EXHIBIT 4.2
AVANTGO, INC.
FOURTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
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This Fourth Amended and Restated Investors' Rights Agreement (the
"Agreement") is made as of the 19th day of May, 2000, by and among AvantGo,
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Inc., a Delaware corporation (the "Company"), the investors listed on Exhibit A
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hereto, each of which is herein referred to as an "Investor," and Xxxxx Xxx,
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Xxxxx Xxxxx and Xxxxxx Xxxxxxxxx, each of whom is herein referred to as a
"Founder."
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RECITALS
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A. The Company and the Investors entered into that certain Third Amended
and Restated Investors' Rights' Agreement dated June March 8, 2000 (the "Prior
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Agreement"), which agreement may under certain circumstances be amended with the
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written consent of the Company and the holders of a majority of the Registrable
Securities (as defined in the Prior Agreement) then outstanding.
B. The Company and the holders of a majority of the Company's outstanding
Registrable Securities desire to amend the Prior Agreement as set forth herein.
AGREEMENT
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The parties hereby agree as follows:
1. Registration Rights. The Company and the Investors covenant and
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agree as follows:
1.1 Definitions. For purposes of this Section 1:
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(a) The Term "Approving Stockholders" means one or more of the
Company's stockholders that together beneficially own on a collective basis at
least 80% of the Registrable Securities.
(b) The terms "register," "registered," and "registration"
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refer to a registration effected by preparing and filing a registration
statement or similar document in compliance with the Securities Act of 1933, as
amended (the "Act"), and the declaration or ordering of effectiveness of such
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registration statement or document;
(c) The term "Registrable Securities" means (i) (A) the shares
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of Common Stock issuable or issued upon conversion of the Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred
Stock Imagine Warrant; and (B) the shares of Common Stock issuable or issued
upon conversion of the Series D Preferred Stock in the event of the exercise of
the Yahoo Warrants and the Imagine Warrant (such shares of Common Stock are
collectively referred to hereinafter as the "Stock"), (ii) any other shares of
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Common Stock of the Company issued as (or issuable upon the conversion or
exercise of any warrant, right or other security which is issued as) a dividend
or other distribution with respect to, or in exchange for or in replacement of,
the Stock, (iii) shares of common stock issued to each of Imagine, Xxxxxxx Sachs
& Co. and its affiliates and the Ford Motor Company in a private placement
transaction to occur (if at all) in conjunction with an IPO, and (iv) the shares
of Common Stock issued to the Founders (the "Founders' Stock"), provided,
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however, that for the purposes of Section 1.2, 1.4, 1.13 or 3.7 the Founders'
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Stock shall not be deemed Registrable
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Securities and the Founders shall not be deemed Holders and provided, further,
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that the foregoing definition shall exclude in all cases any Registrable
Securities sold by a person in a transaction in which his or her rights under
this Agreement are not assigned. Notwithstanding the foregoing, Common Stock or
other securities shall only be treated as Registrable Securities if and so long
as they have not been (A) sold to or through a broker or dealer or underwriter
in a public distribution or a public securities transaction, or (B) sold in a
transaction exempt from the registration and prospectus delivery requirements of
the Act under Section 4(1) thereof so that all transfer restrictions, and
restrictive legends with respect thereto, if any, are removed upon the
consummation of such sale, and provided that for the receipt or giving of notice
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hereunder, the Stock shall be deemed to be Registrable Securities;
(d) The number of shares of "Registrable Securities then
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outstanding" shall be determined by the number of shares of Common Stock
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outstanding which are, and the number of shares of Common Stock issuable
pursuant to then exercisable or convertible securities which are, Registrable
Securities;
(e) The term "Holder" means any person owning or having the
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right to acquire Registrable Securities or any assignee thereof in accordance
with Section 1.12 hereof;
(f) The term "Form S-3" means such form under the Act as in
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effect on the date hereof or any successor form under the Act;
(g) The term "SEC" means the Securities and Exchange
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Commission;
(h) The term "Imagine Warrant" means that certain Warrant to
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purchase shares of Series D Preferred Stock executed by the Company in favor of
Imagine Health, Inc. as of even date herewith;
(i) The term "Yahoo Warrants" means (A) that certain
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Warrant to purchase 117,558 shares of Series D Preferred Stock; and (B) that
certain Warrant to purchase 117,558 shares of that class of the Company's
securities as is sold in the most recent equity financing as shall have occurred
as of the date that certain conditions as set forth in such warrant are met,
each executed by the Company in favor of Yahoo!, Inc. on February 1, 2000; and
(j) The term "IPO" means the consummation of a bona fide,
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firmly underwritten public offering of shares of Common Stock.
(k) The term "Qualified IPO" means the consummation of a
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bona fide, firmly underwritten public offering of shares of Common Stock, the
public offering price of which is not less than $8.36 per share (adjusted to
reflect subsequent stock dividends, stock splits or recapitalization) and which
results in aggregate cash proceeds to the Company of at least $20,000,000.
(l) The term "Change of Control" means any transaction or
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series of transactions (i) in which the Company merges or consolidates with any
other entity (other than its wholly-owned subsidiary); (ii) that contemplates
the acquisition of materially all of the assets of the Company or 100% of the
Registrable Securities by the third party; (iii) the holders of 100% of the
Registrable Securities determine to tender or exchange their shares of stock in
a transaction proposed by any third party in which such third party would
acquire 100% of the Registrable Securities directly from the stockholders of the
Company.
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1.2 Request for Registration.
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(a) If the Company shall receive at any time after the
earlier of (i) three (3) years following the date hereof, or (ii) six (6) months
after the effective date of the first registration statement for a public
offering of securities of the Company (other than a registration statement
relating either to the sale of securities to employees of the Company pursuant
to a stock option, stock purchase or similar plan or an SEC Rule 145
transaction), a written request from the Holders of a majority of the
Registrable Securities then outstanding that the Company file a registration
statement under the Act covering the registration of at least thirty-three
percent (33%) of the Registrable Securities then outstanding, then the Company
shall, within ten (10) days of the receipt thereof, give written notice of such
request to all Holders and shall, subject to the limitations of subsection
1.2(b), use its best efforts to effect as soon as practicable, and in any event
within sixty (60) days of the receipt of such request, the registration under
the Act of all Registrable Securities which the Holders request to be registered
within twenty (20) days of the mailing of such notice by the Company in
accordance with Section 3.5.
(b) If the Holders initiating the registration request
hereunder ("Initiating Holders") intend to distribute the Registrable Securities
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covered by their request by means of an underwriting, they shall so advise the
Company as a part of their request made pursuant to this Section 1.2 and the
Company shall include such information in the written notice referred to in
subsection 1.2(a). The underwriter will be selected by a majority in interest of
the Initiating Holders and shall be reasonably acceptable to the Company. In
such event, the right of any Holder to include his Registrable Securities in
such registration shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting (unless otherwise mutually agreed by a majority in interest of the
Initiating Holders and such Holder) to the extent provided herein. All Holders
proposing to distribute their securities through such underwriting shall
(together with the Company as provided in subsection 1.5(e)) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by a majority in interest of the Initiating
Holders. Notwithstanding any other provision of this Section 1.2, if the
underwriter advises the Initiating Holders in writing that marketing factors
require a limitation of the number of shares to be underwritten, then the
Initiating Holders shall so advise all Holders of Registrable Securities which
would otherwise be underwritten pursuant hereto, and the number of shares of
Registrable Securities that may be included in the underwriting shall be
allocated among all Holders thereof, including the Initiating Holders, in
proportion (as nearly as practicable) to the amount of Registrable Securities of
the Company owned by each Holder; provided, however, that the number of shares
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of Registrable Securities to be included in such underwriting shall not be
reduced unless all other securities are first entirely excluded from the
underwriting.
(c) Notwithstanding the foregoing, if the Company shall
furnish to Holders requesting a registration statement pursuant to this Section
1.2, a certificate signed by the President of the Company stating that in the
good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its stockholders for such registration
statement to be filed and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer such filing
for a period of not more than one hundred twenty (120) days after receipt of the
request of the Initiating Holders; provided, however, that the Company may not
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utilize this right more than once in any twelve-month period.
