Exhibit 10.6
LOUDCLOUD, INC.
Amended and Restated Investor Rights Agreement
June 23, 2000
TABLE OF CONTENTS
Page
----
SECTION 1. GENERAL......................................................... 1
1.1 Definitions..................................................... 1
SECTION 2. REGISTRATION; RESTRICTIONS ON TRANSFER.......................... 3
2.1 Restrictions on Transfer........................................ 3
2.2 This Section 2.2 is intentionally left blank.................... 4
2.3 Piggyback Registrations......................................... 4
2.4 Form S-3 Registration........................................... 5
2.5 Expenses of Registration........................................ 6
2.6 Obligations of the Company...................................... 7
2.7 Termination of Registration Rights.............................. 8
2.8 Delay of Registration; Furnishing Information................... 8
2.9 Indemnification................................................. 8
2.10 Assignment of Registration Rights............................... 11
2.11 Amendment of Registration Rights................................ 11
2.12 Limitation on Subsequent Registration Rights.................... 11
2.13 "Market Stand-Off" Agreement; Agreement to Furnish Information.. 12
2.14 Rule 144 Reporting.............................................. 12
SECTION 3. COVENANTS OF THE COMPANY 13
3.1 Basic Financial Information and Reporting....................... 13
3.2 Inspection Rights............................................... 14
3.3 Confidentiality of Records...................................... 14
3.4 Reservation of Common Stock..................................... 14
3.5 Proprietary Information and Inventions Agreement................ 14
3.6 Corporate Governance............................................ 14
3.7 Section 1202 Compliance......................................... 14
3.8 Termination of Covenants........................................ 16
3.9 Directors and Officers Indemnification.......................... 16
SECTION 4. RIGHTS OF PARTICIPATION 17
4.1 Subsequent Offerings............................................ 17
4.2 Exercise of Rights.............................................. 17
4.3 Issuance of Equity Securities to Other Persons.................. 17
4.4 Termination of Rights of Participation.......................... 18
4.5 Transfer of Rights of Participation............................. 18
4.6 Excluded Securities............................................. 18
SECTION 5. MISCELLANEOUS................................................... 19
5.1 Governing Law................................................... 19
5.2 Survival........................................................ 19
-i-
TABLE OF CONTENTS
(continued)
Page
----
5.3 Successors and Assigns.......................................... 19
5.4 Entire Agreement................................................ 19
5.5 Amendment and Waiver............................................ 19
5.6 Notices, Etc.................................................... 20
5.7 Delays or Omissions............................................. 20
5.8 Counterparts.................................................... 20
5.9 Severability.................................................... 20
5.10 Aggregation of Stock............................................ 20
-ii-
LOUDCLOUD, INC.
INVESTOR RIGHTS AGREEMENT
This Amended and Restated Investor Rights Agreement (the "Agreement") is
entered into as of the 23rd day of June, 2000, by and among Loudcloud, Inc., a
Delaware corporation (the "Company"), the investors set forth on Exhibit A
hereto (collectively the "Investors" and each individually as an "Investor")
and, with respect to Section 2 only, certain existing stockholders of the
Company set forth on Exhibit B hereto (collectively the "Founders" and each
individually a "Founder").
RECITALS
WHEREAS, certain investors possess information rights, rights of first
offer and registration rights granted under that certain Amended and Restated
Investor Rights Agreement dated as of November 24, 1999 (the "Prior Agreement")
between the Company, the Investors named therein (the "Prior Holders") and the
Founders;
WHEREAS, the Company desires certain persons to purchase shares of the
Company's Series C Preferred Stock pursuant to that certain Series C Preferred
Stock Purchase Agreement (the "Series C Agreement") of even date herewith;
WHEREAS, the Prior Holders and the Founders desire to amend and restate the
Prior Agreement and to accept the rights created herein in lieu of rights
provided by the Prior Agreement.
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties, covenants and conditions set forth in this Agreement, the Company,
the Prior Holders and the Founders agree that the Prior Agreement is terminated
and superseded in its entirety by this Agreement, and all parties hereto further
agree as follows:
SECTION 1. GENERAL
1.1 Definitions. As used in this Agreement the following terms shall have
the following respective meanings:
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Form S-3" means such form under the Securities Act as in effect on
the date hereof or any successor registration form under the Securities Act
subsequently adopted by the SEC which permits inclusion or incorporation of
substantial information by reference to other documents filed by the Company
with the SEC.
"Holder" means any person owning of record Registrable Securities that
have not been sold to the public or any assignee of record of such Registrable
Securities in accordance with Section 2.10 hereof.
"Initial Offering" means the Company's first firm commitment
underwritten public offering of its Common Stock registered under the Securities
Act, which is either the subject of a firm underwriting commitment or an on-line
offering pursuant to the Dutch-auction process.
"Register," "registered," and "registration" refer to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act, and the declaration or ordering of effectiveness of such
registration statement or document.
"Registrable Securities" means (a) Common Stock of the Company issued
or issuable upon conversion of the Shares; (b) Common Stock of the Company
issued or issuable upon conversion of shares held by the Founders and their
permitted assigns and (c) any 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, such above-described securities. Notwithstanding the
foregoing, Registrable Securities shall not include any securities sold by a
person to the public pursuant to a registration statement or Rule 144 or sold in
a private transaction in which the transferor's rights under Section 2 of this
Agreement are not assigned.
"Registrable Securities then outstanding" shall be the number of
shares determined by calculating the total number of shares of the Company's
Common Stock that are Registrable Securities and either (a) are then issued and
outstanding or (b) are issuable pursuant to then exercisable or convertible
securities.
"Registration Expenses" shall mean all expenses incurred by the
Company in complying with Sections 2.2, 2.3 and 2.4 hereof, including, without
limitation, all registration and filing fees, printing expenses, fees and
disbursements of counsel for the Company, reasonable fees and disbursements not
to exceed twenty-five thousand dollars ($25,000) of a single special counsel for
the Holders, blue sky fees and expenses and the expense of any special audits
incident to or required by any such registration (but excluding the compensation
of regular employees of the Company which shall be paid in any event by the
Company).
"SEC" or "Commission" means the United States Securities and Exchange
Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Selling Expenses" shall mean all underwriting discounts and selling
commissions applicable to the sale.
"Shares" shall mean the Company's Series A Preferred Stock, Series B
Preferred Stock and Series C Preferred Stock held by the Investors listed on
Exhibit A hereto and their permitted assigns.
-2-
SECTION 2. REGISTRATION; RESTRICTIONS ON TRANSFER
2.1 Restrictions on Transfer
(a) Each Holder agrees not to make any disposition of all or any
portion of the Shares or Registrable Securities unless and until:
(i) There is then in effect a registration statement under
the Securities Act covering such proposed disposition and such disposition is
made in accordance with such registration statement; or
(ii) (A) The transferee has agreed in writing to be bound by
the terms of this Agreement, (B) such Holder shall have notified the Company of
the proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and (C) if
reasonably requested by the Company, such Holder shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company, that
such disposition will not require registration of such shares under the
Securities Act. It is agreed that the Company will not require opinions of
counsel for transactions made pursuant to Rule 144 under the Securities Act
except in unusual circumstances.
(iii) Notwithstanding the provisions of paragraphs (i) and
(ii) above, no such registration statement or opinion of counsel shall be
necessary for a transfer by a Holder to its affiliates or by a Holder which is
(A) a partnership to an affiliated partnership or to its partners or former
partners in accordance with partnership interests, (B) a corporation to its
stockholders in accordance with their interest in the corporation, (C) a limited
liability company to its members or former members in accordance with their
interest in the limited liability company, or (D) to the Holder's family member
or trust for the benefit of an individual Holder; provided that in each case the
transferee will be subject to the terms of this Agreement to the same extent as
if he were an original Holder hereunder.
