EXHIBIT 4.4
THIRD
AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
CLEARCOMMERCE CORPORATION
DECEMBER 31, 1999
TABLE OF CONTENTS
Page
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1. Termination of Second Amended and Restated Agreement.................................... 2
2. Registration Rights..................................................................... 2
2.1 Definitions.................................................................... 2
2.2 Request for Registration....................................................... 3
2.3 Company Registration........................................................... 4
2.4 Obligations of the Company..................................................... 5
2.5 Furnish Information............................................................ 6
2.6 Expenses of Demand Registration................................................ 6
2.7 Expenses of Company Registration............................................... 6
2.8 Underwriting Requirements...................................................... 7
2.9 Delay of Registration.......................................................... 7
2.10 Indemnification................................................................ 7
2.11 Reports Under Securities Exchange Act of 1934.................................. 9
2.12 Form S-3 Registration.......................................................... 10
2.13 Assignment of Registration Rights.............................................. 11
2.14 "Market Stand-Off" Agreement Rights............................................ 12
2.15 Limitations on Subsequent Registration Rights.................................. 12
2.16 Termination of Registration Rights............................................. 13
3. Covenants of the Company................................................................ 13
3.1 Delivery of Financial Statements............................................... 13
3.2 Inspection..................................................................... 14
3.3 Termination of Information and Inspection Covenants; Post-IPO Information
Rights......................................................................... 14
3.4 Right of First Offer........................................................... 14
3.5 Assignments of Rights of First Refusal......................................... 16
3.6 Board of Directors............................................................. 16
3.7 Confidentiality and Non-Disclosure............................................. 19
3.8 Notice Rights in Corporate Events.............................................. 21
4. Miscellaneous........................................................................... 23
4.1 Successors and Assigns......................................................... 23
4.2 Governing Law.................................................................. 23
4.3 Counterparts................................................................... 24
4.4 Titles and Subtitles........................................................... 24
4.5 Notices........................................................................ 24
4.6 Expenses....................................................................... 24
4.7 Amendments and Waivers......................................................... 24
4.8 Severability................................................................... 24
4.9 Aggregation of Stock........................................................... 25
4.10 Entire Agreement............................................................... 25
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SCHEDULE A Schedule of Series C Purchasers
SCHEDULE B Schedule of Founders
SCHEDULE C Schedule of Consenting Holders
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THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
THIS THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT is made as of
December 31, 1999, by and among ClearCommerce Corporation, a Delaware
corporation (the "Company"), the Consenting Holders (as defined below) and the
investors listed on Schedule A hereto, each of which is herein referred to as a
"Series C Purchaser" and the founders listed on Schedule B hereto, each of whom
is herein referred to as a "Founder."
RECITALS
A. The Company and the persons listed on the signatures pages thereto are
entering into that certain Series C Preferred Stock Purchase Agreement as of the
date hereof (the "Series C Purchase Agreement"), pursuant to which the Company
proposes to sell up to an aggregate of 4,600,000 shares of its Series C
Preferred Stock (the "Series C Shares") to the Series C Purchasers.
B. The Company and the persons listed on the attached Schedule C hereto
who are the holders of the Company's Series A Preferred Stock (the "Series A
Holders") or holders of the Company's Series B Preferred Stock (the "Series B
Holders" and collectively with the Series A Holders, the "Consenting Holders"),
are each parties to that certain Second Amended and Restated Investors'
Agreement dated as of April 23, 1999 (the "Second Amended and Restated
Agreement").
C. The Company and the Consenting Holders desire that the Company sell
the Series C Shares to the Series C Purchasers pursuant to the Series C Purchase
Agreement, that the Company grant the Series C Purchasers the rights
contemplated herein and that the Second Amended and Restated Agreement be
amended and restated in its entirety as set forth herein.
D. Pursuant to Section 4.7 thereof, the Second Amended and Restated
Agreement may be amended upon the written consent of (i) the Company and (ii)
Consenting Holders holding at least two-thirds of the Registrable Securities (as
defined therein).
E. The Company and the undersigned Consenting Holders, holding not less
than the minimum number of shares required to amend the Second Amended and
Restated Agreement, hereby consent in writing to the amendment and restatement
in their entirety of the Second Amended and Restated Agreement and the adoption
of this Agreement as the sole agreement concerning the rights set forth in the
Second Amended and Restated Agreement.
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, the parties hereby agree as follows:
1. Termination of Second Amended and Restated Agreement.
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The Second Amended and Restated Agreement (as defined above) is hereby
terminated and is of no further force and effect and is amended and restated in
its entirety and superseded by this Third Amended and Restated Agreement.
2. Registration Rights.
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The Company covenants and agrees as follows:
2.1 Definitions.
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For purposes of this Section 2:
(a) The term "Act" shall mean the Securities Act of 1933, as amended.
(b) The term "Form S-3" shall mean such form under the Act as in
effect on the date hereof or any registration form under the Act subsequently
adopted by the SEC that permits inclusion or incorporation of substantial
information by reference to other documents filed by the Company with the SEC.
(c) The term "Holder" shall mean any holder of outstanding
Registrable Securities which have not been sold to the public, but only if such
holder is a Series A Holder, a Series B Holder, a Series C Purchaser or an
assignee or transferee holding Registrable Securities to whom the rights under
this Agreement have been transferred in accordance with Section 2.13 hereof.
"Holder" will also include HP (as defined below) in the event that HP or any
other Holder exercises its rights under Sections 2.3 or 2.12.
(d) The term "1934 Act" shall mean the Securities Exchange Act of
1934, as amended.
(e) The term "Preferred Stock" shall mean the Series A, Series B and
Series C Preferred Stock of the Company.
(f) The terms "register," "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Act, and the declaration or ordering of
effectiveness of such registration statement or document.
(g) The term "Registrable Securities" shall mean (i) the Common Stock
issuable or issued upon conversion of the Preferred Stock, (ii) the shares of
Common Stock issued to the Founders upon conversion of the Preferred Stock, and
(iii) any Common Stock of the Company issued as (or issuable upon the conversion
or exercise of any warrant, right or other security that is issued as) a
dividend or other distribution with respect to, or in exchange for, or in
replacement of the shares referenced in (i) and (ii) above, excluding in all
cases, however, any Registrable Securities sold by a person in a transaction in
which his rights under this Section 2 are not assigned. For the purposes of
Sections 2.3 and 2.12, the term "Registrable Securities"
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shall also include the shares of Common Stock issuable to the Hewlett-Packard
Company ("HP") upon the exercise or conversion of its warrant dated February __,
2000 to purchase 551,370 shares of Common Stock.
(h) The number of shares of "Registrable Securities then outstanding"
shall be determined by the number of shares of Common Stock outstanding that
are, and the number of shares of Common Stock issuable pursuant to then
exercisable or convertible securities that are, Registrable Securities.
(i) The term "SEC" shall mean the Securities and Exchange Commission.
2.2 Request for Registration.
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(a) If the Company shall receive at any time after the earlier of (i)
December 30, 2004, or (ii) 180 days after the effective date of the first
registration statement for a public offering of securities of the Company (other
than a registration statement relating either to the sale of securities to
employees of the Company pursuant to a stock option, stock purchase or similar
plan or a SEC Rule 145 transaction), a written request from the Holders of fifty
percent (50%) of the Registrable Securities then outstanding that the Company
file a registration statement under the Act, covering at least a majority of the
Registrable Securities, then the Company shall:
(i) within ten (10) days of the receipt thereof, give written
notice of such request to all Holders; and
(ii) effect as soon as practicable, and in any event within one
hundred twenty (120) days of the receipt of such request, the registration under
the Act of all Registrable Securities that the Holders request to be registered,
subject to the limitations of subsection 2.2(b).
