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Exhibit 4.2
RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
This Agreement is made as of December , 1996, by and among NetRight
Technologies, Inc., a Delaware corporation (the "Company"), Xxxxxxx Xxxxxxxx and
Xxxxx Xxxxxxxxx (collectively, the "Founders" and singularly a "Founder"), and
the Purchasers listed on Exhibit A hereto.
RECITALS
A. The Founders each currently own shares of the Company's Common
Stock (the "Common Stock"), as set forth on Exhibit B.
B. The Purchasers purchased, in the aggregate, 1,500,000 shares of
Series A Preferred Stock of the Company, pursuant to that certain Series A
Preferred Stock Purchase Agreement "Purchase Agreement").
C. To induce the Purchasers to purchase the Series A Preferred
Stock from the Company, the Founders have agreed to grant the Company and the
Purchasers certain rights of first refusal and co-sale with respect to Common
Stock currently owned by the Founders and any other stock of the Company
hereafter owned or acquired by the Founders, all on the terms and conditions set
forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, and other consideration, the receipt and adequacy of which hereby is
acknowledged, the parties hereto agree as follows:
1. Certain Definitions. For purposes of this Agreement, the
following terms have the following meanings:
(a) "IPO" means the first underwritten sale of Company
securities to the public pursuant to a registration statement under the
Securities Act of 1933, as amended (the "Act"), in which the gross proceeds to
the Company equal or exceed $7,500,000.
(b) "Purchasers' Share" means as to the Right of Co-Sale,
the ratio determined by dividing (A) the number of shares of Stock (as defined
below) held by a Purchaser by (B) the number of shares of Stock held by all
Purchasers plus the number of shares of Stock held by the Founders selling such
Offered Stock.
(c) "Offered Stock" means all Stock proposed to be
Transferred by a Founder.
(d) "Right of Co-Sale" means the right of co-sale provided
to the Purchasers in Section 4 of this Agreement.
(e) "Right of First Refusal" means the right of first
refusal provided to the Purchasers in Section 3 of this Agreement.
(f) "Stock" means and includes all shares of Common Stock
issued and outstanding at the relevant time plus (i) all shares of Common Stock
that may be issued upon exercise of any options, warrants and other rights of
any kind that are then exercisable, and (ii) all shares of Common Stock that may
be issued upon conversion of (A) any convertible securities, including, without
limitation, preferred stock and debt securities then outstanding, which are by
their terms then convertible into or exchangeable
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for Common Stock or (B) any such convertible securities issuable upon exercise
of options, warrants or other rights that are then exercisable.
(g) "Transfer" means and includes any sale, assignment,
encumbrance, hypothecation, pledge, conveyance in trust, gift, transfer by
bequest, devise or descent, or other transfer or disposition of any kind,
including but not limited to transfers to receivers, levying creditors, trustees
or receivers in bankruptcy proceedings or general assignees for the benefit of
creditors, whether voluntary or by operation of law, directly or indirectly,
except:
(i) any bona fide pledge if the pledgee executes a
counterpart copy of this Agreement and becomes bound thereby in the same manner
as a Founder;
(ii) any transfers of Stock by a Founder to a
Founder's spouse, lineal descendant or antecedent, father, mother, brother or
sister of a Founder, the adopted child or adopted grandchild of a Founder, or
the spouse of any child, adopted child, grandchild or adopted grandchild of a
Founder, or to a trust or trusts for the exclusive benefit of a Founder or a
Founder's family members as described in this Section, or transfers of Stock by
the Founder by devise or descent, in all cases if the transferee or other
recipient executes a counterpart copy of this Agreement and becomes bound
thereby in the same manner as the Founders;
(iii) any transfer of Stock by the Founders made: (A)
pursuant to a merger or consolidation of the Company with or into another
corporation or corporations; (B) pursuant to the winding up and dissolution of
the Company; (C) at, and pursuant to, the IPO; or (D) to a Purchaser pursuant to
this Agreement; or
(iv) any bona fide gift to not-for-profit
organizations.
2. Notice of Proposed Transfer. Before any of the Founders may
effect any Transfer of any Stock, a Founder must give at the same time to the
Company and the Purchasers a written notice signed by the Founder ("Founder's
Notice") stating (a) the Founder's bona fide intention to transfer such Offered
Stock; (b) the number of shares of the Offered Stock; (c) the name, address and
relationship, if any, to the Founder of each proposed purchaser or other
transferee; and (d) the bona fide cash price or, in reasonable detail, other
consideration, per share for which the Founder proposes to transfer such Offered
Stock (the "Offered Price"). Upon the request of the Company or a Purchaser, the
Founder will promptly furnish such information to the Company and to the
Purchasers as may be reasonably requested to establish that the offer and
proposed transferee are bona fide.
3. Right of First Refusal.
(a) The Company and Purchasers' Right. With respect to any
Transfer by any Founder, the Company and the Purchasers shall have the Right of
First Refusal to purchase all or any part of the Offered Stock, exercisable as
set forth in Subsections (b) and (c) hereof, except that each Founder shall be
permitted to Transfer, and the Company's and the Purchasers' Right of First
Refusal shall not apply to the Transfer of, in the aggregate, up to five percent
(5%) of the Founder's Stock.
(b) Exercise of the Company's Right of First Refusal. The
Company's Right of First Refusal may be exercised as follows:
(i) The Company shall have the opportunity to
purchase all or any part of the Offered Stock.