(d) In addition, the Company shall not be obligated to
effect, or to take any action to effect, any registration pursuant to this
Section 1.2:
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(i) After the Company has effected two (2)
registrations pursuant to this Section 1.2 and such registrations have been
declared or ordered effective;
(ii) During the period starting with the date sixty
(60) days prior to the Company's good faith estimate of the date of filing of,
and ending on a date one hundred thirty-five (135) days after the effective date
of, a registration subject to Section 1.3 hereof; provided that the Company is
actively employing in good faith all reasonable efforts to cause such
registration statement to become effective; or
(iii) If the Initiating Holders propose to dispose of
shares of Registrable Securities that may be immediately registered on Form S-3
pursuant to a request made pursuant to Section 1.4 below.
1.3 Company Registration. If (but without any obligation to do
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so) the Company proposes to register (including for this purpose a registration
effected by the Company for stockholders other than the Holders) any of its
stock under the Act in connection with the public offering of such securities
solely for cash (other than a registration relating solely to the sale of
securities to participants in a Company stock plan or a transaction covered by
Rule 145 under the Act, a registration in which the only stock being registered
is Common Stock issuable upon conversion of debt securities which are also being
registered, or any registration on any form which does not include substantially
the same information as would be required to be included in a registration
statement covering the sale of the Registrable Securities), the Company shall,
at such time, promptly give each Holder written notice of such registration.
Upon the written request of each Holder given within twenty-five (25) days after
mailing of such notice by the Company in accordance with Section 3.5, the
Company shall, subject to the provisions of Section 1.8, cause to be registered
under the Act all of the Registrable Securities that each such Holder has
requested to be registered.
1.4 Form S-3 Registration. In case the Company shall receive
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from any Holder or Holders of not less than thirty percent (30%) of the
Registrable Securities then outstanding a written request or requests that the
Company effect a registration on Form S-3 and any related qualification or
compliance with respect to all or a part of the Registrable Securities owned by
such Holder or Holders, the Company will:
(a) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all other Holders;
and
(b) as soon as practicable, effect such registration and all
such qualifications and compliances as may be so requested and as would permit
or facilitate the sale and distribution of all or such portion of such Holder's
or Holders' Registrable Securities as are specified in such request, together
with all or such portion of the Registrable Securities of any other Holder or
Holders joining in such request as are specified in a written request given
within fifteen (15) days after receipt of such written notice from the Company;
provided, however, that the Company shall not be obligated to effect any such
registration, qualification or compliance, pursuant to this Section 1.4: (i) if
Form S-3 is not available for such offering by the Holders; (ii) if the Holders,
together with the holders of any other securities of the Company entitled to
inclusion in such registration, propose to sell Registrable Securities and such
other securities (if any) at an aggregate price to the public (net of any
underwriters' discounts or commissions) of less than $250,000; (iii) if the
Company shall furnish to the Holders a certificate signed by the President of
the Company stating that in the good faith judgment of the Board of Directors of
the Company, it would be seriously detrimental to the Company and its
stockholders for such Form S-3 Registration to be effected at such time, in
which event the Company shall have the right
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to defer the filing of the Form S-3 registration statement for a period of not
more than one hundred twenty (120) days after receipt of the request of the
Holder or Holders under this Section 1.4; provided, however, that the Company
shall not utilize this right more than once in any twelve (12) month period;
(iv) if the Company has, within the twelve (12) month period preceding the date
of such request, already effected two registrations on Form S-3 for the Holders
pursuant to this Section 1.4; or (v) in any particular jurisdiction in which the
Company would be required to qualify to do business or to execute a general
consent to service of process in effecting such registration, qualification or
compliance.
(c) Subject to the foregoing, the Company shall file a
registration statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request or requests of the Holders. Registrations effected pursuant to this
Section 1.4 shall not be counted as demands for registration or registrations
effected pursuant to Sections 1.2 or 1.3, respectively.
(d) If, from time to time after a registration statement on
Form S-3 has been declared effective, the Company shall furnish to the Holders a
certificate signed by the President of the Company stating that in the good
faith judgment of the Company there exists material non-disclosed information or
events that render such registration statement inaccurate, then the Company may
suspend further open market offers and sales of Registrable Securities under
such registration statement (the "Suspension Right"). In the event the Company
exercises the Suspension Right, such suspension shall continue for the period of
time reasonably necessary for disclosure to occur at a time that is not
materially detrimental to the Company, or until such time as the information or
event is no longer material, each as determined in good faith by the Company
(which period in either case shall not exceed fifteen (15) business days). The
Company shall promptly give each Holder written notice of (i) any such
suspension and (ii) the termination of such suspension.
1.5 Obligations of the Company. Whenever required under this
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Section 1 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its best efforts to cause
such registration statement to become effective, and, upon the request of the
Holders of a majority of the Registrable Securities registered thereunder, keep
such registration statement effective for up to one hundred twenty (120) days.
The Company shall not be required to file, cause to become effective or maintain
the effectiveness of any registration statement that contemplates a distribution
of securities on a delayed or continuous basis pursuant to Rule 415 under the
Act.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Act with respect to the disposition of all securities covered
by such registration statement for such period of time as the registration
statement remains effective.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may reasonably request
in order to facilitate the disposition of Registrable Securities owned by them.
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(d) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by
such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event as a result
of which the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing.
(g) Cause all such Registrable Securities registered
pursuant hereunder to be listed on each securities exchange on which similar
securities issued by the Company are then listed.
(h) Provide a transfer agent and registrar for all
Registrable Securities registered pursuant hereunder and a CUSIP number for all
such Registrable Securities, in each case not later than the effective date of
such registration.
(i) Use its best efforts to furnish, at the request of any
Holder requesting registration of Registrable Securities pursuant to this
Section 1, on the date that such Registrable Securities are delivered to the
underwriters for sale in connection with a registration pursuant to this Section
1, if such securities are being sold through underwriters, or, if such
securities are not being sold through underwriters, on the date that the
registration statement with respect to such securities becomes effective, (i) an
opinion, dated such date, of the counsel representing the Company for the
purposes of such registration, in form and substance as is customarily given to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and to the Holders requesting registration of Registrable Securities and
(ii) a letter dated such date, from the independent certified public accountants
of the Company, in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public offering,
addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities.
1.6 Furnish Information. It shall be a condition precedent to
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the obligations of the Company to take any action pursuant to this Section 1
with respect to the Registrable Securities of any selling Holder that such
Holder shall furnish to the Company such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition of
such securities as shall be required to effect the registration of such Holder's
Registrable Securities. The Company shall have no obligation with respect to any
registration requested pursuant to Section 1.2 or Section 1.4 of this Agreement
if, as a result of the application of the preceding sentence, the number of
shares or the anticipated aggregate offering price of the Registrable Securities
to be included in the registration does not equal or exceed the number of shares
or the anticipated aggregate offering price required to originally trigger the
Company's obligation to initiate such registration as specified in subsection
1.2(a) or subsection 1.4(b)(2), whichever is applicable.
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1.7 Expenses of Registration.
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(a) Demand Registration. All expenses other than
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underwriting discounts and commissions incurred in connection with
registrations, stock transfer taxes, filings or qualifications pursuant to
Section 1.2, including (without limitation) all registration, filing and
qualification fees, printers' and accounting fees, fees and disbursements of
counsel for the Company, and the reasonable fees and disbursements of one
counsel for the selling Holders shall be borne by the Company; provided,
however, that the Company shall not be required to pay for any expenses of any
registration proceeding begun pursuant to Section 1.2 if the registration
request is subsequently withdrawn at the request of the Holders of a majority of
the Registrable Securities to be registered (in which case all participating
Holders shall bear such expenses), unless the Holders of a majority of the
Registrable Securities agree to forfeit their right to one demand registration
pursuant to Section 1.2; provided further, however, that if at the time of such
withdrawal, the Holders have learned of a material adverse change in the
condition, business, or prospects of the Company from that known to the Holders
at the time of their request and have withdrawn the request with reasonable
promptness, then the Holders shall not be required to pay any of such expenses
and shall retain their rights pursuant to Section 1.2.
