EXECUTION COPY
STOCKHOLDERS AGREEMENT dated as of April 19, 2001 (this
"Agreement"), among INTERNATIONAL BUSINESS MACHINES
CORPORATION, a New York corporation ("Parent"), and the
individuals and other parties listed on Schedule A attached
hereto (each, a "Stockholder" and, collectively, the
"Stockholders").
WHEREAS Parent, Waterfall Acquisition Corp., a Delaware
corporation and a wholly owned subsidiary of Parent ("Sub"), and
Mainspring, Inc., a Delaware corporation (the "Company"), propose to enter
into an Agreement and Plan of Merger dated as of the date hereof (as the
same may be amended or supplemented, the "Merger Agreement"; terms used but
not defined herein shall have the meanings set forth in the Merger
Agreement) providing for the merger of Sub with and into the Company (the
"Merger") upon the terms and subject to the conditions set forth in the
Merger Agreement;
WHEREAS each Stockholder owns the number of shares of capital
stock of the Company set forth opposite such Stockholder's name on Schedule
A hereto (such shares of capital stock of the Company being referred to
herein as such Stockholder's "Original Shares"; the Original Shares,
together with any other shares of capital stock of the Company or other
voting securities of the Company acquired by such Stockholder after the
date hereof and during the term of this Agreement (including through the
exercise of any warrants, stock options or similar instruments), being
collectively referred to herein as such Stockholder's "Subject Shares");
and
WHEREAS, as a condition to its willingness to enter into the
Merger Agreement, Parent has required that each Stockholder enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements set forth herein and
in the Merger Agreement, the parties hereto agree as follows:
SECTION 1. Representations and Warranties of Each Stockholder.
Each Stockholder hereby, severally and not jointly, represents and warrants
to Parent as follows:
(a) Organization; Authority; Execution and Delivery;
Enforceability. With respect to each Stockholder that is not a natural
person, such Stockholder (i) is duly
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organized, validly existing and in good standing under the laws of its
jurisdiction of organization and (ii) has the requisite corporate, company
or partnership power and authority to execute and deliver this Agreement,
to consummate the transactions contemplated by this Agreement and to
comply with the provisions of this Agreement. The execution and delivery of
this Agreement by each Stockholder that is not a natural person, the
consummation by such Stockholder of the transactions contemplated by this
Agreement and the compliance by such Stockholder with the provisions of
this Agreement have been duly authorized by all necessary corporate or
other comparable action on the part of such Stockholder and no other
corporate or other comparable proceedings on the part of such Stockholder
are necessary to authorize this Agreement or to consummate the transactions
contemplated by this Agreement. This Agreement has been duly executed and
delivered by such Stockholder and, assuming the due authorization,
execution and delivery by Parent, constitutes a valid and binding
obligation of such Stockholder, enforceable against such Stockholder in
accordance with its terms. With respect to each Stockholder that is a
natural person and whose Subject Shares constitute community property or
otherwise need spousal or other approval for this Agreement to be legal,
valid and binding, this Agreement has been duly executed and delivered by,
and constitutes a valid and binding obligation of, such Stockholder's
spouse, enforceable against such spouse in accordance with its terms. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby and compliance by such Stockholder with
the provisions hereof do not and will not conflict with, or result in any
violation or breach of, or default (with or without notice or lapse of
time, or both) under, or give rise to a right of, or result in,
termination, cancelation or acceleration of any obligation or to loss of a
material benefit under, or result in the creation of any Lien in or upon
any of the properties or assets of such Stockholder under, or give rise to
any increased, additional, accelerated or guaranteed rights or
entitlements under, any provision of (i) with respect to each Stockholder
that is not a natural person, the certificate of incorporation or by-laws,
partnership agreement or limited liability company agreement (or similar
organizational documents) of such Stockholder, (ii) any Contract to which
such Stockholder is a party or any of the properties or assets of such
Stockholder is subject or (iii) subject to the governmental filings and
other matters referred to in the following sentence, any (A) statute, law,
ordinance, rule or regulation or (B) judgment, order or decree, in each
case, applicable to such Stockholder or its properties or assets, other
than, in the case of clauses (ii) and (iii), any such conflicts, xxxxx-
3
tions, breaches, defaults, rights, losses, Liens or entitlements that
individually or in the aggregate could not reasonably be expected to impair
in any material respect the ability of such Stockholder to perform its
obligations under this Agreement or prevent or materially impede, interfere
with, hinder or delay the consummation of any of the transactions
contemplated by this Agreement. No consent, approval, order or
authorization of, or registration, declaration or filing with, any
Governmental Entity is required by or with respect to such Stockholder in
connection with the execution and delivery of this Agreement by such
Stockholder, the consummation by such Stockholder of the transactions