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(ii) If the Company desires to purchase all or any
part of the Offered Stock, the Company must, within the twenty (20) day period
(the "Company Refusal Period") commencing on the date of the Founder's Notice,
give written notice to the Founder of the Company's election to purchase the
Offered Stock. In the event that the Company elects not to purchase all of the
Offered Stock, the remaining shares of Offered Stock may be purchased by the
Purchasers as set forth in Section 3(c) below.
(iii) Within fifteen (15) days after expiration of the
Company Refusal Period, the Company will give written notice (the "Company's
Expiration Notice") to the Founder and to the Purchasers specifying either (A)
that all or a portion of the Offered Stock was subscribed by the Company
exercising its Right of First Refusal or (B) that the Company does not have the
right to purchase any of the Offered Stock because the Company did not timely
exercise its Right of First Refusal to purchase the Offered Stock.
(c) Exercise of Purchasers' Right of First Refusal. The
Purchasers' Right of First Refusal may be exercised as follows:
(i) In the event the Company does not purchase all
of the Offered Stock, each Purchaser shall have the opportunity to purchase its
pro rata share of the remaining Offered Stock. A Purchaser's pro-rata share
shall be determined by dividing the number of shares of Stock held by a
Purchaser by the total number of shares of Stock held by all Purchasers.
(ii) If any Purchaser or its assignees desires to
purchase the remaining Offered Stock, such Purchaser must, within a ten (10) day
period (the "Purchaser Refusal Period") commencing on the date of the Company's
Expiration Notice, give written notice to the Founder and to the Company of such
Purchaser's election to purchase the Offered Stock. If any Purchaser does not
make such election to purchase the Offered Stock, such declining Purchaser shall
give written notice ("Declining Notice") to the remaining Purchasers and the
Company and such remaining Purchasers shall have the right to purchase any such
shares of Offered Stock, which purchase shall be pro rata if more than one
remaining Purchaser elects to make such purchase. An election to purchase the
shares of Offered Stock not purchased by the declining Purchaser or Purchasers
shall be made by written notice to the other Purchasers and the Company within
five (5) days after receipt of the Declining Notice ("Additional Exercise
Period").
(iii) Within five (5) days after expiration of the
Additional Exercise Period, the Company will give written notice (the
"Purchasers' Expiration Notice") to the Founder and to the Purchasers specifying
either (A) that Offered Stock was subscribed by the Purchasers exercising their
Rights of First Refusal or (B) that the Purchasers do not have the right to
purchase any of the Offered Stock because the Purchasers did not timely exercise
their Right of First Refusal to purchase Offered Stock, in which case the
Purchasers' Expiration Notice will specify each Purchaser's share of the Offered
Stock with respect to the Right of Co-Sale.
(d) Purchase Price. The purchase price for the Offered Stock
to be purchased by the Company or the Purchasers exercising their Right of First
Refusal under this Agreement will be the Offered Price, but will be payable as
set forth in Section 3(e) hereof. If the Offered Price includes consideration
other than cash, the cash equivalent value of the non-cash consideration will be
determined by the Board of Directors of the Company in good faith, which
determination will be binding upon the Company, the Purchasers and the Founder
absent fraud or error.
(e) Payment. Payment of the purchase price for the Offered
Stock purchased by the Company or by a Purchaser exercising its Right of First
Refusal will be made within seven (7) days after
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the date of the Purchaser's Expiration Notice. Payment of the purchase price
will be made by the exercising Company or Purchaser (i) in cash, (ii) by
cancellation of all or a portion of any outstanding indebtedness of the Founder
to the Company or the Purchaser, as applicable or (iii) by any combination of
the foregoing.
(f) Rights as a Shareholder. If the Purchasers exercise
their Rights of First Refusal to purchase the Offered Stock, then, upon the date
of the Purchaser's Expiration Notice, the Founder will have no further rights as
a holder of the Offered Stock except the right to receive payment for the
Offered Stock from the Company or the Purchasers in accordance with the terms of
this Agreement, and the Founder will forthwith cause all certificate(s)
evidencing such Offered Stock to be surrendered to the Company for transfer to
the Company or to the Purchasers.
(g) Founder's Right to Transfer. If the Company or the
Purchasers have not elected to purchase all of the Offered Stock, then, subject
to the Right of Co-Sale set forth in Section 4 below, the Founder may transfer
that portion of the Offered Stock permitted to be sold by the Founder, to any
person named as a purchaser or other transferee in the Founder's Notice, at the
Offered Price or at a higher price, provided that such transfer (i) is
consummated within ninety (90) days after the date of the Founder's Notice and
(ii) is in accordance with all the terms of this Agreement. If the Offered Stock
is not so transferred during such 90 day period, then the Founder may not
transfer any of such Offered Stock without complying again in full with the
provisions of this Agreement.
4. Right of Co-Sale.
(a) Right of Co-Sale. If the Company and the Purchasers have
waived or failed to timely exercise their Rights of First Refusal as to all of
the Offered Stock, a Purchaser may transfer to the transferee proposed in the
Founder's Notice the Purchaser's Share of the Offered Stock, as such share is
specified in the Purchaser's Expiration Notice, by giving written notice to the
Founder, within ten (10) days after the date of the Purchaser's Expiration
Notice, specifying the number of shares and type of Stock that the Purchaser
desires to transfer to the transferee.