(b) Each certificate representing Shares or Registrable Securities
shall (unless otherwise permitted by the provisions of the Agreement) be stamped
or otherwise imprinted with a legend substantially similar to the following (in
addition to any legend required under applicable state securities laws):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND
UNTIL REGISTERED UNDER THE ACT OR UNLESS THE COMPANY HAS RECEIVED AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT
SUCH REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULE
144 OF THE ACT.
-3-
THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO CERTAIN RESTRICTIONS
ON TRANSFER INCLUDING A 180-DAY LOCKUP IN CONNECTION WITH AN INITIAL
PUBLIC OFFERING AS SET FORTH IN THE INVESTOR RIGHTS AGREEMENT BETWEEN
THE ISSUER AND THE ORIGINAL HOLDER OF THESE SHARES, A COPY OF WHICH
MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER. SUCH TRANSFER
RESTRICTIONS ARE BINDING ON TRANSFEREES OF THESE SHARES.
(c) The Company shall be obligated to reissue promptly unlegended
certificates at the request of any holder thereof if the holder shall have
obtained an opinion of counsel (which counsel may be counsel to the Company)
reasonably acceptable to the Company to the effect that the securities proposed
to be disposed of may lawfully be so disposed of without registration,
qualification or legend. It is agreed that the Company will not require opinions
of counsel for transactions made pursuant to Rule 144 under the Securities Act
except in unusual circumstances.
(d) Any legend endorsed on an instrument pursuant to applicable state
securities laws and the stop-transfer instructions with respect to such
securities shall be removed upon receipt by the Company of an order of the
appropriate blue sky authority authorizing such removal.
2.2 This Section 2.2 is intentionally left blank.
2.3 Piggyback Registrations. The Company shall notify all Holders of
Registrable Securities in writing at least fifteen (15) days prior to the filing
of any registration statement under the Securities Act for purposes of a public
offering of securities of the Company (including, but not limited to,
registration statements relating to secondary offerings of securities of the
Company, but excluding registration statements relating to employee benefit
plans or debt securities or with respect to corporate reorganizations or other
transactions under Rule 145 of the Securities Act) and will afford each such
Holder an opportunity to include in such registration statement all or part of
such Registrable Securities held by such Holder. Each Holder desiring to include
in any such registration statement all or any part of the Registrable Securities
held by it shall, within fifteen (15) days after the above-described notice from
the Company, so notify the Company in writing. Such notice shall state the
intended method of disposition of the Registrable Securities by such Holder. If
a Holder decides not to include all of its Registrable Securities in any
registration statement thereafter filed by the Company, such Holder shall
nevertheless continue to have the right to include any Registrable Securities in
any subsequent registration statement or registration statements as may be filed
by the Company with respect to offerings of its securities, all upon the terms
and conditions set forth herein.
(a) Underwriting. If the registration statement under which the
Company gives notice under this Section 2.3 is for an underwritten offering, the
Company shall so advise the Holders of Registrable Securities. In such event,
the right of any such Holder to be included in a registration pursuant to this
Section 2.3 shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting to the extent provided herein. All Holders proposing to distribute
their Registrable Securities through such
-4-
underwriting shall enter into an underwriting agreement in customary form with
the underwriter or underwriters selected for such underwriting by the Company.
Notwithstanding any other provision of the Agreement, if the underwriter
determines in good faith that marketing factors require a limitation of the
number of shares to be underwritten, the number of shares that may be included
in the underwriting shall be allocated, first, to the Company; second, to the
Holders of the Registrable Securities issued or issuable upon conversion of the
Series A Preferred Stock, the Series B Preferred Stock and the Series C
Preferred Stock; and third, to the Holders of the remaining Registrable
Securities. Within each of the foregoing first, second and third tranche, the
allocation shall be on a pro rata basis based on the total number of Registrable
Securities in such tranche held by such Holders. No such reduction shall reduce
the amount of securities of the selling Holders included in the registration
below thirty percent (30%) of the total amount of securities included in such
registration, unless such offering is the Initial Offering and such registration
does not include shares of any other selling stockholders, in which event any or
all of the Registrable Securities of the Holders may be excluded in accordance
with the immediately preceding sentence and provided that the underwriter may,
at its sole discretion, limit the amount that may be offered by a Founder who is
also an officer or director of the Company at the time. If any Holder
disapproves of the terms of any such underwriting, such Holder may elect to
withdraw therefrom by written notice to the Company and the underwriter,
delivered at least ten (10) business days prior to the effective date of the
registration statement. Any Registrable Securities excluded or withdrawn from
such underwriting shall be excluded and withdrawn from the registration. For any
Holder which is a partnership or corporation, the partners, retired partners and
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 person shall be deemed to be a single "Holder", and any pro rata
reduction with respect to such "Holder" shall be based upon the aggregate amount
of shares carrying registration rights owned by all entities and individuals
included in such "Holder," as defined in this sentence.
(b) Right to Terminate Registration. The Company shall have the right
to terminate or withdraw any registration initiated by it under this Section 2.3
prior to the effectiveness of such registration whether or not any Holder has
elected to include securities in such registration. The Registration Expenses of
such withdrawn registration shall be borne by the Company in accordance with
Section 2.5 hereof.
2.4 Form S-3 Registration. Subject to the conditions of this Section 2.4,
if the Company shall receive a written request from the Investors holding at
least 15% of the Registrable Securities then outstanding and held by the
Investors and their permitted assigns that the Company effect a registration on
Form S-3 (or any successor to Form S-3) or any similar short-form registration
statement 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 of Registrable
Securities; and
-5-
(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 2.4:
(i) if Form S-3 (or any successor or similar form) 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 of less than one million dollars ($1,000,000);
(iii) during the period starting with the date of filing of, and
ending on the date one hundred eighty (180) days following the effective date of
the registration statement pertaining to a public offering; provided that the
Company makes reasonable good efforts to cause such registration statement to
become effective;
(iv) if within thirty (30) days of receipt of a written request
from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to
the Holders of the Company's intention to make a public offering within ninety
(90) days; or
(v) if the Company shall furnish to the Holders a certificate
signed by the Chairman of the Board of Directors or 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 ninety (90) days after receipt of the
request of the Holder or Holders under this Section 2.4; provided, that such
right to delay a request shall be exercised by the Company not more than once in
any twelve (12) month period.
(c) Subject to the foregoing, the Company shall file a Form S-3
registration statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request or requests of the Holders. Registrations effected pursuant to this
Section 2.4 shall not be counted as registrations effected pursuant to Section
2.3.
2.5 Expenses of Registration. Except as specifically provided herein, all
Registration Expenses incurred in connection with any registration under Section
2.3 or the first three (3) registrations under Section 2.4 herein shall be borne
by the Company. All Selling Expenses incurred in connection with any
registrations hereunder, shall be borne by the holders of the securities so
registered pro rata on the basis of the number of shares so registered.
-6-
2.6 Obligations of the Company. Whenever required 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 all reasonable efforts to cause
such registration statement to become effective, and, upon the request of the
Holders holding a majority of the Registrable Securities registered thereunder,
keep such registration statement effective for up to ninety (90) days or, if
earlier, until the Holder or Holders have completed the distribution related
thereto. 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 Securities 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
Securities Act with respect to the disposition of all securities covered by such
registration statement for the period set forth in paragraph (a) above.
(c) Furnish to the Holders such number of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in order
to facilitate the disposition of Registrable Securities owned by them.
(d) Use its reasonable best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders; provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter(s) of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder holding Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
(g) Use its reasonable efforts to furnish, on the date that such
Registrable Securities are delivered to the underwriters for sale, if such
securities are being sold through underwriters, (i) an opinion, dated as of such
date, of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to underwriters in
an
-7-
underwritten public offering, addressed to the underwriters, if any, and (ii) a
letter dated as of such date, from the independent certified public accountants
of the Company, in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public offering
addressed to the underwriters.
2.7 Termination of Registration Rights. All registration rights granted
under this Section 2 shall terminate and be of no further force and effect five
(5) years after the date of the Company's Initial Offering. In addition, a
Holder's registration rights shall expire six months after the Company has
completed its Initial Offering and is subject to the provisions of the Exchange
Act if (a) such Holder (together with its affiliates, partners and former
partners) holds less than 5% of the Company's outstanding Common Stock (treating
all share of convertible Preferred Stock on an as converted basis) and (b) all
Registrable Securities held by and issuable to such Holder (and its affiliates,
partners, former partners, members and former members) may be sold under Rule
144 during any ninety (90) day period.