contemplated by this Agreement or the com pliance by such Stockholder with
the provisions of this Agreement, except for (1) filings under the HSR Act
and any other applicable competition, merger control, antitrust or similar
law, (2) filings with the SEC of such reports under the Exchange Act as may
be required in connection with this Agreement and the transactions
contemplated hereby and (3) such other consents, approvals, orders,
authorizations, registrations, declarations and filings the failure of
which to be obtained or made individually or in the aggregate could not
reasonably be expected to impair in any material respect the ability of
such Stockholder to perform its obligations under this Agreement or prevent
or materially impede, interfere with, hinder or delay the consummation of
any of the transactions contemplated by this Agreement. With respect to
each Stockholder that is a trustee under a trust, no such trust requires
any consent that has not been obtained of any beneficiary to the execution
and delivery of this Agreement or to the consummation of the transactions
contemplated hereby.
(b) The Subject Shares. Such Stockholder has good and marketable
title to the Subject Shares of such Stockholder set forth opposite its name
on Schedule A hereto, free and clear of any Liens. Other than as set forth
on Schedule A hereto, such Stockholder does not own (of record or
beneficially) any shares of capital stock of the Company or any options,
warrants, rights or other similar instruments to acquire any capital stock
or other voting securities of the Company. Such Stockholder has the sole
right to vote and Transfer (as defined in Section 3(c)) the Subject Shares
set forth opposite its name on Schedule A hereto, and none of such Subject
Shares is subject to any voting trust or other agreement, arrangement or
restriction with respect to the voting or the Transfer of such Subject
Shares that would in any way limit the ability of such Stockholder to
perform its obligations under this Agreement.
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SECTION 2. Representations and Warranties of Parent. Parent
hereby represents and warrants to the Stockholders as follows: Parent has
the requisite corporate power and authority to execute and deliver this
Agreement, to consummate the transactions contemplated by this Agreement
and to comply with the provisions of this Agreement. The execution and
delivery of this Agreement by Parent, the consummation by Parent of the
transactions contemplated by this Agreement and the compliance by Parent
with the provisions of this Agreement have been duly authorized by all
necessary corporate action on the part of Parent and no other corporate
proceedings on the part of Parent are necessary to authorize this Agreement
or to consummate the transactions contemplated by this Agreement. This
Agreement has been duly executed and delivered by Parent and, assuming the
due authorization (with respect to each Stockholder that is not a natural
person), execution and delivery by each Stockholder, constitutes a valid
and binding obligation of Parent, enforceable against Parent in accordance
with its terms. The execution and delivery of this Agreement and the
consummation of the transactions contemplated by this Agreement and
compliance by Parent with the provisions of this Agreement do not and will
not conflict with, or result in any violation or breach of, or default
(with or without notice or lapse of time, or both) under, or give rise to a
right of, or result in, termination, cancelation or acceleration of any
obligation or to loss of a material benefit under, or result in the
creation of any Lien in or upon any of the properties or assets of Parent
under, or give rise to any increased, additional, accelerated or guaranteed
rights or entitlements under, any provision of (i) the Certificate of
Incorporation or By-laws of Parent, (ii) any Contract to which Parent is a
party or any of its properties or assets is subject or (iii) subject to the
governmental filings and other matters referred to in the following
sentence, any (A) statute, law, ordinance, rule or regulation or (B) judgment,
order or decree, in each case, applicable to Parent or its properties
or assets, other than, in the case of clauses (ii) and (iii), any such
conflicts, violations, breaches, defaults, rights, losses, Liens or
entitlements that individually or in the aggregate could not reasonably be
expected to impair in any material respect the ability of Parent to perform
its obligations under this Agreement or prevent or materially impede,
interfere with, hinder or delay the consummation of any of the transactions
contemplated by this Agreement. No consent, approval, order or
authorization of, or registration, declaration or filing with, any
Governmental Entity is required by or with respect to Parent in connection
with the execution and delivery of this Agreement by Parent, the
consummation by Parent of the transactions contemplated by this Agreement
or the compli-
5
ance by Parent with the provisions of this Agreement, except
for (1) filings under the HSR Act and any other applicable competition,
merger control, antitrust or similar law, (2) filings with the SEC of such
reports under the Exchange Act as may be required in connection with this
Agreement and the transactions contemplated hereby and (3) such other
consents, approvals, orders, authorizations, registrations, declarations
and filings the failure of which to be obtained or made individually or in
the aggregate could not reasonably be expected to impair in any material
respect the ability of Parent to perform its obligations under this
Agreement or prevent or materially impede, interfere with, hinder or delay
the consummation of any of the transactions contemplated by this Agreement.
