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PACKETEER, INC.
AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
July 15, 1998
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TABLE OF CONTENTS
1. CERTAIN DEFINITIONS..................................................................1
2. TRANSFERABILITY......................................................................2
2.1 RESTRICTIONS ON TRANSFERABILITY...............................................2
2.2 RESTRICTIVE LEGEND............................................................2
2.3 NOTICE OF PROPOSED TRANSFERS..................................................3
3. REGISTRATION RIGHTS..................................................................4
3.1 DEMAND REGISTRATION...........................................................4
3.2 COMPANY REGISTRATION..........................................................5
3.3 REPORTS UNDER EXCHANGE ACT....................................................6
3.4 FORM S-3 REGISTRATION.........................................................6
3.5 EXPENSES OF REGISTRATION......................................................7
3.6 REGISTRATION PROCEDURES.......................................................7
3.7 INDEMNIFICATION...............................................................8
3.8 INFORMATION BY HOLDER........................................................10
3.9 "MARKET STAND-OFF" AGREEMENT.................................................10
3.10 TRANSFER OF REGISTRATION RIGHTS..............................................10
3.11 TERMINATION OF REGISTRATION RIGHTS...........................................10
4. RIGHT OF FIRST REFUSAL ON COMPANY ISSUANCES.........................................10
4.1 RIGHT OF FIRST REFUSAL.......................................................11
5. COVENANTS OF THE COMPANY............................................................12
5.1 FINANCIAL INFORMATION AND REPORTING..........................................12
5.2 QUARTERLY STATEMENTS.........................................................12
5.3 MONTHLY STATEMENTS...........................................................12
5.4 INSPECTION RIGHTS............................................................13
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5.5 TERMINATION OF COVENANTS.....................................................13
6. MISCELLANEOUS.......................................................................13
6.1 GOVERNING LAW................................................................13
6.2 SUCCESSORS AND ASSIGNS.......................................................13
6.3 ENTIRE AGREEMENT.............................................................13
6.4 NOTICES, ETC.................................................................13
6.5 DELAYS OR OMISSIONS..........................................................13
6.6 COUNTERPARTS.................................................................14
6.7 SEVERABILITY.................................................................14
6.8 AMENDMENTS...................................................................14
6.9 TERMINATION OF PRIOR RIGHTS AGREEMENTS.......................................14
EXHIBIT A...................................................................................29
SCHEDULE OF INVESTORS.......................................................................29
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PACKETEER, INC.
AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
THIS AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT (the
"Agreement") is entered into as of April 16, 1998 by and between PACKETEER,
INC., a Delaware corporation (the "Company"), and the parties listed on Exhibit
A attached hereto.
WHEREAS, the Company is issuing shares of its Series D Preferred
Stock pursuant to that certain Series D Preferred Stock Agreement dated as of
the date hereof (the "Series D Agreement") and desires to grant to the
purchasers of the Series D Preferred Stock and the parties to the Amended and
Restated Investors' Rights Agreement dated June 19, 1997 (the "Prior Rights
Agreement") hereto the rights herein set forth.
NOW THEREFORE, in consideration of the mutual agreements,
covenants and considerations and releases contained herein, the parties hereby
agree as follows:
AGREEMENT:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the following respective meanings:
"COMMISSION" shall mean the Securities and Exchange Commission
or any other federal agency at the time administering the Securities Act.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"HOLDER" shall mean any holder of outstanding Registrable
Securities.
"INITIAL OFFERING" shall mean the Company's first firm
commitment underwritten public offering of its Common Stock registered under the
Securities Act.
"INVESTORS" shall mean the parties listed on Exhibit A attached
hereto and such other holders of the Company's Preferred Stock that may be added
as parties to this Agreement pursuant to paragraph 6.8 below.
"REGISTRABLE SECURITIES" means (i) shares of Common Stock issued
or issuable pursuant to the conversion of the Shares and (ii) shares of Common
Stock issued as a dividend or other distribution with respect to, or in exchange
or in replacement of, the Shares. Notwithstanding the foregoing, Registrable
Securities shall not include any securities sold by a person in a transaction
(a) pursuant to Rule 144, (b) pursuant to a registration statement on file with
the Commission or (c) in a transaction in which such person's rights under this
Agreement are not transferred.
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The terms "REGISTER," "REGISTERED" and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement by the Commission.
"REGISTRATION EXPENSES" shall mean all expenses incurred in
connection with any registration pursuant to Sections 3.1 and 3.2 hereof,
including, without limitation, the reasonable legal fees of a single legal
counsel to the Investors, (excluding underwriters' discounts and commissions)
and shall mean all expenses incurred by the Company in connection with any
registration pursuant to Section 3.3 hereof (excluding underwriters' discounts
and commissions), including, without limitation, all registration and filing
fees, printing expenses, fees and disbursements of counsel for the Company, 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).
"RESTRICTED SECURITIES" shall mean the securities of the Company
required to bear the legend set forth in Section 2.2 hereof.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"SELLING EXPENSES" shall mean all underwriting discounts and
selling commissions applicable to the sale.
"SHARES" shall mean the Preferred Stock of the Company held by
the Investors.
2. TRANSFERABILITY.
2.1 RESTRICTIONS ON TRANSFERABILITY. The Shares and any securities
into which the Shares may be convertible shall not be transferable except upon
the conditions specified in this Agreement, which conditions are intended to
ensure compliance with the provisions of the Securities Act or, in the case of
Section 3.7 hereof, to assist in an orderly distribution. As long as Shares held
by an Investor constitute Restricted Securities, each Investor will cause any
proposed transferee of the Shares (or of the securities into which the Shares
may be convertible) held by an Investor to agree to take and hold such
securities subject to the provisions and upon the conditions specified in this
Agreement.