2.8 Delay of Registration; Furnishing Information.
(a) No Holder shall have any right to obtain or seek an injunction
restraining or otherwise delaying any such registration as the result of any
controversy that might arise with respect to the interpretation or
implementation of this Section 2.
(b) It shall be a condition precedent to the obligations of the
Company to take any action pursuant to Section 2.3 or 2.4 that the selling
Holders shall furnish to the Company such information regarding themselves, the
Registrable Securities held by them and the intended method of disposition of
such securities as shall be required to effect the registration of their
Registrable Securities.
(c) The Company shall have no obligation with respect to any
registration requested pursuant to Section 2.4 if 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 Section 2.4,
whichever is applicable.
2.9 Indemnification. In the event any Registrable Securities are included
in a registration statement under Sections 2.3 or 2.4:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, the partners, officers and directors of each Holder,
any underwriter (as defined in the Securities Act) for such Holder and each
person, if any, who controls such Holder or underwriter within the meaning of
the Securities Act or the Exchange Act, against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject under the
Securities 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") by the Company: (i) any untrue statement or
-8-
alleged untrue statement of a material fact contained in such registration
statement, including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto, (ii) the omission or alleged
omission to state therein a material fact required to be stated therein, or
necessary to make the statements therein not misleading, or (iii) any violation
or alleged violation by the Company of the Securities Act, the Exchange Act, any
state securities law or any rule or regulation promulgated under the Securities
Act, the Exchange Act or any state securities law in connection with the
offering covered by such registration statement; and the Company will pay as
incurred to each such Holder, partner, officer, director, underwriter or
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided however, that the indemnity agreement contained in
this Section 2.9(a) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of the Company, which consent shall not be unreasonably withheld,
nor shall the Company be liable in any such case for any such loss, claim,
damage, liability or action to the extent that it arises out of or is based upon
a Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by
such Holder, partner, officer, director, underwriter or controlling person of
such Holder, provided further, however, that the foregoing indemnity agreement
with respect to any preliminary prospectus shall not inure to the benefit of any
Holder or underwriter, or any person controlling such Holder or underwriter,
from whom the persons asserting any such losses, claims, damages or liabilities
purchased shares in the offering, if a copy of the prospectus provided to such
Holder or such underwriter (or such person controlling such Holder or such
underwriter) by the Company (as then amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) was not sent or
given by or on behalf of such Holder or underwriter to such person, if required
by law so to have been delivered, at or prior to the written confirmation of the
sale of the shares to such person, and if the prospectus (as so amended or
supplemented) would have cured the defect giving rise to such loss, claim,
damage or liability.
(b) To the extent permitted by law, each Holder will, if Registrable
Securities held by such Holder are included in the securities as to which such
registration qualifications or compliance is being effected, indemnify and hold
harmless the Company, each of its directors, its officers and each person, if
any, who controls the Company within the meaning of the Securities Act, any
underwriter and any other Holder selling securities under such registration
statement or any of such other Holder's partners, directors or officers or any
person who controls such Holder, against any losses, claims, damages or
liabilities (joint or several) to which the Company or any such director,
officer, controlling person, underwriter or other such Holder, or partner,
director, officer or controlling person of such other Holder may become subject
under the Securities 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 under an
instrument duly executed by such Holder and stated to be specifically for use in
connection with such registration; and each such Holder will pay as incurred any
legal or other expenses reasonably incurred by the Company or any such director,
officer, controlling person, underwriter or other Holder, or partner, officer,
director or controlling person of
-9-
such other Holder in connection with investigating or defending any such loss,
claim, damage, liability or action if it is judicially determined that there was
such a Violation; provided, however, that the indemnity agreement contained in
this Section 2.9(b) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of the Holder, which consent shall not be unreasonably withheld;
provided further, that in no event shall the amounts payable in indemnity by a
Holder under this Section 2.9 (b) in respect of a Violation exceed the net
proceeds received by such Holder in the registered offering out of which such
Violation arises.
(c) Promptly after receipt by an indemnified party under this Section
2.9 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 2.9, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential 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 materially prejudicial to its ability to
defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 2.9, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this Section 2.9.
(d) If the indemnification provided for in this Section 2.9 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any losses, claims, damages or liabilities referred to herein,
the indemnifying party, in lieu of indemnifying such indemnified party
thereunder, shall to the extent permitted by applicable law contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability 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 Violation(s) that resulted in such
loss, claim, damage or liability, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by a court of law 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; provided, that in no event shall the amounts payable in
indemnity by a Holder under Section 2.9 (b) and/or pursuant to this Section
2.9(d) in respect of a Violation exceed the net proceeds received by such Holder
in the registered offering out of which such Violation arises.
-10-
(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
2.9 shall survive completion of any offering of Registrable Securities in a
registration statement and the termination of this agreement. No Indemnifying
Party, in the defense of any such claim or litigation, shall, except with the
consent of each Indemnified Party, consent to entry of any judgment or enter
into any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a release from
all liability in respect to such claim or litigation.
2.10 Assignment of Registration Rights. The rights to cause the Company to
register Registrable Securities pursuant to this Section 2 may be assigned by a
Holder to a transferee or assignee of Registrable Securities which (a) is an
affiliate, affiliated partnership, subsidiary, parent, general partner, limited
partner, retired partner, member or retired member of a Holder, (b) is a
Holder's family member or trust for the benefit of an individual Holder, or (c)
acquires at least nine hundred thousand (900,000) shares of the Company's
outstanding Common Stock (on an as-converted basis and as adjusted for
recapitalizations, stock splits, stock dividends and the like); provided,
however, (i) the transferor shall, within ten (10) days after such transfer,
furnish to the Company 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 (ii) such transferee shall agree to be subject to all
restrictions set forth in this Agreement.
2.11 Amendment of Registration Rights. Any provision of this Section 2 may
be amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of (i) the Company, (ii) Investors holding at least a majority
of the Registrable Securities held by the Investors then outstanding and (iii)
Investors holding at least a majority of the Registrable Securities issued or
issuable upon conversion of the Series B and Series C Preferred Stock. Any
amendment or waiver effected in accordance with this Section 2.11 shall be
binding upon each Holder and the Company. By acceptance of any benefits under
this Section 2, Holders of Registrable Securities hereby agree to be bound by
the provisions hereunder.
2.12 Limitation on Subsequent Registration Rights. After the date of this
Agreement, the Company shall not, without the prior written consent of (i)
Investors holding a majority of the Registrable Securities held by the Investors
and then outstanding and (ii) Investors holding at least a majority of the
Registrable Securities issued or issuable upon conversion of the Series B and
Series C Preferred Stock, enter into any agreement with any holder or
prospective holder of any securities of the Company that would allow such holder
or prospective holder (a) to include such securities in any registration filed
under this Section 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
-11-
that the inclusion of his securities will not reduce the amount of the
Registrable Securities of the Holders which is included, or (b) to make a demand
registration to the Company.
2.13 "Market Stand-Off" Agreement; Agreement to Furnish Information. Each
Holder hereby agrees that such Holder shall not sell, transfer, make any short
sale of, grant any option for the purchase of, or enter into any hedging or
similar transaction with the same economic effect as a sale, any Common Stock
(or other securities) of the Company held by such Holder (other than those
included in the registration) for a period specified by the representative of
the underwriters of Common Stock (or other securities) of the Company not to
exceed one hundred eighty (180) days following the effective date of a
registration statement of the Company filed under the Securities Act; provided
that:
(i) such agreement shall apply only to the Company's Initial Offering;
(ii) such agreement shall not apply to any shares of Common Stock (or
other securities) purchased in the Initial Offering or purchased in the open
market following the Initial Offering; and
(iii) all officers and directors of the Company who hold capital stock or
rights to acquire capital stock of the Company and greater than five percent
(5%) stockholders of the Company enter into similar agreements.