(b) Company Registration. The Company shall bear and pay
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all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
pursuant to Section 1.3 for each Holder (which right may be assigned as provided
in Section 1.12), including (without limitation) all registration, filing, and
qualification fees, printers' and accounting fees relating or apportionable
thereto and the reasonable fees and disbursements of one counsel for the selling
Holders selected by them with the approval of the Company, which approval shall
not be unreasonably withheld, but excluding underwriting discounts and
commissions relating to Registrable Securities.
(c) Registration on Form S-3. All expenses incurred in
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connection with a registration requested pursuant to Section 1.4, including
(without limitation) all registration, filing, 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, but excluding any
underwriters' discounts or commissions associated with Registrable Securities,
shall be borne by the Company.
1.8 Underwriting Requirements. In connection with any offering
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involving an underwriting of shares of the Company's capital stock, the Company
shall not be required under Section 1.3 to include any of the Holders'
securities in such underwriting unless they accept the terms of the underwriting
as agreed upon between the Company and the underwriters selected by it (or by
other persons entitled to select the underwriters), and then only in such
quantity as the underwriters determine in their sole discretion will not
jeopardize the success of the offering by the Company. If the total amount of
securities, including Registrable Securities, requested by stockholders to be
included in such offering exceeds the amount of securities sold other than by
the Company that the underwriters determine in their sole discretion is
compatible with the success of the offering, then the Company shall be required
to include in the offering only that number of such securities, including
Registrable Securities, which the underwriters determine in their sole
discretion will not jeopardize the success of the offering (the securities so
included to be apportioned pro rata among the selling stockholders according to
the total amount of securities entitled to be included therein owned by each
selling stockholder or in such other proportions as shall mutually be agreed to
by such selling stockholders), but in no event shall (i) the amount of
securities (not including Founders' Stock) of the selling Holders included in
the offering be reduced unless the securities of all other selling shareholders
(including Founders) are excluded entirely and (ii) the amount of securities
(not including Founders' Stock) of the selling Holders included in the offering
be reduced below thirty percent (30%) of the total amount of securities included
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in such offering, unless such offering is the IPO, in which case the selling
stockholders may be excluded if the underwriters make the determination
described above. For purposes of the preceding parenthetical concerning
apportionment, for any selling stockholder which is a holder of Registrable
Securities and which is a partnership or corporation, the partners, retired
partners and stockholders of such holder, or the estates and family members of
any such partners and retired partners and any trusts for the benefit of any of
the foregoing persons shall be deemed to be a single "selling stockholder," and
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any pro-rata reduction with respect to such "selling stockholder" shall be based
upon the aggregate amount of shares carrying registration rights owned by all
entities and individuals included in such "selling stockholder," as defined in
this sentence.
1.9 Delay of Registration. No Holder shall have any right to
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obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 1.
1.10 Indemnification. In the event any Registrable Securities
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are included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless each Holder, any underwriter (as defined in the Act)
for such Holder and each person, if any, who controls such Holder or underwriter
within the meaning of the Act or the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), against any losses, claims, damages, or liabilities (joint
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or several) to which they may become subject under the Act, the Exchange Act or
other federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based upon any
of the following statements, omissions or violations (collectively a
"Violation"): (i) any untrue statement or alleged untrue statement of a material
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fact contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the statements
therein not misleading, or (iii) any violation or alleged violation by the
Company of the Act, the Exchange Act, any state securities law or any rule or
regulation promulgated under the Act, the Exchange Act or any state securities
law; and the Company will pay to each such Holder, underwriter or controlling
person, as incurred, any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement contained
in this subsection 1.10(a) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability, or action if such settlement is effected
without the consent of the Company (which consent shall not be unreasonably
withheld), nor shall the Company be liable in any such case for any such loss,
claim, damage, liability, or action to the extent that it arises out of or is
based upon a Violation which occurs in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by any such Holder, underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the Act, any underwriter, any other
Holder selling securities in such registration statement and any controlling
person of any such underwriter or other Holder, against any losses, claims,
damages, or liabilities (joint or several) to which any of the foregoing persons
may become subject, under the Act, the Exchange Act or other federal or state
law, insofar as such losses, claims, damages, or liabilities (or actions in
respect thereto) arise out of or are based upon any Violation, in each case to
the extent (and only to the extent) that such Violation occurs in reliance upon
and in conformity with written information furnished by such Holder expressly
for use in connection with such registration; and each such Holder will pay, as
incurred, any legal or other expenses reasonably incurred by any person intended
to be indemnified pursuant to this subsection 1.10(b), in connection with
investigating or defending any such loss, claim, damage,
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liability, or action; provided, however, that the indemnity agreement contained
in this subsection 1.10(b) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is effected
without the consent of the Holder, which consent shall not be unreasonably
withheld; provided, that, in no event shall any indemnity under this subsection
1.10(b) exceed the net proceeds from the offering received by such Holder,
except in the case of willful fraud by such Holder.
(c) Promptly after receipt by an indemnified party under
this Section 1.10 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 1.10, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the reasonable fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
1.10, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 1.10.
(d) If the indemnification provided for in this Section 1.10
is held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage, or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations; provided, that, in no event shall any contribution by a Holder
under this Subsection 1.10(d) exceed the net proceeds from the offering received
by such Holder, except in the case of willful fraud by such Holder. The relative
fault of the indemnifying party and of the indemnified party shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified party and
the parties' relative intent, knowledge, access to information, and opportunity
to correct or prevent such statement or omission.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
(f) The obligations of the Company and Holders under this
Section 1.10 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and otherwise.
9
1.11 Reports Under Securities Exchange Act of 1934. With a view
---------------------------------------------
to making available to the Holders the benefits of Rule 144 promulgated under
the Act and any other rule or regulation of the SEC that may at any time permit
a Holder to sell securities of the Company to the public without registration or
pursuant to a registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as those
terms are understood and defined in SEC Rule 144, at all times after ninety (90)
days after the effective date of the first registration statement filed by the
Company for the offering of its securities to the general public so long as the
Company remains subject to the periodic reporting requirements under Sections 13
or 15(d) of the Exchange Act;
(b) take such action, including the voluntary registration
of its Common Stock under Section 12 of the Exchange Act, as is necessary to
enable the Holders to utilize Form S-3 for the sale of their Registrable
Securities, such action to be taken as soon as practicable after the end of the
fiscal year in which the first registration statement filed by the Company for
the offering of its securities to the general public is declared effective;
(c) file with the SEC in a timely manner all reports and
other documents required of the Company under the Act and the Exchange Act; and
(d) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of SEC Rule 144 (at
any time after ninety (90) days after the effective date of the first
registration statement filed by the Company), the Act and the Exchange Act (at
any time after it has become subject to such reporting requirements), or that it
qualifies as a registrant whose securities may be resold pursuant to Form S-3
(at any time after it so qualifies), (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed by
the Company, and (iii) such other information as may be reasonably requested in
availing any Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration or pursuant to such form.
