ARIBA, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
JUNE 7, 1999
TABLE OF CONTENTS
PAGE
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1 Registration Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Request for Registration. . . . . . . . . . . . . . . . . . . . . . . 2
1.3 Company Registration. . . . . . . . . . . . . . . . . . . . . . . . . 4
1.4 Obligations of the Company. . . . . . . . . . . . . . . . . . . . . . 4
1.5 Furnish Information . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.6 Expenses of Demand Registration . . . . . . . . . . . . . . . . . . . 5
1.7 Expenses of Company Registration. . . . . . . . . . . . . . . . . . . 6
1.8 Underwriting Requirements . . . . . . . . . . . . . . . . . . . . . . 6
1.9 Delay of Registration . . . . . . . . . . . . . . . . . . . . . . . . 6
1.10 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.11 Reports Under Securities Exchange Act of 1934 . . . . . . . . . . . . 8
1.12 Form S-3 Registration . . . . . . . . . . . . . . . . . . . . . . . . 9
1.13 Assignment of Registration Rights . . . . . . . . . . . . . . . . . .10
1.14 Market Stand-Off Agreement Rights . . . . . . . . . . . . . . . . . .11
1.15 Termination of Registration Rights. . . . . . . . . . . . . . . . . .11
2. Covenants of the Company . . . . . . . . . . . . . . . . . . . . . . . . .11
2.1 Delivery of Financial Statements. . . . . . . . . . . . . . . . . . .11
2.2 Inspection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
2.3 Termination of Information and Inspection Covenants . . . . . . . . .12
2.4 Right of First Offer. . . . . . . . . . . . . . . . . . . . . . . . .13
2.5 Proprietary Information and Inventions Agreements . . . . . . . . . .14
2.6 Board Representation. . . . . . . . . . . . . . . . . . . . . . . . .14
3. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
3.1 Successors and Assigns. . . . . . . . . . . . . . . . . . . . . . . .15
3.2 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
3.3 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
3.4 Titles and Subtitles. . . . . . . . . . . . . . . . . . . . . . . . .15
3.5 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
3.6 Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
3.7 Amendments and Waivers. . . . . . . . . . . . . . . . . . . . . . . .15
3.8 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
3.9 Aggregation of Stock. . . . . . . . . . . . . . . . . . . . . . . . .16
3.10 Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . .16
3.11 Prior Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . .16
Schedule A Schedule of Investors
Schedule B Schedule of Founders
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
THIS AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT is made as of
June 7, 1999, by and among Ariba, Inc., a Delaware corporation (the "Company"),
the investors listed on Schedule A hereto, each of which is herein referred to
as an "Investor", and the founders listed on Schedule B hereto, each of which is
herein referred to as a "Founder".
RECITALS
WHEREAS, the Investors, Founders and Company are party to the Ariba
Technologies, Inc. Amended and Restated Investors' Rights Agreement dated April
17, 1998 (the "Prior Agreement");
WHEREAS, the Investors, Founders and Company wish to amend and restate
the Prior Agreement;
NOW, THEREFORE, in consideration of the promises, covenants, and
conditions set forth herein, the parties hereto hereby agree as follows:
1. REGISTRATION RIGHTS. The Company covenants and agrees as
follows:
1.1 DEFINITIONS. For purposes of this Section 1:
(a) The term "Act" means the Securities Act of 1933, as
amended.
(b) The term "Form S-3" means such form under the Act as in
effect on the date hereof or any registration form under the Act subsequently
adopted by the SEC that permits inclusion or incorporation of substantial
information by reference to other documents filed by the Company with the SEC.
(c) The term "Holder" means any person owning or having the
right to acquire Registrable Securities or any assignee thereof in accordance
with Section 1.13 hereof.
(d) The term "1934 Act" shall mean the Securities Exchange
Act of 1934, as amended.
(e) The term "register," "registered," and "registration"
refer to a registration effected by preparing and filing a registration
statement or similar document in compliance with the Act, and the declaration or
ordering of effectiveness of such registration statement or document.