(b) Consummation of Co-Sale. A Purchaser may exercise the
Right of Co-Sale by delivering to the Founder at the closing of the transfer of
Offered Stock to such transferee (the "Closing") one or more certificates,
properly endorsed for Transfer, representing such stock to be transferred by the
Purchaser. At the Closing, such certificates or other instruments will be
transferred and delivered to the transferee set forth in the Founder's Notice in
consummation of the transfer of the Offered Stock pursuant to the terms and
conditions specified in such notice, and the Founder will remit, or will cause
to be remitted, to the Purchaser within seven (7) days after such Closing that
portion of the proceeds of the Transfer to which the Purchaser is entitled by
reason of the Purchaser's participation in such transfer pursuant to the Right
of Co-Sale.
5. Multiple Series, Class or Type of Stock. If the Offered Stock
consists of more than one series or class or type of Stock, the Purchaser has
the right to purchase or transfer hereunder, as the case may be, each such
series, class or type; provided, however, that if, as to the Right of Co-Sale,
the Purchaser does not hold any of such series, class, or type, and the proposed
transferee is not willing, at the Closing, to purchase some other series, class
or type of Stock from the Purchaser, or is unwilling to purchase any Stock from
the Purchaser, then the Purchaser will have the put right (the "Put Right") set
forth in Section 6(b) hereof.
6. Refusal to Transfer; Put Right.
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(a) Refusal to Transfer. Any attempt by a Founder to
transfer any Stock in violation of any provision of this Agreement will be void.
The Company will not be required (i) to transfer on its books any Stock that has
been sold, gifted or otherwise transferred in violation of this Agreement, or
(ii) to treat as owner of such Stock, or to accord the right to vote or pay
dividends to any purchaser, donee or other transferee to whom such Stock may
have been so transferred.
(b) Put Right. If a Founder transfers any Stock in
contravention of the Purchaser's Right of Co-Sale under this Agreement (a
"Prohibited Transfer"), or if the proposed transferee of Offered Stock desires
to purchase only the class, series or type of stock offered by a Founder or is
unwilling to purchase any Stock from the Purchaser and the provisions of Section
5 hereof apply, the Purchaser may, by delivery of written notice to the Founder
(a "Put Notice") within ten (10) days after (i) the Closing as defined in
Subsection 4(b) above, or (ii) the date on which the Purchaser becomes aware of
the Prohibited Transfer or the terms thereof, require the Founder to purchase
from the Purchaser for cash or such other consideration as the Founder received
in the Prohibited Transfer or at the Closing that number of shares of Stock (of
the same class, series or type as transferred in the Prohibited Transfer or at
the Closing if the Purchaser then owns Stock of such class, series or type;
otherwise of Common Stock) having a purchase price equal to the aggregate
purchase price the Purchaser would have received in the closing of such
Prohibited Transfer if the Purchaser had elected to exercise its right of
Co-Sale with respect thereto or in the Closing if the proposed transferee had
been willing to purchase the Stock of the Purchaser. The closing of such sale to
the Founder will occur within seven (7) days after the date of the Purchaser's
Put Notice to the Founder.
7. Restrictive Legend and Stop-Transfer Orders.
(a) Right of First Refusal and Co-Sale Legend. The Founders
understand and agree that the Company will cause the legend set forth below, or
a legend substantially equivalent thereto, to be placed upon any certificate(s)
or other documents or instruments evidencing ownership of Stock by the Founders:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RIGHTS
OF FIRST REFUSAL AND RIGHTS OF CO-SALE AS SET FORTH IN A RIGHT OF FIRST
REFUSAL AND CO-SALE AGREEMENT DATED DECEMBER _____, 1996, ENTERED INTO
BY THE HOLDER OF THESE SHARES, THE COMPANY AND CERTAIN SHAREHOLDERS OF
THE COMPANY. A COPY OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE
OF THE COMPANY. SUCH RIGHTS OF FIRST REFUSAL AND RIGHTS OF CO-SALE ARE
BINDING ON CERTAIN TRANSFEREES OF THESE SHARES.
(b) Stop Transfer Instructions. The Founders agree, to
ensure compliance with the restrictions referred to herein, that the Company may
issue appropriate "stop transfer" certificates or instructions and that, if the
Company transfers its own securities, it may make appropriate notations to the
same effect in its records.
8. Termination and Waiver.
(a) Termination. The Company's and the Purchasers' Right of
First Refusal and the Purchasers' Right of Co-Sale will terminate upon the
earliest to occur of (i) the IPO, (ii) the dissolution of the Company, or (iii)
the effective date of a consolidation or merger with or into another corporation
as a result of which the shareholders of the Company prior to such transaction
own less than 50% of the outstanding stock of the surviving corporation.
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(b) Waiver. The application of the Company's Right of First
Refusal and the Purchaser's Right of First Refusal and/or Right of Co-Sale as to
any proposed Transfer by any Founder of any Stock may be waived in advance of or
after such transfer by the written agreement of the Company and Purchasers
holding at least two-thirds (2/3) of the Stock then held by all Purchasers. The
Company or the Purchasers will have the absolute right to exercise or refrain
from exercising any right or rights that such party may have by reason of this
Agreement, including, without limitation, the right to purchase or participate
in the sale of Offered Stock, and the Company or the Purchasers will not incur
any liability to any other party hereto with respect to exercising or refraining
from exercising any such right or rights. Any waiver by a party of its rights
hereunder will be effective only if evidenced by a written instrument executed
by such party or its authorized representative.