2.2 RESTRICTIVE LEGEND. Each certificate representing (i) the
Shares, (ii) shares of the Company's Common Stock issued upon conversion of the
Shares and (iii) any securities issued in respect of the Shares or such Common
Stock, shall (unless otherwise permitted by the provisions of Section 2.3 below)
be stamped or otherwise imprinted with a legend in substantially the following
form (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, AS AMENDED (THE "ACT"), AND MAY NOT
BE
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OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED
UNLESS AND UNTIL REGISTERED UNDER THE ACT OR, IN THE OPINION OF
COUNSEL OR BASED ON OTHER WRITTEN EVIDENCE IN FORM AND SUBSTANCE
REASONABLY SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH
OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN
COMPLIANCE THEREWITH.
2.3 NOTICE OF PROPOSED TRANSFERS. The holder of each certificate
representing Restricted Securities by acceptance thereof agrees to comply in all
respects with the provisions of this Section 2.3. Prior to any proposed transfer
of any Restricted Securities, unless there is in effect a registration statement
under the Securities Act covering the proposed transfer, the holder thereof
shall give written notice to the Company of such holder's intention to effect
such transfer. Each such notice shall describe the manner and circumstances of
the proposed transfer in sufficient detail, and shall be accompanied by either
(i) an unqualified written opinion of legal counsel who shall be reasonably
satisfactory to the Company addressed to the Company and reasonably satisfactory
in form and substance to the Company's counsel, to the effect that the proposed
transfer of the Restricted Securities may be effected without registration under
the Securities Act, (ii) a "no action" letter from the Commission to the effect
that the distribution of such securities without registration will not result in
a recommendation by the staff of the Commission that action be taken with
respect thereto or (iii) such other showing that may be reasonably satisfactory
to legal counsel to the Company, whereupon the holder of such Restricted
Securities shall be entitled to transfer such Restricted Securities in
accordance with the terms of the notice delivered by the holder to the Company.
Notwithstanding the foregoing, a transfer of Restricted Securities to a person
or entity associated with such holder shall be presumed to be in compliance with
this Section 2.3, subject to the transferor's agreement to be bound by all of
the terms and conditions hereof and satisfaction of the requirements of Section
3.10 hereof. (For purposes of this Agreement, a person or entity is deemed to be
"associated" with a holder if that person or entity, directly or indirectly,
through one or more intermediaries, controls, is controlled by or is under
common control with a holder). Each certificate evidencing the Restricted
Securities transferred as above provided shall bear the appropriate restrictive
legend set forth in Section 2.2 above, except that such certificate shall not
bear such restrictive legend if in the opinion of counsel for the Company such
legend is not required in order to establish compliance with any provisions of
the Securities Act. All Restricted Securities transferred as above that continue
to bear the restrictive legend set forth in Section 2.2 shall continue to be
subject to the provisions of this Section 2.3 in the same manner as before such
transfer.
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3. REGISTRATION RIGHTS.
3.1 DEMAND REGISTRATION.
(a) Subject to the conditions of this Section 3.1, if the
Company shall receive a written request from the Holders of more than fifty
percent (50%) of the Registrable Securities then outstanding (the "Initiating
Holders") that the Company file a registration statement under the Securities
Act covering the registration of Registrable Securities having an aggregate
offering price to the public in excess of Three Million Dollars ($3,000,000),
then the Company shall, within thirty (30) days of the receipt thereof, give
written notice of such request to all Holders, and subject to the limitations of
this Section 3.1, effect, as soon as practicable, the registration under the
Securities Act of all Registrable Securities that the Holders request to be
registered.
(b) If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request made pursuant to
this Section 3.1 and the Company shall include such information in the written
notice referred to in Section 3.1(a). In such event, the right of any Holder to
include its Registrable Securities in such registration shall be conditioned
upon such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting (unless otherwise mutually
agreed by a majority in interest of the Initiating Holders and such Holder) to
the extent provided herein. All Holders proposing to distribute their securities
through such underwriting shall enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwriting by a majority in interest of the Initiating Holders (which
underwriter or underwriters shall be reasonably acceptable to the Company).
Notwithstanding any other provision of this Section 3.1, if the underwriter
advises the Company that marketing factors require a limitation of the number of
securities to be underwritten (including Registrable Securities) then the
Company shall so advise all Holders of Registrable Securities that would
otherwise be underwritten pursuant hereto, and the number of shares that may be
included in the underwriting shall be allocated to the Holders of such
Registrable Securities on a pro rata basis based on the number of Registrable
Securities held by all such Holders (including the Initiating Holders). Any
Registrable Securities excluded or withdrawn from such underwriting shall be
withdrawn from the registration.
(c) The Company shall not be required to effect a
registration pursuant to this Section 3. 1:
(i) prior to the first anniversary of the Company's
Initial Offering; or
(ii) after the Company has effected two (2)
registrations pursuant to this Section 3. 1, and such registrations have been
declared or ordered effective;
(iii) if the Company shall furnish to Holders
requesting a registration statement pursuant to this Section 3.1, a certificate
signed by the Chairman of the Board stating that in the good faith judgment of
the Board of Directors of the Company it would be seriously detrimental to the
Company and its stockholders for such registration statement to be effected at
such time, the Company shall have the right to defer such filing for a period of
not more than
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ninety (90) days after receipt of the request of the Initiating Holders;
provided that such right to delay a request shall be exercised by the Company no
more than once in any one-year period; or
(iv) during the period starting with the date of
filing of, and ending on the date one hundred twenty (120) days following the
effective date of, a registration statement pertaining to an offering of the
Company's Common Stock other than the Initial Offering.