Any Subject Shares purchased by Parent pursuant to this Agreement will be
acquired for investment purposes only and not with a view to any public
distribution thereof, and Parent shall not offer to sell or otherwise
dispose of any Subject Shares so acquired by it in violation of any of the
registration or prospectus delivery requirements of the Securities Act.
SECTION 3. Covenants of Each Stockholder. Each Stockholder,
severally and not jointly, covenants and agrees as follows:
(a) At any meeting of the stockholders of the Company called to
vote upon the Merger Agreement, the Merger or any of the other transactions
contemplated by the Merger Agreement, or at any adjournment thereof, or in
any other circumstances upon which a vote, consent, adoption or other
approval (including by written consent) with respect to the Merger
Agreement, the Merger or any of the other transactions contemplated by the
Merger Agreement is sought, such Stockholder shall vote (or cause to be
voted) all the Subject Shares of such Stockholder in favor of, and shall
consent to (or cause to be consented to), the adoption of the Merger
Agreement and the approval of the terms thereof and of the Merger and each
of the other transactions contemplated by the Merger Agreement.
(b) At any meeting of the stockholders of the Company or at any
adjournment thereof or in any other circumstances upon which a vote,
consent, adoption or other approval (including by written consent) is
sought, such Stockholder shall vote (or cause to be voted) all the Subject
Shares of such Stockholder against, and shall not consent to (and shall
cause not to be consented to), any of the following: (i) any Takeover
Proposal or (ii) any amendment of the Company's Certificate of
Incorporation or By-laws or other proposal, action or transaction involving
the Company or any of its subsidiaries or any of its stock-
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holders, which amendment or other proposal, action or transaction would
prevent or delay the consummation of the Merger or the other transactions
contemplated by the Merger Agreement or this Agreement or change in any
manner the voting rights of the Company Common Stock (collectively,
"Frustrating Transactions"). Such stockholders shall not commit to or agree
to take any action inconsistent with the foregoing or that would otherwise
facilitate a Frustrating Transaction.
(c) Such Stockholder shall not (i) sell, transfer, pledge,
assign or otherwise dispose of (including by gift) (collectively,
"Transfer"), or consent to or permit any Transfer of, any Subject Shares or
any interest therein, or enter into any Contract, option or other
arrangement with respect to the Transfer (including any profit sharing or
other derivative arrangement) of any Subject Shares or any interest
therein, to any person other than pursuant to this Agreement or the Merger
Agreement, unless prior to any such Transfer the transferee of such Subject
Shares enters into a stockholder agreement with Parent on terms
substantially identical to the terms of this Agreement or (ii) enter into
any voting arrangement, whether by proxy, voting agreement or otherwise,
with respect to its vote, consent or other approval sought in connection
with the adoption by the stockholders of the Company of the Merger
Agreement or the approval of the Merger or the other transactions
contemplated by the Merger Agreement (and if entered into or executed, any
such voting arrangement, voting agreement or other agreement shall not be
effective), and shall not commit or agree to take any of the foregoing
actions, other than pursuant to this Agreement. Such Stockholder shall not,
nor shall such Stockholder permit any entity under such Stockholder's
control to, deposit any Subject Shares in a voting trust.