9. Miscellaneous Provisions.
(a) Notices, Etc. All notices and other communications
required or permitted hereunder shall be in writing and shall be delivered
personally, mailed by first class mail, postage prepaid, certified or registered
mail, return receipt requested, facsimile or delivered by courier or overnight
delivery, addressed (a) if to the Company, at 000 Xxxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxxxx 00000, (b) if to a Purchaser, at the Purchaser's address set forth on
Exhibit A to the Purchase Agreement, or at such other address as the Purchaser
shall have furnished to the Company in writing, or (c) if to the Founder, at the
address set forth on Exhibit B attached hereto. Notices that are delivered
personally, by courier or overnight delivery shall be deemed received upon
personal delivery, or if delivered by facsimile, upon confirmation of facsimile
receipt, or if by mail, three (3) days after deposit in the United States Mail.
(b) Binding on Successors and Assigns; Inclusion Within
Certain Definitions. This Agreement, and the rights and obligations of the
parties hereunder, will inure to the benefit of, and be binding upon, their
respective successors, assigns, heirs, executors, administrators and legal
representatives. Any permitted transferee of the Founders who is required to
become a party hereto will be considered "the Founders" for purposes of this
Agreement and any permitted transferee of Stock held by a Purchaser will be
considered a "Purchaser" for purposes of this Agreement.
(c) Severability. If any provision of this Agreement is held
to be invalid, illegal or unenforceable in any respect, such provision will be
enforced to the maximum extent possible and such invalidity, illegality or
unenforceability will not affect any other provision of this Agreement, and this
Agreement will be construed as if such invalid, illegal or unenforceable
provision had (to the extent not enforceable) never been contained herein.
(d) Amendment. This Agreement may be amended only by a
written instrument executed by the Company, the Purchasers holding at least
two-thirds (2/3) of the Stock then held by all Purchasers and the Founders, but
as to the Founders, this agreement is necessary only if their rights under this
Agreement are adversely affected. Notwithstanding anything herein to the
contrary, this Agreement may be amended without the consent of any Purchaser to
add as a Purchaser any persons who purchase shares on or before February 14,
1997.
(e) Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the State of California as such laws
are applied to agreements between California residents entered into and to be
performed entirely within California.
(f) Obligation of Company; Binding Nature of Exercise. The
Company agrees to use its best efforts to enforce the terms of this Agreement,
to inform the Founders and the Purchasers of any breach hereof (to the extent
the Company has knowledge thereof) and to use reasonable efforts to assist the
Founders and the Purchasers in the exercise of their rights and the performance
of their
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obligations hereunder. Any exercise of the Right of First Refusal or Right of
Co-Sale will be binding upon the party so exercising, and may not be withdrawn
without the written consent of the Founders, except that such exercise may be
withdrawn unilaterally by the exercising party if there is any legal prohibition
as to a party's consummation of its purchase or sale hereunder.
(g) Counterparts. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered will be
deemed an original, and all such counterparts together will constitute one and
the same instrument.
(h) Attorneys' Fees. If any action at law or in equity
(including arbitration) is necessary to enforce or interpret the terms of this
Agreement, the prevailing party shall be entitled to reasonable attorneys' fees,
costs and necessary disbursements in addition to any other relief to which such
party may be entitled as determined by such court, equity or arbitration
proceeding.
(i) Entire Agreement. This Agreement constitutes the entire
agreement of the parties with respect to the specific subject mater hereof and
supersedes in their entirety all other agreements or understandings between or
among the parties hereto with respect to such specific subject matter.
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IN WITNESS WHEREOF, the parties hereto have executed this Right of First
Refusal and Co-Sale Agreement as of the date first written above.
NETRIGHT TECHNOLOGIES, INC.
By: /s/ XXXXXXX XXXXXXXX
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Xxxxxxx Xxxxxxxx, President
THE FOUNDERS
/s/ XXXXXXX XXXXXXXX
----------------------------------------
Xxxxxxx Xxxxxxxx,
in his individual capacity
/s/ XXXXX XXXXXXXXX
----------------------------------------
Xxxxx Xxxxxxxxx,
in his individual capacity
PURCHASERS:
----------------------------------------
Print Name
----------------------------------------
Title
----------------------------------------
Signature
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EXHIBIT A
SCHEDULE OF PURCHASERS
FIRST CLOSING
DECEMBER 27, 1996
Number of Shares of Series
Name A Preferred
---- --------------------------
Anthelion Capital, LLC 211,268
Xxxx Xxxxx 140,845
Mo Xxxxxx 135,994
Xxxxx Xxxxxxxxx 257,434
Rajdak Investments, LLC 140,845
Total 886,386
SECOND CLOSING
MARCH 14, 1997
Number of Shares of Series
Name A Preferred
---- --------------------------
GCWF Investment Partners 35,211
Xxxx Xxx Xxx and Xxxxxx Thu Thi Le 24,507
Xxxxx Xxxxxxxx 35,211
Xxx X. Xxxxxx and Xxx X. Xxx 24,507
Xxxxx Xxxxxxxx and Xxxxx Xxxxxxxx 29,295
Xxxxxxx Xxxxxx 35,211
Unterberg Harris Private Equity Partners, L.P. 352,112
Unterberg Harris Private Equity Partners, L.P. 352,113
Xxxxxx Xxxxxxx 53,520
Xxxxx Xxxxx 39,718
Total 981,405
Grand Total 1,867,791
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EXHIBIT B
Founders
Name Shares of Common Stock
---- ----------------------
Xxxxxxx Xxxxxxxx 3,000,000
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Xxxxx Xxxxxxxxx 3,000,000
000 X. Xxxxxxxx #0000
Xxxxxxx, XX 00000
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AMENDMENT NUMBER ONE TO
RIGHT OF FIRST REFUSAL AND
CO-SALE AGREEMENT
This Amendment Number One to Right of First Refusal and Co-Sale
Agreement (this "Amendment") is made as of August 28, 1997, by and among
NetRight Technologies, Inc. (the "Company"), Xxxxxxx Xxxxxxxx and Xxxxx
Xxxxxxxxx (collectively the "Founders") and the undersigned stockholders of the
Company (collectively, the "Purchasers").