(b) If the Holders initiating the registration request hereunder
("Initiating Holders") intend to distribute the Registrable Securities covered
by their request by means of an underwriting, they shall so advise the Company
as a part of their request made pursuant to subsection 2.2(a) and the Company
shall include such information in the written notice referred to in subsection
2.2(a). The underwriter will be selected by a majority in interest of the
Initiating Holders and shall be reasonably acceptable to the Company. In such
event, the right of any Holder to include his Registrable Securities in such
registration shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting (unless otherwise mutually agreed by a majority in interest of the
Initiating Holders and such Holder) to the extent provided herein. All Holders
proposing to distribute their securities through such underwriting shall
(together with the Company as provided in subsection 2.4(e)) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting. Notwithstanding any other provision of this
Section 2.2, if the underwriter advises the Initiating Holders in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then the Initiating Holders shall so advise all Holders of
Registrable Securities that would otherwise be underwritten pursuant hereto, and
the number of shares of Registrable Securities that may be included in the
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underwriting shall be allocated among all Holders thereof, including the
Initiating Holders, in proportion (as nearly as practicable) to the amount of
Registrable Securities of the Company owned by each Holder; provided, however,
that the number of shares of Registrable Securities to be included in such
underwriting shall not be reduced unless all other securities are first entirely
excluded from the underwriting.
(c) Notwithstanding the foregoing, if the Company shall furnish to
Holders requesting a registration statement pursuant to this Section 2.2, a
certificate signed by the Chief Executive Officer of the Company stating that in
the good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its stockholders for such registration
statement to be filed and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer taking action
with respect to such filing for a period of not more than one hundred eighty
(180) days after receipt of the request of the Initiating Holders; provided,
however, that the Company may not utilize this right more than once in any
twelve (12) month period.
(d) In addition, the Company shall not be obligated to effect, or to
take any action to effect, any registration pursuant to this Section 2.2:
(i) After the Company has effected two (2) registrations
pursuant to this Section 2.2 and such registrations have been declared or
ordered effective;
(ii) Within six (6) months of the effective date of a
registration statement filed pursuant to this Section 2.2; or
(iii) During the period starting with the date sixty (60) days
prior to the Company's good faith estimate of the date of filing of, and ending
on a date one hundred eighty (180) days after the effective date of, a
registration filed pursuant to Section 2.3 or Section 2.12 hereof; provided that
the Company is actively employing in good faith all reasonable efforts to cause
such registration statement to become effective.
2.3 Company Registration.
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If (but without any obligation to do so) the Company from time to time
proposes to register (including for this purpose a registration effected by the
Company for stockholders other than the Holders) any of its stock or other
securities under the Act in connection with the public offering of such
securities solely for cash (other than a registration relating solely to the
sale of securities to participants in a Company stock plan, a registration on
any form that does not include substantially the same information as would be
required to be included in a registration statement covering the sale of the
Registrable Securities or a registration in which the only Common Stock being
registered is Common Stock issuable upon conversion of debt securities that are
also being registered), the Company shall, at such time, promptly give each
Holder written notice of such registration. Upon the written request of each
Holder given within twenty (20) days after mailing of such notice by the Company
in accordance with Section 4.5, the Company shall, subject to the provisions of
Section 2.8, cause to be registered under the Act all of the Registrable
Securities that each such Holder has requested to be registered. The
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Company may, in its sole discretion, abandon or delay any registration initiated
by the Company pursuant to this Section 2.3.
2.4 Obligations of the Company.
--------------------------
Whenever required under this Section 2 to effect the registration of
any Registrable Securities, the Company shall, as expeditiously as reasonably
possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use all practical efforts to cause
such registration statement to become effective, and, upon the request of the
Holders of a majority of the Registrable Securities registered thereunder, keep
such registration statement effective for a period of up to one hundred twenty
(120) days or until the distribution contemplated in the Registration Statement
has been completed.
(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Act, and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities owned by them.
(d) Use all practical efforts to register and qualify the securities
covered by such registration statement under such other securities or blue sky
laws of such jurisdictions as shall be reasonably requested by the Holders;
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering. Each Holder participating
in such underwriting shall also enter into and perform its obligations under
such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event as a result
of which the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing.
(g) Use all practical efforts to cause all such Registrable
Securities registered pursuant hereunder to be listed on each securities
exchange on which similar securities issued by the Company are then listed.
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(h) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
2.5 Furnish Information.
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(a) It shall be a condition precedent to the obligations of the
Company to take any action pursuant to this Section 2 with respect to the
Registrable Securities of any selling Holder that such Holder shall furnish to
the Company such information regarding itself, the Registrable Securities held
by it, and the intended method of disposition of such securities as shall be
required to effect the registration of such Holder's Registrable Securities.
(b) The Company shall have no obligation with respect to any
registration requested pursuant to Section 2.12 if, due to the operation of
subsection 2.5(a), the number of shares or the anticipated aggregate offering
price of the Registrable Securities to be included in the registration does not
equal or exceed the number of shares or the anticipated aggregate offering price
required to originally trigger the Company's obligation to initiate such
registration as specified in subsection 2.12(b)(2).
2.6 Expenses of Demand Registration.
-------------------------------
All expenses other than underwriting discounts and commissions
incurred in connection with registrations, filings or qualifications pursuant to
Section 2.2, including (without limitation) all registration, filing and
qualification fees, printers' and accounting fees and fees and disbursements of
counsel for the Company shall be borne by the Company; provided, however, that
the Company shall not be required to pay for any expenses of any registration
proceeding begun pursuant to Section 2.2 if the registration request is
subsequently withdrawn at the request of the Holders of a majority of the
Registrable Securities to be registered (in which case all participating Holders
shall bear such expenses), unless the Holders of a majority of the Registrable
Securities agree to forfeit their right to one demand registration pursuant to
Section 2.2; provided further, however, that if at the time of such withdrawal
the Holders have learned of a material adverse change in the condition, business
or prospects of the Company from that known to the Holders at the time of their
request and have withdrawn the request with reasonable promptness following
disclosure by the Company of such material adverse change, then the Holders
shall not be required to pay any of such expenses and shall retain their rights
pursuant to Section 2.2. All other expenses of any registration proceeding
pursuant to Section 2.2 shall be borne pro-rata by the selling Holders.
2.7 Expenses of Company Registration.
--------------------------------
The Company shall bear and pay all expenses incurred in connection
with any registration, filing or qualification of Registrable Securities with
respect to the registrations pursuant to Section 2.3 for each Holder (which
right may be assigned as provided in Section 2.13), including (without
limitation) all registration, filing, and qualification fees, and printers and
accounting fees relating or apportionable thereto, but excluding underwriting
discounts and commissions relating to Registrable Securities.
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2.8 Underwriting Requirements.
-------------------------
In connection with any offering involving an underwriting of shares of
the Company's capital stock, the Company shall not be required under Section 2.3
to include any of the Holders' securities in such underwriting unless they
accept the terms of the underwriting as agreed upon between the Company and the
underwriters selected by it (or by other persons entitled to select the
underwriters), and then only in such quantity as the underwriters determine in
their sole discretion will not jeopardize the success of the offering by the
Company. If the total amount of securities, including Registrable Securities,
requested by stockholders to be included in such offering exceeds the amount of
securities sold other than by the Company that the underwriters determine in
their sole discretion is compatible with the success of the offering, then the
Company shall be required to include in the offering only that number of such
securities, including Registrable Securities, that the underwriters determine in
their sole discretion will not jeopardize the success of the offering (the
securities so included to be apportioned pro rata among the selling stockholders
according to the total amount of securities entitled to be included therein
owned by each selling stockholder or in such other proportions as shall mutually
be agreed to by such selling stockholders) but in no event shall (i) the amount
of securities of the selling Holders included in the offering be reduced below
fifty percent (50%) of the total amount of securities included in such offering,
unless such offering is the initial public offering of the Company's securities,
in which case the selling Holders may be excluded if the underwriters make the
determination described above and no other stockholder's securities are included
or (ii) notwithstanding (i) above, any shares being sold by a stockholder
exercising a demand registration right similar to that granted in Section 2.2 be
excluded from such offering. For purposes of the preceding parenthetical
concerning apportionment, for any selling stockholder that is a holder of
Registrable Securities and that is a partnership or corporation, the partners,
affiliated partnerships, retired partners and stockholders of such holder, or
the estates and family members of any such partners and retired partners and any
trusts for the benefit of any of the foregoing persons shall be deemed to be a
single "selling stockholder," and any pro-rata reduction with respect to such
"selling stockholder" shall be based upon the aggregate amount of shares
carrying registration rights owned by all entities and individuals included in
such "selling stockholder," as defined in this sentence.