(f) The term "Registrable Securities" means (i) the Common
Stock issuable or issued upon conversion of the Series A Preferred Stock and the
Series B Preferred Stock, (ii) the shares of Common Stock issued to the
Founders; provided, however, that
such shares of Common Stock shall not be deemed Registrable Securities and
the aforementioned individuals shall not be deemed Holders for the purposes
of Section 1.2, 1.12 and 3.7 (except as provided therein), and (iii) any
Common Stock of the Company issued as (or issuable upon the conversion or
exercise of any warrant, right or other security that is issued as) a
dividend or other distribution with respect to, or in exchange for, or in
replacement of the shares referenced in (i) and (ii) above, excluding in all
cases, however, any Registrable Securities sold by a person in a transaction
in which his rights under this Section 1 are not assigned.
(g) The number of shares of "Registrable Securities then
outstanding" shall be determined by the number of shares of Common Stock
outstanding that are, and the number of shares of Common Stock issuable pursuant
to then exercisable or convertible securities that are, Registrable Securities.
(h) The term "Series A Preferred Stock" shall refer to and
include the Series A-1 Preferred Stock.
(i) The term "Series B Preferred Stock" shall refer to and
include the Series B-1 Preferred Stock, the Series BB Preferred Stock, the
Series BB-1 Preferred Stock and the Series B Preferred Stock issued upon
exercise of that certain warrant to purchase shares of the Company's Series B
Preferred Stock issued pursuant to an equipment leasing transaction.
(j) The term "SEC" shall mean the Securities and Exchange
Commission.
1.2 REQUEST FOR REGISTRATION.
(a) If the Company shall receive at any time after the
earlier of (i) September 27, 2000, or (ii) six (6) months after the effective
date of the first registration statement for a public offering of securities of
the Company (other than a registration statement relating either to the sale of
securities to employees of the Company pursuant to a stock option, stock
purchase or similar plan or a 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 fifty percent (50%) of the Registrable Securities then
outstanding (or a lesser percent if the anticipated aggregate offering price,
net of underwriting discounts and commissions, would exceed $7,500,000), then
the Company shall:
(i) within ten (10) days of the receipt thereof,
give written notice of such request to all Holders; and
(ii) 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 that the Holders request to be registered,
subject to the limitations of subsection 1.2(b), within twenty (20) days of the
mailing of such notice by the Company in accordance with Section 3.5.
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(b) If the Holders initiating the registration request
hereunder ("Initiating Holders") intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall
so advise the Company as a part of their request made pursuant to subsection
1.2(a) and the Company shall include such information in the written notice
referred to in subsection 1.2(a). The underwriter will be selected by the
Company and shall be reasonably acceptable to a majority in interest of the
Initiating Holders. 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 1.4(e)) enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwriting. 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
that 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 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 taking action with respect to 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 utilize this right more
than once in any twelve (12) month period.
(d) In addition, the Company shall not be obligated to
effect, or to take any action to effect, any registration pursuant to this
Section 1.2:
(i) After the Company has effected two (2)
registrations pursuant to this Section 1.2 and such registrations have been
declared or ordered effective;
(ii) During the period starting with the date sixty
(60) days prior to the Company's good faith estimate of the date of filing of,
and ending on a date one hundred eighty (180) days after the effective date of,
a registration subject to Section 1.3 hereof; provided that the Company is
actively employing in good faith all reasonable efforts to cause such
registration statement to become effective; or
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(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 1.12 below.
1.3 COMPANY REGISTRATION. If (but without any obligation to do
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 or other securities 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, a registration
on any form that does not include substantially the same information as would be
required to be included in a registration statement covering the sale of the
Registrable Securities or a registration in which the only Common Stock being
registered is Common Stock issuable upon conversion of debt securities that are
also being registered), the Company shall, at such time, promptly give each
Holder written notice of such registration. Upon the written request of each
Holder given within twenty (20) days after mailing of such notice by the Company
in accordance with Section 3.5, the Company shall, subject to the provisions of
Section 1.8, cause to be registered under the Act all of the Registrable
Securities that each such Holder has requested to be registered.