Each Holder agrees to execute and deliver such other agreements as may be
reasonably requested by the Company or the underwriter which are consistent with
the foregoing or which are necessary to give further effect thereto. In
addition, if requested by the Company or the representative of the underwriters
of Common Stock (or other securities) of the Company, each Holder shall provide,
within ten (10) days of such request, such information as may be required by the
Company or such representative in connection with the completion of any public
offering of the Company's securities pursuant to a registration statement filed
under the Securities Act. The obligations described in this Section 2.13 shall
not apply to a registration relating solely to employee benefit plans on Form S-
1 or Form S-8 or similar forms that may be promulgated in the future, or a
registration relating solely to a Commission Rule 145 transaction on Form S-4 or
similar forms that may be promulgated in the future. The Company may impose
stop-transfer instructions with respect to the shares of Common Stock (or other
securities) subject to the foregoing restriction until the end of said one
hundred eighty (180) day period.
2.14 Rule 144 Reporting. With a view to making available to the Holders
the benefits of certain rules and regulations of the SEC which may permit the
sale of the Registrable Securities to the public without registration, the
Company agrees to use its best efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in SEC Rule 144 or any similar or analogous rule
promulgated under the Securities Act, at all times after the effective date of
the first registration filed by the Company for an offering of its securities to
the general public;
-12-
(b) File with the SEC, in a timely manner, all reports and other
documents required of the Company under the Exchange Act; and
(c) So long as a Holder owns any Registrable Securities, furnish to
such Holder forthwith upon request: a written statement by the Company as to its
compliance with the reporting requirements of said Rule 144 of the Securities
Act, and of the Exchange Act (at any time after it has become subject to such
reporting requirements); a copy of the most recent annual or quarterly report of
the Company; and such other reports and documents as a Holder may reasonably
request in availing itself of any rule or regulation of the SEC allowing it to
sell any such securities without registration.
SECTION 3. COVENANTS OF THE COMPANY.
3.1 Basic Financial Information and Reporting. The Company will maintain
true books and records of account in which full and correct entries will be made
of all its business transactions pursuant to a system of accounting established
and administered in accordance with generally accepted accounting principles
consistently applied, and will set aside on its books all such proper accruals
and reserves as shall be required under generally accepted accounting principles
consistently applied.
(a) As soon as practicable after the end of each fiscal year of the
Company, and in any event within one hundred twenty (120) days thereafter, the
Company will furnish each Investor holding at least nine hundred thousand
(900,000) shares of Registrable Securities (as adjusted for recapitalizations,
stock splits, stock dividends and the like) (each, a "Major Investor") an
audited balance sheet of the Company, as at the end of such fiscal year, and an
audited statement of income and a statement of cash flows of the Company, for
such year, all prepared in accordance with generally accepted accounting
principles consistently applied and setting forth in each case in comparative
form the figures for the previous fiscal year, all in reasonable detail. Such
financial statements shall be accompanied by a report and opinion thereon by
independent public accountants of national standing selected by the Company's
Board of Directors.
(b) The Company will furnish each Major Investor, as soon as
practicable after the end of the first, second and third quarterly accounting
periods in each fiscal year of the Company, and in any event within sixty (60)
days thereafter, a balance sheet of the Company as of the end of each such
quarterly period, and a statement of income and a statement of cash flows of the
Company for such period and for the current fiscal year to date, prepared in
accordance with generally accepted accounting principles, with the exception
that no notes need be attached to such statements and year-end audit adjustments
may not have been made.
(c) The Company will furnish each Investor holding at least one
million one hundred thousand (1,100,000) shares of Registrable Securities (as
adjusted for recapitalizations, stock splits, stock dividends and the like) (i)
at least thirty (30) days prior to the beginning of each fiscal year an annual
budget and operating plans for such fiscal year (and as soon as available, any
subsequent revisions thereto); and (ii) as soon as practicable after the end of
each month, and in any
-13-
event within thirty (30) days thereafter, a balance sheet of the Company as of
the end of each such month, and a statement of income and a statement of cash
flows of the Company for such month and for the current fiscal year to date,
including a comparison to plan figures for such period, prepared in accordance
with generally accepted accounting principles consistently applied, with the
exception that no notes need be attached to such statements and year-end audit
adjustments may not have been made.
3.2 Inspection Rights. Each Major Investor shall have the right to visit
and inspect any of the properties of the Company or any of its subsidiaries, and
to discuss the affairs, finances and accounts of the Company or any of its
subsidiaries with its officers, and to review such information as is reasonably
requested all at such reasonable times and as often as may be reasonably
requested; provided, however, that the Company shall not be obligated under this
Section 3.2 with respect to a competitor of the Company or with respect to
information which the Board of Directors determines in good faith is
confidential and should not, therefore, be disclosed.
3.3 Confidentiality of Records. Each Investor agrees to use, and to use
its reasonable commercial efforts to insure that its authorized representatives
use, the same degree of care as such Investor uses to protect its own
confidential information to keep confidential any information furnished to it
which the Company identifies as being confidential or proprietary (so long as
such information is not in the public domain), except that such Investor may
disclose such proprietary or confidential information to any partner, subsidiary
or parent of such Investor for the purpose of evaluating its investment in the
Company as long as such partner, subsidiary or parent is advised of the
confidentiality provisions of this Section 3.3.
3.4 Reservation of Common Stock. The Company will at all times reserve and
keep available, solely for issuance and delivery upon the conversion of the
Preferred Stock, all Common Stock issuable from time to time upon such
conversion.
3.5 Proprietary Information and Inventions Agreement. The Company shall
require all employees and consultants to execute and deliver the Company's
standard form of Proprietary Information and Inventions Agreement, the current
form of which has been provided to counsel for the Investors.
3.6 Corporate Governance. As provided by applicable corporate law, the
Board of Directors will have oversight responsibilities for corporate governance
of the Company, including strategic direction, review of annual strategic plans
and budget, and executive compensation.
3.7 Section 1202 Compliance. The Company shall:
(a) comply with the reporting and record keeping requirements, if
any, of Section 1202 of the Internal Revenue Code of 1986, as amended (the
"Code"), and any regulations promulgated thereunder; and
-14-
(b) not take any action that would cause the Series B Preferred Stock
(or the Common Stock issuable upon conversion thereof) to lose its status as
"qualified small business stock" within the meaning of the Code, including,
without limitation, taking any of the following actions:
(i) purchasing, within the two-year period beginning one year
prior to the date of issuance of any Company stock to Investors, an amount of
its own stock (within the meaning of Section 1202(c)(3) of the Code) having an
aggregate value at the time(s) of purchase exceeding five percent (5%) of the
aggregate value of all of its outstanding stock determined as of the start of
such period, except as permitted in Treasury Regulation Section 1.1202-2(b) and
(d) with respect to certain events (including termination of services, death,
disability, mental incompetency or divorce);
(ii) conducting any of the following businesses (as defined for
purposes of Section 1202(e)(3) of the Code):
A. any business involving the performance of services in the fields of
law, accounting, actuarial science, performing arts, athletics or
brokerage services;
B. any banking or insurance business;
C. any farming business (including the business of raising or harvesting
trees);
D. any business involving the production or extraction of natural
resources with respect to which a deduction is allowable under Section
613 or 613A of the Code; or
E. any business of operating a hotel, motel, restaurant or similar
establishment;
(iii) permitting more than ten percent (10%) of the value of its
assets to consist of stock issued by other companies (other than stock of
companies that qualify as subsidiaries of the Company within the meaning of
Section 1202(e)(5) of the Code or stock that is held as working capital or
reasonably expected to be sold within two years to finance research and
experimentation within the meaning of Section 1202(e)(6) of the Code);
(iv) permitting more than ten percent (10%) of the value of its
assets to consist of real property that is not used in the active conduct of a
qualified trade or business within the meaning of Sections 1202(e)(3), and
1202(e)(7) of the Code;
(v) making an election under Section 936 of the Code (relating
to the Puerto Rico and possessions tax credit) or permitting a subsidiary to
make such an election; or
(vi) in a single transaction or series of related transactions,
raising capital through the issuance of securities or the incurrence of
indebtedness if such transaction or series of related transactions would cause
the Company to fail to satisfy the active business requirement set forth in
Section 1202(e)(1) of the Code by virtue of holding excess cash or investment
assets.
