. The Series B Preferred Stock, when issued, sold and delivered in
accordance with the terms of the Agreement, for the consideration provided for
therein, will be duly and validly issued, fully paid and nonassessable. The
shares of common stock into which the Series B Preferred Stock may be converted
have been duly and validly reserved for issuance and, upon issuance in
accordance with the terms of the Articles, will be duly and validly issued,
fully paid and nonassessable.
5. The execution, delivery and performance of the Transaction Documents
and the transactions contemplated thereby will not be in conflict with or
constitute, with or without the passage of time or the giving of notice or both,
a default either under the Company's Articles or Bylaws.
Qualifications
--------------
The opinions rendered herein are subject to and qualified in all respects by the
following:
a. Our opinion as to the enforceability of any of the Transaction
Documents is limited by: (i) applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and other similar laws affecting the rights
and remedies of creditors and lenders, (ii) general principles of equity and
public policy including, without imitation, concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether considered in
a proceeding in equity or at law), and (iii) principles governing the
availability of specific performance, injunctive relief or any other equitable
remedy, which generally provide that the award of such remedies is in the
discretion of the court to which application for such relief is made.
b. We express no opinion as to the enforceability of (i) provisions
related to the waiver of rights, remedies and defenses, (ii) any reservation of
the right to pursue inconsistent or cumulative remedies, (iii) limitations on
the liability of, or provisions for indemnification of a party against, such
party's own negligence or misconduct, (iv) provisions pertaining to
jurisdiction, venue or choice of law, (v) provisions permitting modification of
a document only in writing, (vi) noncompetition covenants, and (viii)
severability clauses.
c. The enforceability of the Transaction Documents is limited by
Washington decisions which permit the admission of extrinsic evidence, both oral
and written, to ascertain the intent of the parties to the Transaction
Documents, regardless of the presence or absence of ambiguity in any of such
agreements or instruments and regardless of a statement by the parties in the
Transaction Documents that such agreements or instruments constitute an
integrated expression of their agreement.
d. Our opinion is limited to the effects of the laws of the State of
Washington and the federal laws of the United States presently in force on the
persons and transactions described herein, and we express no opinion as to the
applicability or effect of the
Asymetrix Corporation
September 30, 1997
Page 5
laws of any other jurisdictions. In addition, we express no opinion regarding
any Federal or state antitrust or securities laws and regulations or compliance
with fiduciary duty requirements.
e. We express no opinion regarding the availability of such general
contractual defenses as mistake, fraud, duress or unconscionability.
This opinion is rendered to you in connection with the above transaction and is
for your exclusive benefit. This opinion may not be relied upon by you for any
other purpose and, without our prior written consent, may not be relied upon or
furnished or quoted to any other person, firm or corporation for any purpose.
Neither you nor any other person to whom we may grant our consent to rely upon
this opinion may rely upon any portion of this opinion which such person knows
to be false or has information which would make reliance upon such portion of
the opinion unreasonable in the circumstances. We expressly disclaim any
obligation to advise you of any changes or developments in matters of law or
fact covered by this opinion that occur after the date hereof.
Very truly yours,
/s/ Xxxx X. Steel
Xxxx X. Steel
of
XXXXXX & XXXXX LLP/XXXXXXX XXXXXXXX X.X.
INVESTORS' RIGHTS AGREEMENT
---------------------------
This Investors' Rights Agreement (this "Agreement") is made and entered
---------
into as of September 30, 1997 by and among Supercede, Inc., a Washington
corporation (the "Company"), Asymetrix Corporation, a Washington corporation
-------
("Asymetrix") and Vulcan Ventures Inc. ("Vulcan," together with Asymetrix, the
----------- ------
"Investors")
---------
RECITALS
--------
A. Asymetrix has agreed to exchange the shares of Common Stock owned by it
for shares of the Company's Series B Preferred Stock ("Series B Stock") on the
terms and conditions set forth in that certain Series B Preferred Stock Exchange
Agreement dated of even date herewith by and between the Company and Asymetrix
(the "Series B Agreement")
------------------
B. Vulcan has agreed to purchase from the Company, and the Company has
agreed to sell to Vulcan, shares of the Company's Series A Preferred Stock
("Series A Stock") on the terms and conditions set forth in that certain Series
--------------
A Preferred Stock Purchase Agreement, dated of even date herewith by and between
the Company and Vulcan (the "Series A Agreement").
------------------
C. Each of the Series A Agreement and the Series B Agreement provides
that the Investors shall be granted certain information and registration rights
and rights of first refusal, all as more fully set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
promises hereinafter set forth, the parties hereto agree as follows:
1. INFORMATION RIGHTS.
------------------
1.1 Financial Information. The Company covenants and agrees that,
---------------------
commencing on the date of this Agreement, for so long as any Investor holds at
least 350,000 shares of Series A Stock issued under the Series A Agreement
and/or 350,000 shares of Series B Stock issued under the Series B Agreement
and/or the equivalent number (on an as-converted basis) of shares of Common
Stock of the Company ("Common Stock") issued upon the conversion of such shares
------------
of Series A Stock or Series B Stock ("Conversion Stock") the Company will:
----------------
(a) Annual Reports. Furnish to such Investor, as soon as practicable
--------------
and in any event within 120 days after the end of each fiscal year of the
Company, a consolidated Balance Sheet as of the end of such fiscal year, a
consolidated Statement of Income and a consolidated Statement of Cash Flows of
the Company and its subsidiaries for such year, setting forth in each case in
comparative form the figures from the Company's previous fiscal year (if any),
all prepared in accordance with generally accepted accounting principles and
practices and audited by nationally recognized independent certified public
accountants.
(b) Quarterly Reports. Furnish to such Investor as soon as
-----------------
practicable, and in any case within forty-five (45) days of the end of each
fiscal quarter of the Company (except the last quarter of the Company's fiscal
year), quarterly unaudited financial statements, including an
-1-
unaudited Balance Sheet, and an unaudited Statement of Income and an unaudited
Statement of Cash Flows.
(c) Monthly Reports. Furnish to such Investor as soon as practicable,
---------------
and in any case within forty-five (45) days of the end of each calendar month
(except the last month of the Company's fiscal year), monthly unaudited
financial statements, including an unaudited Balance Sheet, and an unaudited
Statement of Income and an unaudited Statement of Cash Flows.
(d) Annual Budget. Furnish to such Investor as soon as practicable
-------------
and in any event no later than thirty (30) days after the close of each fiscal
year of the Company, an annual operating plan and budget, prepared on a monthly
basis, for the next immediate fiscal year. The Company shall also furnish to
such Investor, within a reasonable time of its preparation, amendments to the
annual budget, if any.
1.2 Inspection Rights. The Company shall permit each Investor holding at
-----------------
least 500,000 shares of Series A Stock and/or Series B Stock and/or the
equivalent number (on an as-converted basis) of shares of Conversion Stock, or
any combination thereof, at such Investor's expense, to visit and inspect the
Company's properties, to examine its books of account and records and to discuss
the Company's affairs, finances and accounts with its officers, all at such
reasonable times as may be requested by such Investor.