(d) Each Stockholder hereby grants to Parent an irrevocable
option to purchase any or all the Subject Shares of such Stockholder, at
any time or from time to time after a Takeover Proposal has been made, for
a purchase price equal to $4.00 per share in cash (the "Parent Option
Price").
(e) Such Stockholder shall not, nor shall such Stockholder permit
any of its subsidiaries to, or authorize or permit any director, officer,
employee or general partner of such Stockholder or any of its subsidiaries,
or any investment banker, attorney, accountant or other advisor or
representative of such Stockholder or any of its subsidiaries to, directly
or indirectly, (i) solicit, initiate or encourage, or take any other action
knowingly to
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facilitate, any Takeover Proposal or other Frustrating Transaction or any
inquiries or the making of any proposal that constitutes a Takeover
Proposal or other Frustrating Transaction, (ii) enter into any agreement
with respect to any Takeover Proposal or other Frustrating Transaction or
(iii) enter into, continue or otherwise participate in any discussions or
negotiations regarding, or furnish to any person any information with
respect to, or otherwise cooperate in any way with, or assist or
participate in any effort or attempt by any person with respect to, any
Takeover Proposal or other Frustrating Transaction. Without limiting the
foregoing, it is understood that any violation in any material respect of
the restrictions set forth in the preceding sentence by any director,
officer, employee or general partner of, or any investment banker,
attorney, accountant or other advisor or representative of such Stockholder
or any of its subsidiaries, whether or not such Person is purporting to act
on behalf of such Stockholder, shall be deemed to be a violation of this
Section 3(e) by such Stockholder. Such Stockholder shall promptly advise
Parent orally and in writing of any Takeover Proposal or inquiry made to
such Stockholder with respect to any Takeover Proposal or other Frustrating
Transaction.
(f) Such Stockholder shall not, nor shall such Stockholder permit
any of its subsidiaries to, or authorize or permit any director, officer,
employee or general partner of such Stockholder or any of its subsidiaries
or any investment banker, attorney, accountant or other advisor or
representative of such Stockholder or any of its subsidiaries to, directly
or indirectly, issue any press release or make any other public statement
with respect to the Merger Agreement, this Agreement, the Merger or any of
the other transactions contemplated by the Merger Agreement or this
Agreement without the prior written consent of Parent, except as may be
required by applicable law.
(g) Such Stockholder hereby consents to and approves the actions
taken by the Board of Directors of the Company in approving the Merger
Agreement and this Agreement, the Merger and the other transactions contem
plated by the Merger Agreement. Such Stockholder hereby waives, and agrees
not to exercise or assert, any appraisal or similar rights under Section
262 of the DGCL or other applicable law in connection with the Merger.
SECTION 4. Grant of Irrevocable Proxy; Appointment of Proxy. (a)
Each Stockholder, during the term of this Agreement, hereby irrevocably
grants to, and appoints, Parent and Xxxxx X. Xxxxxxxxx, its Vice
President--Assistant General Counsel, Xxxxxx Xxxxxxx, its Assistant
Secretary and
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Senior Counsel and Xxxxx X. Xxxxxxx, its Vice President of Corporate
Development, in their respective capacities as designees of Parent, and any
individual who shall hereafter succeed to any such office of Parent, and
each of them individually, such Stockholder's proxy and attorney-in-fact
(with full power of substitution), for and in the name, place and stead of
such Stockholder, to vote all of such Stockholder's Subject Shares, or
grant a consent or approval in respect of such Subject Shares, (i) in favor
of adoption of the Merger Agreement and the approval of the terms thereof
and of the Merger and each of the other transactions contemplated by the
Merger Agreement, (ii) against any Takeover Proposal or other Frustrating
Transaction and (iii) otherwise in accordance with Section 3 of this
Agreement. Such Stockholder understands and acknowledges that Parent is
entering into the Merger Agreement in reliance upon the Stockholder's
execution and delivery of this Agreement.
(b) Each Stockholder represents that any proxies heretofore given
in respect of such Stockholder's Subject Shares are not irrevocable, and
that all such proxies are hereby revoked.