2.9 Delay of Registration.
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No Holder shall have any right to obtain or seek an injunction
restraining or otherwise delaying any such registration as the result of any
controversy that might arise with respect to the interpretation or
implementation of this Section 2.
2.10 Indemnification.
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(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, any underwriter (as defined in the Act) for such
Holder, and each person, if any, who controls such Holder or underwriter within
the meaning of the Act or the 1934 Act, against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject under the Act,
the 1934 Act or other federal or state law, insofar as such losses, claims,
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damages, or liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations
(collectively, a "Violation"): (i) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Act, the 1934 Act, any state securities law or
any rule or regulation promulgated under the Act, the 1934 Act or any state
securities law; and the Company will pay to each such Holder, underwriter or
controlling person, as incurred, any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the indemnity agreement
contained in this subsection 2.10(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld), nor shall the Company be liable in any such case
for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation that occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by any such Holder, underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder will indemnify
and hold harmless the Company, each of its directors, each of its officers who
has signed the registration statement, each person, if any, who controls the
Company within the meaning of the Act, any underwriter, any other Holder selling
securities in such registration statement and any controlling person of any such
underwriter or other Holder, against any losses, claims, damages or liabilities
(joint or several) to which any of the foregoing persons may become subject
under the Act, the 1934 Act or other federal or state law, insofar as such
losses, claims, damages or liabilities (or actions in respect thereto) arise out
of or are based upon any Violation, in each case to the extent (and only to the
extent) that such Violation occurs in reliance upon and in conformity with
written information furnished by such Holder expressly for use in connection
with such registration; and each such Holder will pay, as incurred, any legal or
other expenses reasonably incurred by any person intended to be indemnified
pursuant to this subsection 2.10(b) in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the indemnity agreement contained in this subsection 2.10(b) shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability
or action if such settlement is effected without the consent of the Holder
(which consent shall not be unreasonably withheld); provided that in no event
shall any indemnity under this subsection 2.10(b) exceed the net proceeds from
the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this Section
2.10 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 2.10, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however,
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that an indemnified party (together with all other indemnified parties that may
be represented without conflict by one counsel) shall have the right to retain
one separate counsel, with the fees and expenses to be paid by the indemnifying
party, if representation of such indemnified party by the counsel retained by
the indemnifying party would be inappropriate due to actual or potential
differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time of the commencement of
any such action, if prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party under
this Section 2.10, but the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 2.10.
(d) If the indemnification provided for in this Section 2.10 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any loss, liability, claim, damage or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage or expense as well as any other relevant equitable
considerations; provided that, in no event will the liability of any Holder
under this Section 2.10(d) exceed the net proceeds from the offering received by
such Holder. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(e) Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting agreement
entered into in connection with the underwritten public offering are in conflict
with the foregoing provisions, the provisions in the underwriting agreement
shall control.
(f) The obligations of the Company and Holders under this Section
2.10 shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 2, and otherwise.
2.11 Reports Under Securities Exchange Act of 1934.
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With a view to making available to the Holders the benefits of Rule
144 promulgated under the Act and any other rule or regulation of the SEC that
may at any time permit a Holder to sell securities of the Company to the public
without registration or pursuant to a registration on Form S-3, the Company
agrees to:
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(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times after the effective date of
the first registration statement filed by the Company for the offering of its
securities to the general public;
(b) take such action, including the voluntary registration of its
Common Stock under Section 12 of the 1934 Act, as is necessary to enable the
Holders to utilize Form S-3 for the sale of their Registrable Securities, such
action to be taken as soon as practicable after the end of the fiscal year in
which the first registration statement filed by the Company for the offering of
its securities to the general public is declared effective;
(c) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the 1934 Act; and
(d) furnish to any Holder, so long as the Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by the Company that
it has complied with the reporting requirements of SEC Rule 144 (at any time
after ninety (90) days after the effective date of the first registration
statement filed by the Company), the Act and the 1934 Act (at any time after it
has become subject to such reporting requirements), or that it qualifies as a
registrant whose securities may be resold pursuant to Form S-3 (at any time
after it so qualifies), (ii) a copy of the most recent annual or quarterly
report of the Company and such other reports and documents so filed by the
Company, and (iii) such other information as may be reasonably requested in
availing any Holder of any rule or regulation of the SEC that permits the
selling of any such securities without registration or pursuant to such form.
2.12 Form S-3 Registration.
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In case the Company shall receive a written request from the Holders
of twenty-five percent (25%) of the Registrable Securities then outstanding that
the Company effect a registration on Form S-3 and any related qualification or
compliance with respect to all or a part of the Registrable Securities owned by
such Holder or Holders, the Company will:
(a) promptly give written notice of the proposed registration, and
any related qualification or compliance, to all other Holders; and
(b) as soon as practicable, effect such registration and all such
qualifications and compliances as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such Holder's or
Holders' Registrable Securities as are specified in such request, together with
all or such portion of the Registrable Securities of any other Holder or Holders
joining in such request as are specified in a written request given within
fifteen (15) days after receipt of such written notice from the Company;
provided, however, that the Company shall not be obligated to effect any such
registration, qualification or compliance, pursuant to this section 2.12: (1) if
Form S-3 is not available for such offering by the Holders; (2) if the Holders,
together with the holders of any other securities of the Company entitled to
inclusion in such registration, propose to sell Registrable Securities and such
other securities (if any) at an aggregate price to the public of less than
$500,000; (3) if the Company shall furnish to the Holders a certificate signed
by the President of the Company stating that in the good faith
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judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its stockholders for such Form S-3 Registration
to be effected at such time, in which event the Company shall have the right to
defer the filing of the Form S-3 registration statement for a period of not more
than ninety (90) days after receipt of the request of the Holder or Holders
under this Section 2.12; provided, however, that the Company shall not utilize
this right more than once in any twelve (12) month period; (4) if the Company
has, within the twelve (12) month period preceding the date of such request,
already effected two (2) registrations on Form S-3 for the Holders pursuant to
this Section 2.12; or (5) in any particular jurisdiction in which the Company
would be required to qualify to do business or to execute a general consent to
service of process in effecting such registration, qualification or compliance.
(c) Subject to the foregoing, the Company shall file a registration
statement covering the Registrable Securities and other securities so requested
to be registered as soon as practicable after receipt of the request or requests
of the Holders. All expenses incurred in connection with a registration
requested pursuant to Section 2.12, including (without limitation) all
registration, filing, qualification, printer's and accounting fees and the
reasonable fees and disbursements of counsel for the selling Holder or Holders
and counsel for the Company, but excluding any underwriters' discounts or
commissions associated with Registrable Securities, shall be borne by the
Company. Registrations effected pursuant to this Section 2.12 shall not be
counted as demands for registration or registrations effected pursuant to
Sections 2.2 or 2.3, respectively.
2.13 Assignment of Registration Rights.
---------------------------------
The rights to cause the Company to register Registrable Securities
pursuant to this Section 2 may be assigned (but only with all related
obligations) by a Holder to a transferee or assignee of such securities who,
after such assignment or transfer, holds at least 100,000 shares of Registrable
Securities (subject to appropriate adjustment for stock splits, stock dividends,
combinations and other recapitalizations), provided: (a) the Company is, within
a reasonable time after such transfer, furnished with written notice of the name
and address of such transferee or assignee and the securities with respect to
which such registration rights are being assigned; (b) such transferee or
assignee agrees in writing to be bound by and subject to the terms and
conditions of this Agreement, including without limitation the provisions of
Section 2.14 below; and (c) such assignment shall be effective only if
immediately following such transfer the further disposition of such securities
by the transferee or assignee is restricted under the Act. For the purposes of
determining the number of shares of Registrable Securities held by a transferee
or assignee, the holdings of transferees and assignees of a partnership who are
partners, affiliated partnerships or retired partners of such partnership
(including spouses and ancestors, lineal descendants and siblings of such
partners or spouses who acquire Registrable Securities by gift, will or
intestate succession) shall be aggregated together and with the partnership;
provided that all assignees and transferees who would not qualify individually
for assignment of registration rights shall have a single attorney-in-fact for
the purpose of exercising any rights, receiving notices or taking any action
under this Section 2. The share limitations of this Section 2.13 shall not
apply to any transferee or assignee of a Holder who is (a) a partner or retired
partner of any holder that is a partnership, (b) a member of the immediate
family or a trust for the benefit of any
11
holder that is an individual, (c) an entity controlling, controlled by or under
common control with any holder that is not an individual or (d) a constituent
member of any holder that is a limited liability company; provided, however,
that such transferee or assignee agrees to be bound by the provisions of this
Agreement.