3.2 COMPANY REGISTRATION.
(a) If at any time the Company shall determine to file a
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 and corporate reorganizations), the Company will:
(i) promptly give to each Holder written notice
thereof (which shall include a list of the jurisdictions in which the Company
intends to attempt to qualify such securities under the applicable blue sky or
other state securities laws); and
(ii) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any underwriting
involved therein, all the Registrable Securities specified in a written request
or requests, made within twenty (20) days after receipt of such written notice
from the Company, by any Holder or Holders.
(b) Underwriting. If the registration of which the Company
gives notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 3.2(a)(i). In such event the right of any Holder to
registration pursuant to Section 3.2 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. Each
Holder proposing to distribute its securities through such underwriting shall
(together with the Company and the other holders distributing their securities
through such underwriting) 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 this Agreement, if the
underwriter determines 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
on a pro rata basis based on the total number of Registrable Securities held by
the Holders; and third, to any stockholder of the Company (other than a Holder)
on a pro rata basis. In no event shall the amount of securities of the selling
Holders included in the registration be reduced below twenty-five percent (25%)
of the total amount of securities included in such registration, unless such
offering is the Initial Offering, in which event any or all of the Registrable
Securities of the Holders may be excluded in accordance with the immediately
preceding sentence. The Company shall so advise all Holders (except with respect
to each of those Holders who has indicated to the Company its decision not to
distribute any of its Registrable Securities through such underwriting), and the
number of shares of Registrable Securities that may be included in the
registration and underwriting shall be allocated in
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proportion, as nearly as practicable, to the respective amounts of Registrable
Securities owned by the Holders at the time of filing the registration
statement.
No Registrable Securities excluded from the underwriting by
reason of the underwriter's marketing limitation shall be included in such
registration. If any Holder disapproves of the terms of any such underwriting,
such person may elect to withdraw therefrom by written notice to the Company and
the underwriter. The securities so withdrawn from such underwriting shall also
be withdrawn from such registration; provided, however, that, if by the
withdrawal of such securities a greater number of Registrable Securities held by
other Holders may be included in such registration (up to the maximum of any
limitation imposed by the underwriters), then the Company shall offer to all
Holders who have included Registrable Securities in the registration the right
to include additional Registrable Securities in the same proportion used above
in determining the underwriter limitation.
3.3 REPORTS UNDER EXCHANGE ACT. With view to making available to the
Holders the benefits of Rule 144 promulgated under the Act and any other rule or
regulation of the Commission that may at any time permit a Holder to sell
securities of the Company to the public without registration or pursuant to a
registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as those
terms are understood and defined in Commission Rule 144, at all times after
ninety (90) days after the effective date of the first registration statement
filed by the Company for the offering of its securities to the general public;
(b) take such action, including the voluntary registration
of its Common Stock under Section 12 of the Exchange Act, as is necessary to
enable the Holders to utilize Form S-3 for the sale of their Registrable
Securities, such action to be taken as soon as practicable after the end of the
fiscal year in which the first registration statement filed by the Company for
the offering of its securities to the general public is declared effective;
(c) file with the Commission in a timely manner all reports
and other documents required of the Company under the Act and the Exchange Act;
and
(d) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon receipt (i) a written statement by the
Company that it has complied with the reporting requirements of Commission Rule
144 (at any time after ninety (90) days after the effective date of the first
registration statement filed by the Company), the Act and the Exchange Act (at
any time after it has become subject to such reporting requirements), or that it
qualifies as a registrant whose securities may be resold pursuant to Form S-3
(at any time after it so qualifies), (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed by
the Company, and (iii) such other information as may be reasonably requested in
availing any Holder of any rule or regulation of the Commission that permits the
selling of any such securities without registration or pursuant to such form.
3.4 FORM S-3 REGISTRATION. In case the Company shall receive from
any Holder or Holders of Registrable Securities a written request or requests
that the Company effect a
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registration on Form S-3 and any related qualification or compliance with
respect to all or a part of the Registrable Securities owned by such Holder or
Holders, the Company will:
(a) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all other Holders
of Registrable Securities; and
(b) as soon as practicable, effect such registration and all
such qualifications and compliances as may be so requested and as would permit
or facilitate the sale and distribution of all or such portion of such Holder's
or Holders' Registrable Securities as are specified in such request, together
with all or such portion of the Registrable Securities of any other Holder or
Holders joining in such request as are specified in a written request given
within fifteen (15) days after receipt of such written notice from the Company;
provided, however, that the Company shall not be obligated to effect any such
registration, qualification or compliance pursuant to this Section 3.4 in the
event of any of the following: (i) if Form S-3 is not available for such
offering by the Holders; (ii) if the Holders, together with the holders of any
other securities of the Company entitled to inclusion in such registration,
propose to sell Registrable Securities and such other securities (if any) at an
aggregate price to the public of less than $500,000; (iii) if the Company shall
furnish to the Holders a certificate signed by the President of the Company
stating that in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company and its stockholders
for such Form S-3 Registration to be effected at such time, in which event the
Company shall have the right 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 3.4; (iv) if the Company has
already effected two (2) registrations on Form S-3 for the Holders pursuant to
this Section 3.4; or (v) in any particular jurisdiction in which the Company
would be required to qualify to do business or to execute a general consent to
service of process in effecting such registration, qualification or compliance.