1.4 OBLIGATIONS OF THE COMPANY. Whenever required under this
Section 1 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use 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 a period of up to one hundred twenty
(120) days or until the distribution contemplated in the Registration Statement
has been completed.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Act with respect to the disposition of all securities covered
by such registration statement.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may reasonably request
in order to facilitate the disposition of Registrable Securities owned by them.
(d) Use 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.
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(e) In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. 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.
1.5 FURNISH INFORMATION.
(a) It shall be a condition precedent to the obligations of
the Company to take any action pursuant to this Section 1 with respect to the
Registrable Securities of any selling Holder that such Holder shall furnish to
the Company such information regarding itself, the Registrable Securities held
by it, and the intended method of disposition of such securities as shall be
required to effect the registration of such Holder's Registrable Securities.
(b) The Company shall have no obligation with respect to
any registration requested pursuant to Section 1.2 or Section 1.12 if, due to
the operation of subsection 1.5(a), 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 1.12(b)(2), whichever is applicable.
1.6 EXPENSES OF DEMAND REGISTRATION. All expenses other than
underwriting discounts and commissions incurred in connection with
registrations, filings or qualifications pursuant to Section 1.2, including
(without limitation) all registration, filing and qualification fees, printers'
and accounting fees, fees and disbursements of counsel for the Company and the
reasonable fees and disbursements of one counsel for the selling Holders 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),
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unless the Holders of a majority of the Registrable Securities agree to forfeit
their right to one demand registration pursuant to Section 1.2.
1.7 EXPENSES OF COMPANY REGISTRATION. The Company shall bear
and pay 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 1.13), including (without limitation) all registration, filing, and
qualification fees, printer's and accounting fees relating or apportionable
thereto and the fees and disbursements of one counsel for the selling Holders
selected by them, but excluding underwriting discounts and commissions relating
to Registrable Securities.
1.8 UNDERWRITING REQUIREMENTS In connection with any offering
involving an underwriting of shares of the Company's capital stock, the Company
shall not be required under 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, that the underwriters determine in their sole discretion
will not jeopardize the success of the offering (the securities so included to
be apportioned pro rata among the selling 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 of the
selling Holders included in the offering be reduced below twenty-five percent
(25%) of the total amount of securities included in such offering, unless such
offering is the initial public offering of the Company's securities, in which
case the selling stockholders may be excluded if the underwriters make the
determination described above and no other stockholder's securities are included
or (ii) notwithstanding (i) above, any shares being sold by a stockholder
exercising a demand registration right similar to that granted in Section 1.2 be
excluded from such offering. For purposes of the preceding parenthetical
concerning apportionment, for any selling stockholder that is a holder of
Registrable Securities and that 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 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
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.
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1.10 INDEMNIFICATION. In the event any Registrable Securities
are included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless each Holder, any underwriter (as defined in the Act)
for such Holder, and each person, if any, who controls such Holder or
underwriter within the meaning of the Act or the 1934 Act, against any losses,
claims, damages, or liabilities (joint or several) to which they may become
subject under the Act, the 1934 Act or 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 fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Act, the 1934 Act, any state securities law or
any rule or regulation promulgated under the Act, the 1934 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 that occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by any such Holder, underwriter or controlling person.
(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 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 pay, as
incurred, any legal or other expenses reasonably incurred by any person intended
to be indemnified pursuant to this subsection 1.10(b) in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the indemnity agreement contained in this
subsection 1.10(b) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of the Holder, which consent shall not be unreasonably withheld;
provided that, in no event shall any indemnity under this subsection 1.10(b)
exceed the gross proceeds from the offering received by such Holder.
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(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 that may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this
Section 1.10, 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. The relative fault of the indemnifying party and of
the indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
(f) The obligations of the Company and Holders under this
Section 1.10 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and otherwise.