-15-
Notwithstanding anything to the contrary in this Section 3.7, the Company
shall not be obligated to take any action or refrain from taking any action
which the Company has determined, in good faith, is not in its best business
interests.
For purposes of the foregoing, any valuation or other determination
(including, without limitation, a determination that a specific course of action
does not constitute that conduct of a business described in Section 3.7(b)(ii)
above) made by the Company's Board of Directors in good faith or for which there
was, at the time made, a reasonable basis in law or fact shall be conclusive.
3.8 Termination of Covenants. All covenants of the Company contained in
Section 3 of this Agreement shall expire and terminate as to each Investor upon
the earlier of (i) the effective date of the registration statement pertaining
to a firmly underwritten public offering of shares of Common Stock for a total
offering of not less than $40 million (before deduction of underwriters
commissions and expenses) (a "Qualified Offering") and (ii) upon (A) the
acquisition of the Company by another entity by means of any transaction or
series of related transactions (including, without limitation, any
reorganization, merger or consolidation) that results in the transfer of fifty
percent (50%) or more of the outstanding voting power of the Company or (B) a
sale of all or substantially all of the assets of the Company (a "Change in
Control").
3.9 Directors and Officers Indemnification. The Company represents that
it has provisions in its certificate of incorporation or bylaws for the
indemnification of officers and directors to the full extent permitted by law
and covenants to keep such indemnification in place for so long as any
representative(s) of the holders of the Shares serves on the Company's Board of
Directors.
3.10 Board of Directors. The Company, the Investors and the Founders
hereby agree as follows with respect to the Company's Board of Directors:
(a) At the Closing (as such term is defined in the Series C
Agreement), the size of the Company's Board of Directors shall be set at five
(5) directors.
(b) With respect to the members of the Company's Board of Directors
that the Company's Restated Certificate of Incorporation provides are to be
elected by the holders of Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock and Common Stock (voting together as a single class,
and not as separate series, and on an as-converted basis) (the "Combined Board
Members"), the Investors and the Founders hereby agree to vote all of their
shares of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock and Common Stock now owned or hereafter acquired in favor of the election
of only such persons as shall be (i) designated by the holders of at least a
majority of the Common Stock (voting as a separate class), (ii) designated by
the holders of at least a majority of the Series A Preferred Stock (voting as a
separate class), and (iii) designated by the holders of at least a majority of
the Series B Preferred Stock and Series C Preferred Stock (voting together).
-16-
(c) It is agreed and understood that monetary damages would not
adequately compensate an injured party for the breach of this Section 3.10 by
any other party, that this Section 3.10 shall be specifically enforceable, and
that any breach or threatened breach of this Section 3.10 shall be the proper
subject of a temporary or permanent injunction or restraining order. Further,
each party hereto waives any claim or defense that there is an adequate remedy
at law for such breach or threatened breach.
SECTION 4. RIGHTS OF PARTICIPATION.
4.1 Subsequent Offerings. Except as set forth on Exhibit A, each Major
Investor who is an "accredited investor" within the meaning of Rule 501(a) of
the Securities Act shall have a right of participation to purchase its pro rata
share of all Equity Securities, as defined below, that the Company may, from
time to time, propose to sell and issue after the date of this Agreement, other
than the Equity Securities excluded by Section 4.6 hereof. Each Major Investor's
pro rata share is equal to the ratio of (a) the number of shares of the
Company's Common Stock (including all shares of Common Stock issued or issuable
upon conversion of the Shares) which such Major Investor is deemed to be a
holder immediately prior to the issuance of such Equity Securities to (b) the
total number of shares of the Company's outstanding Common Stock (including all
shares of Common Stock issued or issuable upon conversion of the Shares or upon
the exercise of any outstanding warrants or options) immediately prior to the
issuance of the Equity Securities. The term "Equity Securities" shall mean (i)
any Common Stock, Preferred Stock or other security of the Company, (ii) any
security convertible, with or without consideration, into any Common Stock,
Preferred Stock or other security (including any option to purchase such a
convertible security), (iii) any security carrying any warrant or right to
subscribe to or purchase any Common Stock, Preferred Stock or other security or
(iv) any such warrant or right.
4.2 Exercise of Rights. If the Company proposes to issue any Equity
Securities, it shall give each Major Investor written notice of its intention,
describing the Equity Securities, the price and the terms and conditions upon
which the Company proposes to issue the same. Each Major Investor shall have
fifteen (15) days from the giving of such notice to agree to purchase its pro
rata share of the Equity Securities for the price and upon the terms and
conditions specified in the notice by giving written notice to the Company and
stating therein the quantity of Equity Securities to be purchased.
Notwithstanding the foregoing, the Company shall not be required to offer or
sell such Equity Securities to any Major Investor who would cause the Company to
be in violation of applicable federal securities laws by virtue of such offer or
sale.
4.3 Issuance of Equity Securities to Other Persons. If not all of the
Major Investors elect to purchase their pro rata share of the Equity Securities,
then the Company shall promptly notify in writing the Major Investors who do so
elect and shall offer such Major Investors the right to acquire such
unsubscribed shares. The Major Investors shall have five (5) days after receipt
of such notice to notify the Company of its election to purchase all or a
portion thereof of the unsubscribed shares. If the Major Investors fail to
exercise in full the rights of first refusal, the Company shall have ninety (90)
days thereafter to sell the Equity Securities in respect of which the Major
Investor's
-17-
rights were not exercised, at a price and upon general terms and conditions
materially no more favorable to the purchasers thereof than specified in the
Company's notice to the Major Investors pursuant to Section 4.2 hereof. If the
Company has not sold such Equity Securities within ninety (90) days of the
notice provided pursuant to Section 4.2, the Company shall not thereafter issue
or sell any Equity Securities, without first offering such securities to the
Investors in the manner provided above.
4.4 Termination of Rights of Participation. The rights of participation
established by this Section 4 shall not apply to, and shall terminate upon the
earlier of (i) effective date of the registration statement pertaining to the
Company's Qualified Offering and (ii) a Change in Control.
4.5 Transfer of Rights of Participation. The rights of participation of
each Investor holding rights under this Section 4 may be transferred subject to
the same restrictions as any transfer of registration rights pursuant to Section
2.10.
4.6 Excluded Securities. The rights of participation established by this
Section 4 shall have no application to any of the following Equity Securities:
(a) any Equity Securities issued or to be issued to employees,
officers or directors of, or consultants or advisors to the Company or any
subsidiary, pursuant to stock purchase or stock option plans or other
arrangements that are approved by the Board of Directors;
(b) any Equity Securities issued pursuant to any rights, agreements,
options and warrants outstanding or issued as of the date of this Agreement; and
any Equity Securities issued pursuant to any rights, agreements, options or
warrants granted after the date of this Agreement; provided that either the
rights of participation established by this Section 4 applied with respect to
the initial sale or grant by the Company of such rights, agreements, options or
warrants or such rights, agreements, options or warrants constituted Excluded
Securities pursuant to this Section 4.6 at the time of issuance;
(c) any Equity Securities issued for consideration other than cash
pursuant to a merger, consolidation, acquisition or similar business
combination;
(d) any Equity Securities issued in connection with any stock split,
stock dividend or recapitalization by the Company;
(e) shares of Common Stock issued upon conversion of the Shares;
(f) any Equity Securities issued pursuant to any equipment leasing
arrangement, or commercial credit arrangement from a bank or similar financial
institution and such issuances are primarily for other than non-equity financing
purposes;
(g) any Equity Securities that are issued by the Company pursuant to
a registration statement filed under the Securities Act; and
-18-
(h) any Equity Securities issued in connection with strategic
transactions that include a commercial relationship involving the Company and
other entities, including (i) joint ventures, manufacturing, marketing or
distribution arrangements or (ii) technology transfer or development
arrangements; provided that such strategic transactions and the issuance of
Equity Securities pursuant thereto has been approved by the Company's Board of
Directors.