RECITALS
A. Investors who purchased shares of Series A Preferred Stock of
the Company pursuant to the Company's Series A Preferred Stock Purchase
Agreement dated as of December 27, 1996 (the "Purchase Agreement") entered into
a Right of First Refusal and Co-Sale Agreement dated as of December 27, 1996
(the "Co-Sale Agreement").
B. Contemporaneously herewith, the Purchase Agreement is being
amended pursuant to Amendment Number One thereto (the "Purchase Agreement
Amendment") dated as of this date, to permit the Company to sell through August
15, 1997 (the "Extended Date") an additional 985,917 shares of Series A
Preferred Stock (the "Additional Series A Shares").
C. The Purchasers desire that each Investor (as defined in the
Purchase Agreement Amendment) purchasing Additional Series A Shares pursuant to
the Purchase Agreement Amendment have all rights of a "Purchaser" with respect
to the Additional Series A Shares purchased by such Investor under the Co-Sale
Agreement, as amended hereby, on the terms set forth in this Amendment.
AGREEMENT
The parties hereto, intending to be legally bound, hereby agree as
follows:
1. Definitions. Unless otherwise defined or specified in this
Amendment, all capitalized terms used herein will have the meanings set forth in
the Co-Sale Agreement.
2. Rights and Obligations of Purchasers. For all purposes of the
Co-Sale Agreement, effective upon the satisfaction of Section 3 below and the
execution and delivery of this Amendment by the Company, the Founders and a
Purchaser on or prior to the Extended Date, each Investor will be a "Purchaser."
3. Effectiveness of Amendment. This Amendment will not be effective
unless this Amendment (or a separate consent with the same purpose) has been
executed and delivered by the Company, the Founders and Purchasers (as defined
in the Co-Sale Agreement) holding at least two-thirds (2/3) of the Stock held by
all Purchasers and the Founders as of the date of this Amendment.
4. Continued Effect. Except as otherwise expressly provided herein,
the Co-Sale Agreement will continue in full force and effect, in accordance with
its terms.
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5. Miscellaneous. This Amendment will be governed in all respects
by the laws of the State of California as such laws are applied to agreements
between California residents entered into and to be performed entirely within
California. This Amendment constitutes the full and entire understanding and
agreement among the parties with regard to the subjects hereof and supersedes
all prior written and oral agreements, representations and commitments, if any,
among the parties with respect to such subjects. This Amendment may be executed
in any number of counterparts, each of which will be an original, but all of
which together will constitute one instrument. Any provision of this Amendment
may be waived or modified only in accordance with the provisions set forth in
Section 9(d) of the Co-Sale Agreement.
The parties have executed this Amendment as of the date first above
written.
NETRIGHT TECHNOLOGIES, INC. FOUNDERS:
By: /s/ XXXXXXX XXXXXXXX /s/ XXXXXXX XXXXXXXX
------------------------------ ----------------------------------------
Xxxxxxx Xxxxxxxx, President Xxxxxxx Xxxxxxxx
/s/ XXXXX XXXXXXXXX
----------------------------------------
Xxxxx Xxxxxxxxx
PURCHASER:
Name:
-----------------------------------
(Please print or type)
Signature:
------------------------------
Address:
--------------------------------
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AMENDMENT NUMBER TWO TO
RIGHT OF FIRST REFUSAL AND
CO-SALE AGREEMENT
This Amendment Number Two to Right of First Refusal and Co-Sale
Agreement (this "Amendment") is made as of December 15, 1997, by and among
NetRight Technologies, Inc. (the "Company"), Xxxxxxx Xxxxxxxx and Xxxxx
Xxxxxxxxx (collectively the "Founders") and each of the persons named in
Schedule A attached hereto (collectively, the "Purchasers" and individually, a
"Purchaser").
RECITALS
A. Investors who purchased shares of Series A Preferred Stock of
the Company pursuant to the Company's Series A Preferred Stock Purchase
Agreement dated as of December 27, 1996 (the "Series A Purchase Agreement")
entered into a Right of First Refusal and Co-Sale Agreement dated as of December
27, 1996 (the "Co-Sale Agreement").
B. The Series A Purchase Agreement and Co-Sale Agreement were
subsequently amended to extend the closing date of sales of Series A Preferred
Stock under to the Series A Purchase Agreement to February 28, 1997 and March
14, 1997 pursuant to letter agreements dated February 13, 1997 and March 4,
1997, respectively.
C. Certain other investors who purchased shares of Series A
Preferred Stock of the Company pursuant to Amendment Number One to the Series A
Purchase Agreement dated as of August 28, 1997 entered into Amendment Number One
of the Co-Sale Agreement to receive rights of "Purchasers" under the Co-Sale
Agreement (the Co-Sale Agreement, as previously amended hereafter referred to as
the "Amended Co-Sale Agreement").