3.5 EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to
Section 3.1, 3.2 or 3.4 herein shall be borne by the Company. In the case of a
registration on Form S-3 pursuant to Section 3.4 herein, the Company shall bear
all the reasonable fees and disbursements, not to exceed $5,000, of one counsel
for the Selling Holders. 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.
3.6 REGISTRATION PROCEDURES. In the case of each registration,
qualification or compliance effected by the Company pursuant to this Section 3,
the Company will keep each Holder advised in writing as to the initiation of
each registration, qualification and compliance and as to the completion
thereof. At its expense the Company will:
(a) Keep such registration, qualification or compliance
effective for a period of one hundred twenty (120) days or until the Holder or
Holders have completed the distribution described in the registration statement
relating thereto, whichever first occurs; and
(b) Furnish such number of prospectuses and other documents
incident thereto as a Holder from time to time may reasonably request.
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(c) Prepare and file with the Commission 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.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
blue sky laws of such jurisdictions as will be reasonably requested by the
Holders, provided that the Company will 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 will also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by
such registration statement at any time when a prospectus relating thereto is
required to be delivered under the 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 light of the circumstances then existing,
and promptly file such amendments and supplements as may be necessary to cause
such prospectus to be current and to include such information.
(g) Use its reasonable best efforts in facilitating its
service providers to furnish, at the request of any Holder requesting
registration of Registrable Securities on the date that such Registrable
Securities are delivered to the underwriters for sale (i) an opinion of the
counsel representing the Company for the purposes of such registration in form
and substance as is customarily rendered to the underwriters in an underwritten
public offering and (ii) a "comfort" letter 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.
3.7 INDEMNIFICATION.
(a) The Company will indemnify each Holder, each of its
officers, directors, partners and legal counsel, and each person controlling
such Holder, with respect to which registration, qualification or compliance has
been effected pursuant to this Section 3, against all claims, losses, damages
and liabilities (or actions in respect thereof) arising out of or based on (i)
any untrue statement (or alleged untrue statement) of a material fact contained
in any prospectus, offering circular or other similar document (including any
related registration statement, notification or the like) incident to any such
registration, qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made or (ii) any violation by the Company of
any federal, state or common law rule or regulation applicable to the Company in
connection with any such registration,
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qualification or compliance, and will reimburse each such Holder, each of its
officers, directors, partners and legal counsel, and each person controlling
such Holder, for any legal and any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability or action, as incurred, provided that the Company will not be liable
in any such case to the extent that any such claim, loss, damage, liability or
expense arises out of or is based on any untrue statement or omission based upon
written information furnished to the Company by an instrument duly executed by
such Holder and stated to be specifically for use therein or furnished by the
Holder to the Company in response to a request by the Company stating
specifically that such information will be used by the Company therein.
(b) Each Holder will, if Registrable Securities held by such
Holder are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company, each of
its directors and officers, each legal counsel and independent accountant of the
Company, each person who controls the Company within the meaning of the
Securities Act, and each other such Holder, each of its officers, directors,
partners and legal counsel and each person controlling such Holder, against all
claims, losses, damages and liabilities (or actions in respect thereof) arising
out of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in any such registration statement, prospectus, offering
circular or other similar document, or any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading in the light of the circumstances under
which they were made, and will reimburse the Company, such Holders, such
directors, officers, legal counsel and independent accountants, or control
persons for any legal or any other expenses reasonably incurred in connection
with investigating or defending any such claim, loss, damage, liability or
action, as incurred, in each case to the extent, but only to the extent, that
such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Company by an instrument duly executed by such Holder and
stated to be specifically for use therein or furnished by the Holder to the
Company in response to a request by the Company stating specifically that such
information will be used by the Company therein.
(c) Each party entitled to indemnification under this
Section 3.7 (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has received written notice of any claim as to which indemnity
may be sought, and shall permit the Indemnifying Party to assume the defense of
any such claim or any litigation resulting therefrom, provided that counsel for
the Indemnifying Party, who shall conduct the defense of such claim or
litigation, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld). The Indemnified Party may participate in such defense
at such party's expense; provided, however, that the Indemnifying Party shall
bear the expense of such defense of the Indemnified Party if the Indemnified
Party has been advised by its counsel that representation of both parties by the
same counsel 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 of any Indemnified Party to give notice
as provided herein shall relieve the Indemnifying Party of its obligations under
this Section 3.6 only to the extent that such failure to give notice shall
materially adversely prejudice the Indemnifying Party in the defense of any such
claim or
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any such litigation. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnifying Party, consent
to entry of any judgment or enter into any settlement that 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.
3.8 INFORMATION BY HOLDER. Each Holder including securities of the
Company in any registration shall furnish to the Company such information
regarding such Holder and the distribution proposed by such Holder as the
Company may request in writing and as shall be required in connection with any
registration, qualification or compliance referred to in this Section 3.
3.9 "MARKET STAND-OFF" AGREEMENT. Each Holder agrees not to sell or
otherwise transfer or dispose of any Common Stock (or other securities) of the
Company held by it for a period not to exceed one hundred eighty (180) days
following the effective date of a registration statement of the Company filed
under the Securities Act if so requested by the Company and underwriter of
Common Stock (or other securities) of the Company, provided that:
(a) such agreement shall apply only to the first
underwritten registered public offering of the Company; and
(b) all officers and directors of the Company and holders of
at least one percent (1%) of the Company's voting securities are bound by and
have entered into similar agreements.