1.3 Termination of Certain Rights. The Company's obligations under
-----------------------------
Sections 1.1 and 1.2 above will terminate upon the closing of the Company's
initial public offering of Common Stock pursuant to an effective registration
statement filed under the U.S. Securities Act of 1933, as amended (the
"Securities Act").
---------------
1.4 Rule 144A Information. The Company agrees to provide each Investor,
---------------------
upon request, with such written information as may be required in order to
permit such Investor to resell any shares of the Company's stock pursuant to
Rule 144A promulgated under the Securities Act.
1.5 Confidentiality. Each Investor agrees to hold all information received
---------------
pursuant to this Agreement in confidence, whether such information is disclosed
to Investor orally or in writing and whether or not such information is
specifically marked as confidential. Investor further agrees not to use such
information except in connection with the exercise of its rights hereunder or
with respect to the Series A Stock, Series B Stock and/or Conversion Stock held
by it. Investor shall take such care to maintain the confidentiality of the
information it receives hereunder as it takes to protect its own confidential
information of a similar nature, but in no event less than a reasonable degree
of care. Upon the request of the Company, the Investor shall provide to the
Company the steps being taken by the Investor to maintain the confidentiality of
such information. The foregoing obligations do not apply to information which:
(i) was in Investor's lawful possession prior to the disclosure and had not been
obtained by Investor either directly or indirectly from the Company; (ii) is
lawfully disclosed to Investor by a third party without restriction on
disclosure; (iii) is independently developed by Investor without reference to
the information received hereunder; or (iv) is publicly disclosed by the
Company.
-2-
2. REGISTRATION RIGHTS.
-------------------
2.1 Definitions. For purposes of this Section 2:
-----------
(a) Registration. 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 effectiveness of such registration statement.
(b) Registrable Securities. The term "Registrable Securities" means:
---------------------- ----------------------
(1) all the shares of Common Stock of the Company issued or issuable upon the
conversion of any shares of Series A Stock issued under the Series A Agreement
or any shares of Series B Stock issued under the Series B Agreement that are now
owned or may hereafter be acquired by any Investor or any Investor's permitted
successors and assigns and (2) any shares of Common Stock of the Company issued
as (or issuable upon the conversion or exercise of any warrant, right or other
security which is issued as) a dividend or other distribution with respect to,
or in exchange for or in replacement of, all such shares of Common Stock
described in clause (1) of this subsection (b); excluding in all cases, however,
---------
any Registrable Securities sold by a person in a transaction in which rights
under this Section 2 are not assigned in accordance with this Agreement or any
Registrable Securities sold to the public or sold pursuant to Rule 144
promulgated under the Securities Act
(c) Registrable Securities Then Outstanding. The number of shares of
---------------------------------------
"Registrable Securities then outstanding" shall mean the number of shares of
---------------------------------------
Common Stock which are Registrable Securities and (1) are then issued and
outstanding or (2) are then issuable pursuant to the exercise or conversion of
then outstanding and then exercisable options, warrants or convertible
securities.
(d) Holder. For purposes of this Section 2 and Sections 3 and 4
------
hereof, the term "Holder" means any person owning of record Registrable
------
Securities that have not been sold to the public or pursuant to Rule 144
promulgated under the Securities Act or any assignee of record of such
Registrable Securities to whom rights under this Section 2 have been duly
assigned in accordance with this Agreement; provided, however, that for purposes
-------- -------
of this Agreement, a record holder of shares of Series A Stock or Series B Stock
convertible into such Registrable Securities shall be deemed to be the Holder of
such Registrable Securities; provided, further, that the Company shall in no
-------- -------
event be obligated to register shares of Series A Stock or Series B Stock, and
that Holders of Registrable Securities will not be required to convert their
shares of Series A Stock or Series B Stock into Common Stock in order to
exercise the registration rights granted hereunder, until immediately before the
closing of the offering to which the registration relates.
(e) Form S-3. The term "Form S-3" means such form under the
-------- --------
Securities Act as is in effect on the date hereof or any successor registration
form under the Securities Act subsequently adopted by the SEC which permits
inclusion or incorporation of substantial information by reference to other
documents filed by the Company with the SEC.
-3-
(f) SEC. The term "SEC" or "Commission" means the U.S. Securities and
--- --- ----------
Exchange Commission.
2.2 Demand Registration.
-------------------
(a) Request by Holders. If the Company shall receive at any time
------------------
after the earlier of (i) September 30, 2002 (except that if the Company has
completed the initial public offering of its securities then the time period in
2.2(a)(ii) shall apply even after September 30, 2002), or (ii) six (6) months
after the effective date of the Company's initial public offering of its
securities pursuant to a registration filed under the Securities Act, a written
request from the Holders of at least twenty-five percent (25%) of the
Registrable Securities then outstanding that the Company file a registration
statement under the Securities Act covering the registration of Registrable
Securities pursuant to this Section 2.2, then the Company shall, within ten (10)
business days of the receipt of such written request, give written notice of
such request ("Request Notice") to all Holders, and effect, as soon as
--------------
practicable, the registration under the Securities Act of all Registrable
Securities which Holders request to be registered and included in such
registration by written notice given by such Holders to the Company within
twenty (20) days after receipt of the Request Notice, subject only to the
limitations of this Section 2.2; provided that the Registrable Securities
--------
requested by all Holders to be registered pursuant to such request must either
(i) be at least twenty-five percent (25%) of all Registrable Securities then
outstanding or (ii) have an anticipated aggregate public offering price (before
any underwriting discounts and commissions) of not less than $2,500,000.
(b) Underwriting. If the Holders initiating the registration request
------------
under this Section 2.2 ("Initiating Holders") intend to distribute the
------------------
Registrable Securities covered by their request by means of an underwriting,
then they shall so advise the Company as a part of their request made pursuant
to this Section 2.2 and the Company shall include such information in the
written notice referred to in subsection 2.2(a). In such event, the right of
any Holder to include his Registrable Securities in such registration shall be
conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Securities in the underwriting (unless
otherwise mutually agreed by a majority in interest of the Initiating Holders
and such Holder) to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting shall enter into an
underwriting agreement in customary form with the managing underwriter or
underwriters selected for such underwriting by the Company. Notwithstanding any
other provision of this Section 2.2, if the underwriter(s) advise(s) the Company
in writing that marketing factors require a limitation of the number of
securities to be underwritten then the Company shall so advise all Holders of
Registrable Securities which would otherwise be registered and underwritten
pursuant hereto, and the number of Registrable Securities that may be included
in the underwriting shall be reduced as required by the underwriter(s) and
allocated among the Holders of Registrable Securities on a pro rata basis
according to the number of Registrable Securities then outstanding held by each
Holder requesting registration (including the Initiating Holders); provided,
--------
however, that the number of shares of Registrable Securities to be included in
-------
such underwriting and registration shall not be reduced unless all other
securities of the Company are first entirely excluded from the
-4-
underwriting and registration. Any Registrable Securities excluded and withdrawn
from such underwriting shall be withdrawn from the registration.