D. The Company and certain of the Purchasers are entering into a
Series B Preferred Stock Purchase Agreement dated as of the date of this
Amendment (the "Series B Purchase Agreement"), pursuant to which, subject to the
satisfaction of certain conditions, such Purchasers are agreeing to purchase
from the Company a total of up to 3,200,000 shares of Series B Preferred Stock
of the Company (the "Series B Preferred Stock") on the terms set forth in the
Series B Purchase Agreement in an initial closing on the date hereof (the
"Initial Closing Date") and in one or more additional closing through March 15,
1998 (the "Final Closing Date").
E. The parties to the Amended Co-Sale Agreement desire that each
Purchaser purchasing shares of Series B Preferred Stock pursuant to the Series B
Purchase Agreement have all rights of a "Purchaser" under the Amended Co-Sale
Agreement, as amended hereby, on the terms set forth in this Amendment.
AGREEMENT
The parties hereto, intending to be legally bound, hereby agree as
follows:
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1. Definitions. Unless otherwise defined or specified in this
Amendment, all capitalized terms used herein will have the meanings set forth in
the Amended Co-Sale Agreement.
2. Rights and Obligations of Purchasers. For all purposes of the
Amended Co-Sale Agreement, effective upon the (i) purchase by any Purchaser of
shares of the Company's Series B Preferred Stock at the closing of the sale and
purchase of shares under the Series B Purchase Agreement; (ii) the execution and
delivery by such Purchaser of a signature page to this Amendment; (iii) the
execution and delivery by the Company of a signature page to this Amendment; and
(iv) the satisfaction of the conditions of Section 3 of this Amendment, such
Purchaser of shares of Series B Preferred Stock will be a "Purchaser" for all
purposes of the Amended Co-Sale Agreement, as amended hereby.
3. Effectiveness of Amendment. This Amendment will not be effective
unless this Amendment (or a separate consent with the same purpose) has been
executed and delivered by the Company, the Founders and Purchasers (as defined
in the Amended Co-Sale Agreement) holding at least two-thirds (2/3) of the Stock
held by all Purchasers and the Founders as of the date of this Amendment.
Notwithstanding anything herein to the contrary, Purchasers purchasing Series B
Preferred Stock through the Final Closing Date may be added as a "Purchaser" for
the purposes of the Amended Co-Sale Agreement without the consent of any
Founder. Purchasers (as defined in the Amended Co-Sale Agreement) or prior
Purchasers of Series B Preferred Stock.
4. Continued Effect. Except as otherwise expressly provided herein,
the Amended Co-Sale Agreement will continue in full force and effect, in
accordance with its terms.
5. Miscellaneous. This Amendment will be governed in all respects
by the laws of the State of California as such laws are applied to agreements
between California residents entered into and to be performed entirely within
California. This Amendment constitutes the full and entire understanding and
agreement among the parties with regard to the subjects hereof and supersedes
all prior written and oral agreements, representations and commitments, if any,
among the parties with respect to such subjects. This Amendment may be executed
in any number of counterparts, each of which will be an original, but all of
which together will constitute one instrument. Any provision of this Amendment
may be waived or modified only in accordance with the provisions set forth in
Section 9(d) of the Co-Sale Agreement.
2
15
The parties have executed this Amendment as of the date first above
written.
NETRIGHT TECHNOLOGIES, INC. PURCHASER:
By: /s/ XXXXXXX XXXXXXXX
------------------------------ Name:
Xxxxxxx Xxxxxxxx, President -----------------------------------
(Please print or type)
By:
-------------------------------------
(Please print or type)
Signature:
------------------------------
(Please print or type)
Address:
--------------------------------
(Please print or type)
FOUNDERS:
/s/ XXXXXXX XXXXXXXX /s/ XXXXX XXXXXXXXX
--------------------------------- ----------------------------------------
Xxxxxxx Xxxxxxxx Xxxxx Xxxxxxxxx
3
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Schedule A
Purchaser Series A Shares Series B Shares
--------- --------------- ---------------
Anthelion Capital LLC 352,113
GCWF Investment Partners 35,211
Xxxx Xxx Xxx/Xxxxxx Thu Thi Le 38,592
Xxxxx Xxxxxxxx 49,296
Xxx X. Xxxxxx/Xxx X. Xxx 38,592
Xxxxx Xxxxxxxx/Xxxxx Xxxxxxxx 29,295
Rajdak Investments LLC 281,690
Xxxxxxx Xxxxxx 35,211
Xxxxx Xxxxxxxxx 257,434
Xxxx Xxxxx 140,845
Unterberg Harris Private 754,366
Equity Partners X.X.
Xxxxxxxxx Xxxxxx, X.X. 323,940
Unterberg Harris 40lK Profit 14,086
Sharing Plan FBO Xxxx Xxxxxxxxx
Xxxxxxxxx Xxxxxx 401KProfit 14,086
Sharing Plan FBO Xxxx Xxxx Xxxxx
Unterberg Harris Private
Equity Partners, C.V. 161,127
Xxxxxx Xxxxxxx 81,689
Xxxx Xxxxxx and Xxxxxxxx Xxxxxx 206,417
TTEES of the Xxxxxx Family `93
Revocable Trust
Xxxxx Xxxxx 39,718
Xxxxx Xxxxx Digital GmbH & Co. 1,273,885
Xxxxxx X. Xxxxx Xx. and Xxxxx
X. Xxxxxxx, Trustee U/D/T
5/19/93 FBO Xxxxxxx Xxxx Xxxxx 15,923
Xxxxxx X. Xxxxx Xx. and Xxxxx 15,923
X. Xxxxxxx, Trustee U/D/T
5/19/93 FBO Xxxxxx Xxxxxxxxx
Xxxxxxx
Xxxxxx X. Xxxxx Xx. and Xxxxx 15,923
X. Xxxxxxx, Trustee FBO Hannah
Xxxxxx Xxxxx Trust
4
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Purchaser Series A Shares Series B Shares
--------- --------------- ---------------
Xxxxxx X. Xxxxx Xx. and Xxxxx 15,923
X. Xxxxxxx, Trustee FBO
Xxxxxxxx Xxxx Xxxxxxx
Xxxxxx Xxxxxx, Jr. 127,388
A. Xxxxxx Xxxxxx, Trustee FBO 31,847
Xxxx Xxxx dated 5/8/96
A. Xxxxxx Xxxxxx, Trustee FBO 31,847
Xxxxx Xxxxxx dated 5/8/96
X.X. Xxxxxxxxx, Towbin LLC 127,388
A. Xxxxxx Xxxxxx 63,694
Unterberg Harris Private Equity 262,420
Partners X.X.