(c) Each Stockholder hereby affirms that the irrevocable proxy
set forth in this Section 4 is given in connection with the execution of
the Merger Agreement, and that such irrevocable proxy is given to secure
the performance of the duties of such Stockholder under this Agreement.
Each Stockholder hereby further affirms that the irrevocable proxy is
coupled with an interest and may under no circum stances be revoked. Each
Stockholder hereby ratifies and confirms all that such irrevocable proxy
may lawfully do or cause to be done by virtue hereof. Each such irrevocable
proxy is executed and intended to be irrevocable in accordance with the
provisions of Section 212(e) of the DGCL.
SECTION 5. Further Assurances. Such Stockholder shall use its
reasonable best efforts to take, or cause to be taken, all actions, and to
do, or cause to be done, and to assist and cooperate with the other parties
in doing, all things necessary, proper or advisable to consummate and make
effective the transactions contemplated by this Agreement and the Merger
Agreement. No Stockholder shall commit or agree to take any action that
would in any way limit the ability of such Stockholder to perform its
obligations under this Agreement. Without limiting the generality of the
foregoing, each Stockholder shall, from time to time, execute and deliver,
or cause to be executed and delivered, such additional or further consents,
documents and other instruments as Parent may request for the purpose of
effec-
9
tuating the matters covered by this Agreement, including with respect
to any purchase of Subject Shares by Parent pursuant in Section 3(d) and
the grant of the proxies set forth in Section 4.
SECTION 6. Certain Events. Each Stockholder agrees that this
Agreement and the obligations hereunder shall attach to such Stockholder's
Subject Shares and shall be binding upon any person or entity to which
legal or beneficial ownership of such Subject Shares shall pass, whether
by operation of law or otherwise, including such Stockholder's heirs,
guardians, administrators or successors. In the event of any stock split,
stock dividend, reclassification, merger, reorganization, recapitalization
or other change in the capital structure of the Company affecting the
capital stock of the Company, the number of Original Shares and the number
of Subject Shares listed on Schedule A hereto opposite the name of each
Stockholder and the Parent Option Price shall be adjusted appropriately. In
addition, in the event that any Stockholder acquires any additional shares
of capital stock of the Company or other voting securities of the Company
(including through the exercise of any warrants, stock options or similar
instruments), the number of Subject Shares listed on Schedule A hereto
opposite the name of such Stockholder shall be adjusted appropriately. This
Agreement and the representations, warranties, covenants, agreements and
obligations hereunder shall attach to any additional shares of capital
stock of the Company or other voting securities of the Company issued to or
acquired by any Stockholder (including through the exercise of any
warrants, stock options or similar instruments).
SECTION 7. Assignment. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement shall be assigned, in
whole or in part, by operation of law or otherwise, by any of the parties
hereto without the prior written consent of the other parties hereto,
except that (x) Parent may, in its sole discretion, assign any of or all
its rights, interests and obligations under this Agreement to any direct or
indirect wholly owned subsidiary of Parent and (y) if Parent reasonably
believes that it is impracticable or financially disadvantageous as a
result of circumstances arising after the date of this Agreement for Parent
to exercise the option to purchase Subject Shares granted in Section 3(d)
(including as a result of any stockholders' rights plan or similar
arrangement), Parent may assign any of or all its rights, interests and
obligations under Section 3(d) to the extent necessary to eliminate such
impracticability or financial disadvantage, but no such assignment shall
relieve Parent of
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any of its obligations under this Agreement. Any purported assignment in
violation of this Section 7 shall be void. Subject to the preceding
sentences of this Section 7, this Agreement shall be binding upon, inure to
the benefit of and be enforceable by, the parties hereto and their
respective successors and assigns.
SECTION 8. Termination. This Agreement shall terminate upon (x)
the Effective Time, (y) the termination of the Merger Agreement (if
terminated by Parent) or (z) 45 days after the termination of the Merger
Agreement if the Merger Agreement is otherwise terminated (other than with
respect to Sections 3(a), (b), (e), (f), (g) and 4, which will terminate if
the Merger Agreement terminates). No termination of this Agreement shall
relieve any party hereto from any liability for any breach of any provision
of this Agreement prior to termination.