2.14 "Market Stand-Off" Agreement Rights.
-----------------------------------
Each Investor hereby agrees that, during the period of duration
specified by the Company and an underwriter of Common Stock or other securities
of the Company, following the effective date of a registration statement of the
Company filed under the Act, it shall not, to the extent requested by the
Company and such underwriter, directly or indirectly sell, offer to sell,
contract to sell (including, without limitation, any short sale), grant any
option to purchase or otherwise transfer or dispose of (other than to donees who
agree to be similarly bound) any securities of the Company held by it at any
time during such period except Common Stock included in such registration;
provided, however, that:
(a) such agreement shall be applicable only to the first such
registration statement of the Company that covers Common Stock (or other
securities) to be sold on its behalf to the public in an underwritten offering;
(b) such market stand-off time period shall not exceed one hundred
eighty (180) days; and
(c) all directors, officers, Holders of Registrable Securities and
all other 5% holders of equity securities of the Company enter into lock-up
agreements on the same terms.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Registrable Securities of each
Investor (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period.
2.15 Limitations on Subsequent Registration Rights.
---------------------------------------------
From and after the date of this Agreement, the Company shall not,
without the prior written consent of the Holders of two-thirds of the
outstanding Registrable Securities, enter into any agreement with any holder or
prospective holder of any securities of the Company which would allow such
holder or prospective holder (a) to include such securities in any registration
filed under Section 2.2 hereof, unless under the terms of such agreement, such
holder or prospective holder may include such securities in any such
registration only to the extent that the inclusion of its securities will not
reduce the amount of the Registrable Securities of the Holders which is included
or (b) to make a demand registration which could result in such registration
statement being declared effective prior to the earlier of either of the dates
set forth in subsection 2.2(a) or within one hundred twenty (120) days of the
effective date of any registration effected pursuant to Section 2.2.
12
2.16 Termination of Registration Rights.
-----------------------------------
No Holder shall be entitled to exercise any right provided for in this
Section 2 after five (5) years following the consummation of the sale of
securities pursuant to a registration statement filed by the Company under the
Act in connection with the initial firm commitment underwritten offering of its
securities to the general public or, as to any Holder whose aggregate holdings
of the Company's capital stock are less than 1% of the then outstanding capital
stock, such earlier time at which Registrable Securities held by such Holder can
be sold without registration in compliance with Rule 144(k) of the Act.
3. Covenants of the Company.
------------------------
3.1 Delivery of Financial Statements.
--------------------------------
The Company shall deliver to each Investor who holds at least 100,000
shares of Registrable Securities (subject to appropriate adjustment for stock
splits, stock dividends, combinations and other recapitalizations):
(a) as soon as practicable, but in any event within ninety (90) days
after the end of each fiscal year of the Company, an income statement for such
fiscal year, a balance sheet of the Company and statement of stockholder's
equity as of the end of such year, and a statement of cash flows for such year,
such year-end financial reports to be in reasonable detail, prepared in
accordance with generally accepted accounting principles ("GAAP"), and audited
and certified by independent public accountants of nationally recognized
standing selected by the Company;
(b) as soon as practicable, but in any event within thirty (30) days
after the end of each of the first three (3) quarters of each fiscal year of the
Company, an unaudited income statement and statement of cash flows for such
fiscal quarter and an unaudited balance sheet and a statement of stockholder's
equity as of the end of such fiscal quarter;
(c) as soon as practicable, but in any event within thirty (30) days
of the end of each month, an unaudited income statement and statement of cash
flows and balance sheet for and as of the end of such month, in reasonable
detail;
(d) as soon as practicable, but in any event at least thirty (30)
days prior to the end of each fiscal year, a budget for the next fiscal year,
prepared on a monthly basis, including balance sheets and statements of cash
flows, for such months, and, as soon as prepared, any other budgets or revised
budgets prepared by the Company; and
(e) with respect to the financial statements called for in
subsections (b) and (c) of this Section 3.1, an instrument executed by the Chief
Financial Officer or President of the Company certifying that such financials
were prepared in accordance with GAAP consistently applied with prior practice
for earlier periods (with the exception of footnotes that may be required by
GAAP) and fairly present the financial condition of the Company and its results
of operation for the period specified, subject to year-end audit adjustment.
13
3.2 Inspection.
----------
So long as an Investor holds at least 100,000 shares of Registrable
Securities (subject to appropriate adjustment for stock splits, stock dividends,
combinations and other recapitalizations), the Company shall permit such
Investor, at such Investor's expense, to visit and inspect the Company's
properties, to examine its books of account and records and to discuss the
Company's affairs, finances and accounts with its officers, all at such
reasonable times as may be requested by the Investor and shall provide to such
investor a monthly summary of the Company's activities within thirty (30) days
of the end of the month; provided, however, that the Company shall not be
obligated pursuant to this Section 3.2 to provide access to any information that
it reasonably considers to be a trade secret or similar confidential information
and shall not be obligated to provide such information to any investor whose
principal business is not the management of investment funds.
3.3 Termination of Information and Inspection Covenants; Post-IPO
-------------------------------------------------------------
Information Rights.
------------------
The covenants set forth in Section 3.1 and Section 3.2 shall terminate
as to Investors and be of no further force or effect when the sale of securities
pursuant to a registration statement filed by the Company under the Act in
connection with the firm commitment underwritten offering of its securities to
the general public is consummated or when the Company first becomes subject to
the periodic reporting requirements of Sections 12(g) or 15(d) of the 1934 Act,
whichever event shall first occur. Notwithstanding the foregoing, following the
first to occur of the events specified in the preceding sentence, for so long as
Intel Corporation ("Intel") is a stockholder of the Company, the Company shall
deliver to Intel copies of the Company's 10-K's, 10-Q's, 8-K's and Annual
Reports to Stockholders promptly after such documents are filed with the
Securities and Exchange Commission.
3.4 Right of First Offer.
--------------------
Subject to the terms and conditions specified in this paragraph 3.4,
the Company hereby grants to each Major Investor (as hereinafter defined) a
right of first offer with respect to future sales by the Company of its Shares
(as hereinafter defined). For purposes of this Section 3.4, a Major Investor
shall mean any Investor and any Founder that holds 100,000 shares of Registrable
Securities (subject to appropriate adjustment for stock splits, stock dividends,
combinations and other recapitalizations). A Major Investor includes any
partners and affiliates of a Major Investor and a Major Investor shall be
entitled to apportion the right of first offer hereby granted to it among itself
and its partners and affiliates in such proportions as it deems appropriate.
Each time the Company proposes to offer any shares of, or securities
convertible into or exercisable for, any shares of any class of its capital
stock ("Shares"), the Company shall first make an offering of such Shares to
each Major Investor in accordance with the following provisions:
14
(a) The Company shall deliver a notice by certified mail ("Notice")
to the Major Investors stating (i) its bona fide intention to offer such Shares,
(ii) the number of such Shares to be offered, and (iii) the price and terms, if
any, upon which it proposes to offer such Shares.
(b) By written notification received by the Company, within twenty
(20) calendar days after delivery of the Notice, the Major Investor may elect to
purchase or obtain, at the price and on the terms specified in the Notice, up to
that portion of such Shares that equals the proportion that the number of shares
of Common Stock issued and held, or issuable upon conversion of the Preferred
Stock then held, by such Major Investor bears to the total number of shares of
Common Stock of the Company then outstanding (assuming full conversion, exercise
and exchange of all convertible, exercisable or exchangeable securities). The
Company shall promptly, in writing, inform each Major Investor which purchases
all the shares available to it (each, a "Fully Exercising Investor") of any
other Major Investor's failure to do likewise. During the ten-day period
commencing after delivery of notification of such information to the Fully
Exercising Investors, each Fully Exercising Investor shall be entitled to obtain
that portion of the Shares for which Major Investors were entitled to subscribe
but which were not subscribed for by the Major Investors which is equal to the
proportion that the number of shares of Common Stock issued and held, or
issuable upon conversion of Preferred Stock then held, by such Fully Exercising
Investor bears to the total number of shares of Common Stock issued and held, or
issuable upon conversion of the Preferred Stock then held, by all Fully
Exercising Investors who wish to purchase some of the unsubscribed shares.