(c) Maximum Number of Demand Registrations. The Company is obligated
--------------------------------------
to effect only four (4) such registrations pursuant to this Section 2.2, two (2)
at the demand of the Holders of the Series A Stock and two (2) at the demand of
the Holders of the Series B Stock.
(d) Deferral. Notwithstanding the foregoing, if the Company shall
--------
furnish to Holders requesting the filing of a registration statement pursuant to
this Section 2.2, a certificate signed by the President or Chief Executive
Officer of the Company stating that in the good faith judgment of the Board of
Directors of the Company, it would be seriously detrimental to the Company and
its shareholders for such registration statement to be filed and it is therefore
essential to defer the filing of such registration statement, then the Company
shall have the right to defer such filing for a period of not more than 120 days
after receipt of the request of the Initiating Holders; provided, however, that
-------- -------
the Company may not utilize this right more than once in any twelve (12) month
period.
(e) Expenses. All expenses incurred in connection with a registration
--------
pursuant to this Section 2.2, including without limitation all registration 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 (but excluding underwriters' discounts and
commissions), shall be borne by the Company. Each Holder participating in a
registration pursuant to this Section 2.2 shall bear such Holder's proportionate
share (based on the total number of shares sold in such registration other than
for the account of the Company) of all discounts, commissions or other amounts
payable to underwriters or brokers in connection with such offering
Notwithstanding the foregoing, the Company shall not be required to pay for any
expenses of any registration proceeding begun pursuant to this Section 2.2 if
the registration request is subsequently withdrawn at the request of the Holders
of a majority of the Registrable Securities to be registered, unless the Holders
of a majority of the Registrable Securities Securities who have demanded
registration pursuant to this Section 2.2 agree to forfeit their right to one
(1) demand registration pursuant to this Section 2.2 (in which case such right
shall be forfeited by all Holders of Registrable Securities); provided, further,
-------- -------
however, that if at the time of such withdrawal, the Holders have learned of a
-------
material adverse change in the condition, business, or prospects of the Company
not known to the Holders at the time of their request for such registration and
have withdrawn their request for registration with reasonable promptness after
learning 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 this
Section 2.2.
2.3 Piggyback Registrations. The Company shall notify all Holders of
-----------------------
Registrable Securities in writing at least thirty (30) days prior to filing any
registration statement under the Securities Act for purposes of effecting a
public offering of securities of the Company (including, but not limited to,
registration statements relating to secondary offerings of securities of the
Company, but excluding registration statements relating to any registration
---------
under Section 2.2 or Section 2.4 of this Agreement or to any employee benefit
plan or a corporate reorganization) and will afford each such Holder an
opportunity to include in such registration
-5-
statement all or any part of the Registrable Securities then held by such
Holder. Each Holder desiring to include in any such registration statement all
or any part of the Registrable Securities held by such Holder shall, within
twenty (20) days after receipt of the above-described notice from the Company,
so notify the Company in writing, and in such notice shall inform the Company of
the number of Registrable Securities such Holder wishes to include in such
registration statement. If a Holder decides not to include all of its
Registrable Securities in any registration statement thereafter filed by the
Company, such Holder shall nevertheless continue to have the right to include
any Registrable Securities in any subsequent registration statement or
registration statements as may be filed by the Company with respect to offerings
of its securities, all upon the terms and conditions set forth herein.
(a) Underwriting. If a registration statement under which the Company
------------
gives notice under this Section 2.3 is for an underwritten offering, then the
Company shall so advise the Holders of Registrable Securities. In such event,
the right of any such Holder's Registrable Securities to be included in a
registration pursuant to this Section 2.3 shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their Registrable Securities through such
underwriting shall enter into an underwriting agreement in customary form with
the managing underwriter or underwriter(s) selected for such underwriting.
Notwithstanding any other provision of this Agreement, if the managing
underwriter determine(s) in good faith that marketing factors require a
limitation of the number of shares to be underwritten, then the managing
underwriter(s) may exclude shares (including Registrable Securities) from the
registration and the underwriting, and the number of shares that may be included
in the registration and the underwriting shall be allocated: first, to the
-----
Company; second, to any Holders or other parties who have exercised a
------
contractual demand right to initiate the registration process; and third, to
-----
each of the Holders and other parties holding contractual registration rights
who have requested inclusion of their Registrable Securities or other securities
entitled to be included in such registration statement, on a pro rata basis
based on the total number of Registrable Securities or other securities entitled
to be included then held by each such Holder or other parties; provided however,
-------- -------
that the right of the underwriters to exclude shares (including Registrable
Securities) from the registration and underwriting as described above shall be
restricted so that:(i) the number of Registrable Securities included in any such
registration is not reduced below twenty percent (20%) of the shares included in
the registration, except for a registration relating to the Company's initial
public offering from which all Registrable Securities may be excluded; and (ii)
all shares that are not Registrable Securities and are held by persons who are
employees or directors of the Company (or any subsidiary of the Company) shall
first be excluded from such registration and underwriting before any Registrable
Securities are so excluded. If any Holder disapproves of the terms of any such
underwriting, such Holder may elect to withdraw therefrom by written notice to
the Company and the underwriter, delivered at least ten (10) business days prior
to the effective date of the registration statement. Any Registrable Securities
excluded or withdrawn from such underwriting shall be excluded and withdrawn
from the registration. For any Holder which is a partnership or corporation,
the partners, retired partners and shareholders of such Holder, or the estates
and family members of any such partners and retired partners and any trusts for
the benefit of any of the foregoing persons shall be deemed to be a single
"Holder", and
-6-
any pro rata reduction with respect to such "Holder" shall be based upon the
aggregate amount of shares carrying registration rights owned by all entities
and individuals included in such "Holder", as defined in this sentence.
(b) Expenses. All expenses incurred in connection with a registration
--------
pursuant to this Section 2.3 (excluding underwriters' and brokers' discounts and
commissions), including, without limitation all federal and "blue sky"
registration and qualification fees, printers' and accounting fees, fees and
disbursements of counsel for the Company and reasonable fees and disbursements
of one counsel for the selling Holders shall be borne by the Company.