1.12 Assignment of Registration Rights. The rights to cause the
---------------------------------
Company to register Registrable Securities pursuant to this Section 1 may be
assigned (but only with all related obligations) by a Holder: (i) to a
transferee or assignee who holds or would hold, after giving effect to the
transfer, at least one hundred fifty thousand (150,000) shares of such
securities; (ii) prior to the Company's Qualified IPO, and with the Company's
prior written consent, which consent shall not be unreasonably withheld, to a
transferee or assignee of such securities that is a current or former
constituent partner, Affiliate (as defined under Rule 405 pursuant to the Act)
or member of a Holder and who holds or would hold, after giving effect to the
transfer, the lesser of (A) at least fifty thousand (50,000) shares of such
securities; or (B) all of such securities then held by such transferee; and
(iii) after the Company's Qualified IPO, to a transferee or assignee of such
securities that is a current or former constituent partner, Affiliate (as
defined under Rule 405 pursuant to the Act) or member of a Holder, provided the
Company is, within a reasonable time after such transfer, furnished with written
notice of the name and address of such transferee or assignee and the securities
with respect to which such registration rights are being assigned; and provided,
further, that such assignment shall be effective only if immediately following
such transfer the further disposition of such securities by the transferee or
assignee is restricted under the Act. For the purposes of determining the
number of shares of Registrable Securities held by a transferee or assignee, the
holdings of transferees and assignees of a partnership who are partners or
retired partners of such partnership (including spouses and ancestors, lineal
descendants and siblings of such partners or spouses who acquire Registrable
Securities by gift, will or intestate
10
succession) shall be aggregated together and with the partnership; provided that
all assignees and transferees who would not qualify individually for assignment
of registration rights shall have a single attorney-in-fact for the purpose of
exercising any rights, receiving notices or taking any action under Section 1.
1.13 Limitations on Subsequent Registration Rights. From and
---------------------------------------------
after the date of this Agreement, the Company shall not, without the prior
written consent of the Holders of at least a majority of the outstanding
Registrable Securities, enter into any agreement with any holder or prospective
holder of any securities of the Company which would allow such holder or
prospective holder (a) to include such securities in any registration filed
under Section 1.2 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 (subject to the
cutbacks applicable to Holders as set forth in Section 1.8) or (b) to make a
demand registration which could result in such registration statement being
declared effective prior to the earlier of either of the dates set forth in
subsection 1.2(a) or within one hundred twenty (120) days of the effective date
of any registration effected pursuant to Section 1.2.
1.14 "Market Stand-Off" Agreement. Each Holder hereby agrees
----------------------------
that, during the period of duration (up to, but not exceeding, one hundred
eighty (180) days) specified by the Company and an underwriter of Common Stock
or other securities of the Company, following the effective date of the initial
registration statement of the Company filed under the Act, it shall not, to the
extent requested by the Company and such underwriter, directly or indirectly
sell, offer to sell, contract to sell (including, without limitation, any short
sale), grant any option to purchase or otherwise transfer or dispose of (other
than to donees, Affiliates (as defined in Rule 405 pursuant to the Act),
partners, former partners or shareholders of a Holder who agree to be similarly
bound) any Registrable Securities of the Company held by it at any time during
such period except Common Stock included in such registration; provided,
however, that:
(a) such agreement shall be applicable only to the first
such registration statement of the Company which covers Common Stock (or other
securities) to be sold on its behalf to the public in an underwritten offering;
and
(b) all officers and directors of the Company, all one-
percent security holders, and all other persons with registration rights
(whether or not pursuant to this Agreement) enter into similar agreements.
In order to enforce the foregoing covenant, the Company may
impose stop-transfer instructions with respect to the Registrable Securities of
each Holder (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period, and each Holder agrees
that, if so requested, such Holder will execute an agreement in the form
provided by the underwriter containing terms which are essentially consistent
with the provisions of this Section 1.14.
Notwithstanding the foregoing, the obligations described in this
Section 1.14 shall not apply to a registration relating solely to employee
benefit plans on Form S-1 or Form S-8 or similar forms which may be promulgated
in the future, or a registration relating solely to an SEC Rule 145 transaction
on Form S-4 or similar forms which may be promulgated in the future.
1.15 Termination of Registration Rights. No Holder shall be
----------------------------------
entitled to exercise any right provided for in this Section 1 after the earlier
of (i) five (5) years following the
11
consummation of the sale of securities pursuant to a registration statement
filed by the Company under the Act in connection with the initial firm
commitment underwritten offering of its securities to the general public, or
(ii) such time as Rule 144 or another similar exemption under the Act is
available for the sale of all of such Holder's shares during a three (3)-month
period without registration.
2. Covenants of the Company.
------------------------
2.1 Delivery of Financial Statements. The Company shall deliver
--------------------------------
to each Investor holding, and to transferees of, at least two hundred thousand
(200,000) shares of Registrable Securities or at least 100,000 shares of the
Company's Series D Preferred Stock or Common Stock issued upon conversion of
these holdings:
(a) as soon as practicable, but in any event within ninety
(90) days after the end of each fiscal year of the Company, an income statement
for such fiscal year, a balance sheet of the Company and statement of
stockholder's equity as of the end of such year, and a statement of cash flows
for such year, such year-end financial reports to be in reasonable detail,
prepared in accordance with generally accepted accounting principles ("GAAP"),
----
and audited and certified by a "Big Five" independent public accounting firm of
nationally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within thirty
(30) days after the end of each of the first three (3) quarters of each fiscal
year of the Company, an unaudited profit or loss statement, a statement of cash
flows for such fiscal quarter and an unaudited balance sheet as of the end of
such fiscal quarter;
(c) a copy of each report delivered to the holders of Common
Stock;
(d) within thirty (30) days of the end of each month, an
unaudited income statement and a consolidated statement of cash flows and
balance sheet for and as of the end of such month, in reasonable detail;
(e) as soon as practicable, but in any event thirty (30)
days prior to the end of each fiscal year, a budget and business plan for the
next fiscal year, prepared on a monthly basis, including balance sheets, income
statements and statements of cash flows for such months and, as soon as
prepared, any other budgets or revised budgets prepared by the Company;
(f) with respect to the financial statements called for in
subsections (b) and (c) of this Section 2.1, an instrument executed by the Chief
Financial Officer or President of the Company and certifying that such
financials were prepared in accordance with GAAP consistently applied with prior
practice for earlier periods (with the exception of footnotes that may be
required by GAAP) and fairly present the financial condition of the Company and
its results of operation for the period specified, subject to year-end audit
adjustment, provided that the foregoing shall not restrict the right of the
Company to change its accounting principles consistent with GAAP, if the Board
of Directors determines that it is in the best interest of the Company to do so;
and
(g) such other information relating to the financial
condition, business, prospects or corporate affairs of the Company as the
Investor or any assignee of the Investor may from time to time reasonably
request, provided, however, that the Company shall not be obligated under this
subsection (f) or any other subsection of Section 2.1 to provide information
which it deems in good faith to be a trade secret or similar confidential
information.
12
2.2 Inspection. The Company shall permit each Investor who
----------
holds not less than four hundred thousand (400,000) shares of Registrable
Securities (or 100,000 shares of Series D Preferred Stock or the Common Stock
equivalent), at such Investor's expense, to visit and inspect the Company's
properties, to examine its books of account and records and to discuss the
Company's affairs, finances and accounts with its officers, all at such
reasonable times as may be requested by the Investor; provided, however, that
the Company shall not be obligated pursuant to this Section 2.2 to provide
access to any information which it reasonably considers to be a trade secret or
similar confidential information.
2.3 Termination of Information and Inspection Covenants. The
---------------------------------------------------
covenants set forth in Section 2.1 and Section 2.2 shall terminate as to
Investors and be of no further force or effect when the sale of securities
pursuant to a registration statement filed by the Company under the Act in
connection with the firm commitment underwritten offering of its securities to
the general public is consummated or when the Company first becomes subject to
the periodic reporting requirements of Sections 13 or 15(d) of the Exchange Act,
whichever event shall first occur.
2.4 Right of First Offer. Subject to the terms and conditions
--------------------
specified in this Section 2.4, the Company hereby grants to each Investor who
holds at least two hundred thousand (200,000) shares of Registrable Securities
or at least one hundred thousand (100,000) shares of Series D Preferred Stock a
right of first offer with respect to future sales by the Company of its Shares
(as hereinafter defined). For purposes of this Section 2.4, "Investor" includes
any general partners and affiliates of an Investor. An Investor shall be
entitled to apportion the right of first offer hereby granted it among itself
and its partners, former partners and affiliates in such proportions as it deems
appropriate. Each time the Company proposes to offer any shares of, or
securities convertible into or exercisable for any shares of, any class of its
capital stock ("Shares"), the Company shall first make an offering of such
------
Shares to each Investor in accordance with the following provisions:
(a) The Company shall deliver a notice by certified mail
("Notice") to the Investors stating (i) its bona fide intention to offer such
------
Shares, (ii) the number of such Shares to be offered, and (iii) the price and
terms, if any, upon which it proposes to offer such Shares.