(c) If all Shares that Major Investors are entitled to obtain
pursuant to subsection 3.4(b) are not elected to be obtained as provided in
subsection 3.4(b) hereof, the Company may, during the sixty (60) day period
following the expiration of the ten-day or twenty-day period provided in
subsection 3.4(b) hereof, as the case may be, offer the remaining unsubscribed
portion of such Shares to any person or persons at a price not less than, and
upon terms no more favorable to the offeree than those specified in the Notice.
If the Company does not enter into an agreement for the sale of the Shares
within such period, or if the transaction contemplated by such agreement is not
consummated within thirty (30) days of the execution thereof, the right provided
hereunder shall be deemed to be revived and such Shares shall not be offered
unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this paragraph 3.4 shall not be
applicable (i) to the issuance or sale of shares of Common Stock (or options
therefor) pursuant to an option or incentive plan or arrangement unanimously
approved by the Board of Directors to employees or directors of or consultants
to the Company for the primary purpose of soliciting or retaining their
services; provided that any shares so issued or sold shall, to the extent
vested, be subject to rights of first refusal in favor of the Company and its
assignees so long as no shares of the Company are sold in an offering registered
under the Act, (ii) to or after consummation of a bona fide, firmly underwritten
public offering of shares of Common Stock, registered under the Act pursuant to
a registration statement on Form S-1 or SB-2, at an offering price of at least
$17.67 per share (appropriately adjusted for any stock split, dividend,
combination or other recapitalization) and $10,000,000 in gross proceeds, (iii)
the issuance of securities pursuant to the
15
conversion, exercise or exchange of convertible, exercisable or exchangeable
securities or (iv) the issuance of securities in connection with a bona fide
business acquisition of or by the Company, whether by merger, consolidation,
sale of assets, sale or exchange of stock or otherwise.
3.5 Assignments of Rights of First Refusal.
--------------------------------------
So long as a majority of the shares of Preferred Stock are
outstanding, the Company agrees that, as a condition to issuing any shares of
Common Stock to any employee or director of the Company under the Company's 1997
Stock Option Plan, or any successor or subsequent stock option or stock purchase
plan adopted by the Company (each a "Plan"), such employee or director shall be
required to enter into an agreement with the Company which shall provide the
Company, or any assignee or assignees of the Company, with a right of first
refusal to purchase any shares which such employee or director has acquired a
vested interest in and which such employee or director proposes to sell to a
person other than the Company. The Company further covenants and agrees that,
in the event (i) an employee or director who has vested in shares purchased
under a Plan proposes to sell such shares to a person other than the Company,
(ii) the Company has not sold shares of the Company's capital stock in an
offering registered under the Act and (iii) the Company has determined not to
elect to exercise its right of first refusal to purchase all of the vested
shares that are proposed to be sold by such employee or director (such balance
of the shares not elected to be purchased by the Company being the "Available
Shares"), then the Company agrees that it shall assign its right of first
refusal to purchase the Available Shares to the Major Investors by notice to the
Major Investors made at least three (3) business days prior to the expiration of
the Company's right of first refusal, and each Major Investor shall thereafter
have the right to elect to exercise such right of first refusal to purchase its
proportionate share of the Available Shares based on the number of shares of
Registrable Securities then held by such Major Investor bears to the aggregate
number of shares of Registrable Securities then held by all Major Investors.
The exercise of such right of first refusal by the Major Investors shall be made
subject to and in compliance with the terms applicable to the right of first
refusal in favor of the Company as set forth in the applicable agreements used
under the Plan.
3.6 Board of Directors.
------------------
(a) With respect to those two (2) members of the Company's Board of
Directors that the Third Amended and Restated Certificate of Incorporation (the
"Certificate of Incorporation") provides are to be elected by the holders of
Series A Preferred Stock, the parties hereby agree to vote all of their shares
of Series A Preferred Stock now owned or hereafter acquired in favor of the
election of (i) one designee from Internet Capital Group, LLC and (ii) one
designee of Austin Ventures V, L.P.;
(b) With respect to those two (2) members of the Company's Board of
Directors that the Certificate of Incorporation provides are to be elected by
the holders of Series B Preferred Stock, the parties hereby agree to vote their
shares of Series B Preferred Stock now owned or hereafter acquired in favor of
the election of (i) one designee of Voyager Capital
16
Fund I, L.P. and Voyager Founders Fund, L.P. and (ii) one designee of New
Enterprise Associates VIII, Limited Partnership;
(c) With respect to those two (2) members of the Company's Board of
Directors that the Certificate of Incorporation provides are to be elected by
the holders of Common Stock, the parties hereby agree to vote all of their
shares of Common Stock now owned or hereafter acquired in favor of the election
of (1) the Chief Executive Officer of the Company (or, if there is no Chief
Executive Officer of the Company, the President), which shall initially be
Xxxxxx X. Xxxxx, and (2) a person designated by the holders of at least a
majority of the Common Stock who shall initially be X.X. Xxxxx.
(d) With respect to the seventh (7/th/) member of the Company's Board
of Directors that the Certificate of Incorporation provides is to be elected by
the holders of Common Stock and Preferred Stock (voting together as a single
class and on an as-converted basis) (the "At Large Director"), the parties
hereby agree to vote all of their shares of Common Stock and Preferred Stock now
owned or hereafter acquired in favor of the election of Xxxxx Xxxxxxx or such
other person as shall be acceptable to at least four (4) of the other members of
the Board of Directors.
(e) Any director may be removed during his or her term of office with
cause by the class or series of shares who are entitled to elect such director
or in accordance with the applicable laws. Any director who represents the
holders of Series C Preferred Stock, Series B Preferred Stock, Series A
Preferred Stock, or of Common Stock may be removed without cause by a majority
vote of the Series C Preferred Stock, Series B Preferred Stock, Series A
Preferred Stock or of the Common Stock, respectively. In addition, in the event
that any employee director's employment is terminated for cause (as defined
below) or such employee director ceases employment voluntarily, the parties
hereto shall support a motion to remove such former employee director from his
or her position as a director of the Company and shall vote their shares in
favor of such removal. The parties shall not thereafter vote to elect such
removed director to thereafter be a director of the Company. "Cause" shall be
defined as the commission of a felony or act of moral turpitude, material
violation of proprietary information and inventions agreement (or similar
agreement), gross negligence or willful disregard of such director's obligations
as a member of the Company's Board of Directors on a repeated basis.
(f) New Enterprise Associates VIII, Limited Partnership shall also be
entitled to have one observer attend the meetings of the Company's Board of
Directors in addition to the director designated pursuant to Section 3.6(b).
(g) Notice of Elections.
-------------------
(i) For all elections other than the election of the At Large
Director, the Company shall give written notice to each of (w) the holders of
the Series C Preferred Stock, (x) the holders of the Series B Preferred Stock
then outstanding, (y) the holders of the Series A Preferred Stock then
outstanding and (z) the holders of the Common Stock then outstanding, informing
them of any election of the Board of Directors at least twenty (20) days prior
to such election. Within five (5) days of such notice, such parties shall
furnish written notice to each
17
other and to the Company of the name of the persons designated by it to serve as
a director. In the absence of such notice, the respective directors then serving
and previously designated by the holders of Series B Preferred Stock in
accordance with subsection (b) hereof, the holders of Series A Preferred Stock
in accordance with subsection (a) hereof and the holders of Common Stock in
accordance with subsection (c) hereof, respectively, shall be re-elected.