2.4 Form S-3 Registration. In case the Company shall receive from any
---------------------
Holder or Holders of at least twenty-five percent (25%) of all Registrable
Securities then outstanding a written request or requests that the Company
effect a registration on Form S-3 and any related qualification or compliance
with respect to all or a part of the Registrable Securities owned by such Holder
or Holders, then the Company will:
(a) Notice. Promptly give written notice of the proposed registration
------
and the Holder's or Holders' request therefor, and any related qualification or
compliance, to all other Holders of Registrable Securities; and
(b) Registration. As soon as practicable, effect such registration
------------
and all such qualifications and compliances as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion of such
Holder's or Holders' Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any other
Holder or Holders joining in such request as are specified in a written request
given within twenty (20) days after receipt of such written notice from the
Company; provided, however, that the Company shall not be obligated to effect
-------- -------
any such registration, qualification or compliance pursuant to this Section 2.4:
(1) if Form S-3 is not available for such offering by the
Holders;
(2) if the Holders, together with the holders of any other
securities of the Company entitled to inclusion in such registration, propose to
sell Registrable Securities and such other securities (if any) at an aggregate
price to the public of less than $1,000,000;
(3) if the Company shall furnish to the Holders a certificate
signed by the President or Chief Executive Officer 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 no more
than once during any twelve month period for a period of not more than 120 days
after receipt of the request of the Holder or Holders under this Section 2.4;
(4) if the Company has, within the twelve (12) month period
preceding the date of such request, already effected one (1 ) registration on
Form S-3 for the Holders pursuant to this Section 2.4; or
-7-
(5) in any particular jurisdiction in which the Company would be
required to qualify to do business or to execute a general consent to service of
process in effecting such registration, qualification or compliance.
(c) Expenses. Subject to the foregoing, the Company shall file a
--------
Form S-3 registration statement covering the Registrable Securities and other
securities so requested to be registered pursuant to this Section 2.4 as soon as
practicable after receipt of the request or requests of the Holders for such
registration. The Company shall pay all expenses incurred in connection with
each registration requested pursuant to this Section 2.4, (excluding
underwriters' or brokers' discounts and commissions), including without
limitation all filing, registration and qualification, printers' and accounting
fees and the reasonable fees and disbursements of one counsel for the selling
Holder or Holders and counsel for the Company.
(d) Not Demand Registration. Form S-3 registrations shall not be
-----------------------
deemed to be demand registrations as described in Section 2.2 above.
2.5 Obligations of the Company. Whenever required to effect the
--------------------------
registration of any Registrable Securities under this Agreement, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, upon the request of the Holders
of a majority of the Registrable Securities registered thereunder, keep such
registration statement effective for up to ninety (90) days.
(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
Securities Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holders such number of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in order
to facilitate the disposition of the Registrable Securities owned by them that
are included in such registration.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders,
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter(s) of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
-8-
(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 Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
(g) Furnish, at the request of any Holder requesting registration of
Registrable Securities, on the date that such Registrable Securities are
delivered to the underwriters for sale, if such securities are being sold
through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective, (i) an opinion, dated as of 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 and reasonably satisfactory to a majority in interest of the Holders
requesting registration, addressed to the underwriters, if any, and to the
Holders requesting registration of Registrable Securities and (ii) a "comfort"
letter dated as of 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
and reasonably satisfactory to a majority in interest of the Holders requesting
registration, addressed to the underwriters, if any, and to the Holders
requesting registration of Registrable Securities.
2.6 Furnish Information. It shall be a condition precedent to the
-------------------
obligations of the Company to take any action pursuant to Sections 2.2, 2.3 or
2.4 that the selling Holders shall furnish to the Company such information
regarding themselves, the Registrable Securities held by them, and the intended
method of disposition of such securities as shall be required to timely effect
the registration of their Registrable Securities.
2.7 Delay of Registration. No Holder shall have any right to obtain or
---------------------
seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 2.
2.8 Indemnification. In the event any Registrable Securities are
---------------
included in a registration statement under Sections 2.2, 2.3 or 2.4:
(a) By the Company. To the extent permitted by law, the Company will
--------------
indemnify and hold harmless each Holder, the partners, officers and directors of
each Holder, any underwriter (as defined in the Securities Act) for such Holder
and each person, if any, who controls such Holder or underwriter within the
meaning of the Securities Act or the Securities Exchange Act of 1934, as
amended, (the "1934 Act"), against any losses, claims, damages, or liabilities
--------
(joint or several) to which they may become subject under the Securities Act,
the l934 Act or other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations
(collectively a "Violation"):
---------
-9-
(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
Securities Act, the 1934 Act, any federal or state securities law or any rule or
regulation promulgated under the Securities Act, the 1934 Act or any federal or
state securities law in connection with the offering covered by such
registration statement;
and the Company will reimburse each such Holder, partner, officer or
director, underwriter or controlling person for any legal or other expenses
reasonably incurred by them, as incurred, in connection with investigating or
defending any such loss, claim, damage, liability or action; provided however,
-------- -------
that the indemnity agreement contained in this subsection 2.8(a) shall not apply
to amounts paid in settlement of any such loss, claim, damage, liability or
action if such settlement is effected without the consent of the Company (which
consent shall not be unreasonably withheld), nor shall the Company be liable in
any such case for any such loss, claim, damage, liability or action to the
extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by such Holder, partner, officer,
director, underwriter or controlling person of such Holder.
(b) By Selling Holders. 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 have signed the registration statement, each person, if any,
who controls the Company within the meaning of the Securities Act, any
underwriter and any other Holder selling securities under such registration
statement or any of such other Holder's partners, directors or officers or any
person who controls such Holder within the meaning of the Securities Act or the
1934 Act, against any losses, claims, damages or liabilities (joint or several)
to which the Company or any such director, officer, controlling person,
underwriter or other such Holder, partner or director, officer or controlling
person of such other Holder may become subject under the Securities Act, the
1934 Act or other federal or state law, insofar as such losses, claims, damages
or liabilities (or actions in respect thereto) arise out of or are based upon
any Violation, in each case 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 legal or other expenses reasonably
incurred by the Company or any such director, officer, controlling person,
underwriter or other Holder, partner, officer, director or controlling person of
such other Holder in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the indemnity
-------- -------
agreement contained in this subsection 2.8(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; and provided further, that the total amounts
-------- -------
payable in indemnity by a Holder under this Section
-10-
2.8(b) in respect of any Violation shall not exceed the net proceeds received by
such Holder in the registered offering out of which such Violation arises.
(c) Notice. Promptly after receipt by an indemnified party under this
------
Section 2.8 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 2.8, 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 shall
-------- -------
have the right to retain its own 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 conflict of 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 2.8, 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 2.8.
(d) Defect Eliminated in Final Prospectus. The foregoing indemnity
-------------------------------------
agreements of the Company and Holders are subject to the condition that, insofar
as they relate to any Violation made in a preliminary prospectus but eliminated
or remedied in the amended prospectus on file with the SEC at the time the
registration statement in question becomes effective or the amended prospectus
filed with the SEC pursuant to SEC Rule 424(b) (the "Final Prospectus), such
----------------
indemnity agreement shall not inure to the benefit of any person if a copy of
the Final Prospectus was furnished to the indemnified party and was not
furnished to the person asserting the loss, liability, claim or damage at or
prior to the time such action is required by the Securities Act.