3.10 TRANSFER OF REGISTRATION RIGHTS. Except as otherwise provided
herein, the rights contained in this Section 3 may be assigned or otherwise
conveyed to a transferee or assignee of Registrable Securities, who shall be
considered a "Holder" for purposes of this Section 3, provided that (i) such
transfer is effected in accordance with applicable federal and state securities
laws, (ii) such transferee or assignee becomes a party to this Agreement or
agrees in writing to be subject to the terms hereof to the same extent as if he
were an original party hereunder and (iii) such transferee or assignee acquires
at least two hundred thousand (200,000) shares of Registrable Securities (as
adjusted for any stock splits, recapitalizations and the like) or if the
transferor holds less than two hundred thousand (200,000) shares, then such
transferee or assignee acquires all of the transferor's Registrable Securities,
and, provided further, that the Company is given written notice at the time of
or within a reasonable time after said transfer, stating the name and address of
said transferee or assignee and identifying the securities with respect to which
such registration rights are being assigned.
3.11 TERMINATION OF REGISTRATION RIGHTS. All rights and duties
provided for in this Section 3 shall terminate for each Holder upon the earlier
of (i) five (5) years from the date of the Company's first underwritten
registered public offering; or (ii) upon such date on which all Registrable
Securities held by such Holder may immediately be sold during any 90-day period
under Commission Rule 144 provided that the Company is subject to the reporting
requirements of the Exchange Act.
4. RIGHT OF FIRST REFUSAL ON COMPANY ISSUANCES.
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4.1 RIGHT OF FIRST REFUSAL. The Company hereby grants to each
Investor who holds at least one hundred thousand (100,000) shares of the
Company's Preferred Stock ("Major Investor") a right of first refusal to
purchase its pro rata share of New Securities (as defined in this Section 4.1)
that the Company may from time to time propose to sell and issue. Each Major
Investor's pro rata share, for purposes of this right of first refusal, is the
ratio, the numerator of which is the number of shares of Common Stock then owned
by such Investor (assuming full conversion of the Preferred Stock of the Company
then owned by such Investor), and the denominator of which is the total number
of shares of Common Stock outstanding immediately prior to the issuance of the
New Securities, assuming full conversion of all outstanding shares of Preferred
Stock of the Company and exercise of all outstanding options and warrants of the
Company. This right of first refusal shall be subject to the following
provisions:
(a) "NEW SECURITIES" shall mean any capital stock of the
Company, whether now authorized or not, and rights, options, or warrants to
purchase said capital stock, and securities of any type whatsoever that are, or
may become, convertible into said capital stock; provided, however, that "New
Securities" does not include (i) securities issuable upon conversion of or with
respect to any series of Preferred Stock or upon exercise of any currently
outstanding rights, options or warrants to purchase Common Stock or Preferred
Stock; (ii) securities issued pursuant to the acquisition of another corporation
by the Company by merger, purchase of substantially all of the assets, or other
reorganization whereby the Company owns more than fifty percent (50%) of the
voting power of such corporation; (iii) shares of the Company's Common Stock (or
related options) issued to employees, officers, consultants, board members or
other service providers of the Company pursuant to any stock offering, plan or
arrangement approved by the Board of Directors and subsequently approved by the
Company's stockholders; (iv) shares of the Company's Common Stock or Preferred
Stock issued in connection with any stock split, stock dividend or similar
recapitalization by the Company; (v) securities issued pursuant to equipment
leases or nonconvertible debt financings that are approved by the Company's
Board of Directors so long as the primary purpose of such transaction is not the
issuance of capital stock of the Company; or (vi) securities issued in
connection with strategic transactions involving the Company and other entities,
including (A) joint ventures, manufacturing, marketing or distribution
arrangements and (B) technology transfer or development arrangements, so long as
the primary purpose of such strategic transaction is not to provide financing
for the Company.
(b) In the event that the Company proposes to undertake an
issuance of New Securities, it shall give each Major Investor written notice of
its intention, describing the type of New Securities, the price and the general
terms upon which the Company proposes to issue the same. Each Major Investor
shall have fifteen (15) days from the date of mailing of any such notice to
agree to purchase up to its full pro rata share of such New Securities for the
price and upon the general terms specified in the notice by giving written
notice to the Company and stating therein the quantity of New Securities to be
purchased.
(c) The Company may sell or enter into an agreement
providing for the sale of the New Securities, at a price and upon general terms
no more favorable to the purchasers thereon than specified in the Company's
notice, at any time on or prior to the sixtieth (60th) day after the mailing of
the notice described above. In the event the Company has not sold or entered
into an agreement providing for the sale of the New Securities within such sixty
(60) day period,
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15
the Company shall not thereafter issue or sell any New Securities without
offering the appropriate portion of such securities to the Major Investors in
the manner provided above.
(d) The right of first refusal granted under this Agreement
(i) shall not apply to and shall expire upon the first public offering of Common
Stock of the Company in connection with which all of the Company's outstanding
Preferred Stock is converted into the Company's Common Stock and that is
pursuant to a registration statement filed with, and declared effective by, the
Commission under the Securities Act and (ii) shall not apply to and shall expire
upon the closing of the Company's sale of all or substantially all of its assets
or the acquisition of the Company (other than relating to a reincorporation of
the Company) by another entity by means of merger or consolidation resulting in
the exchange of the outstanding shares of the Company's capital stock for
securities or consideration issued, or caused to be issued, by the acquiring
entity or its subsidiary.