(ii) Notwithstanding the foregoing, however, with respect to an
election of At Large Director pursuant to subsection (d) above, the Company
shall give written notice to each of (w) the holders of the Series C Preferred
Stock, (x) the holders of the Series B Preferred Stock then outstanding, (y) the
holders of Series A Preferred Stock then outstanding and (z) the holders of the
Common Stock then outstanding, informing them of the election of the At Large
Director at least ten (10) days prior to such election. Within five (5) days of
such notice, the Board of Directors of the Company shall furnish written notice
to the holders of the Series C Preferred Stock, the Series B Preferred Stock,
the Series A Preferred Stock, the Common Stock, the Founders and the Company of
the name of the person designated by at least four (4) members of the Board of
Directors to serve as the At Large Director.
(h) Subsequent Stockholders. It shall be a condition to transfer of
-----------------------
any or all of the Registrable Securities held by a party hereto that the
transferee of such securities agrees in writing to be bound by this Section 3.6.
(i) Legend on Stock Certificates. The certificates representing the
----------------------------
shares shall have the following legend marked thereon:
THE VOTING OF THE SHARES REPRESENTED HEREBY IS SUBJECT TO THE
TERMS OF AN INVESTORS RIGHTS AGREEMENT AS IT MAY BE AMENDED FROM
TIME TO TIME THAT CONTAINS REQUIREMENTS AS TO VOTING OF THESE
SHARES. A COPY OF SUCH AGREEMENT MAY BE EXAMINED AT THE PRINCIPAL
OFFICE OF THE CORPORATION.
(j) Company Obligations. The Company shall take all commercially
-------------------
reasonable actions to assure compliance with the provisions of subsections (h)
and (i). The Company, the Founders and each other Holder agree that no person
shall acquire any Registrable Securities from any Founder or Investor, as the
case may be, unless such person becomes a party to this Section 3.6 of this
Agreement. The Company shall forthwith notify all parties to this Agreement of
the name and address of any additional party.
(k) Specific Enforcement. It is agreed and understood that monetary
--------------------
damages would not adequately compensate an injured party for the breach of
subsection 3.6 of this Agreement by any party, that this subsection 3.6 of this
Agreement shall be specifically enforceable, and that any breach or threatened
breach of this Agreement shall be the proper subject of a temporary or permanent
injunction or restraining order. Further, each party hereto waives any claim or
defense that there is an adequate remedy at law for such breach or threatened
breach.
18
(l) Termination. This Section 3.6 shall terminate in its entirety
-----------
and be of no further force or effect upon the earlier to occur of (i) the sale
of securities pursuant to a registration statement filed by the Company under
the Act in connection with the firm commitment underwritten offering of its
securities to the general public is consummated, the public offering price of
which was not less than $17.67 per share (adjusted to reflect subsequent stock
dividends, stock splits or recapitalizations), and $10,000,000 in gross
proceeds, or (ii) the date upon which the Company first becomes subject to the
periodic reporting requirements of Sections 13(a), 12(g) or 15(d) of the 0000
Xxx.
3.7 Board Observer.
--------------
So long as Intel, together with Middlefield Ventures and Intel's
affiliates, holds at least 200,000 shares of Series C Preferred Stock of the
Company (such number to be proportionately adjusted for stock splits, stock
dividends and similar events) or shares issuable upon the conversion of the
Series C Preferred Stock, the Company will permit a representative of Intel (the
"Observer") who is reasonably acceptable to the Company, to attend all meetings
of the Company's Board of Directors (the "Board") and all committees thereof
(whether in person, telephonic or other) in a non-voting, observer capacity and
shall provide to Intel, concurrently with the members of the Board, and in the
same manner, notice of such meeting and a copy of all materials provided to such
members; provided, however, that the Company reserves the right to withhold any
information and to exclude the Observer from any meeting or portion thereof if
the Board reasonably believes upon the advice of counsel that access to such
information or attendance at such meeting would: (a) involve a conflict of
interest regarding any material issue for the Company, (b) be necessary in order
to meet or protect any fiduciary obligations of the Board, or (c) adversely
affect attorney-client privilege between the Company and its counsel. In
clarification of the foregoing, a conflict of interest for the Company shall not
exist with respect to any Board materials, any meeting or portion thereof where
there is discussion or consideration of any bona fide offer relating to a
proposed Corporate Event (as defined below) unless and until such time as Intel
has made a competing offer with respect to such Corporate Event. Exchanges of
confidential and proprietary information between the Company and the Observer
shall be governed by nondisclosure agreements entered into between the Company
and Intel. Specifically, exchanges of confidential and proprietary information
between the Company and the Intel Observer shall be governed by the terms of the
Corporate Non-Disclosure Agreement No. 128210 dated January 25, 1999, executed
by the Company and Intel, and any Confidential Information Transmittal Records
provided in connection therewith.
The Company acknowledges that Intel, including without limitation, the
Observer appointed by Intel will likely have, from time to time, information
that may be of interest to the Company ("Intel Information") regarding a wide
variety of matters including, by way of example only, (a) Intel's technologies,
plans and services, and plans and strategies relating thereto, (b) current and
future investments Intel has made, may make, may consider or may become aware of
with respect to other companies and other technologies, products and services,
including, without limitation, technologies, products and services that may be
competitive with the Company's, and (c) developments with respect to the
technologies, products and services, and plans and strategies relating thereto,
of other companies, including, without limitation,
19
companies that may be competitive with the Company. The Company recognizes that
a portion of such Intel Information may be of interest to the Company. Such
Intel Information may or may not be known by the Observer. The Company, as a
material part of the consideration for this Agreement, agrees that Intel and its
Observer shall have no duty to disclose any Intel Information to the Company or
permit the Company to participate in any projects or investments based on any
Intel Information, or to otherwise take advantage of any opportunity that may be
of interest to the Company if it were aware of such Intel Information, and
hereby waives, to the extent permitted by law, any claim based on the corporate
opportunity doctrine or otherwise that could limit Intel's ability to pursue
opportunities based on such Intel Information or that would require Intel or
Observer to disclose any such Intel Information to the Company or offer any
opportunity relating thereto to the Company.
This Section 3.7 shall terminate in its entirety and be of no further
force or effect upon the earlier to occur of (i) the sale of securities pursuant
to a registration statement filed by the Company under the Act in connection
with the firm commitment underwritten offering of its securities to the general
public is consummated, the public offering price of which was not less than
$17.67 per share (adjusted to reflect subsequent stock dividends, stock splits
or recapitalizations), and $10,000,000 in gross proceeds, or (ii) the date upon
which the Company first becomes subject to the periodic reporting requirements
of Sections 13(a), 12(g) or 15(d) of the 1934 Act.
3.8 Confidentiality and Non-Disclosure.
----------------------------------
(a) Disclosure of Terms. The terms and conditions of this Agreement,
-------------------
the Series C Purchase Agreement, and the Third Amended and Restated Right of
First Refusal and Co-Sale Agreement (collectively, the "Financing Terms"),
including their existence, shall be considered confidential information and
shall not be disclosed by any party hereto (except Intel) to any third party
except in accordance with the provisions set forth below.
(b) Press Releases, Etc. Within sixty (60) days of the Closing, the
--------------------
Company may issue a press release disclosing that Intel has invested in the
Company; provided that (a) the release does not disclose any of the Financing
Terms, (b) the press release discloses only the entire amount invested in the
investment round, without disclosing the amount invested by Intel or any other
Investor, and (c) the final form of the press release is approved in advance in
writing by Intel. Intel's name and the fact that Intel is an investor in the
Company can be included in a reusable press release boilerplate statement, so
long as Intel has given the Company its initial approval of such boilerplate
statement and the boilerplate statement is reproduced in exactly the form in
which it was approved. No other announcements regarding Intel in a press
release, conference, advertisement, announcement, professional or trade
publication, mass marketing materials or otherwise to the general public may be
made without Intel's prior written consent.
(c) Permitted Disclosures. Notwithstanding the foregoing, (i) the
---------------------
Company may disclose any of the Financing Terms to its current or bona fide
prospective investors, employees, investment bankers, lenders, accountants and
attorneys, in each case only where such persons or entities are under
appropriate nondisclosure obligations; (ii) the Company may
20
disclose (other than in a press release or other public announcement described
in subsection (b)) solely the fact that Intel has invested in the Company to any
third parties without the requirement for the consent of any other party or
nondisclosure obligations; and (iii) Intel may disclose its investment in the
Company and the Financing Terms to third parties or to the public at its sole
discretion and, if it does so, the Company shall have the right to disclose to
third parties any such information disclosed in a press release or other public
announcement by Intel.