SECTION 5. MISCELLANEOUS.
5.1 Governing Law. This Agreement shall be governed in all respects by the
laws of the State of California as applied to agreements entered into and
performed entirely in the State of California by residents thereof, without
regard to any provisions thereof relating to conflicts of laws among different
jurisdictions.
5.2 Survival. The representations, warranties, covenants and agreements
made herein shall survive any investigation made by any Investor and the closing
of the transactions contemplated hereby. All statements as to factual matters
contained in any certificate or other instrument delivered by or on behalf of
the Company pursuant hereto in connection with the transactions contemplated
hereby shall be deemed to be representations and warranties by the Company
hereunder solely as of the date of such certificate or instrument.
5.3 Successors and Assigns. Except as otherwise expressly provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon the
successors, assigns, heirs, executors and administrators of the parties hereto
and shall inure to the benefit of and be enforceable by each person who shall be
a holder of Registrable Securities from time to time: provided, however, that
prior to the receipt by the Company of adequate written notice of the transfer
of any Registrable Securities specifying the full name and address of the
transferee, the Company may deem and treat the person listed as the holder of
such shares in its records as the absolute owner and holder of such shares for
all purposes, including the payment of dividends or any redemption price.
5.4 Entire Agreement. This Agreement and the other documents delivered
pursuant hereto constitute the full and entire understanding and agreement among
the parties with regard to the subjects hereof and thereof and no party shall be
liable or bound to any other in any manner by any representations, warranties,
covenants and agreements except as specifically set forth herein and therein.
5.5 Amendment and Waiver. This Agreement and any term hereof 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 (i) the Company, (ii) holders
of a majority of the Registrable Securities then outstanding and not sold to the
public held by the Investors provided, however, that with respect to Section 2
only, the written consent of the Company and a majority of the Registrable
Securities then outstanding and not sold to the public held by the Investors and
the Founders as a group shall be required, and (iii) holders of a majority of
the Registrable Securities issued or issuable upon a conversion of Series B and
Series C Preferred Stock; provided, however, that in the event that such
amendment or waiver adversely affects the
-19-
obligation and/or rights of any such Holders in a different manner than the
other Holders, such amendment or waiver shall also require the written consent
of a majority in the interest of such Holders adversely affected. Any amendment
or waiver effected in accordance with this paragraph shall be binding upon each
holder of any Registrable Securities, each future holder of all such Registrable
Securities, and the Company.
5.6 Notices, Etc. Any notice, demand, offer, request or other
communication required or permitted to be given by either the Company or an
Investor pursuant to the terms of this Agreement shall be in writing and shall
be deemed effectively given the earlier of (i) when received, (ii) when
delivered personally, (iii) one (1) business day after being delivered by
facsimile (with receipt of appropriate confirmation), (iv) one (1) business day
after being deposited with an overnight courier service or (v) four (4) days
after being deposited in the U.S. mail, First Class with postage prepaid, and
addressed to the parties at the addresses provided to the Company (which the
Company agrees to disclose to the other parties upon request) or such other
address as a party may request by notifying the other in writing.
5.7 Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to any holder of any Shares upon any breach or default
of the Company under this Agreement shall impair any such right, power or remedy
of such holder, nor shall it be construed to be a waiver of any such breach or
default, or an acquiescence therein, or of or in any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or character on
the part of any holder of any breach or default under this Agreement, or any
waiver on the part of any holder of any provisions or conditions of this
Agreement, must be in writing and shall be effective only to the extent
specifically set forth in such writing or as provided in this Agreement.
5.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
5.9 Severability. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; provided that no such severability shall be effective if
it materially changes the economic benefit of this Agreement to any party.
5.10 Aggregation of Stock. All shares held or acquired by affiliated
entities or persons shall be aggregated together for the purposes of determining
the availability of any rights under this Agreement.
[THIS SPACE INTENTIONALLY LEFT BLANK]
-20-
IN WITNESS WHEREOF, the parties hereto have executed this AMENDED AND
RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in the first
paragraph hereof.
COMPANY:
LOUDCLOUD, INC.
a Delaware corporation
/s/ Xxx Xxxxxxxx
----------------------------------------
Signature of Authorized Signatory
Xxx Xxxxxxxx, CEO
----------------------------------------
Print Name and Title
[AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT SIGNATURE PAGE]
"FOUNDERS"
/s/ Xxxx X. Xxxxxxxxxx
-----------------------------------
Xxxx X. Xxxxxxxxxx
/s/ Xxxxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxx
------------------------------------
Xxxxxxx X. Xxxxx
/s/ In Xxx Xxxx
------------------------------------
In Xxx Xxxx
[AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT SIGNATURE PAGE]
"INVESTORS" ANDREESSEN 1996 LIVING TRUST
/s/ Xxxx X. Xxxxxxxxxx
-------------------------------------
Signature of Authorized Signatory
-------------------------------------
Print Name and Title
/s/ Xxxxxxx X. Xxxx, Xx.
-------------------------------------
Xxxx Family Ventures, LLC
/s/ Xxxxx X. Xxxxxx
--------------------------------------
Xxxxx Xxxxxx Xxxxxx
/s/ Xxxxx Xxx Xxxxxxx
--------------------------------------
Xxxxx Xxx Xxxxxxx
/s/ Xxxxxxx X. Xxxxx
--------------------------------------
Xxxxxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxx
--------------------------------------
Xxxxxxx Xxxx Xxxxx
/s/ Xxxxx X. Xxxxxxxxx
-------------------------------------
Xxxxx Xxxxxx Xxxxxxxxx
[AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT SIGNATURE PAGE]
COMPANY:
LOUDCLOUD, INC.
A Delaware Corporation
_________________________________
Signature of Authorized Signatory
_________________________________
Print Name and Title
"INVESTORS"
BENCHMARK CAPITAL
PARTNERS IV, L.P.
as nominee for
Benchmark Capital Partners IV, L.P.
Benchmark Founders' Fund IV, L.P.
Benchmark Founders' Fund IV-A, L.P
and related individuals
By: Benchmark Capital Management Co.
IV, L.L.C.
its general partner
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Managing Member
FOUNDERS:
_________________________________
Xxxx Xxxxxxxxxx
_________________________________
Xxxxxxxx X. Xxxxxxxx
_________________________________
Xxxxxxx X. Xxxxx
_________________________________
In Xxx Xxxx
[AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT SIGNATURE PAGE]
"INVESTORS" CAPITAL RESEARCH AND
MANAGEMENT COMPANY
on behalf of
The Growth Fund of America, Inc.
/s/ [Illegible]^^
------------------------------
Signature of Authorized Signatory
______________________________
Print Name and Title
CAPITAL RESEARCH AND
MANAGEMENT COMPANY
on behalf of
The New Economy Fund
/s/ [Illegible]^^
------------------------------
Signature of Authorized Signatory
______________________________
Print Name and Title
[AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
COMPANY: INVESTORS:
LOUDCLOUD, INC. Emerging Technology Portfolio
----------------------------------
A Delaware corporation Print Name of Investor
/s/ Xxxx Xxxxxx
_________________________________ ----------------------------------
Signature of Authorized Signatory Signature of Authorized Signatory
Xxxx Xxxxxx, Attorney-in-fact
_________________________________ ----------------------------------
Print Name and Title Print Name and Title
FOUNDERS:
__________________________________
Xxxx Xxxxxxxxxx
__________________________________
Xxxxxxxx X. Xxxxxxxx
__________________________________
Xxxxxxx X. Xxxxx
__________________________________
In Xxx Xxxx
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
COMPANY: INVESTORS:
LOUDCLOUD, INC. Amerindo Internet Fund PLC
----------------------------------
A Delaware corporation Print Name of Investor
/s/ Xxxx Xxxxxx
_________________________________ ----------------------------------
Signature of Authorized Signatory Signature of Authorized Signatory
Xxxx Xxxxxx, Manager
_________________________________ ----------------------------------
Print Name and Title Print Name and Title
FOUNDERS:
__________________________________
Xxxx Xxxxxxxxxx
__________________________________
Xxxxxxxx X. Xxxxxxxx
__________________________________
Xxxxxxx X. Xxxxx
__________________________________
In Xxx Xxxx
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
COMPANY: INVESTORS:
Amerindo Technology
LOUDCLOUD, INC. Growth Fund II Inc.