1.11 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view
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
8
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 the
effective date of the first registration statement filed by the Company for the
offering of its securities to the general public;
(b) take such action, including the voluntary registration
of its Common Stock under Section 12 of the 1934 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 1934 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 1934 Act (at any
time after it has become subject to such reporting requirements), or that it
qualifies as a registrant whose securities may be resold pursuant to Form S-3
(at any time after it so qualifies), (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed by
the Company, and (iii) such other information as may be reasonably requested in
availing any Holder of any rule or regulation of the SEC that permits the
selling of any such securities without registration or pursuant to such form.
1.12 FORM S-3 REGISTRATION. In case the Company shall receive
from the Holders of a majority 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 1.12: (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
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any) at an aggregate price to the public (net of any underwriters' discounts
or commissions) of less than $1,000,000; (3) 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 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 1.12;
provided, however, that the Company shall not utilize this right more than
once in any twelve (12) month period; or (4) 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 a majority of the Holders. All expenses other than
underwriting discounts and commissions incurred in connection with a
registration requested pursuant to Section 1.12, including (without limitation)
all registration, filing, qualification, printer's and accounting fees and the
reasonable fees and disbursements of one counsel for the selling Holder or
Holders and counsel for the Company 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 this Section 1.12 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). Registrations effected pursuant to this
Section 1.12 shall not be counted as demands for registration or registrations
effected pursuant to Sections 1.2 or 1.3, respectively.
1.13 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the
Company to register Registrable Securities pursuant to this Section 1 may be
assigned (but only with all related obligations) by a Holder to a transferee or
assignee of such securities who, after such assignment or transfer, holds at
least 368,788 shares of Registrable Securities (subject to appropriate
adjustment for stock splits, stock dividends, combinations and other
recapitalizations), provided: (a) the Company is, within a reasonable time
after such transfer, furnished with written notice of the name and address of
such transferee or assignee and the securities with respect to which such
registration rights are being assigned; (b) such transferee or assignee agrees
in writing to be bound by and subject to the terms and conditions of this
Agreement, including without limitation the provisions of Section 1.14 below;
and (c) such assignment shall be effective only if immediately following such
transfer the further disposition of such securities by the transferee or
assignee is restricted under the Act. For the purposes of determining the
number of shares of Registrable Securities held by a transferee or assignee, the
holdings of transferees and assignees of a partnership who are partners or
retired partners of such partnership (including spouses and ancestors, lineal
descendants and siblings of such partners or spouses who acquire Registrable
Securities by gift, will or intestate succession) shall be aggregated together
and with the partnership; provided that all assignees and transferees who would
not qualify individually for assignment of registration rights shall have a
single attorney-in-fact for the purpose of exercising any rights, receiving
notices or taking any action under this Section 1.
10
1.14 "MARKET STAND-OFF" AGREEMENT RIGHTS. Each Investor hereby
agrees that, during the period of duration specified by the Company and an
underwriter of Common Stock or other securities of the Company, following the
effective date of a registration statement of the Company filed under the Act,
it shall not, to the extent requested by the Company and such underwriter,
directly or indirectly sell, offer to sell, contract to sell (including, without
limitation, any short sale), grant any option to purchase or otherwise transfer
or dispose of (other than to donees who agree to be similarly bound) any
securities of the Company held by it immediately prior to the effective date of
such registration statement, 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 that covers Common Stock (or other
securities) to be sold on its behalf to the public in an underwritten offering;
(b) all officers and directors of the Company and all other
persons with registration rights (whether or not pursuant to this Agreement)
enter into similar agreements; and
(c) such market stand-off time period shall not exceed one
hundred eighty (180) days.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Registrable Securities of each
Investor (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period.
1.15 TERMINATION OF REGISTRATION RIGHTS. No Holder shall be
entitled to exercise any right provided for in this Section 1 after seven
(7) years following the consummation of the sale of securities pursuant to a
registration statement filed by the Company under the Act in connection with the
initial firm commitment underwritten offering of its securities to the general
public or, as to any Holder, such earlier time at which all Registrable
Securities held by such Holder can be sold in any three (3) month period without
registration in compliance with Rule 144 of the Act.