(b) Within fifteen (15) calendar days after delivery of the
Notice, the Investor may elect to purchase or obtain, at the price and on the
terms specified in the Notice, up to that portion of such Shares which equals
the proportion that the number of shares of Common Stock issued and held, or
issuable upon conversion and exercise of all convertible or exercisable
securities then held, by such Investor bears to the total number of shares of
Common Stock then outstanding (assuming full conversion and exercise of all
convertible or exercisable securities). The Company shall promptly, in writing,
inform each Investor that purchases all the shares available to it (each, a
"Fully-Exercising Investor") of any other Investor's failure to do likewise.
--------------------------
During the ten (10)-day period commencing after receipt of such information,
each Fully-Exercising Investor shall be entitled to obtain that portion of the
Shares for which Investors were entitled to subscribe but which were not
subscribed for by the Investors that is equal to the proportion that the number
of shares of Common Stock issued and held, or issuable upon conversion and
exercise of all convertible or exercisable securities then held, by such Fully-
Exercising Investor bears to the total number of shares of Common Stock then
outstanding (assuming full conversion and exercise of all convertible or
exercisable securities).
(c) The Company may, during the forty-five (45)-day period
following the expiration of the period provided in subsection 2.4(b) hereof,
offer the remaining unsubscribed portion of the Shares to any person or persons
at a price not less than, and upon terms no more favorable to the offeree than
those specified in the Notice. If the Company does not enter into an agreement
for the sale of the Shares within such period, or if such agreement is not
consummated within
13
sixty (60) days of the execution thereof, the right provided hereunder shall be
deemed to be revived and such Shares shall not be offered unless first reoffered
to the Investors in accordance herewith.
(d) The right of first offer in this paragraph 2.4 shall not
be applicable (i) to the issuance or sale of up to 9,213,600 shares (or such
greater number of shares as shall be unanimously approved by the Board of
Directors) of Common Stock (or options therefor) to employees, consultants and
directors, pursuant to plans or agreements approved by the Board of Directors
for the primary purpose of soliciting or retaining their services, or (ii) to or
after an IPO, or (iii) to the issuance of securities pursuant to the conversion
or exercise of convertible or exercisable securities, or (iv) to the issuance of
securities in connection with a bona fide business acquisition of or by the
Company, whether by merger, consolidation, sale of assets, sale or exchange of
stock or otherwise, or (v) to the issuance of securities to financial
institutions or lessors in connection with commercial credit arrangements,
equipment financings, or similar transactions other than for primarily equity
financing purposes, or (vi) to the issuance or sale of the Series D Preferred
Stock pursuant to the Purchase Agreement, or (vii) to the issuance of securities
that, with unanimous approval of the Board of Directors of the Company, are not
offered to any existing stockholder of the Company; or (viii) to the issuance of
Common Stock to each of Imagine Health, Inc., Ford Motor Company and Xxxxxxx
Xxxxx & Co. and its affiliates in a private sale of securities to occur (if at
all) concurrent with the Company's IPO.
2.5 Vesting. Unless otherwise approved by the Company's Board
-------
of Directors, Founders' Stock and options and Common Stock granted to employees
by the Company after the date of this Agreement will not vest any more favorably
than as follows: 25% of the shares comprising each grant may vest on the one-
year anniversary of the vesting commencement date for such grant, and thereafter
1/36th of the shares comprising each grant may vest on the monthly anniversary
of the vesting commencement date for such grant.
2.6 Proprietary Agreements. The Company shall require each
----------------------
officer, employee and consultant of the Company execute the Company's standard
form of non-disclosure and proprietary information agreements prior to
disclosing any proprietary information to any such officer, employee and
consultant. The Company will use reasonable efforts to prevent any employee from
violating the confidentiality and proprietary information agreement entered into
between the Company and each of its officers, employees and consultants.
2.7 Auditors. The Company will retain independent public
--------
accountants of recognized national standing (i.e., a firm acknowledged to be
among the Big Five or their successors) who shall audit the Company's financial
statements at the end of each fiscal year.
2.8 Drag-Along.
----------
(a) If at any time prior to the earlier to occur of (i) 10
years after the date of this Agreement; and (ii) an IPO, the Approving
Stockholders determine to approve any Change of Control which would result in
each holder of Series D Preferred Stock receiving proceeds equal to or greater
than $12.54 for each share of Series D Preferred Stock held thereby, then in
such event the holders of Registrable Securities who are not Approving
Stockholders shall agree to approve such transaction and tender or exchange all
Registrable Securities then held thereby to such third party offeror on the same
terms and conditions, including the per share price and date of sale, as are
received by the Approving Shareholders and stated in the notice of such
transaction.
(b) If, upon the approval of the holders of a majority of
the Series D Preferred Stock, at any time prior to the earlier to occur of (i)
10 years after the date of this Agreement;
14
and (ii) an IPO, the Approving Stockholders determine to approve any Change of
Control which would result in each holder of Series D Preferred Stock receiving
proceeds of less than $12.54 for each share of Series D Preferred Stock held
thereby, then the holders of Registrable Securities who are not Approving
Stockholders shall agree to approve such transaction and tender or exchange all
Registrable Securities then held thereby to such third party offeror on the same
terms and conditions, including the per share price and date of sale, as are
received by the Approving Shareholders and stated in the notice of such
transaction.
2.9 Market Standoff Agreement. The Company will require all
-------------------------
future officers and directors of the Company, all one-percent security holders,
and all other persons with registration rights (whether or not pursuant to this
Agreement), who purchase or otherwise acquire such securities prior to the
Company's initial public offering, to execute such a Market Standoff Agreement,
in substantially the same form as provided in Section 1.14 hereof.
3. Miscellaneous.
-------------
3.1 Successors and Assigns. Except as otherwise provided
----------------------
herein, the terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective successors and assigns of the parties
(including transferees of any of the Preferred Stock or any Common Stock issued
upon conversion thereof). Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
3.2 Governing Law. This Agreement and all acts and transactions
-------------
pursuant hereto shall be governed, construed and interpreted in accordance with
the laws of the State of California, without giving effect to principles of
conflicts of laws.
3.3 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
3.4 Titles and Subtitles. The titles and subtitles used in this
--------------------
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
3.5 Notices. Unless otherwise provided, any notice required or
-------
permitted by this Agreement shall be in writing and shall be deemed sufficient
upon delivery, when delivered personally or by overnight courier or sent by
telegram or fax, or forty-eight (48) hours after being deposited in the U.S.
mail, as certified or registered mail, with postage prepaid, and addressed to
the party to be notified at such party's address as set forth below or on
Exhibit A hereto or as subsequently modified by written notice.
---------
3.6 Expenses. If any action at law or in equity is necessary to
--------
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
3.7 Amendments and Waivers. Any term of this Agreement may be
----------------------
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders of
a majority of the Registrable Securities then outstanding, not including the
15
Founders' Stock; provided that (i) if such amendment has the effect of affecting
the Founders' Stock (A) in a manner different than securities issued to the
Investors and (B) in a manner adverse to the interests of the holders of the
Founders' Stock, then such amendment shall require the consent of the holder or
holders of a majority of the Founders' Stock; (ii) if such amendment adversely
affects the Registrable Securities held by a non-consenting Holder in a manner
different than securities issued to the consenting Investors, then such
amendment shall require the consent of such adversely-affected Holder; and (iii)
if an amendment to Section 2.8 hereof would have an adverse effect on the
holders of the Series D Preferred Stock, then such amendment shall require the
consent of a majority of the holders of the Series D Preferred Stock. Any
amendment or waiver effected in accordance with this paragraph shall be binding
upon each holder of any Registrable Securities then outstanding, each future
holder of all such Registrable Securities, and the Company.