(e) Notwithstanding the foregoing, in no event shall London
Pacific Life & Annuity Company and its affiliates and related entities have a
right to purchase more than an aggregate of 2,538,071 shares of Series D
Preferred Stock.
5. COVENANTS OF THE COMPANY.
5.1 FINANCIAL INFORMATION AND REPORTING. As soon as practicable
after the end of each fiscal year of the Company, and in any event within 90
days thereafter, the Company will furnish each Investor who holds at least one
hundred thousand (100,000) shares of the Company's Preferred Stock or the
Company's Common Stock issued upon conversion of the Company's Preferred Stock a
consolidated balance sheet of the Company, as at the end of such fiscal year,
and a consolidated statement of income and a consolidated statement of cash
flows of the Company, for such year, all prepared in accordance with generally
accepted accounting principles 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.
5.2 QUARTERLY STATEMENTS. 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 45 days thereafter, the Company will
furnish each Major Investor a consolidated balance sheet of the Company as of
the end of each such quarterly period, and a consolidated statement of income
and a consolidated 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.
5.3 MONTHLY STATEMENTS. As soon as practicable after the end of each
month, and in any event within thirty (30) days thereafter, the Company will
furnish each Major Investor such monthly financial information as is furnished
to the Board of Directors, provided that such information was prepared for the
Board of Directors.
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16
5.4 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, 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 5.4 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.
5.5 TERMINATION OF COVENANTS. The covenants provided in this Section
5 shall terminate upon the first date that the Company shall become subject to
the reporting requirements of the Exchange Act as long as the Company's
Preferred Stock held by the Investors has been converted to shares of the
Company's Common Stock.
6. MISCELLANEOUS.
6.1 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of California applicable to contracts
between California residents entered into and to be performed entirely within
the State of California.
6.2 SUCCESSORS AND ASSIGNS. Except as otherwise 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.
6.3 ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement among the parties with regard to the subjects hereof
and thereof.
6.4 NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed effectively given
upon personal delivery, or three (3) days after deposit with the United States
mail, by registered or certified mail, return receipt requested, postage
prepaid, addressed: (a) if to a Holder, at such Holder's address as set forth on
the Company's records, or at such other address as such Holder shall have
furnished to the Company in writing or (b) if to the Company, at its address as
set forth at the end of this Agreement, or at such other address as the Company
shall have furnished to the Holders in writing.
6.5 DELAYS OR OMISSIONS. No delay or omission to exercise any right,
power or remedy accruing to any party, upon any breach or default of any other
party under this Agreement, shall impair any such right, power or remedy of such
party 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 thereunder
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
party of any breach or default under this Agreement, or any waiver on the part
of any party 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. All remedies, either under this Agreement, or by law or otherwise
afforded to any holder, shall be cumulative and not alternative.
13
17
6.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which may be executed by less than all of the Investors,
each of which shall be enforceable against the parties actually executing such
counterparts, and all of which together shall constitute one instrument.
6.7 SEVERABILITY. In the case any provision of this Agreement shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
6.8 AMENDMENTS. Except as otherwise provided herein, the provisions
of this Agreement may be amended at any time and from time to time, and
particular provisions of this Agreement may be waived, with and only with an
agreement or consent in writing signed by the Company and by the holders of (i)
not less than a majority of the number of shares of Registrable Securities
outstanding as of the date of such amendment or waiver and (ii) (only with
respect to any amendment or waiver that disproportionately affects the rights
hereunder of the holders of the Company's Series C Preferred Stock or Series D
Preferred Stock) not less than a majority of the shares of the Company's Series
C Preferred Stock or Series D Preferred Stock, as applicable, outstanding as of
the date of such amendment or waiver. Subject to the foregoing qualification,
each Investor acknowledges that by the operation of this Section 6.8 the holders
of a majority of the outstanding Registrable Securities may have the right and
power to diminish or eliminate all rights of such Investor under this Agreement.
This Agreement may be amended with no further action on the part of the
Investors to include as Investors hereunder other holders of the Company's
Preferred Stock.
6.9 TERMINATION OF PRIOR RIGHTS AGREEMENTS. All the parties to the
Prior Rights Agreement hereby agree that all rights and obligations of the
parties thereunder shall be superseded, rendered void and replaced in their
entirety by this Agreement.
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18
The foregoing Investors Rights' Agreement is hereby executed as
of the date first above written.
COMPANY: INVESTOR:
PACKETEER, INC. By: /s/ XXXXX X. XXXXXXX
00000 X. Xx Xxxx Xxxx. -------------------------------------
Xxxxxxxxx, XX 00000
Its: V.P. & Treasurer
------------------------------------
By: /s/ XXXXX XXXXXXX Name: Xxxxx X. Xxxxxxx
--------------------------------- -----------------------------------
Xxxxx Xxxxxxx
President
15
19
The foregoing Investors Rights' Agreement is hereby executed as
of the date first above written.