(e) Contribution. In order to provide for just and equitable
------------
contribution to joint liability under the Securities Act in any case in which
either (i) any Holder exercising rights under this Agreement, or any controlling
person of any such Holder, makes a claim for indemnification pursuant to this
Section 2.8 but it is judicially determined (by the entry of a final judgment or
decree by a court of competent jurisdiction and the expiration of time to appeal
or the denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this Section 2.8 provides
for indemnification in such case, or (ii) contribution under the Securities Act
may be required on the part of any such selling Holder or any such controlling
person in circumstances for which indemnification is provided under this Section
2.8; then, and in each such case, the Company and such Holder will contribute to
the aggregate losses, claims, damages or liabilities to which they may be
subject (after contribution from others) in such proportion so that such Holder
is responsible for the portion represented by the percentage that the public
offering price of its Registrable Securities offered by and sold under the
registration statement bears to the public offering price of all securities
offered by and
-11-
sold under such registration statement, and the Company and other selling
Holders are responsible for the remaining portion; provided, however, that, in
-------- -------
any such case, (A) no such Holder will be required to contribute any amount in
excess of the public offering price of all such Registrable Securities offered
and sold by such Holder pursuant to such registration statement; and (B) no
person or entity guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) will be entitled to contribution from any
person or entity who was not guilty of such fraudulent misrepresentation.
(f) Survival. The obligations of the Company and Holders under this
--------
Section 2.8 shall survive the completion of any offering of Registrable
Securities in a registration statement, and otherwise.
2.9 "Market Stand-Off" Agreement. Each Holder hereby agrees that it
---------------------------
shall not, to the extent requested by the Company or an underwriter of
securities of the Company, sell or otherwise transfer or dispose of any
Registrable Securities or other shares of stock of the Company then owned by
such Holder (other than to donees or partners of the Holder who agree to be
similarly bound) for one hundred eighty (180) days following the effective date
of the first registration statement of the Company filed under the Securities
Act which covers securities to be sold on its behalf to the public in an
underwritten offering and for ninety (90) days following the effective date of
any subsequent registration statement of the Company filed under the Securities
Act Act which covers securities to be sold on its behalf to the public in an
underwritten offering; provided, however, that:
-------- -------
(a) such agreement shall not be applicable to Registrable Securities
sold pursuant to such registration statement; and
(b) all executive officers and directors of the Company then holding
Common Stock of the Company enter into similar agreements.
In order to enforce the foregoing covenant, the Company shall have the
right to place restrictive legends on the certificates representing the shares
subject to this Section and to impose stop transfer instructions with respect to
the Registrable Securities and such other shares of stock of each Holder (and
the shares or securities of every other person subject to the foregoing
restriction) until the end of such period.
2.10 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 Registrable Securities to the public without registration, after
such time as a public market exists for the Common Stock of the Company, the
Company agrees 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 of the first registration under the Securities Act filed by
the Company for an offering of its securities to the general public;
-12-
(b) Use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the 1934 Act (at any time after it has become subject to such
reporting requirements); and
(c) So long as a Holder owns any Registrable Securities, to furnish
to the Holder forthwith upon request a written statement by the Company as to
its compliance with the reporting requirements of said Rule 144 (at any time
after 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 Securities Act and the 1934 Act (at any time after it has become subject to
the reporting requirements of the 1934 Act), a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents of the
Company as a Holder may reasonably request in availing itself of any rule or
regulation of the Commission allowing a Holder to sell any such securities
without registration (at any time after the Company has become subject to the
reporting requirements of the 1934 Act).
2.11 Termination of the Company's Obligations. The Company shall have no
----------------------------------------
obligations pursuant to Sections 2.2 through 2.4 with respect to: (i) any
request or requests for registration made by any Holder on a date more than five
(5) years after the closing date of the Company's initial public offering in
which gross proceeds raised for the Company's account (calculated before
deduction of underwriters' discounts and commissions) are at least $10,000,000;
or (ii) any Registrable Securities proposed to be sold by a Holder in a
registration pursuant to Section 2.2, 2.3 or 2.4 if, in the opinion of counsel
to the Company, all such Registrable Securities proposed to be sold by a Holder
may be sold in a three-month period without registration under the Securities
Act pursuant to Rule 144 under the Securities Act.
2.12 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 then outstanding,
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 2.2 hereof,
unless under the terms of such agreement, such holder or prospective holder may
include such securities in any such registration only to the extent that the
inclusion of his securities will not reduce the amount of the Registrable
Securities of the Holders which is included, or (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
2.2(a), or within one hundred twenty (120) days of the effective date of any
registration effected pursuant to Section 2.2.
3. RIGHT OF FIRST REFUSAL.
----------------------
3.1 General. Each Holder (as defined in Section 2.1(d)) and any party to
-------
whom such Holder's rights under this Section 3 have been duly assigned in
accordance with Section 4.1(b) (each such Holder or assignee being hereinafter
----
referred to as a "Rights Holder") has the right of first refusal to purchase
-------------
such Rights Holder's Pro Rata Share (as defined below), of all (or any part) of
any "New Securities" (as defined in Section 3.2) that the Company may from time
to time issue after the date of this Agreement. A Rights Holder's "Pro Rata
--------
Share" for purposes of
-----
-13-
this right of first refusal is the ratio of (a) the number of Registrable
Securities as to which such Rights Holder is the Holder (and/or is deemed to be
the Holder under Section 2.1(d)), to (b) a number of shares of Common Stock of
the Company equal to the sum of (i) the total number of shares of Common Stock
of the Company then outstanding plus (ii) the total number of shares of Common
Stock of the Company into which all then outstanding shares of Preferred Stock
of the Company are then convertible; provided, that if the sum of all Rights
Holders' Pro Rata Shares calculated in the manner set forth above would exceed
two-thirds in the aggregate, then each Rights Holder's Pro Rata Share shall be
proportionally reduced so that the aggregate Pro Rata Shares of all Rights
Holders equals two-thirds.
3.2 New Securities. "New Securities" shall mean any Common Stock or
-------------- --------------
Preferred Stock of the Company, whether now authorized or not, and rights,
options or warrants to purchase such Common Stock or Preferred Stock, and
securities of any type whatsoever that are, or may become, convertible or
exchangeable into such Common Stock or Preferred Stock; provided, however, that
-------- -------
the term "New Securities" does not include:
---- --- -------
(i) shares of the Company's Common Stock (and/or options or
warrants therefor) issued to employees, officers, directors, contractors,
advisors or consultants of the Company pursuant to incentive agreements or plans
approved by the Board of Directors of the Company;
(ii) any shares of Series A or B Stock issued under the Series A
Agreement or the Series B Agreement, respectively, as such agreements may be
amended.