3.8 Severability. If one or more provisions of this Agreement
------------
are held to be unenforceable under applicable law, the parties agree to
renegotiate such provision in good faith. In the event that the parties cannot
reach a mutually agreeable and enforceable replacement for such provision, then
(x) such provision shall be excluded from this Agreement, (y) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (z) the
balance of the Agreement shall be enforceable in accordance with its terms.
3.9 Aggregation of Stock. All shares of the Preferred Stock
--------------------
held or acquired by affiliated entities or persons shall be aggregated together
for the purpose of determining the availability of any rights under this
Agreement.
3.10 Adjustments to Minimum Holding Requirements. Requirements
-------------------------------------------
regarding a minimum or maximum amount of Registrable Securities held shall be
appropriately adjusted for stock splits, stock reclassifications and the like.
16
The parties have executed this Fourth Amended and Restated Investors'
Rights Agreement as of the date first above written.
COMPANY:
AVANTGO, INC.
By: /s/ Xxxxxxx Xxxx
_____________________________________
Xxxxxxx Xxxx,
Chief Executive Officer
Address: 0000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
INVESTORS:
Broadview SLP
---------------------------------------------
(Name)
By: /s/ Xxxxx Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx
--------------------------------------
Title: CFO of its GP, Broadview Scottish LLC
-------------------------------------
Address:
------------------------------------
------------------------------------
Fax:
----------------------------------------
SIGNATURE PAGE TO FOURTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
The parties have executed this Fourth Amended and Restated Investors'
Rights Agreement as of the date first above written.
COMPANY:
AVANTGO, INC.
By: ____________________________________
Xxxxxxx Xxxx,
Chief Executive Officer
Address: 0000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
INVESTORS:
C. Xxxxxxx Xxx Xx.
----------------------------------------
(Name)
By: /s/ C. Xxxxxxx Xxx
-----------------------------------
Name: C. Xxxxxxx Xxx
---------------------------------
Title: _________________________________
Address: 00000 Xxxxxxxx Xxxxx
------------------------------
Xxx Xxxxx Xxxxx, XX 00000
----------------------------------------
Fax: 000-000-0000
----------------------------------
SIGNATURE PAGE TO FOURTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
The parties have executed this Fourth Amended and Restated Investors'
Rights Agreement as of the date first above written.
COMPANY:
AVANTGO, INC.
By: ____________________________________
Xxxxxxx Xxxx,
Chief Executive Officer
Address: 0000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
INVESTORS:
Imagine Health, Inc.
----------------------------------------
(Name)
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
---------------------------------
Title: Vice President
--------------------------------
Address: Xxx Xxxx Xxxxxx
------------------------------
Xxx Xxxxxxxxx, XX 00000
----------------------------------------
Fax:
------------------------------------
SIGNATURE PAGE TO FOURTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
The parties have executed this Fourth Amended and Restated Investors'
Rights Agreement as of the date first above written.
COMPANY:
AVANTGO, INC.
By: ____________________________________
Xxxxxxx Xxxx,
Chief Executive Officer
Address: 0000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
INVESTORS:
Microsoft Corporation
----------------------------------------
(Name)
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
---------------------------------
Title: Assistant Secretary
--------------------------------
Address: Xxx Xxxxxxxxx Xxx
------------------------------
Xxxxxxx, XX 00000
----------------------------------------
Fax: 000-000-0000
----------------------------------
SIGNATURE PAGE TO FOURTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
The parties have executed this Fourth Amended and Restated Investors'
Rights Agreement as of the date first above written.
COMPANY:
AVANTGO, INC.
By: ____________________________________
Xxxxxxx Xxxx,
Chief Executive Officer
Address: 0000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
INVESTORS:
3Com Ventures, Inc.
----------------------------------------
(Name)
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
---------------------------------
Title: President
--------------------------------
Address: 0000 Xxxxxxxx Xxxxx
------------------------------
Xxxxx Xxxxx, XX 00000
----------------------------------------
Fax: 000-000-0000
----------------------------------
SIGNATURE PAGE TO FOURTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
The parties have executed this Fourth Amended and Restated Investors'
Rights Agreement as of the date first above written.
COMPANY:
AVANTGO, INC.
By: _____________________________________
Xxxxxxx Xxxx,
Chief Executive Officer
Address: 0000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
INVESTORS:
The Entrepreneurs' Fund, L.P.
-----------------------------------------
(Name)
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
----------------------------------
Title: Managing Director
---------------------------------
Address: 0000 Xxxxxxxxxxx Xx., Xxx. 0000
-------------------------------
Xxxx Xxxx, XX 00000-0000
-----------------------------------------
Fax: 000-000-0000
-----------------------------------
SIGNATURE PAGE TO FOURTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
The parties have executed this Fourth Amended and Restated Investors'
Rights Agreement as of the date first above written.
COMPANY:
AVANTGO, INC.
By: ____________________________________
Xxxxxxx Xxxx,
Chief Executive Officer
Address: 0000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
INVESTORS:
The Entrepreneurs' Fund II, L.P.
------------------------------------------
(Name)
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
-----------------------------------
Title: Managing Director
----------------------------------
Address: 0000 Xxxxxxxxxxx Xx., Xxx. 0000
--------------------------------
Xxxx Xxxx, XX 00000-0000
------------------------------------------
Fax: 000-000-0000
------------------------------------
SIGNATURE PAGE TO FOURTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
The parties have executed this Fourth Amended and Restated Investors'
Rights Agreement as of the date first above written.
COMPANY:
AVANTGO, INC.
By: ______________________________________
Xxxxxxx Xxxx,
Chief Executive Officer
Address: 0000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
INVESTORS:
The Entrepreneurs' Growth Fund, L.P.
------------------------------------------
(Name)
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
-----------------------------------
Title: Managing Director
----------------------------------
Address: 0000 Xxxxxxxxxxx Xx., Xxx. 0000
--------------------------------
Xxxx Xxxx, XX 00000-0000
------------------------------------------
Fax: 000-000-0000
------------------------------------
SIGNATURE PAGE TO FOURTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
The parties have executed this Fourth Amended and Restated Investors'
Rights Agreement as of the date first above written.
COMPANY:
AVANTGO, INC.
By: ______________________________________
Xxxxxxx Xxxx,
Chief Executive Officer
Address: 0000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
INVESTORS:
RBW Investments, LLC
------------------------------------------
(Name)
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
-----------------------------------
Title: Managing Director
----------------------------------
Address: 0000 Xxxxxxxxxxx Xx., Xxx. 0000
--------------------------------
Xxxx Xxxx, XX 00000-0000
------------------------------------------
Fax: 000-000-0000
------------------------------------
SIGNATURE PAGE TO FOURTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
The parties have executed this Fourth Amended and Restated Investors'
Rights Agreement as of the date first above written.
COMPANY:
AVANTGO, INC.
By: ______________________________________
Xxxxxxx Xxxx,
Chief Executive Officer
Address: 0000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
INVESTORS:
Xxxxxxx X. Xxxxxx
------------------------------------------
(Name)
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
-----------------------------------
Title:
-----------------------------------
Address: 0000 Xxxxxxxxxxx Xx., Xxx. 0000
--------------------------------
Xxxx Xxxx, XX 00000-0000
------------------------------------------
Fax: 000-000-0000
------------------------------------
SIGNATURE PAGE TO FOURTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
The parties have executed this Fourth Amended and Restated Investors'
Rights Agreement as of the date first above written.
COMPANY:
AVANTGO, INC.
By: ______________________________________
Xxxxxxx Xxxx,
Chief Executive Officer
Address: 0000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
INVESTORS:
Pinnacle Ventures
------------------------------------------
(Name)
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
-----------------------------------
Title:
-----------------------------------
Address:
----------------------------------
Fax:
--------------------------------------
SIGNATURE PAGE TO FOURTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
The parties have executed this Fourth Amended and Restated Investors'
Rights Agreement as of the date first above written.
COMPANY:
AVANTGO, INC.
By: ______________________________________
Xxxxxxx Xxxx,
Chief Executive Officer
Address: 0000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
INVESTORS:
Angel (Q) Investors II, L.P.