COMPANY: INVESTOR: XXXXXXXX 1984 REV. TRUST
U/A 2/13/84 UTD 10/21/92
PACKETEER, INC. By: /s/ XXXXXX XXXXXXXX
00000 X. Xx Xxxx Xxxx. -------------------------------------
Xxxxxxxxx, XX 00000
Its: Trustee
------------------------------------
By: /s/ XXXXX XXXXXXX Name: Xxxxxx Xxxxxxxx
---------------------------------- -----------------------------------
Xxxxx Xxxxxxx
President
16
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The foregoing Investors Rights' Agreement is hereby executed as
of the date first above written.
COMPANY: INVESTOR: CC&H INVESTORS
PACKETEER, INC. By: /s/ XXXX XXXXXXX
00000 X. Xx Xxxx Xxxx. ------------------------------------
Xxxxxxxxx, XX 00000
Its: Executive Partner
------------------------------------
By: /s/ XXXXX XXXXXXX Name: Xxxx Xxxxxxx
--------------------------------- ------------------------------------
Xxxxx Xxxxxxx
President
17
21
The foregoing Investors Rights' Agreement is hereby executed as
of the date first above written.
COMPANY: INVESTOR: XXXXXXX X. XXXXXX
PACKETEER, INC. By: /s/ XXXXXXX X. XXXXXX
00000 X. Xx Xxxx Xxxx. -------------------------------------
Xxxxxxxxx, XX 00000
Its: General Partner
------------------------------------
By: /s/ XXXXX XXXXXXX Name: Xxxxxxx X. Xxxxxx
--------------------------------- -----------------------------------
Xxxxx Xxxxxxx
President
18
22
The foregoing Investors Rights' Agreement is hereby executed as
of the date first above written.
COMPANY: INVESTOR: ENTERPRISE PARTNERS III
ASSOCIATES, L.L.P.
PACKETEER, INC. By: /s/ XXXXXXX X. XXXXXXXX
00000 X. Xx Xxxx Xxxx. -------------------------------------
Xxxxxxxxx, XX 00000
Its: General Partner
------------------------------------
By: /s/ XXXXX XXXXXXX Name: Xxxxxxx X. Xxxxxxxx
--------------------------------- -----------------------------------
Xxxxx Xxxxxxx
President
19
23
The foregoing Investors Rights' Agreement is hereby executed as
of the date first above written.
COMPANY: INVESTOR:
PACKETEER, INC. By: /s/ Xxxxx Xxxxxx
00000 X. Xx Xxxx Xxxx. -------------------------------------
Xxxxxxxxx, XX 00000
Its:
------------------------------------
By: /s/ Xxxxx Xxxxxxx Name: Xxxxx Xxxxxx
--------------------------------- -----------------------------------
Xxxxx Xxxxxxx
President
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24
The foregoing Investors Rights' Agreement is hereby executed as
of the date first above written.
COMPANY: INVESTOR: NEA PRESIDENT'S FUND, L.P.
PACKETEER, INC. By: /s/ Xxxx X. Xxxxx
00000 X. Xx Xxxx Xxxx. -------------------------------------
Xxxxxxxxx, XX 00000
Its: General Partner
------------------------------------
By: /s/ Xxxxx Xxxxxxx Name: Xxxx X. Xxxxx
---------------------------------- -----------------------------------
Xxxxx Xxxxxxx
President
21
25
The foregoing Investors Rights' Agreement is hereby executed as
of the date first above written.
COMPANY: INVESTOR: NEA VENTURES 1996, L.P.
PACKETEER, INC. By: /s/ Xxxxx Xxxxxxx
00000 X. Xx Xxxx Xxxx. -------------------------------------
Xxxxxxxxx, XX 00000
Its: Vice President
------------------------------------
By: /s/ Xxxxx Xxxxxxx Name: Xxxxx Xxxxxxx
---------------------------------- -----------------------------------
Xxxxx Xxxxxxx
President
22
26
The foregoing Investors Rights' Agreement is hereby executed as
of the date first above written.
COMPANY: INVESTOR: NEW ENTERPRISE ASSOCIATES VII,
LIMITED PARTNERSHIP
PACKETEER, INC. By: /s/ Xxxxx Xxxxxx
00000 X. Xx Xxxx Xxxx. -------------------------------------
Xxxxxxxxx, XX 00000
Its: General Partner
-------------------------------------
By: /s/ Xxxxx Xxxxxxx Name: Xxxxx Xxxxxx
---------------------------------- -----------------------------------
Xxxxx Xxxxxxx
President
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27
The foregoing Investors Rights' Agreement is hereby executed as
of the date first above written.
COMPANY: INVESTOR:
PACKETEER, INC. By: /s/ Xxxxxx Xxxxxxxx
00000 X. Xx Xxxx Xxxx. -------------------------------------
Xxxxxxxxx, XX 00000
Its:
-------------------------------------
By: /s/ Xxxxx Xxxxxxx Name: Xxxxxx Xxxxxxxx
---------------------------------- -----------------------------------
Xxxxx Xxxxxxx
President
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28
The foregoing Investors Rights' Agreement is hereby executed as
of the date first above written.
COMPANY: INVESTOR:
PACKETEER, INC. By: /s/ Xxxxx Xxxxxx
00000 X. Xx Xxxx Xxxx. -------------------------------------
Xxxxxxxxx, XX 00000
Its: General Partner
-------------------------------------
By: /s/ Xxxxx Xxxxxxx Name: Xxxxx Xxxxxx
---------------------------------- -----------------------------------
Xxxxx Xxxxxxx
President
29
The foregoing Investors Rights' Agreement is hereby executed as
of the date first above written.