(iii) any securities issuable upon conversion of or with respect to
any then outstanding shares of Series A or Series B Stock of the Company or
Common Stock or other securities issuable upon conversion thereof;
(iv) shares of the Company's Common Stock or Preferred Stock issued
in connection with any stock split or stock dividend;
(v) securities offered by the Company to the public pursuant to a
registration statement filed under the Securities Act;
(vi) securities issued or issuable to parties providing the Company
with equipment leases, real property leases, loans, credit lines, guaranties of
indebtedness, cash price reductions or similar financing, or to licensees,
licensors, distributors, vendors, development partners or strategic relationship
partners; or
(vii) securities issued pursuant to the acquisition of technology, or
of another corporation or entity by the Company by consolidation, merger,
purchase of all or substantially all of the assets, or other reorganization in
which the Company acquires, in a single transaction or series of related
transactions, all or substantially all of the assets of such other corporation
or entity or fifty percent (50%) or more of the voting power of such other
corporation or entity or fifty percent (50%) or more of the equity ownership of
such other entity.
-14-
3.3 Procedures. In the event that the Company proposes to undertake an
----------
issuance of New Securities, it shall give to each Rights Holder written notice
of its intention to issue New Securities (the "Notice"), describing the type of
------
New Securities and the price and the general terms upon which the Company
proposes to issue such New Securities. Each Rights Holder shall have ten (10)
days from the date of mailing of any such Notice to agree in writing to purchase
such Rights Holder's Pro Rata Share of such New Securities for the price and
upon the general terms specified in the Notice by giving written notice to the
Company and stating therein the quantity of New Securities to be purchased (not
to exceed such Rights Holder's Pro Rata Share). If any Rights Holder fails to
so agree in writing within such ten (10) day period to purchase such Rights
Holder's full Pro Rata Share of an offering of New Securities (a "Nonpurchasing
-------------
Holder"), then such Nonpurchasing Holder shall forfeit the right hereunder to
------
purchase that part of his Pro Rata Share of such New Securities that he did not
so agree to purchase and the Company shall promptly give each Rights Holder who
has timely agreed to purchase his full Pro Rata Share of such offering of New
Securities (a "Purchasing Holder") written notice of the failure of any
-----------------
Nonpurchasing Holder to purchase such Nonpurchasing Rights Holder's full Pro
Rata Share of such offering of New Securities (the "Overallotment Notice").
--------------------
Each Purchasing Holder shall have a right of overallotment such that such
Purchasing Holder may agree to purchase a portion of the Nonpurchasing Holders'
unpurchased Pro Rata Shares of such offering on a pro rata basis according to
the relative Pro Rata Shares of the Purchasing Rights Holders, at any time
within five (5) days after receiving the Overallotment Notice.
3.4 Failure to Exercise. In the event that the Rights Holders fail to
-------------------
exercise in full the right of first refusal within such ten (10) plus five (5)
day period, then the Company shall have 120 days thereafter to sell the New
Securities with respect to which the Rights Holders' rights of first refusal
hereunder were not exercised, at a price and upon general terms not materially
more favorable to the purchasers thereof than specified in the Company's Notice
to the Rights Holders. In the event that the Company has not issued and sold
the New Securities within such 120 day period, then the Company shall not
thereafter issue or sell any New Securities without again first offering such
New Securities to the Rights Holders pursuant to this Section 3.
3.5 Termination. This right of first refusal shall terminate (i)
-----------
immediately before the closing of the first underwritten sale of Common Stock of
the Company to the public pursuant to a registration statement filed with, and
declared effective by, the SEC under the Securities Act, covering the offer and
sale of Common Stock to the public in which gross proceeds raised for the
Company's account (calculated before deduction of underwriters' discounts and
commissions) are at least $10,000,000, or (ii) upon (a) the acquisition of all
or substantially all the assets of the Company or (b) an acquisition of the
Company by another corporation or entity by consolidation, merger or other
reorganization in which the holders of the Company's outstanding voting stock
immediately prior to such transaction own, immediately after such transaction,
securities representing less than fifty percent (50%) or more of the voting
power of the corporation or other entity surviving such transaction pursuant to
this Section 3.
-15-
4. ASSIGNMENT AND AMENDMENT.
------------------------
4.1 Assignment. Notwithstanding anything herein to the contrary:
----------
(a) Information Rights. The rights of an Investor under Section 1.1
------------------
or 1.2 or 1.4 hereof may be assigned only to a party who acquires from an
Investor (or an Investor's permitted assigns) at least that number of shares of
Series A Stock and/or Series B Stock and/or an equivalent number (on an as-
converted basis) of shares of Conversion Stock described in Section 1.1 or 1.2
hereof, respectively; provided, however, that in no event shall such rights be
assigned to a competitor of the Company.
(b) Registration Rights; Refusal Rights. The registration rights of a
-----------------------------------
Holder under Section 2 hereof and the rights of first refusal of a Rights Holder
under Section 3 hereof may be assigned only to a party who acquires at least
200,000 shares of Series A Stock issued under the Series A Agreement and/or
Series B Stock issued under the Series B Agreement and/or an equivalent number
(on an as-converted basis) of Registrable Securities issued upon conversion
thereof; provided, however that no party may be assigned any of the foregoing
-------- -------
rights unless the Company is given written notice by the assigning party at the
time of such assignment stating the name and address of the assignee and
identifying the securities of the Company as to which the rights in question are
being assigned; and provided further that any such assignee shall receive such
-------- -------
assigned rights subject to all the terms and conditions of this Agreement,
including without limitation the provisions of this Section 4.
4.2 Amendment of Rights. Any provision of this Agreement may be amended
-------------------
and the observance thereof may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of the Company and Investors (and/or any of their permitted successors
or assigns) holding shares of Series A Stock , Series B Stock and/or Conversion
Stock representing and/or convertible into a majority of all the Investors'
Shares (as defined below) As used herein, the term "Investors' Shares" shall
-----------------
mean the shares of Common Stock then issuable upon conversion of all then
outstanding shares of Series A Stock issued under the Series A Agreement and all
then outstanding shares of Series B Stock issued under the Series B Agreement
plus all then outstanding shares of Conversion Stock that were issued upon the
conversion of any shares of Series A Stock issued under the Series A Agreement
and shares of Series B Stock issued under the Series B Agreement. Any amendment
or waiver effected in accordance with this Section 4.2 shall be binding upon
each Investor, each Holder, each permitted successor or assignee of such
Investor or Holder and the Company.
5. GENERAL PROVISIONS.
------------------
5.1 Notices. Any notice, request or other communication required or
-------
permitted hereunder shall be in writing and shall be deemed to have been duly
given if personally delivered or if deposited in the U.S. mail by registered or
certified mail, return receipt requested, postage prepaid, as follows:
(a) if to an Investor, at such Investor's respective address as set
forth on Exhibit A hereto.
-16-
(b) if to the Company, at 000 - 000xx Xxxxxx XX, Xxxxxxxx, Xxxxxxxxxx
00000, Attention: President.
Any party hereto (and such party's permitted assigns) may by notice so
given change its address for future notices hereunder. Notice shall
conclusively be deemed to have been given when personally delivered or when
deposited in the mail in the manner set forth above.