SECTION 9. General Provisions. (a) Amendments. This Agreement may
not be amended except by an instrument in writing signed by all of the
parties hereto.
(b) Notices. All notices, requests, clauses, demands and other
communications under this Agreement shall be in writing and shall be deemed
given if delivered person ally, telecopied (with confirmation) or sent by
overnight or same-day courier (providing proof of delivery) to Parent in
accordance with Section 8.02 of the Merger Agreement and to the
Stockholders (including the Representative) at their respective addresses
set forth on Schedule A hereto (or at such other address for a party as
shall be specified by like notice).
(c) Interpretation. When a reference is made in this Agreement to
a Section or a Schedule, such reference shall be to a Section of, or a
Schedule to, this Agreement unless otherwise indicated. The headings
contained in this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement. Whenever
the words "include", "includes" or "including" are used in this Agreement,
they shall be deemed to be followed by the words "without limitation". The
words "hereof", "herein" and "hereunder" and words of similar import when
used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement. The term "or" is not exclusive.
The definitions contained in this Agreement are applicable to the singular
as well as the plural forms of such terms. Any agreement or instrument
defined or referred to herein or in any agreement or instrument that is
referred to herein means such agreement or instrument as from time to time
amended,
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modified or supplemented. References to a person are also
to its permitted successors and assigns.
(d) Counterparts; Effectiveness. This Agreement may be executed
in one or more counterparts, all of which shall be considered one and the
same agreement and shall become effective when one or more counterparts
have been signed by each of the parties hereto and delivered to the other
party. The effectiveness of this Agreement shall be conditioned upon the
execution and delivery of the Merger Agreement by each of the parties
thereto.
(e) Entire Agreement; No Third-Party Beneficiaries. This
Agreement (including the documents and instruments referred to herein) (i)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties hereto with
respect to the subject matter of this Agreement and (ii) is not intended to
confer upon any person other than the parties hereto (and the persons
specified as proxies in Section 4) any rights or remedies.
(f) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REGARD TO ANY PRINCIPLES OF CONFLICTS OF LAWS OF SUCH STATE.
(g) Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of
law or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect. Upon such determina-
tion that any term or other provision is invalid, illegal or incapable of
being enforced, the parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as
closely as possible to the fullest extent permitted by applicable law in an
acceptable manner and to the end that the transactions contemplated
hereby are fulfilled to the extent possible.
SECTION 10. Enforcement. The parties agree that irreparable
damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or
were otherwise breached. It is accordingly agreed that the partes shall be
entitled to an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions of this
Agreement in any court of the United States located in the State of
Delaware or in any Delaware state court, this being in addition to any
other remedy to which they are entitled at law or in equity. In addition,
each of
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the parties hereto (a) consents to submit itself to the personal
jurisdiction of any court of the United States located in the State of
Delaware or of any Delaware state court in the event any dispute arises out
of this Agreement or the transactions contemplated by this Agreement, (b)
agrees that it will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court and
(c) agrees that it will not bring any action relating to this Agreement or
the transactions contemplated by this Agreement in any court other than a
court of the United States located in the State of Delaware or a Delaware
state court.
SECTION 11. Stockholder Capacity. No person executing this
Agreement who is or becomes during the term hereof a director or officer of
the Company makes any agreement or understanding herein in his or her
capacity as such director or officer. Each Stockholder signs solely in his
or her capacity as the record holder and beneficial owner of, or the
trustee of a trust whose beneficiaries are the beneficial owners of, such
Stockholder's Subject Shares and nothing herein shall limit or affect any
actions taken by a Stockholder in his or her capacity as an officer or
director of the Company in exercising his or her rights under the Merger
Agreement.
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IN WITNESS WHEREOF, Parent has caused this Agreement to be signed
by its officer thereunto duly author ized and each Stockholder has signed
this Agreement, all as of the date first written above.