Xxxxxxxxx Xxxxxx Private Equity 56,050
Partners, CV
Xxxxxx X. Xxxxxxxxx 127,388
NEA Ventures 1998, Limited 1,592
Partners
New Enterprise Associates VII, 1,016,886
Limited Partnership
NEA Presidents Fund, L.P. 15,923
5
18
AMENDMENT NUMBER THREE TO
RIGHT OF FIRST REFUSAL AND
CO-SALE AGREEMENT
This Amendment Number Three to Right of First Refusal and Co-Sale
Agreement (this "Amendment") is made as of September 28, 1998, by and among
NetRight Technologies, Inc. (the "Company"), Xxxxxxx Xxxxxxxx and Xxxxx
Xxxxxxxxx (collectively the "Founders") and each of the persons named in
Schedule A attached hereto (collectively, the "Purchasers" and individually, a
"Purchaser").
RECITALS
A. Investors who purchased shares of Series A Preferred Stock of
the Company pursuant to the Company's Series A Preferred Stock Purchase
Agreement dated as of December 27, 1996 (the "Series A Purchase Agreement")
entered into a Right of First Refusal and Co-Sale Agreement dated as of December
27, 1996 (the "Co-Sale Agreement").
B. The Series A Purchase Agreement and Co-Sale Agreement were
subsequently amended to extend the closing date of sales of Series A Preferred
Stock under to the Series A Purchase Agreement to February 28, 1997 and March
14, 1997 pursuant to letter agreements dated February 13, 1997 and March 4,
1997, respectively.
C. Certain other investors who purchased shares of Series A
Preferred Stock of the Company pursuant to Amendment Number One to the Series A
Purchase Agreement dated as of August 28, 1997 entered into Amendment Number One
of the Co-Sale Agreement to receive rights of "Purchasers" under the Co-Sale
Agreement.
D. Investors who purchased shares at Series B Preferred Stock of
the Company pursuant to the Company's Series B Preferred Stock Purchase
Agreement dated as of December 15, 1997 (the "Series B Purchase Agreement")
entered into Amendment Number Two of the Co-Sale Agreement to receive rights of
"Purchasers" under the Co-Sale Agreement (the Co-Sale Agreement, as previously
amended hereafter referred to as the "Amended Co-Sale Agreement").
E. The Company and certain of the Purchasers are entering into a
Series C Preferred Stock Purchase Agreement dated as of the date of this
Amendment (the "Series C Purchase Agreement"), pursuant to which, subject to the
satisfaction of certain conditions, such Purchasers are agreeing to purchase
from the Company a total of up to 2,100,000 shares of Series C Preferred Stock
of the Company (the "Series C Preferred Stock") on the terms set forth in the
Series C Purchase Agreement in an initial closings on the date hereof (the
"Initial Closing Date") and in one or more additional closing through the
Additional Closing Deadline (as defined in the Series C Purchase Agreement).
F. The parties to the Amended Co-Sale Agreement desire that each
Purchaser purchasing shares of Series C Preferred Stock pursuant to the Series C
Purchase Agreement have all rights of a "Purchaser" under the Amended Co-Sale
Agreement, as amended hereby, on the terms set forth in this Amendment.
1
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AGREEMENT
The parties hereto, intending to be legally bound, hereby agree as
follows:
1. Definitions. Unless otherwise defined or specified in this
Amendment, all capitalized terms used herein will have the meanings set forth in
the Amended Co-Sale Agreement.
2. Rights and Obligations of Purchasers. For all purposes of the
Amended Co-Sale Agreement, effective upon the (i) purchase by any Purchaser of
shares of the Company's Series C Preferred Stock at a closing under the Series C
Purchase Agreement; (ii) the execution and delivery by such Purchaser of a
signature page to this Amendment; (iii) the execution and delivery by the
Company of a signature page to this Amendment; and (iv) the satisfaction of the
conditions of Section 3 of this Amendment, such Purchaser of shares of Series C
Preferred Stock will be a "Purchaser" for all purposes of the Amended Co-Sale
Agreement, as amended hereby.
3. Effectiveness of Amendment. This Amendment will not be effective
unless this Amendment (or a separate consent with the same purpose) has been
executed and delivered by the Company, the Founders and Purchasers (as defined
in the Amended Co-Sale Agreement) holding at least two-thirds (2/3) of the Stock
held by all Purchasers and the Founders as of the date of this Amendment.