5.2 Entire Agreement. This Agreement, together with all the Exhibits
----------------
hereto, constitutes and contains the entire agreement and understanding of the
parties with respect to the subject matter hereof and supersedes any and all
prior negotiations, correspondence, agreements, understandings, duties or
obligations between the parties respecting the subject matter hereof.
5.3 Governing Law. This Agreement shall be governed by and construed
-------------
exclusively in accordance with the internal laws of the State of Washington as
applied to agreements among Washington residents entered into and to be
performed entirely within Washington, excluding that body of law relating to
conflict of laws and choice of law.
5.4 Severability. If one or more provisions of this Agreement are held
------------
to be unenforceable under applicable law, then such provision(s) shall be
excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision(s) were so excluded and shall be enforceable in
accordance with its terms.
5.5 Third Parties. Nothing in this Agreement, express or implied, is
-------------
intended to confer upon any person, other than the parties hereto and their
successors and assigns, any rights or remedies under or by reason of this
Agreement.
5.6 Successors And Assigns. Subject to the provisions of Section 4.1,
----------------------
the provisions of this Agreement shall inure to the benefit of, and shall be
binding upon, the successors and permitted assigns of the parties hereto.
5.7 Captions. The captions to sections of this Agreement have been
--------
inserted for identification and reference purposes only and shall not be used to
construe or interpret this Agreement.
5.8 Counterparts. This Agreement may be executed in counterparts, each
------------
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
5.9 Costs And Attorneys' Fees. In the event that any action, suit or
-------------------------
other proceeding is instituted concerning or arising out of this Agreement or
any transaction contemplated hereunder, the prevailing party shall recover all
of such party's costs and attorneys' fees incurred in each such action, suit or
other proceeding, including any and all appeals or petitions therefrom.
5.10 Adjustments for Stock Splits, Etc. Wherever in this Agreement there
----------------------------------
is a reference to a specific number of shares of Common Stock or Preferred Stock
of the Company of any class or series, then, upon the occurrence of any
subdivision, combination or stock dividend
-17-
of such class or series of stock, the specific number of shares so referenced in
this Agreement shall automatically be proportionally adjusted to reflect the
affect on the outstanding shares of such class or series of stock by such
subdivision, combination or stock dividend.
5.11 Aggregation of Stock. All shares 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
THE COMPANY: INVESTORS:
----------- ---------
SUPERCEDE, INC. ASYMETRIX CORPORATION
By: By:
------------------------------ ------------------------------
Name: Name:
---------------------------- ----------------------------
Title: Title:
--------------------------- ---------------------------
VULCAN VENTURES INC.
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
-18-
EXHIBIT A
List of Investors
-----------------
Number of Shares Held
---------------------
Name and Address Series A Stock Series B Stock
---------------- -------------- --------------
Asymetrix Corporation 3,500,000
000 000xx Xxxxxx X.X., Xxxxx 000
Xxxxxxxx, XX 00000
Attention: General Counsel
Vulcan Ventures, Inc. 3,500,000
000 000xx Xxxxxx X.X., Xxxxx 000
Xxxxxxxx, XX 00000
Attention: General Counsel
-19-
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as of
---------
September 30, 1997 (the "Effective Date") by and among SuperCede, Inc., a
---------------
Washington corporation (the "Company"), Asymetrix Corporation, a Washington
-------
corporation ("Asymetrix") and Vulcan Ventures Inc. ("Vulcan"). Vulcan, together
with Asymetrix are sometimes hereinafter collectively referred to as the
"Holders".
-------
RECITALS
--------
A. Concurrently herewith Asymetrix is exchanging its Common Stock of the
Company for shares of the Company's Series B Preferred Stock ("Series B
--------
Preferred Stock") pursuant to an Series B Preferred Stock Exchange Agreement
---------------
dated of even date herewith between the Company and Asymetrix.
B. Concurrently herewith, Vulcan is purchasing from the Company shares of
its Series A Preferred Stock (the "Series A Preferred Stock") pursuant to a
------------------------
Series A Preferred Stock Purchase Agreement dated of even date herewith between
the Company and Vulcan (the "Purchase Agreement").
------------------
C. As an inducement to (i) Asymetrix to exchange the shares of the
Company's Common Stock owned by it for Series B Preferred Stock pursuant to the
Exchange Agreement and (ii) Vulcan to purchase the Series A Preferred Stock
pursuant to the Purchase Agreement, the Investors, and the Company desire to
enter into this Agreement to set forth their agreements and understandings with
respect to how shares of the Company's capital stock held by them will be voted
on certain matters.
NOW THEREFORE, in consideration of the above recitals and the mutual
covenants made herein, the parties hereby agree as follows:
1. Size of Board of Directors. Unless otherwise agreed by all Holders,
--------------------------
during the term of this Agreement, each Holder agrees to vote all shares of
capital stock of the Company now or hereafter directly or indirectly owned (of
record or beneficially) by such Holder to maintain the authorized number of
members of the Board of Directors of the Company at three (3) directors, and to
oppose any effort by any party to change the authorized number of directors of
the Company from three (3) directors.
2. Election of Board of Directors.
------------------------------
2.1 Voting; Board Composition. During the term of this Agreement,
-------------------------
each Holder agrees to vote all shares of capital stock of the Company now or
hereafter directly or indirectly owned (of record or beneficially) by such
Holder, in such manner as may be necessary to elect (and maintain in office) as
members of the Company's Board of Directors, the following three (3)
individuals:
(a) one (1) individual who at the time in question, is the
Company's Chief Executive Officer (the "CEO"); provided, however, that if at any
---
time that there is a
-1-
vacancy in the CEO position, such individual shall be the Company's Vice
President and General Manager or other position of similar responsibility;
(b) one (1) individual designated from time to time in a writing
delivered to the Company and signed by the holders of a majority in interest of
the Series B Preferred Stock (the "Asymetrix Designee"); and
------------------
(c) one (1) individual designated from time to time in a writing
delivered to the Company and signed by the holders of a majority in interest of
the Series A Preferred Stock (the "Vulcan Designee").
---------------
For purposes of this Agreement: (i) any individual who is
designated for election to the Company's Board of Directors pursuant to the
foregoing provisions of this Section 2.1 is hereinafter referred to as a
"Board Designee"; and (ii) any individual, entity, or group of individuals
--------------
and/or entities who has the right to designate one or more Board Designees for
election to the Company's Board of Directors pursuant to the foregoing
provisions of this Section 2.1 is hereinafter referred to as a "Designator" or
----------
as "Designators", as applicable.
----------
2.2 Initial Board Members. The person initially filling the CEO
---------------------
position on the Board shall be Xxxxxxx Xxxxx, the Company's Vice President and
General Manager; the initial Asymetrix Designee shall be Xxxx Xxxxxxx; and the
initial Vulcan Designee shall be Xxxxx Xxxxxxxxxx.