(d) Legally Compelled Disclosure. In the event that any party other
----------------------------
than Intel is requested or becomes legally compelled (including without
limitation, pursuant to securities laws and regulations) to disclose the
existence of the Series C Purchase Agreement, the Third Amended and Restated
Right of First Refusal and Co-Sale Agreement, the Third Amended and Restated
Investors' Rights Agreement, or any of the Financing Terms hereof in
contravention of the provisions of this Section 3.8, the Company (the
"Disclosing Party") shall provide the other parties (the "Non-Disclosing
Parties") with prompt written notice of that fact so that the appropriate party
may seek (with the cooperation and reasonable efforts of the other parties) a
protective order, confidential treatment or other appropriate remedy. In such
event, the Disclosing Party shall furnish only that portion of the information
which is legally required and shall exercise reasonable efforts to obtain
reliable assurance that confidential treatment will be accorded such information
to the extent reasonably requested by any Non-Disclosing Party.
(e) Other Information. The provisions of this Section 3.8 shall be
-----------------
in addition to, and not in substitution for, the provisions of any separate
nondisclosure agreement executed by any of the parties hereto with respect to
the transactions contemplated hereby. Additional disclosures and exchange of
confidential information between the Company and Intel Corporation (including
without limitation, any exchanges of information with any Intel board observer)
shall be governed by the terms of the Corporate Xxx-Xxxxxxxxxx Xxxxxxxxx Xx.
000000, dated January 25, 1999 executed by the Company and Intel, and any
Confidential Information Transmittal Records (CITR) provided in connection
therewith.
(f) All notices required under this section shall be made pursuant to
Section 4.5 of this Agreement.
3.9 Notice Rights in Corporate Events.
---------------------------------
(a) Corporate Event. A "Corporate Event" shall mean any of the
---------------
following, whether accomplished through one or a series of related transactions,
(a) the acquisition of all or substantially all the assets of the Company, (b)
an acquisition of the Company by consolidation, merger, share purchase or
exchange, or other reorganization or transaction in which the holders of the
Company's outstanding voting stock immediately prior to such transaction
(excluding any person and such person's affiliates who may have initiated or
participated in the initiation of such transaction) own, immediately after such
transaction, securities representing less than fifty percent (50%) of the voting
power of the corporation or other entity surviving such transaction, and (c) any
other transaction or series of related transactions that would result in a
greater than twenty-five percent (25%) change in the total outstanding number of
shares of Series C Preferred Stock of the Company or any other class of voting
securities of the Company. Notwithstanding
21
the foregoing, an underwritten initial public offering of the Company's
securities on a firm commitment basis shall not be deemed a Corporate Event. The
Company agrees that the Company will provide Intel with detailed written notice
of any bona fide offer from a third party for a proposed Corporate Event within
one (1) business day of the date the Company first becomes aware of such offer
or proposed Corporate Event. In addition, the Company agrees that it will
provide Intel, within one (1) business day of the Company's becoming aware
thereof, with detailed written notice of any bona fide offer or proposal from a
third party to acquire ten percent (10%) or more of the Company's outstanding
voting securities. Such detailed written notices will include, to the extent
reasonably ascertainable by the Company, the name of the third party(ies), the
amount and nature of the consideration for the proposed Corporate Event, and
other material terms and conditions of the offer for the proposed Corporate
Event.
(b) Unsolicited Offer/Solicited Offer. An "Unsolicited Offer" means
---------------------------------
(i) any bona fide offer for a proposed Corporate Event received from a third
party in the absence of any act taken by any officer or director of the Company
with the intent of soliciting such offer, and (ii) any proposal or offer by the
Company to such third party or from such third party for a proposed Corporate
Event arising from negotiations that followed the receipt of an offer described
in 3.10(b)(i). Any bona fide offer for a proposed Corporate Event that is not
an Unsolicited Offer shall be deemed a Solicited Offer.
(c) Solicitation of Offers for Corporate Event
------------------------------------------
(i) Solicitation Notice. The Company agrees that prior to
-------------------
soliciting any offers (other than an offer described in Section 3.10(b)(ii)
above) for a proposed Corporate Event (a "Proposed Event"), the Company will
provide Intel with written notice of such intent to solicit offers (a
"Solicitation Notice"), specifying the terms and conditions of the Proposed
Event, including the proposed selling price for the Company or the Assets (the
"Proposed Selling Price"), the proposed structure of the transaction, a list of
the persons from whom the Company in good faith intends to solicit such offers,
when the Proposed Event involves an acquisition of assets, a description of the
assets to be sold (the "Assets"), and the other material terms and conditions of
------
the Proposed Event.
(ii) Additional Parties Notice. The Company agrees that prior
-------------------------
to soliciting any offers (other than an offer described in Section 3.10(b)(ii)
above) for the consummation of the Proposed Event described in the Solicitation
Notice from any parties that were not listed in the Solicitation Notice
("Additional Parties"), the Company will provide Intel with written notice of
such intent to solicit such offers from such Additional Parties (the "Additional
Parties Notice").
(iii) Different Terms and Conditions. In the event that the
------------------------------
Company proposes to accept a Solicited Offer for the consummation of a Proposed
Event on terms and conditions that are not substantially the same as the terms
and conditions specified in the last Solicitation Notice, the Company agrees to
provide Intel with a new Solicitation Notice pursuant to Section 3.10(c)(i).
Without limiting the generality of the foregoing, a purchase price that is less
than the purchase price in the last Solicitation Notice received by Intel shall
be deemed not
22
to be substantially the same terms and conditions as specified in the last
Solicitation Notice and shall require the Company to deliver to Intel a new
Solicitation Notice subject to 3.10(e) below.
(d) Unsolicited Offers for Corporate Event. If the Company receives
--------------------------------------
an Unsolicited Offer from a third party for a proposed Corporate Event (an
"Offered Event"), the Company agrees that it will provide Intel with detailed
written notice of the Offered Event specifying the terms and conditions of the
Offered Event including the name of such third party, the proposed purchase
price for the Company or the Offered Assets (as defined below) (the "Offered
Purchase Price"), the proposed structure of the Offered Event, when the Offered
Event involves an acquisition of assets, a description of the assets to be sold
(the "Offered Assets"), and the other material terms and conditions of the
Offered Event.
(e) Notice Rights for Preferred Corporate Event Offer.
-------------------------------------------------
Notwithstanding the foregoing, after such time as Intel has made an offer
competitive to the offer contained in a Solicitation Notice or the Offered Event
Notice for a proposed Corporate Event, the Company agrees to provide Intel with
written notice that it has received a bona fide offer preferred by the Company.
The Company is not obligated to provide Intel details of the terms and
conditions of such bona fide preferred offer.
(f) Term of Notice Rights for Corporate Event. The covenants set
-----------------------------------------
forth in Section 3.10 shall terminate as to Intel and be of no further force or
effect upon the first to occur of the following: (i) Intel is no longer a
stockholder of the Company, (ii) the sale of securities pursuant to a
registration statement filed by the Company under the Act in connection with the
firm commitment underwritten offering of its securities to the general public is
consummated or (iii) when the Company first becomes subject to the periodic
reporting requirements of Sections 12(g) or 15(d) of the 1934 Act.
4. Miscellaneous.
-------------
4.1 Successors and Assigns.
----------------------
Except as otherwise provided herein, the terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
permitted successors and assigns of the parties (including permitted transferees
of any shares of Registrable Securities). Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
4.2 Governing Law.
-------------
This Agreement shall be governed by and construed under the laws of
the State of Texas (without giving effect to any choice of law or conflict of
law provision or rule).
23
4.3 Counterparts.
------------
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
4.4 Titles and Subtitles.
--------------------
The titles and subtitles used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this
Agreement.