Notwithstanding anything herein to the contrary, Purchasers purchasing Series C
Preferred Stock through the Additional Closing Deadline may be added as a
"Purchaser" for the purposes of the Amended Co-Sale Agreement without the
consent of any Founder, Purchasers (as defined in the Amended Co-Sale Agreement)
or prior Purchasers of Series C Preferred Stock.
4. Continued Effect. Except as otherwise expressly provided herein,
the Amended Co-Sale Agreement will continue in full force and effect, in
accordance with its terms.
5. Miscellaneous. This Amendment will be governed in all respects
by the laws of the State of California as such laws are applied to agreements
between California residents entered into and to be performed entirely within
California. This Amendment constitutes the full and entire understanding and
agreement among the parties with regard to the subjects hereof and supersedes
all prior written and oral agreements, representations and commitments, if any,
among the parties with respect to such subjects. This Amendment may be executed
in any number of counterparts, each of which will be an original, but all of
which together will constitute one instrument. Any provision of this Amendment
may be waived or modified only in accordance with the provisions set forth in
Section 9(d) of the Co-Sale Agreement.
2
20
The parties have executed this Amendment as of the date first above
written.
NETRIGHT TECHNOLOGIES, INC. PURCHASER:
By: /s/ XXXXXXX XXXXXXXX Name:
-------------------------------- -----------------------------------
Xxxxxxx Xxxxxxxx, President (Please print or type)
By:
-------------------------------------
(Please print or type)
Title:
----------------------------------
(Please print or type)
Signature:
------------------------------
FOUNDERS:
/s/ XXXXXXX XXXXXXXX /s/ XXXXX XXXXXXXXX
----------------------------------- ----------------------------------------
Xxxxxxx Xxxxxxxx Xxxxx Xxxxxxxxx
AMENDMENT NUMBER THREE TO
RIGHT OF FIRST REFUSAL AND
CO-SALE AGREEMENT
3
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Schedule A to Amendment Three to
Right of First Refusal and Co-Sale Agreement
Purchaser Series A Shares Series B Shares Series C Shares
--------- --------------- --------------- ---------------
Anthelion Capital LLC 352,113
GCWF Investment Partners 35,211
Xxxx Xxx Xxx/Xxxxxx Thu Thi Le 38,592
Xxxxx Xxxxxxxx 49,296
Xxx X. Xxxxxx/Xxx X. Xxx 38,592
Xxxxx Xxxxxxxx/Xxxxx Xxxxxxxx 29,295
Rajdak Investments LLC 281,690
Xxxxxxx Xxxxxx 35,211
Xxxxx Xxxxxxxxx 257,434
Xxxx Xxxxx 140,845
Unterberg Harris Private Equity 754,366
Partners X.X.
Xxxxxxxxx Xxxxxx, X.X. 323,940
Unterberg Harris 40lK Profit 14,086
Sharing Plan FBO Xxxx Xxxxxxxxx
Xxxxxxxxx Xxxxxx 401KProfit 14,086
Sharing Plan FBO Xxxx Xxxx Xxxxx
Unterberg Harris Private Equity 161,127
Partners, C.V.
Xxxxxx Xxxxxxx 81,689
Xxxx Xxxxxx and Xxxxxxxx Xxxxxx 206,417
TTEES of the Xxxxxx Family `93
Revocable Trust
4
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Purchaser Series A Shares Series B Shares Series C Shares
--------- --------------- --------------- ---------------
Xxxxx Xxxxx 39,718
Xxxxx Xxxxx Digital GmbH & Co. 1,273,885
Xxxxxx X. Xxxxx Xx. and Xxxxx 15,923
X. Xxxxxxx, Trustee U/D/T
5/19/93 FBO Xxxxxxx Xxxx Xxxxx
Xxxxxx X. Xxxxx Xx. and Xxxxx 15,923
X. Xxxxxxx, Trustee U/D/T
5/19/93 FBO Xxxxxx Xxxxxxxxx
Xxxxxxx
Xxxxxx X. Xxxxx Xx. and Xxxxx 15,923
X. Xxxxxxx, Trustee FBO Hannah
Xxxxxx Xxxxx Trust
Xxxxxx X. Xxxxx Xx. and Xxxxx 15,923
X. Xxxxxxx, Trustee FBO
Xxxxxxxx Xxxx Xxxxxxx
Xxxxxx Xxxxxx, Jr. 127,388
A. Xxxxxx Xxxxxx, Trustee FBO 31,847
Xxxx Xxxx dated 5/8/96
A. Xxxxxx Xxxxxx, Trustee FBO 31,847
Xxxxx Xxxxxx dated 5/8/96
X.X. Xxxxxxxxx, Towbin LLC 127,388
A. Xxxxxx Xxxxxx 63,694
Unterberg Harris Private Equity 262,420
Partners X.X.
Xxxxxxxxx Xxxxxx Private Equity 56,050
Partners, CV
Xxxxxx X. Xxxxxxxxx 127,388
NEA Ventures 1998, Limited 1,592 1,191
Partners
New Enterprise Associates VII, 1,016,886 1,692,503
Limited Partnership
NEA Presidents Fund, L.P. 15,923 11,905
Xxxxx Xxxxxxx 47,619
5
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Purchaser Series A Shares Series B Shares Series C Shares
--------- --------------- --------------- ---------------
Xxxxxx Xxxxx 50,000
Xxxxx Xxxxxx 50,000
GCWF Investment Partners 23,810
Victoria W-Y Xxx 2,381
Xxxxxx X. Xxxxxxx 8,571
Cornerstone Properties I, LLC 91,429
6