2. COVENANTS OF THE COMPANY.
2.1 DELIVERY OF FINANCIAL STATEMENTS. The Company shall deliver
to each Investor:
(a) so long as such Investor holds at least 640,000 shares
of Series A and/or Series B Preferred Stock (either in the form of Series A
and/or Series B Preferred Stock or Common Stock issued upon conversion thereof,
and as adjusted for subsequent stock splits, recombinations or
reclassifications), 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
11
reasonable detail, prepared in accordance with generally accepted accounting
principles ("gaap"), and audited and certified by independent public
accountants of nationally recognized standing selected by the Company;
(b) so long as such Investor holds at least 640,000 shares
of Series A and/or Series B Preferred Stock (either in the form of Series A
and/or Series B Preferred Stock or Common Stock issued upon conversion thereof,
and as adjusted for subsequent stock splits, recombinations or
reclassifications), as soon as practicable, but in any event within forty-five
(45) days after the end of each of the first three (3) quarters of each fiscal
year of the Company, an unaudited income statement, statement of cash flows for
such fiscal quarter and an unaudited balance sheet and a statement of
stockholder's equity as of the end of such fiscal quarter;
(c) so long as such Investor holds at least 640,000 shares
of Series A and/or Series B Preferred Stock (either in the form of Series A
and/or Series B Preferred Stock or Common Stock issued upon conversion thereof,
and as adjusted for subsequent stock splits, recombinations or
reclassifications), within thirty (30) days of the end of each month, an
unaudited income statement and statement of cash flows and balance sheet for and
as of the end of such month, in reasonable detail;
(d) so long as such Investor holds at least 640,000 shares
of Series A and/or Series B Preferred Stock (either in the form of Series A
and/or Series B Preferred Stock or Common Stock issued upon conversion thereof,
and as adjusted for subsequent stock splits, recombinations or
reclassifications), as soon as practicable, but in any event thirty (30) days
prior to the end of each fiscal year, (i) a budget for the next fiscal year, and
(ii) a business plan with respect to such next fiscal year; and
(e) with respect to the financial statements called for in
subsections (b) and (c) of this Section 2.1, an instrument executed by the Chief
Financial Officer or President of the Company 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.
2.2 INSPECTION. So long as such Investor holds at least 640,000
shares of Series A and/or Series B Preferred Stock (either in the form of
Series A and/or Series B Preferred Stock or Common Stock issued upon conversion
thereof, and as adjusted for subsequent stock splits, recombinations or
reclassifications), the Company shall permit each Investor, 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 that it reasonably
considers to be a trade secret or similar confidential information.
2.3 TERMINATION OF INFORMATION AND INSPECTION COVENANTS. The
covenants set forth in Section 2.1, Section 2.2, Section 2.4, Section 2.5 and
Section 2.6 shall
12
terminate as to the Investors and the Founders and be of no further force or
effect when the sale of securities pursuant to a registration statement filed
by the Company under the Act in connection with the firm commitment
underwritten offering of its securities to the general public is consummated
or when the Company first becomes subject to the periodic reporting
requirements of Sections 12(g) or 15(d) of the 1934 Act, whichever event
shall first occur.
2.4 RIGHT OF FIRST OFFER. Subject to the terms and conditions
specified in this paragraph 2.4, the Company hereby grants to each Investor a
right of first offer with respect to future sales by the Company of its Shares
(as hereinafter defined). An Investor shall be entitled to apportion the right
of first offer hereby granted it among itself and its partners and affiliates in
such proportions as it deems appropriate.
Each time the Company proposes to offer any shares of, or securities
convertible into or 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) By written notification received by the Company, within
twenty (20) calendar days after giving 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 that equals the proportion that the number of shares
of Common Stock issued and held, or issuable upon conversion of the Series A
and/or Series B Preferred Stock then held, by such Investor bears to the total
number of shares of Common Stock of the Company then outstanding (assuming full
conversion, exercise and exchange of all convertible, exercisable or
exchangeable securities) (such Investor's "Pro Rata Share").