2.3 Changes in Board Designees. From time to time during the term of
--------------------------
this Agreement, a Designator or Designators may, in their sole discretion:
(a) elect to remove from the Company's Board of Directors any
incumbent Board Designee who occupies a Board seat for which such Designator or
Designators are entitled to designate the Board Designee under Section 2.1;
and/or
(b) designate a new Board Designee for election to a Board seat
for which such Designator or Designators are entitled to designate the Board
Designee under Section 2.1 (whether to replace a prior Board Designee or to fill
a vacancy in such Board seat); provided such removal and/or designation of a
--------
Board Designee is approved in a writing signed by Designators who are entitled
to designate such Board Designee under Section 2.1, in which case such election
to remove a Board Designee and/or elect a new Board Designee will be binding on
all such Designators. In the event of such a removal and/or designation of a
Board Designee under this Section 2.3, the Holders shall vote their shares of
the Company's capital stock as provided in Section 2.1 to cause: (a) the
removal from the Company's Board of Directors of the Board Designee or Designees
so designated for removal by the appropriate Designators or Designators; and (b)
the election to the Company's Board Directors of any new Board Designee or
Designees so designated for election to the Company's Board of Directors by the
appropriate Designator or Designators.
2.4 Notice; Cumulative Voting. The Company shall promptly give each
-------------------------
of the Holders written notice of any change in composition of the Company's
Board of Directors and of any proposal by a Designator or Designators to remove
or elect a new Board Designee. In any
-2-
election of directors pursuant to this Section 2, the Holders shall vote their
shares in a manner sufficient to elect to the Company's Board of Directors the
individuals to be elected thereto as provided in this Section 2.
3. Further Assurances. Each of the Holders and the Company agree not to
------------------
vote any shares of Company stock, or to take any other actions, that would in
any manner defeat, impair, be inconsistent with or adversely affect the stated
intentions of the parties under Sections 1 and 2 of this Agreement.
4. Transferees; Legends on Certificates.
------------------------------------
4.1 Effect on Transferees. Each and every transferee or assignee of
---------------------
any shares of capital stock of the Company from any Holder shall be bound by and
subject to the terms and conditions of this Agreement that are applicable to
such transferee's transferor or assignor, and the Company shall require, as a
condition precedent to the transfer of any shares of capital stock of the
Company subject to this Agreement, that the transferee agrees in writing to be
bound by, and subject to, all the terms and conditions of this Agreement.
4.2 Legend. The Holders agree that all Company share certificates
------
now or hereafter held by them that represent shares of capital stock of the
Company subject to this Agreement will be stamped or otherwise imprinted with a
legend indicating that such shares are subject to the restrictions set forth in
this Agreement.
5. Enforcement of Agreement. Each of the Holders acknowledge and agree
------------------------
that any breach by any of them of this Agreement shall cause the other Holders
irreparable harm which may not be adequately compensable by money damages.
Accordingly, in the event of a breach or threatened breach by a Holder of any
provision of this Agreement, the Company and each other Holder shall each be
entitled to the remedies of specific performance, injunction or other
preliminary or equitable relief, including the right to compel any such
breaching Holder, as appropriate, to vote such Holder's shares of capital stock
of the Company in accordance with the provisions of this Agreement, in addition
to such other rights remedies as may be available to the Company or any Holder
for any such breach or threatened breach, including but not limited to the
recovery of money damages.
6. Term. This Agreement shall commence on the Effective Date and shall
----
terminate upon the first to occur of the following:
(a) September 30, 2007;
(b) The execution by the holders of a majority in interest of each of
the Series A Preferred Stock and the Series B Preferred Stock (or their
permitted assigns) of a written agreement to terminate this Agreement;
(c) The consummation of the first sale of securities of the Company
to the public pursuant to an effective registration statement filed by the
Company under the Securities Act of 1933, as amended;
-3-
(d) The first date on which the outstanding capital stock of the
Company owned by Asymetrix and Vulcan (or their permitted assigns) (calculated
on an as-converted-into-Common Stock basis) constitutes less than forty percent
(40%) of the number of shares of the Company's Common Stock that would be
outstanding if all then outstanding shares of the Company's convertible
Preferred Stock were then converted into shares of the Company's Common Stock;
or
(e) Immediately prior to the closing of (i) any consolidation or
merger of the Company with or into any other corporation or corporations in
which the holders of the Company's outstanding shares immediately before such
consolidation or merger do not, immediately after such consolidation or merger,
retain stock representing a majority of the voting power of the surviving
corporation of such consolidation or merger or stock representing a majority of
the voting power of a corporation that wholly owns, directly or indirectly, the
surviving corporation of such consolidation or merger; (ii) the sale, transfer
or assignment of securities of the Company representing a majority of the voting
power of all the Company's outstanding voting securities by the holders thereof
to an acquiring party in a single transaction or series of related transactions;
(iii) any other sale, transfer or assignment of securities of the Company
representing over two-thirds (2/3) of the voting power of the Company's then
outstanding voting securities by the holders thereof to an acquiring party; or
(iv) the sale of all or substantially all the Company's assets.
7. Miscellaneous.
-------------
7.1 Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the internal laws of the State of Washington applicable to
contracts made among residents of, and wholly to be performed within, the State
of Washington, without regard to principles of conflict of laws or choice of
laws.
7.2 Further Instruments. From time to time, each party hereto shall
-------------------
execute and deliver such instruments and documents as may be reasonably
necessary to carry out the purposes and intent of this Agreement.
7.3 Successors. This Agreement shall be binding upon and shall inure
----------
to the benefit of the executors, administrators, legal representatives, heirs,
successors, and assigns of the parties hereto; provided, however, that any
-------- -------
transferee of any shares of stock of the Company affected by this Agreement
shall be required, as a condition precedent to acquiring such shares, to first
agree in writing to be bound by all the terms and conditions of this Agreement
applicable to such transferee's transferor; and provided further, that no rights
-------- -------
under this Agreement may be assigned apart from the related shares of the
Company' stock.
7.4 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.
7.5 Entire Agreement. This document constitutes and contains the
----------------
entire agreement and understanding of the parties regarding the subject matter
of this Agreement and
-4-
supersedes any and all prior negotiations, correspondence, understandings and
agreements among the parties respecting the subject matter hereof.
7.6 Amendments and Waivers. Any terms of this Agreement may be
----------------------
amended and the observance of any term of the Agreement may be waived (either
generally or in a particular) instance and either retroactively or
prospectively), with the written consent of the holders of a majority in
interest of each of the Series A Preferred Stock and the Series B Preferred
Stock(or their permitted assigns). Any amendment or waiver effected in
accordance with this Section shall be binding upon the Company, all the Holders
their permitted transferees and assignees.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
and year first above written.
THE COMPANY: INVESTORS:
----------- ---------
SUPERCEDE, INC. ASYMETRIX CORPORATION
By: By:
------------------------------ -------------------------------
Name: Name:
---------------------------- -----------------------------
Title: Title:
--------------------------- ----------------------------
VULCAN VENTURES INC.
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
SIGNATURE PAGE TO VOTING AGREEMENT
-5-