----------------------------------
A Delaware corporation Print Name of Investor
/s/ Xxxx Xxxxxx
_________________________________ ----------------------------------
Signature of Authorized Signatory Signature of Authorized Signatory
Xxxx Xxxxxx, Director
_________________________________ ----------------------------------
Print Name and Title Print Name and Title
FOUNDERS:
__________________________________
Xxxx Xxxxxxxxxx
__________________________________
Xxxxxxxx X. Xxxxxxxx
__________________________________
Xxxxxxx X. Xxxxx
__________________________________
In Xxx Xxxx
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
COMPANY: INVESTORS:
LOUDCLOUD, INC. Vertex Capital II LLC
----------------------------------
A Delaware corporation Print Name of Investor
/s/ Xxxxxxx Xxxxxxxxxxx
_________________________________ ----------------------------------
Signature of Authorized Signatory Signature of Authorized Signatory
Xxxxxxx Xxxxxxxxxxx, Manager
_________________________________ ----------------------------------
Print Name and Title Print Name and Title
FOUNDERS:
__________________________________
Xxxx Xxxxxxxxxx
__________________________________
Xxxxxxxx X. Xxxxxxxx
__________________________________
Xxxxxxx X. Xxxxx
__________________________________
In Xxx Xxxx
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
COMPANY: INVESTORS:
LOUDCLOUD, INC. Vertex Capital III LLC
----------------------------------
A Delaware corporation Print Name of Investor
/s/ Xxxxxxx Xxxxxxxxxxx
_________________________________ ----------------------------------
Signature of Authorized Signatory Signature of Authorized Signatory
Xxxxxxx Xxxxxxxxxxx, Manager
_________________________________ ----------------------------------
Print Name and Title Print Name and Title
FOUNDERS:
__________________________________
Xxxx Xxxxxxxxxx
__________________________________
Xxxxxxxx X. Xxxxxxxx
__________________________________
Xxxxxxx X. Xxxxx
__________________________________
In Xxx Xxxx
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
COMPANY: INVESTORS:
LOUDCLOUD, INC. Xxxxx Xxxxxxxxxx
----------------------------------
A Delaware corporation Print Name of Investor
/s/ Xxxxx Xxxxxxxxxx
_________________________________ ----------------------------------
Signature of Authorized Signatory Signature of Authorized Signatory
Xxxxx Xxxxxxxxxx
_________________________________ ----------------------------------
Print Name and Title Print Name and Title
FOUNDERS:
__________________________________
Xxxx Xxxxxxxxxx
__________________________________
Xxxxxxxx X. Xxxxxxxx
__________________________________
Xxxxxxx X. Xxxxx
__________________________________
In Xxx Xxxx
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
COMPANY: INVESTORS:
LOUDCLOUD, INC. Xxxxxx X. Xxxxxx
----------------------------------
A Delaware corporation Print Name of Investor
/s/ Xxxxxx X. Xxxxxx
_________________________________ ----------------------------------
Signature of Authorized Signatory Signature of Authorized Signatory
Xxxxxx X. Xxxxxx
_________________________________ ----------------------------------
Print Name and Title Print Name and Title
FOUNDERS:
__________________________________
Xxxx Xxxxxxxxxx
__________________________________
Xxxxxxxx X. Xxxxxxxx
__________________________________
Xxxxxxx X. Xxxxx
__________________________________
In Xxx Xxxx
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
COMPANY: INVESTORS:
LOUDCLOUD, INC. Xxxxxxx X. Xxxxxxxx
----------------------------------
A Delaware corporation Print Name of Investor
/s/ Xxxxxxx X. Xxxxxxxx
_________________________________ ----------------------------------
Signature of Authorized Signatory Signature of Authorized Signatory
Xxxxxxx X. Xxxxxxxx, III
_________________________________ ----------------------------------
Print Name and Title Print Name and Title
FOUNDERS:
__________________________________
Xxxx Xxxxxxxxxx
__________________________________
Xxxxxxxx X. Xxxxxxxx
__________________________________
Xxxxxxx X. Xxxxx
__________________________________
In Xxx Xxxx
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
COMPANY: INVESTORS:
LOUDCLOUD, INC. Xxxxxxxx Xxxxxxxx
----------------------------------
A Delaware corporation Print Name of Investor
/s/ Xxxxxxxx Xxxxxxxx
_________________________________ ----------------------------------
Signature of Authorized Signatory Signature of Authorized Signatory
Xxxxxxxx X. Xxxxxxxx
_________________________________ ----------------------------------
Print Name and Title Print Name and Title
FOUNDERS:
__________________________________
Xxxx Xxxxxxxxxx
__________________________________
Xxxxxxxx X. Xxxxxxxx
__________________________________
Xxxxxxx X. Xxxxx
__________________________________
In Xxx Xxxx
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
COMPANY: INVESTORS:
LOUDCLOUD, INC. Xxxxxx Xxxxxxxxx
----------------------------------
A Delaware corporation Print Name of Investor
/s/ Xxxxxx Xxxxxxxxx
_________________________________ ----------------------------------
Signature of Authorized Signatory Signature of Authorized Signatory
Xxxxxx Xxxxxxxxx
_________________________________ ----------------------------------
Print Name and Title Print Name and Title
FOUNDERS:
__________________________________
Xxxx Xxxxxxxxxx
__________________________________
Xxxxxxxx X. Xxxxxxxx
__________________________________
Xxxxxxx X. Xxxxx
__________________________________
In Xxx Xxxx
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
COMPANY: INVESTORS:
LOUDCLOUD, INC.
__________________________________
A Delaware corporation Print Name of Investor
/s/ Xxxxxxx Xxxxxx-Xxxxxxx
_________________________________ ----------------------------------
Signature of Authorized Signatory Signature of Authorized Signatory
Xxxxxxx Xxxxxx-Xxxxxxx
_________________________________ ----------------------------------
Print Name and Title Print Name and Title
FOUNDERS:
__________________________________
Xxxx Xxxxxxxxxx
__________________________________
Xxxxxxxx X. Xxxxxxxx
__________________________________
Xxxxxxx X. Xxxxx
__________________________________
In Xxx Xxxx
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
COMPANY: INVESTORS:
LOUDCLOUD, INC.
__________________________________
A Delaware corporation Print Name of Investor
/s/ Xxxx Xxxxx
_________________________________ ----------------------------------
Signature of Authorized Signatory Signature of Authorized Signatory
Xxxx Xxxxx
_________________________________ ----------------------------------
Print Name and Title Print Name and Title
FOUNDERS:
__________________________________
Xxxx Xxxxxxxxxx
__________________________________
Xxxxxxxx X. Xxxxxxxx
__________________________________
Xxxxxxx X. Xxxxx
__________________________________
In Xxx Xxxx
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
"INVESTORS" CHARTER GROWTH CAPITAL II,
L.P.
By: CGC Partners II, L.P.
/s/ Xxxxxx X. Xxxx
-------------------------------
Xxxxxx X. Xxxx
CGC INVESTORS II QP, L.P.
By: CGC Partners II, L.P.
/s/ Xxxxxx X. Xxxx
-------------------------------
Xxxxxx X. Xxxx
CGC INVESTORS II A, L.P.
By: CGC Partners II, L.P.
/s/ Xxxxxx X. Xxxx
-------------------------------
Xxxxxx X. Xxxx
[AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties hereto have executed this AMENDED AND
RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in the first
paragraph hereof.
COMPANY: INVESTORS:
LOUDCLOUD, INC. Octane Capital Fund I, L.P.