COMPANY: INVESTOR: NEW ENTERPRISE ASSOCIATES VII,
LIMITED PARTNERSHIP
PACKETEER, INC. By: /s/ Xxxxx Xxxxxx
00000 X. Xx Xxxx Xxxx. -------------------------------------
Xxxxxxxxx, XX 00000
Its: General Partner
-------------------------------------
By: /s/ Xxxxx Xxxxxxx Name: Xxxxx Xxxxxx
---------------------------------- -----------------------------------
Xxxxx Xxxxxxx
President
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30
The foregoing Investors Rights' Agreement is hereby executed as
of the date first above written.
COMPANY: INVESTOR: NEA PRESIDENTS FUND, L.P.
PACKETEER, INC. By: /s/ Xxxxx Xxxxxx
00000 X. Xx Xxxx Xxxx. -------------------------------------
Xxxxxxxxx, XX 00000
Its: General Partner
-------------------------------------
By: /s/ Xxxxx Xxxxxxx Name: Xxxxx Xxxxxx
---------------------------------- -----------------------------------
Xxxxx Xxxxxxx
President
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The foregoing Investors Rights' Agreement is hereby executed as
of the date first above written.
COMPANY: INVESTOR: NEW VENTURES 1996, L.P.
PACKETEER, INC. By: /s/ Xxxxxx Xxxx
00000 X. Xx Xxxx Xxxx. -------------------------------------
Xxxxxxxxx, XX 00000
Its: Vice President
-------------------------------------
By: /s/ Xxxxx Xxxxxxx Name: Xxxxxx Xxxx
---------------------------------- -----------------------------------
Xxxxx Xxxxxxx
President
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The foregoing Investors Rights' Agreement is hereby executed as
of the date first above written.
COMPANY: INVESTOR: NEW VENTURES 1996, L.P.
PACKETEER, INC. By: /s/ Xxxxx Xxxxxxx
00000 X. Xx Xxxx Xxxx. -------------------------------------
Xxxxxxxxx, XX 00000
Its: Vice President
------------------------------------
By: /s/ Xxxxx Xxxxxxx Name: Xxxxx Xxxxxxx
---------------------------------- -----------------------------------
Xxxxx Xxxxxxx
President
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EXHIBIT A
SCHEDULE OF INVESTORS
Name Shares Security
---- ------ --------
Xxxxxxxx 1984 Rev. Trust 400,000 Series A Preferred Stock
U/A 2/13/84 UTD 10/21/92 212,880 Series B Preferred Stock
Attn: Xxxxxx Xxxxxxxx 77,168 Series C Preferred Stock
00000 Xxx Xxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Xxxxxxx X. Xxxxxx 100,000 Series A Preferred Stock
Sierra Ventures 53,220 Series B Preferred Stock
0000 Xxxx Xxxx Xxxx 2,500 Series D Preferred Xxxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
GC&H Investments 200,000 Series A Preferred Stock
Attn: Xxxx Xxxxxxx 50,000 Series B Preferred Stock
One Maritime Plaza, 20th Floor 12,250 Series D Preferred Stock
Xxx Xxxxxxxxx, XX 00000
Xxxxxx X. Xxxxxxxx 300,000 Series A Preferred Stock
00000 Xxxxxxx Xxxxxx 159,660 Series B Preferred Stock
Xxxxxxxx, XX 00000 57,996 Series C Preferred Stock
London Pacific Life & Annuity Company 2,538,071 Series D Preferred Stock
0000 Xxxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xx. Xxxxx Xxxxxxx
Xxxxxxxxx X. Lego (Xxxxxxxx) 100,000 Series A Preferred Stock
0000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Metricom, Inc. 300,000 Series A Preferred Stock
Attn: Xxxxxxx X. Xxxxx
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
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34
Name Shares Security
---- ------ --------
Xxxxx X. Xxxxxx 100,000 Series A Preferred Stock
New Enterprise Associates 53,220 Series B Preferred Stock
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Xxxx Xxxxx or Xxxxxx Xxxxx, as trustees 400,000 Series A Preferred Stock
of the Xxxx and Xxxxxx Xxxxx Trust 212,880 Series B Preferred Stock
Agreement
of 23 May 1984
00 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Sterling Payot Capital, L.P. 500,000 Series A Preferred Stock
Attn: Xxxxxx Xxxxxxx 63,028 Series C Preferred Stock
000 Xxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
New Enterprise Associates VII, 400,000 Series A Preferred Stock
Limited Partnership 3,000,000 Series B Preferred Stock
Attn: Xxxxx Xxxxxx 287,400 Series C Preferred Stock
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
NEA President's Fund, L.P. 5,000 Series B Preferred Stock
Attn: Xxxxx Xxxxxx
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
NEA Ventures 1996, L.P. 75,000 Series B Preferred Stock
Attn: Xxxxx Xxxxxx
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
ONSET Enterprise Associates II, L.P. 1,000,000 Series B Preferred Stock
Attn: Alexis Lakes 112,600 Series C Preferred Stock
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Enterprise Partners III, L.P. 1,488,680 Series C Preferred Stock
Attn: Xxxxxxx X. Xxxxxxxx
0000 Xxxxxxx Xxxxxx
Xxxxx 000
XxXxxxx, XX 00000
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35
Name Shares Security
---- ------ --------
Enterprise Partners III Associates, L.P. 129,448 Series C Preferred Stock
Attn: Xxxxxxx X. Xxxxxxxx
0000 Xxxxxxx Xxxxxx
Xxxxx 000
XxXxxxx, XX 00000
31