(c) If all Shares that Investors are entitled to obtain
pursuant to subsection 2.4(b) are not elected to be obtained as provided in
subsection 2.4(b) hereof, the Company may, during the ninety (90) day period
following the expiration of the period provided in subsection 2.4(b) hereof,
offer the remaining unsubscribed portion of such Shares to any person or persons
at a price not less than, and upon terms no more favorable to the offeree than
those specified in the Notice. If the Company does not enter into an agreement
for the sale of the Shares within such period, or if such agreement is not
consummated within 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 shares of Common Stock (or
options therefor) to employees or directors of or consultants to the Company for
the primary purpose of soliciting or retaining their services, (ii) to or after
consummation of a bona fide, firmly underwritten public offering of shares of
Common Stock, registered under the Act pursuant to a registration statement
13
on Form S-1 or SB-2, at an offering price equal to (A) on a per share basis,
the sum of $3.125 (appropriately adjusted for any stock split, dividend,
combination or other recapitalization) (the "Series B Purchase Price") plus
an amount equal to the product of 10% of the Series B Purchase Price
multiplied by a fraction, the numerator of which shall be the number of days
elapsed from the date of this Agreement and the denominator of which shall be
365, and (B) $7,500,000 in the aggregate, (iii) the issuance of securities
pursuant to the conversion, exercise or exchange of convertible, exercisable
or exchangeable securities, (iv) the issuance of securities in connection
with a bona fide business acquisition of or by the Company, whether by
merger, consolidation, sale of assets, sale or exchange of stock or
otherwise, or (v) the issuance of stock, warrants or other securities or
rights to persons or entities with which the Company has business
relationships, provided such issuances are for other than primarily equity
financing purposes.
2.5 PROPRIETARY INFORMATION AND INVENTIONS AGREEMENTS. The
Company will cause each person with access to confidential information now or
hereafter employed by it or any subsidiary to enter into a proprietary
information and inventions agreement substantially in the form approved by the
Board of Directors.
2.6 BOARD REPRESENTATION.
(a) As long as Benchmark Capital Partners, L.P. or any
affiliate thereof ("Benchmark") owns not less than fifty percent (50%) of the
shares of Series A and Series B Preferred Stock it holds immediately after
the Closing (as defined in that certain Series BB Stock Purchase Agreement,
dated April 17, 1998, among the Company and one of the Investors) (or an
equivalent amount of Common Stock issued upon conversion thereof), it shall
be entitled to designate one (1) of the two (2) representatives which the
holders of the Series A and Series B Preferred Stock, voting separately as a
single class and not as separate series, are entitled to elect to the
Company's Board of Directors ("Board") pursuant to the Company's Amended and
Restated Certificate of Incorporation ("Restated Certificate"). As long as
Crosspoint Venture Partners 1996 or any affiliate thereof owns not less than
fifty percent (50%) of the shares of Series A and Series B Preferred Stock
they hold immediately after the Closing (or an equivalent amount of Common
Stock issued upon conversion thereof), they shall be entitled to designate
one (1) of the two (2) such representatives which the holders of the Series A
and Series B Preferred Stock, voting separately as a single class and not as
separate series, are entitled to elect to the Board pursuant to the Restated
Certificate. Each Investor (including any successor and assign of the rights
and obligations of such Investor under this Agreement) shall vote a
sufficient number of shares of Series A and Series B Preferred Stock (or
shares of Common Stock issued upon conversion thereof), to elect to the Board
the representatives designated pursuant to this Section 2.6.
(b) Each Founder agrees that he shall not vote to elect
to the Board any of the three (3) representatives that holders of Common
Stock, voting separately as a class, are entitled to elect to the Board
pursuant to the Restated Certificate without obtaining the prior approval of
the holders of a majority of the Series A and Series B Preferred Stock and
Common Stock issued upon conversion thereof (calculated on an as converted
basis), which approval shall not be unreasonably withheld. The foregoing
shall not apply to the election to the Board of the Company's chief executive
officer.