----------------------------------
A Delaware corporation Print Name of Investor
/s/ Xxxxxx XxXxxxxx, Manager
_________________________________ ----------------------------------
Signature of Authorized Signatory Signature of Authorized Signatory
Xxxxxx XxXxxxxx, Manager
_________________________________ ----------------------------------
Print Name and Title Print Name and Title
FOUNDERS:
__________________________________
Xxxx Xxxxxxxxxx
__________________________________
Xxxxxxxx X. Xxxxxxxx
__________________________________
Xxxxxxx X. Xxxxx
__________________________________
In Xxx Xxxx
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have executed this AMENDED AND
RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in the first
paragraph hereof.
COMPANY: INVESTORS:
LOUDCLOUD, INC. Aurora Technology Fund
----------------------------------
A Delaware corporation Print Name of Investor
/s/ Xxxxxx X. Xxxxx
_________________________________ ----------------------------------
Signature of Authorized Signatory Signature of Authorized Signatory
Xxxxxx X. Xxxxx, Manager
_________________________________ ----------------------------------
Print Name and Title Print Name and Title
FOUNDERS:
__________________________________
Xxxx Xxxxxxxxxx
__________________________________
Xxxxxxxx X. Xxxxxxxx
__________________________________
Xxxxxxx X. Xxxxx
__________________________________
In Xxx Xxxx
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have executed this AMENDED AND
RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in the first
paragraph hereof.
COMPANY: INVESTORS:
LOUDCLOUD, INC. Aurora Technology Fund III
----------------------------------
A Delaware corporation Print Name of Investor
/s/ Xxxxxx X. Xxxxx
_________________________________ ----------------------------------
Signature of Authorized Signatory Signature of Authorized Signatory
Xxxxxx X. Xxxxx, Manager
_________________________________ ----------------------------------
Print Name and Title Print Name and Title
FOUNDERS:
__________________________________
Xxxx Xxxxxxxxxx
__________________________________
Xxxxxxxx X. Xxxxxxxx
__________________________________
Xxxxxxx X. Xxxxx
__________________________________
In Xxx Xxxx
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT SIGNATURE PAGE
"INVESTORS" Angel Investors II, L.P.
By: ArchAngel II, LLC its general
partner
/s/ J. Xxxxx XxXxxxx
-----------------------------
J. Xxxxx XxXxxxx
Its Member
Angel(Q) Investors II, L.P.
By: ArchAngel II, LLC its general
partner
/s/ J. Xxxxx XxXxxxx
-----------------------------
J. Xxxxx XxXxxxx
Its Member
[AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT SIGNATURE PAGE]
"INVESTORS" XXXXXX & XXXXX XXXXXX
AS TRUSTEES OF THE
XXXXXX FAMILY TRUST
DATED 9/25/96
---------------------------------
Print Name of Investor
/s/ Xxxxxx Xxxxxx
---------------------------------
Signature of Authorized Signatory
_________________________________
Print Name and Title
[AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT SIGNATURE PAGE]
"INVESTORS" OTHER INVESTORS
INTEGRAL CAPITAL PARTNERS V, L.P.
By Integral Capital Management V, LLC,
its General Partner
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Xxxx X. Xxxxxx, a Manager
INTEGRAL CAPITAL PARTNERS V SIDE
FUND, L.P.
By ICP Management V, LLC, its General Partner
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Xxxx X. Xxxxxx, a Manager
[AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT SIGNATURE PAGE]
"INVESTORS" OTHER INVESTORS
CKEI, LLC
By CKE Associates, LLC
Its Managing Member
/s/ Xxxxxxx X. Xxxxx
----------------------------------
Xxxxxxx X. Xxxxx
Its President
[AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT SIGNATURE PAGE]
"INVESTORS" OTHER INVESTORS
Synergy Partners
---------------------------------------
Print Name of Investor
/s/ Xxxxx X. Xxxxxxxxx
---------------------------------------
Signature of Authorized Signatory
Xxxxx X. Xxxxxxxxx (General Partner)
---------------------------------------
Print Name and Title
[AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT SIGNATURE PAGE]
"INVESTORS" OTHER INVESTORS
Xxxxxxxx X. Xxxxxxxx III
----------------------------------
Print Name of Investor
/s/ Xxxxxxxx X. Xxxxxxxx III
----------------------------------
Signature of Authorized Signatory
Xxxxxxxx X. Xxxxxxxx III
Executive Vice President
& Chief Financial Officer
----------------------------------
Print Name and Title
[AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT SIGNATURE PAGE]
"INVESTORS" OTHER INVESTORS
Innovation Investments, LLC
----------------------------------
Print Name of Investor
/s/ Xxxx Xxxxxxxxx
----------------------------------
Signature of Authorized Signatory
Xxxx Xxxxxxxxx, MNG. Member
----------------------------------
Print Name and Title
[AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT SIGNATURE PAGE]
"INVESTORS" OTHER INVESTORS
Xxxxxxx Xxxxxx
----------------------------------
Print Name of Investor
/s/ Xxxxxxx Xxxxxx
----------------------------------
Signature of Authorized Signatory
__________________________________
Print Name and Title
[AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT SIGNATURE PAGE]
"INVESTORS" OTHER INVESTORS
Xxxxxxxxx X'Xxxx
----------------------------------
Print Name of Investor
/s/ Xxxxxxxxx X'Xxxx
----------------------------------
Signature of Authorized Signatory
----------------------------------
Print Name and Title
[AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT SIGNATURE PAGE]
EXHIBIT A
SCHEDULE OF INVESTORS
Xxxxxxx X. Xxxx or Xxxx X. Xxxxxxxxxx (Trustees), Andreessen 1996 Living Trust
Xxxx Xxxx (Xx. Xxxx shall have a right of participation under
Section 4 with respect to 25% of the shares held by Xx.
Xxxx.)
Xxxxxxx Xxxxx Trust (Xx. Xxxxx shall have no rights of participation under
Section 4).
WS Investment Company 99B and affiliated individuals
Benchmark Capital Partners IV, L.P., as nominee for Benchmark Capital Partners
IV, L.P.,
Benchmark Founders' Fund IV, L.P., Benchmark Founders' Fund IV-A, L.P. and
related individuals
Xxx Xxxxxxxx
Xxxxxxx X. Xxxxx
In Xxx Xxxx
Xxxxxxxx Xxxxxxxx
Attractor Ventures LLC
Xxxx Xxxxxxxxxx, Xx.
Angel (Q) Investors II, L.P.
Xxxxx Xxxxxx
Capital Research and Management Company on behalf of The Growth Fund of America,
Inc.
Capital Research and Management Company on behalf of The New Economy Fund
Amerindo Investment Advisors
Amerindo Technology Growth Fund II Inc.
Amerindo Internet Fund PLC
Emerging Technology Portfolio
Vertex Capital II, LLC
Vertex Capital III, LLC
Xxxxxxx X. Xxxxxxxx, III
Xxxx Xxxxx
Xxxxxxxx X. Xxxxxxxx
Xxxxxx Xxxxxx
Xxxxx Xxxxxxxxxx
Xxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxx Xxxxxxx
Charter Growth Capital II, L.P.
CGC Investors II QP, L.P.
CGC Investors II A, L.P.
Octane Capital Fund I, L.P.
Aurora Technology Fund III, LLC
Aurora Technology Fund, LLC
Angel Investors II, L.P.
Xxxxxx & Xxxxx Xxxxxx as Trustees of the Xxxxxx Family Trust Dated 9/25/96
Integral Capital Partners V, L.P.
Integral Capital Partners V Side Fund, L.P.
CKEI, LLC
Xxxx Family Ventures, LLC
Xxxxx Xxxxxx Xxxxxx
Xxxxx Xxx Xxxxxxx
Xxxxxxx X. Xxxxx
Xxxxx Xxxxxx Xxxxxxxxx
Synergy Partners
Xxxxxxxx X. Xxxxxxxx III & Xxxxxxxx X. Xxxxxxxx JTWROS
Innovation Investments, LLC
Xxxxxxxxx X'Xxxx
Xxxxxxx Xxxxxx
EXHIBIT B
SCHEDULE OF FOUNDERS
Xxxx Xxxxxxxxxx
Xxxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxx
In Xxx Xxxx