------------------------------------------
(Name)
By: /s/ J. Xxxxx XxXxxxx
-------------------------------------
Name: J. Xxxxx XxXxxxx
-----------------------------------
Title: General Partner
----------------------------------
Address: 650 Page Mill Road
--------------------------------
Xxxx Xxxx, XX 00000
------------------------------------------
Fax: 000-000-0000
------------------------------------
SIGNATURE PAGE TO FOURTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
The parties have executed this Fourth Amended and Restated Investors'
Rights Agreement as of the date first above written.
COMPANY:
AVANTGO, INC.
By: ______________________________________
Xxxxxxx Xxxx,
Chief Executive Officer
Address: 0000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
INVESTORS:
Write Image Ltd.
------------------------------------------
(Name)
By: /s/ Xxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxx Xxxxx
-----------------------------------
Title: Director
----------------------------------
Address: 000 Xxxxxx Xx.
--------------------------------
London, W1R 8BP, OK
------------------------------------------
Fax: 00-00-0000-0000
------------------------------------
SIGNATURE PAGE TO FOURTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
The parties have executed this Fourth Amended and Restated Investors'
Rights Agreement as of the date first above written.
COMPANY:
AVANTGO, INC.
By: ______________________________________
Xxxxxxx Xxxx,
Chief Executive Officer
Address: 0000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
INVESTORS:
The Leasing Group plc
------------------------------------------
(Name)
By: /s/ X. Xxxxxx
-------------------------------------
Name: X. Xxxxxx
-----------------------------------
Title: Chairman
----------------------------------
Address: 00 Xxxxxxx Xxxxx
--------------------------------
Xxxxxxx, Xxxxx XX0 0XX, XX
------------------------------------------
Fax: 00-0000-000-0000
------------------------------------
SIGNATURE PAGE TO FOURTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
The parties have executed this Fourth Amended and Restated Investors'
Rights Agreement as of the date first above written.
COMPANY:
AVANTGO, INC.
By: ______________________________________
Xxxxxxx Xxxx,
Chief Executive Officer
Address: 0000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
INVESTORS:
Pinnacle Ventures
------------------------------------------
(Name)
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
-----------------------------------
Title:
-----------------------------------
Address:
----------------------------------
Fax:
-------------------------------------
SIGNATURE PAGE TO FOURTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
The parties have executed this Fourth Amended and Restated Investors'
Rights Agreement as of the date first above written.
COMPANY:
AVANTGO, INC.
By: ______________________________________
Xxxxxxx Xxxx,
Chief Executive Officer
Address: 0000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
INVESTORS:
Xxxxx Xxxxxxxx
------------------------------------------
(Name)
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxx
-----------------------------------
Title:
-----------------------------------
Address: 0000 Xxxxx Xxxx.
--------------------------------
Xxxxxxx, XX 00000
------------------------------------------
Fax:
-------------------------------------
SIGNATURE PAGE TO FOURTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
The parties have executed this Fourth Amended and Restated Investors'
Rights Agreement as of the date first above written.
COMPANY:
AVANTGO, INC.
By: ______________________________________
Xxxxxxx Xxxx,
Chief Executive Officer
Address: 0000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
INVESTORS:
SKGF Investments-2000-I, L.L.C.
------------------------------------------
(Name)
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxxx
-----------------------------------
Title: Manager
----------------------------------
Address: 0000 Xxx Xxxx Xxx., Xxxxx 000
--------------------------------
Xxxxxxxxxx, XX 00000
------------------------------------------
Fax: 000-000-0000
------------------------------------
SIGNATURE PAGE TO FOURTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
The parties have executed this Fourth Amended and Restated Investors'
Rights Agreement as of the date first above written.
COMPANY:
AVANTGO, INC.
By: ______________________________________
Xxxxxxx Xxxx,
Chief Executive Officer
Address: 0000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
INVESTORS:
DRW Venture Partners LP
------------------------------------------
(Name)
By: /s/ Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
-----------------------------------
Title: Director, DRW Finance and Admin.
----------------------------------
Address: 00 Xxxxx Xxxxx Xxxxxx
--------------------------------
Xxxxxxxxxxx, XX 00000
------------------------------------------
Fax: 000-000-0000
-------------------------------------
SIGNATURE PAGE TO FOURTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
The parties have executed this Fourth Amended and Restated Investors'
Rights Agreement as of the date first above written.
COMPANY:
AVANTGO, INC.
By: ______________________________________
Xxxxxxx Xxxx,
Chief Executive Officer
Address: 0000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
INVESTORS:
Xxxxxxxxx X. Xxxxx
------------------------------------------
(Name)
By: /s/ Xxxxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxxxx X. Xxxxx
-----------------------------------
Title:
-----------------------------------
Address: 0000 Xxxxxxxx Xxxx
--------------------------------
Xxxxxxx Xxxx, XX 00000
------------------------------------------
Fax: 000-000-0000
------------------------------------
SIGNATURE PAGE TO FOURTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
The parties have executed this Fourth Amended and Restated Investors'
Rights Agreement as of the date first above written.
COMPANY:
AVANTGO, INC.
By: ______________________________________
Xxxxxxx Xxxx,
Chief Executive Officer
Address: 0000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
INVESTORS:
Xxxxx & Company Incorporated
------------------------------------------
(Name)
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
-----------------------------------
Title: Chief Compliance Officer/V.P.
----------------------------------
Address: 000 Xxxxx Xxxxxx
--------------------------------
Xxx Xxxx, XX 00000
------------------------------------------
Fax: 000-000-0000
------------------------------------
SIGNATURE PAGE TO FOURTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
The parties have executed this Fourth Amended and Restated Investors'
Rights Agreement as of the date first above written.
COMPANY:
AVANTGO, INC.
By: ___________________________________________
Xxxxxxx Xxxx,
Chief Executive Officer
Address: 0000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
INVESTORS:
The Stealth Fund, L.P., The Tacet Fund, L.P.
-----------------------------------------------
(Name)
By: /s/ Xxxxx Xxxxx
-------------------------------------------
Name: Xxxxx Xxxxx
----------------------------------------
Title: President, Pacific Edge Investment Mgt.
---------------------------------------
Address: 000 Xxxxxxxx Xxx., Xxxxx 000
-------------------------------------
Xxxx Xxxx, XX 00000
-----------------------------------------------
Fax: 000-000-0000
-----------------------------------------
SIGNATURE PAGE TO FOURTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
THE XXXXXXX XXXXX GROUP, INC.
By: /s/ Xxxxxxx X. X'Xxxxx
-------------------------------------
Name: Xxxxxxx X. X'Xxxxx
-----------------------------------
Title: Attorney-in-Fact
----------------------------------
STONE XXXXXX XXXX 0000, X.X.
By: Stone Street 2000, L.L.C., its general
partner
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
-----------------------------------
Title: Vice President
----------------------------------
BRIDGE STREET SPECIAL OPPORTUNITIES FUND
2000, L.P.
By: Bridge Street Special Opportunities
2000, L.L.C., it general partner
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
-----------------------------------
Title: Vice President
----------------------------------
XXXXXXX XXXXX INVESTMENTS LIMITED
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
SIGNATURE PAGE TO FOURTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
PRIOR INVESTORS:
21ST CENTURY INTERNET FUND, L.P. ADOBE VENTURES II, L.P.
By: 21st Century Internet Management
Partners, LLC By: Adobe Venture Management II, LLC,
Its General Partner
/s/ Xxxxx X. Xxxxxxxxx
-----------------------------------------------------------
Xxxxx X. Xxxxxxxxx, Member ----------------------------------------------
Xxxxxx Xxxxxxxxxxxx, Attorney-in-Fact
SLEEPY HOLLOW INVESTMENT PARTNERSHIP, L.P. H&Q AVANTGO INVESTORS, L.P.