14
3. MISCELLANEOUS.
3.1 SUCCESSORS AND ASSIGNS. Except as otherwise provided
herein, the terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective successors and assigns of the parties
(including transferees of any shares of Registrable Securities). Nothing in
this Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
3.2 GOVERNING LAW. This Agreement shall be governed by and
construed under the laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely within
California; notwithstanding the foregoing, Section 2.6 shall be governed by and
construed under the laws of the State of Delaware as applied to agreements among
Delaware residents entered into and to be performed entirely within Delaware.
3.3 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
3.4 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
3.5 NOTICES. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given (i) upon personal delivery to the party to be notified, (ii)
upon deposit with the United States Post Office, by registered or certified
mail, postage prepaid and addressed to the party to be notified at the address
previously provided to the Company by such party, or at such other address as
such party may designate by ten (10) days' advance written notice to the other
parties, or (iii) upon delivery by facsimile transmission to the party to be
notified at the facsimile number indicated for such party on the signature page
hereof, or at such other facsimile number as such party may designate by ten
(10) days' advance written notice to the other parties.
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; provided, however,
(i) that in the event such amendment or waiver adversely affects the rights
and/or obligations of the Founders under this Agreement in a different manner
than the other
15
Holders, such amendment or waiver shall also require the written consent of a
majority of the Common Stock held by the Founders and (ii) that in the event
such amendment or waiver adversely affects the rights and/or obligations of
the holders of Series B Preferred Stock under this Agreement in a different
manner than the other Holders, such amendment or waiver shall also require
the written consent of the holders of a majority of the shares of Series B
Preferred Stock (or shares of Common Stock issued upon conversion thereof)
then outstanding (calculated on an as-converted basis). 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, such provision shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
3.9 AGGREGATION OF STOCK. All shares of Registrable Securities
held or acquired by affiliated entities or persons shall be aggregated together
for the purpose of determining the availability of any rights under this
Agreement.
3.10 ENTIRE AGREEMENT. This Agreement (including the Exhibits
hereto, if any) constitutes the full and entire understanding and agreement
between the parties with regard to the subjects hereof and thereof.
3.11 PRIOR AGREEMENT. The Prior Agreement is hereby superseded in
its entirety and shall be of no further force or effect.
16
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
ARIBA, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------------------
Xxxxx X. Xxxxx
President and Chief Executive Officer
Address:
---------------------------------
---------------------------------
Telephone:
---------------------------------
Facsimile:
---------------------------------
SIGNATURE PAGE TO ARIBA, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS:
AMERINDO TECHNOLOGY GROWTH FUND II, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Print Name: Xxxxxxx X. Xxxxx
------------------------------
Title: Director
-----------------------------------
SIGNATURE PAGE TO ARIBA, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
AMERINDO INVESTMENT ADVISORS INC.
PROFIT SHARING PLAN AND TRUST
By:
By: /s/ Xxxxxxx Xxxxxx-Xxxxxxx
--------------------------------------
Xxxxxxx Xxxxxx-Xxxxxxx, Chief
Financial Officer
SIGNATURE PAGE TO ARIBA, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
BENCHMARK CAPITAL PARTNERS, L.P.
By: Benchmark Capital Management Co., L.L.C.
By: /s/ [ILLEGIBLE]
--------------------------------------
Member
BENCHMARK FOUNDERS' FUND, L.P.
By: Benchmark Capital Management Co., L.L.C.