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
by
---------------------------
Name:
Title:
STOCKHOLDERS:
---------------------------
Name:
---------------------------
Name:
---------------------------
Name:
---------------------------
Name:
---------------------------
Name:
SCHEDULE A
----------
Number of Number of
Name and Address of Original Subject
Stockholder Shares Owned Shares Owned
----------- ------------ ------------
Xxxx & Company, Inc. 141,294* 141,294*
Two Xxxxxx Xxxxx
Xxxxxx, XX 00000
Xxxxx Xxxxxx 112,320 112,320
0 Xxxxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
Xxxxx Xxxxxx 50,500 50,500
c/o XXXX.xxx
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Chase Venture Capital Associates L.P. 1,062,378 1,062,378
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx
Xxxxx
Xxx Xxxx, XX 00000
Xxxx Xxxxxxxx 1,094,434 1,094,434
00 Xxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Crosslink Crossover Fund III, L.P. 928,136 928,136
c/o Crosslink Capital
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Offshore Crosslink Crossover Fund 21,000 21,000
III Unit Trust
c/o Crosslink Capital
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Delta Growth Fund, L.P. 22,000 22,000
c/o Crosslink Capital
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Crosslink Omega Ventures III, L.L.C. 206,702 206,702
c/o Crosslink Capital
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Crosslink Offshore Omega Ventures III 322,331 322,331
(a Cayman Islands unit trust)
c/o Crosslink Capital
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
2
Number of Number of
Name and Address of Original Subject
Stockholder Shares Owned Shares Owned
----------- ------------ ------------
Xxxxxxx X. Xxxxxxx 1,978 1,978
c/o Crosslink Capital
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
E-Squam Investors I, L.P. 66,667 66,667
Xxxx & Company, Inc.
Xxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Flatiron Fund 1998/1999 LLC 163,967 163,967
000 Xxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Flatiron Associates, LLC 16,732 16,732
000 Xxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
The Flatiron Fund LLC 44,448 44,448
000 Xxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Greylock Equity Limited Partnership 2,717,750 2,717,750
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Highland Capital Partners II L.P. 1,302,170 1,302,170
0 Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Xxxx Xxxxxx 3,617 3,617
c/o Highland Capital Partners II
L.P.
0 Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Xxxx Elsevier, Inc. 937,531 937,531
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Xxxx Xxxxx 117,198 117,198
00 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Xxxxxxx Xxxxx 20,000 20,000
XX Xxx 000
Xx. Xxxxxxxxxxx, XX 00000
Alei Verdi 20,000 20,000
000X Xxxxx Xxxxxx
Xxxxx, XX 00000
3
Number of Number of
Name and Address of Original Subject
Stockholder Shares Owned Shares Owned
----------- ------------ ------------
Xxxx Xxxxxxxx 2,500 2,500
00 Xxx Xxxxx Xxxx
Xxxxx, XX 00000
Xxxxx Xxxxxxxx 2,500 2,500
00 Xxx Xxxxx Xxxx
Xxxxx, XX 00000
Jordan Vanwezel 2,500 2,500
00 Xxx Xxxxx Xxxx
Xxxxx, XX 00000
Xxxxxx Xxxxxxxx 2,500 2,500
00 Xxx Xxxxx Xxxx
Xxxxx, XX 00000
Xxx Xxxxxx 15,000 15,000
c/o Mainspring, Inc.
Xxx Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxx Xxxxxxx 76,338 76,338
c/o Mainspring, Inc.
Xxx Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxx Xxxxx 119,050 119,050
c/o Mainspring, Inc.
Xxx Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxxx Xxxxxx 57,722 57,722
c/o Mainspring, Inc.
Xxx Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxx Xxxx 64,617 64,617
c/o Mainspring, Inc.
Xxx Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxx Xxxxxxxx 35,777 35,777
c/o Mainspring, Inc.
Xxx Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxx Xxxxxxx 38,280 38,280
c/o Mainspring, Inc.
Xxx Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxx Xxxxxxxx 117,759 117,759
c/o Mainspring, Inc.
Xxx Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
4
2
Number of Number of
Name and Address of Original Subject
Stockholder Shares Owned Shares Owned
----------- ------------ ------------
Massachusetts Institute of 245,388 245,388
Technology
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
TOTALS 10,153,084 10,153,084
* Share amounts do not include 88,450 shares of common stock held by Xxxx &
Company, Inc. that are not subject to the Agreement and shall not be deemed
to be Original Shares or Subject Shares.