By: Xxxxx Xxxxxxx Investment Partnership No. 5, L.P., it's
General Partner
By: H&Q Management Corp.,
By: /s/ (Mrs.) Xxxx X. Xxxxx Its General Partner
--------------------------------------------------------
(Mrs.) Xxxx X. Xxxxx
Officer of General Partner's
Managing General Partner, FSI
No. 2 Corporation ----------------------------------------------
Xxxxxx Xxxxxxxxxxxx, Attorney-in-Fact
/s/ Xxxxx Xxxxx /s/ Xxxxx Xxxxx
----------------------------------------------------------- ----------------------------------------------
XXXXX XXXXX XXXXX XXXXX
/s/ Xxxxx Xxx
-----------------------------------------------------------
XXXXX XXX
SIGNATURE PAGE TO FOURTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
FOUNDERS:
/s/ Xxxxx Xxx
----------------------------------
Xxxxx Xxx
Address: 0000 Xxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
/s/ Xxxxx Xxxxx
----------------------------------
Xxxxx Xxxxx
Address: X.X. Xxx 000000
Xxxxxxxx, XX 00000
----------------------------------
Xxxxxx Xxxxxxxxx
Address: 000 Xxxxxx Xxxxxx, Xxx. 0
Xxx Xxxxxxxxx, XX 00000
SIGNATURE PAGE TO FOURTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
EXHIBIT A
---------
INVESTORS
---------
The Xxxxxxx Xxxxx Group,Inc.
00 Xxxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Fax: (000)000-0000
Xxxxx Xxxxxx Xxxx 0000, X.X.
00 Xxxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Fax: (000)000-0000
Bridge Street Special Opportunities
Fund 2000, L.P.
00 Xxxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Fax: (000)000-0000
Xxxxxxx Xxxxx Investments Limited
00 Xxxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Fax: (000)000-0000
Yahoo!, Inc.
0000 Xxxxxxx Xxxxxxxxxx
Xxxxx Xxxxx, XX 00000
Fax: (000)000-0000
Fax: (000)000-0000
Pinnacle Ventures
0000 Xxxxxx Xxxxx
Xxxx Xxxx, XX 00000
Fax:000.000.0000
Imagine Health, Inc.
c/o McKesson HBOC
0 Xxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxxxxxxx,Xxxxxxxxxx 00000
Fax: (415)
Ford Motor Company
0 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Fax: (000)000-0000
American Express Travel Related
Services Company, Inc.
World Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Fax: (000)000-0000
The Entrepreneurs Growth Fund, L.P.
0000 Xxxxxxxxxxx Xxxx
Xxxxx 0000
Xxxx Xxxx, XX 00000
Fax (000)000-0000
The Entrepreneurs Fund I, L.P.
0000 Xxxxxxxxxxx Xxxx
Xxxxx 0000
Xxxx Xxxx, XX 00000
Fax (000)000-0000
The Entrepreneurs Fund II, L.P.
0000 Xxxxxxxxxxx Xxxx
Xxxxx 0000
Xxxx Xxxx, XX 00000
Fax (000)000-0000
RBW Investments LLC
0000 Xxxxxxxxxxx Xxxx
Xxxxx 0000
Xxxx Xxxx, XX 00000
Fax (000)000-0000
Xxxx Xxxxxx
0000 Xxxxxxxxxxx Xxxx
Xxxxx 0000
Xxxx Xxxx, XX 00000
Fax (000)000-0000
C. Xxxxxxx Xxx
0000 Xxxxxxxxxxx Xxxx
Xxxxx 0000
Xxxx Xxxx, XX 00000
Fax (000)000-0000
Xxx Xxxxxxxx
0000 Xxxxxxxxxxx Xxxx
Xxxxx 0000
Xxxx Xxxx, XX 00000
Fax (000)000-0000
Sleepy Hollow Investment Partnership,
L.P.
Xxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Fax:
Microsoft Corporation
Xxx Xxxxxxxxx Xxx
Xxxxxxx, XX 00000
Attn: Chief Financial Officer
CC: General Counsel, Finance and Administration
Fax:
3Com Ventures, Inc.
C/O 3Com Corporation
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Attn: Vice President,
Business Development
Fax: (000)000-0000
cc: General Counsel
Fax: (000)000-0000
21st Century Internet Fund, L.P.
0 Xxxxx Xxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Fax: (000)000-0000
Adobe Ventures II, L.P.
x/x Xxxxxxxxx & Xxxxx Incorporated
Xxx Xxxx Xxxxxx,00/xx/ Xxxxx
Xxx Xxxxxxxxx, XX 00000
Fax: (000)000-0000
H&Q AvantGo Investors, L.P.
x/x Xxxxxxxxx & Xxxxx Incorporated
Xxx Xxxx Xxxxxx,00/xx/ Xxxxx
Xxx Xxxxxxxxx, XX 00000
Fax: (000)000-0000
Xxxxxxxxx & Xxxxx Employee Venture
Fund, X.X. XX
x/x Xxxxxxxxx & Xxxxx Incorporated
Xxx Xxxx Xxxxxx,00/xx/ Xxxxx
Xxx Xxxxxxxxx, XX 00000
Fax: (000)000-0000
Tacit Fund, L.P.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Fax:
Stealth Fund, L.P.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Fax:
Entrepreneurs Fund, L.P.
0000 Xxxxxxxxxxx Xxxx
Xxxxx 0000
Xxxx Xxxx, XX 00000
Fax:
RBW Investments LLC
0000 Xxxxxxxxxxx Xxxx
Xxxxx 0000
Xxxx Xxxx, XX 00000
Fax:
Cornerstone Properties LLP
Bayshore Corporate Center
0000 Xxxxx Xxxxxxxx Xxxx.
Xxxxx 000
Xxx Xxxxx, XX 00000
Fax: (000)000-0000
Angel Investors, L.P.
c/o Wilson, Sonsini, et al.,
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Fax:
TWB Investment Partnership
c/o Perkins Coie LLP
0000 Xxxxx Xxxxxx, 00/xx/ Xxxxx
Xxxxxxx, XX 00000-0000
Fax: (000)000-0000
Xxxxx Partners LLC
000 Xxxxxx Xxxxxx
Xxx Xxxxxx, XX 00000
Fax: (000)000-0000
Xxxxxxxxx Xxxxx
0000 Xxxxxxxx Xxxx
Xxxxxxx Xxxx, XX 00000
Fax: (000)000-0000
Xxxxx Xxxxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Fax:
Xxxxx Xxx
0000 Xxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Fax:
Xxxxx Xxxxx
X.X. Xxx 000000
Xxxxxxxx, XX 00000
Fax:
Xxxxx Xxxxx
00 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Fax:
RIM USA Capital Corporation
000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
Fax: (000)000-0000
Broadview SLP
000 Xxxxx Xxxx,00xx Xxxxx
Xxxxxx Xxxx, XX 00000-0000
Fax: 000 000-0000
DRW Venture Partners L.P.
Xxxx Xxxxxxxx Plaza
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Xxxxx & Company Incorporated
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Angel (Q) Investors II, L.P.
C/O J. Xxxxx XxXxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Fax: (000) 000-0000
The Leasing Group, plc
00 Xxxxxxx Xxxxx
Xxxxxxx
Xxxxxxxxx XX0 0XX
Write Image Limited
000 Xxxxxx Xxxxxx
Xxxxxx X0X 0XX
Xxxxx Xxxxxxxxxx
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Xxxxxxxx Family Revocable Trust u/a/d 12/16/94, amended 9/30/99
X/X Xxxxxx Xxxxxxxx
00 Xxxxxx Xxxx
Xxxxxx, XX 00000
Xxxxxx Xxxxx
00 Xxx Xxxxxxx Xxxxx #000
Xxx Xxxxxxxxx, XX 00000
Xxxxx Xxxxxx
000 00/xx/ Xxxxxx
Xxx Xxxxxxxxx, XX 00000
TWB Investment Partnership
0000 Xxxxx Xxxxxx, 00/xx/ Xxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
SKGF Investments-2000-1, L.L.C.
0000 Xxx Xxxx Xxx #000 X.X.
Xxxxxxxxxx, X.X. 00000