By: /s/ [ILLEGIBLE]
--------------------------------------
Member
XXXX X. XXXXXX SEPARATE PROPERTY TRUST
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Xxxxxx X. Xxxxxx, Trustee
SIGNATURE PAGE TO ARIBA, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
G & H PARTNERS
By: /s/ [ILLEGIBLE] for G & H Partners
---------------------------------------
Partner
/s/ Xxxxxxx X. Xxxxxx-Xxxxxxx
------------------------------------------
Xxxxxxx X. Xxxxxx-Xxxxxxx
SIGNATURE PAGE TO ARIBA, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
THE XXXXXXX X. & XXXXXXX X. XXXXXX REVOCABLE
TRUST DATED 1/19/90
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Xxxxxxx X. Xxxxxx, Trustee
SIGNATURE PAGE TO ARIBA, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
/s/ Xxxxx X. Xxxxx
------------------------------------------
Xxxxx X. Xxxxx
XXXXXX MASTER TRUST
By: Amerindo Investment Advisors Inc.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Xxxxxxx X. Xxxxx
Attorney-in-Fact for Xxxxxx Master Trust
SIGNATURE PAGE TO ARIBA, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
/s/ Xxxxxx X. XxXxxxxx
------------------------------------------
Xxxxxx X. XxXxxxxx
SIGNATURE PAGE TO ARIBA, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
/s/ Xxxxxx Xxxxxxxx
------------------------------------------
Xxxxxx Xxxxxxxx
PRAISE THE LORD FOUNDATION
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxx
Chief Financial Officer
SIGNATURE PAGE TO ARIBA, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
/s/ A. Xxxxxx Xxxxxxx
-----------------------------------------
A. Xxxxxx Xxxxxxx
SIGNATURE PAGE TO ARIBA, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
/s/ Xxxxx X. Xxxxxx
-----------------------------------------
Xxxxx X. Xxxxxx
SIGNATURE PAGE TO ARIBA, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
/s/ Xxxx X. Xxxxxx Wild
-----------------------------------------
Xxxx X. Xxxxxx Wild
SIGNATURE PAGE TO ARIBA, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
FOUNDERS
/s/ Xxxx Xxxxxxx
-----------------------------------------
Xxxx Xxxxxxx
SIGNATURE PAGE TO ARIBA, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
/s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxx
SIGNATURE PAGE TO ARIBA, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
/s/ Xxxxx X. Xxxxx
-----------------------------------------
Xxxxx X. Xxxxx
SIGNATURE PAGE TO ARIBA, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
/s/ Xxxxxx Xxxx
-----------------------------------------
Xxxxxx Xxxx
SIGNATURE PAGE TO ARIBA, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
/s/ Xxxxx Putanec
-----------------------------------------
Xxxxx Putanec
SIGNATURE PAGE TO ARIBA, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
SCHEDULE A
SCHEDULE OF INVESTORS
NAME OF INVESTOR
Amerindo Technology Growth Fund II, Inc.
Benchmark Capital Partners, L.P.
Benchmark Founders' Fund, L.P.
Xxxxxxx Xxxxxx
Crosspoint Venture Partners 1996
DMG Technology Ventures, L.L.C.
Xxxx X. Xxxxxx Separate Property Trust
G & H Partners
Xxxxxxx X. Xxxxxx-Xxxxxxx
Intel Corporation
The Xxxxxxx X. and Xxxxxxx X. Xxxxxx Revocable Trust dated 1/19/90
Xxxxx X. Xxxxx
Lighthouse Capital Partners
Xxxxxx Master Trust
Xxxxxx X. XxXxxxxx
Xxxx XxXxxxx
PeopleSoft Ventures, Inc.
Xxxxxx Xxxxxxxx
The Pidwell Family Living Trust dated 6/25/87
Praise the Lord Foundation
A. Xxxxxx Xxxxxxx
TCV II, V.O.F.
Technology Crossover Ventures II, L.P.
TCV II (Q), L.P.
TCV II Strategic Partners, L.P.
Technology Crossover Ventures II, C.V.
Xxxxx X. Xxxxxx
Xxx Xxxxxxx Capital Management
Visa International Service Association
Visa U.S.A. Inc.
Xxxxx X. Xxxxxx Wild
SCHEDULE B
SCHEDULE OF FOUNDERS
Xxx XxXxxxxx
Xxxx Xxxxxxx
Xxxxxx X. Xxxxxx
Xxxxx X. Xxxxx
Xxxxxx Xxxx
Xxxxx Putanec
Xxxx Xxxx