4.5 Notices.
-------
Unless otherwise provided, any notice required or permitted under this
Agreement shall be given in writing and shall be deemed effectively given upon
personal delivery to the party to be notified or upon deposit with the United
States Post Office, by registered or certified mail, postage prepaid and
addressed to the party to be notified at the address indicated for such party on
the signature page hereof, or at such other address as such party may designate
by ten (10) days' advance written notice to the other parties.
4.6 Expenses.
---------
If any action at law or in equity is necessary to enforce or interpret
the terms of this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees, costs and necessary disbursements in addition to any
other relief to which such party may be entitled.
4.7 Amendments and Waivers.
----------------------
Any term of this Agreement may be amended and the observance of any
term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of the Company and the holders of two-thirds of the Registrable
Securities then outstanding; provided, however, that in the event such amendment
or waiver adversely affects the rights and/or obligations of the Founders under
this Agreement in a different manner than the other Holders, such amendment or
waiver shall also require the written consent of a majority of the Common Stock
held by the Founders. Any amendment or waiver effected in accordance with this
paragraph shall be binding upon each holder of any Registrable Securities then
outstanding, each future holder of all such Registrable Securities, and the
Company. Notwithstanding the foregoing, Sections 3.1, 3.3, 3.7, 3.8, 3.9, 3.10
and 4.7 of this Agreement may be amended or waived only with the written consent
of Intel.
4.8 Severability.
------------
If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provision shall be excluded from this
Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
24
4.9 Aggregation of Stock.
--------------------
All shares of Registrable Securities held or acquired by affiliated
entities or persons shall be aggregated together for the purpose of determining
the availability of any rights under this Agreement.
4.10 Entire Agreement.
----------------
This Agreement (including the Exhibits hereto, if any) and the
agreements referred to herein constitute the full and entire understanding and
agreement between the parties with regard to the subjects hereof and thereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
25
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
CLEARCOMMERCE CORPORATION
By: _________________________________________
Xxxxxxx Xxxxxxx, Chief Financial Officer
SIGNATURE PAGE TO CLEARCOMMERCE CORPORATION
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENTS
CONSENTING HOLDERS: AUSTIN VENTURES V, L.P.
By: AV Partners V, L.P.,
its General Partner
By: ________________________________________
General Partner
AUSTIN VENTURES V AFFILIATES FUND, L.P.
By: AV Partners V, L.P.,
its General Partner
By: ________________________________________
General Partner
X.X. XXXXX
____________________________________________
XXXXX XXXXXXXXX
____________________________________________
INTERNET CAPITAL GROUP, INC.
By: ________________________________________
Xxxxxxx X. Xxx, Managing Director
SIGNATURE PAGE TO CLEARCOMMERCE CORPORATION
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENTS
NEW ENTERPRISE ASSOCIATES VIII, LIMITED
PARTNERSHIP
By: NEA Partners VIII, Limited Partnership
Its General Partner
By: ___________________________________________
NEA PRESIDENTS FUND, L.P.
By: NEA General Partners, L.P.
By: ___________________________________________
NEA VENTURES 1999, LIMITED PARTNERSHIP
By: ___________________________________________
Vice President
XXXXX XXXXXXX
------------------------------------------------
VOYAGER CAPITAL FUND I, L.P.
By: ___________________________________________
Title: _________________________________________
VOYAGER CAPITAL FOUNDERS FUND, L.P.
By: ___________________________________________
Title: _________________________________________
SIGNATURE PAGE TO CLEARCOMMERCE CORPORATION
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
XXXXXX X. XXXXX
------------------------------------------
XXXXXXX X. XXXXXXX
------------------------------------------
XXXXX XXXXXX
------------------------------------------
XXXXXX XXXX
------------------------------------------
SIGNATURE PAGE TO CLEARCOMMERCE CORPORATION
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
BURTZLOFF FAMILY TRUST
By:__________________________________
Name:________________________________
Its:_________________________________
SIGNATURE PAGE TO CLEARCOMMERCE CORPORATION
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
XXXXXX XXXXXX
--------------------------------------------
INTEL CORPORATION
By:_________________________________________
Name:_______________________________________
Title:______________________________________
FOUNDERS: X.X. XXXXX
--------------------------------------------
XXXXX XXXXXXXXX
--------------------------------------------
XXXX XXXXXXXXX
--------------------------------------------
SIGNATURE PAGE TO CLEARCOMMERCE CORPORATION
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
SERIES C PURCHASERS
AUSTIN VENTURES V, L.P.
By: AV Partners V, L.P.,
its General Partner
By: _______________________________________
Name: ______________________________________
Title: General Partner
AUSTIN VENTURES V AFFILIATES FUND,
L.P.
By: AV Partners V, L.P.,
its General Partner
By: _______________________________________
Name: ______________________________________
Title: General Partner
AUSTIN VENTURES VII, L.P.
By: AV Partners VII, L.P.,
its General Partner
By: _______________________________________
Name: ______________________________________
Title: General Partner
SIGNATURE PAGE TO CLEARCOMMERCE CORPORATION
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
FINANCIAL TECHNOLOGY (Q) VENTURES,
L.P., a Delaware Limited Partnership
By: ________________________________________
Print Name: ________________________________
Title:______________________________________
By: FINANCIAL TECHNOLOGY
MANAGEMENT, L.L.C., a Delaware
Limited Liability Company
By: ________________________________________
Xxxxxxx Xxxxxx, Managing Member
FINANCIAL TECHNOLOGY VENTURES, L.P.,
a Delaware Limited Partnership
By: ________________________________________
Print Name: ________________________________
Title:______________________________________
By: FINANCIAL TECHNOLOGY
MANAGEMENT, L.L.C., a Delaware
Limited Liability Company
By: ________________________________________
Xxxxxxx Xxxxxx, Managing Member
SIGNATURE PAGE TO CLEARCOMMERCE CORPORATION
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
HEWLETT-PACKARD COMPANY
By: _______________________________
Print Name: _______________________
Title: ____________________________
SIGNATURE PAGE TO CLEARCOMMERCE CORPORATION
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INTERNET CAPITAL GROUP, INC.
By: _____________________________
Name: Xxxxxxx X. Xxx
Title: __________________________
SIGNATURE PAGE TO CLEARCOMMERCE CORPORATION
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
VOYAGER CAPITAL FUND I, L.P.
By: _______________________________
Name: _____________________________
Title: ____________________________
VOYAGER CAPITAL FOUNDERS FUND I, L.P.
By: _______________________________
Name: _____________________________
Title: ____________________________
SIGNATURE PAGE TO CLEARCOMMERCE CORPORATION
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
NEW ENTERPRISE ASSOCIATES VIII,
LIMITED PARTNERSHIP
By: NEA Partners VIII, Limited Partnership
its General Partner
By: _________________________________________
Name:_________________________________________
Title: _______________________________________
SIGNATURE PAGE TO CLEARCOMMERCE CORPORATION
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INTEL CORPORATION
By: ________________________________________
Print Name: _________________________________
Title: ______________________________________
SIGNATURE PAGE TO CLEARCOMMERCE CORPORATION
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
MIDDLEFIELD VENTURES, INC.
By: _______________________________
Print Name: _______________________
Title: ____________________________
SIGNATURE PAGE TO CLEARCOMMERCE CORPORATION
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
BURTZLOFF FAMILY TRUST
By: ______________________________
Name: ____________________________
Title: ___________________________
SIGNATURE PAGE TO CLEARCOMMERCE CORPORATION
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
WS INVESTMENT COMPANY 99B
By: ____________________________________
General Partner
________________________________________
X.X. Xxxxx
________________________________________
Xxxxxx Xxxxx
________________________________________
Xxxxxxxxx Xxxxxx
________________________________________
Xxxxx Xxxxxxx
SIGNATURE PAGE TO CLEARCOMMERCE CORPORATION
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
________________________________________
Xxxx Xxxxx
________________________________________
Xxxxx Xxxxxxxx
________________________________________
Xxxxxx Cinnader, Jr.
________________________________________
Xxxx Xxxxx
________________________________________
Xxx Xxxxxxx
SIGNATURE PAGE TO CLEARCOMMERCE CORPORATION
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
________________________________________
Xxxxxxx Xxxxxxx
________________________________________
Xxxxx Xxxx
________________________________________
Xxxx Xxxxxxx
________________________________________
Xxxx Xxxxxxx
________________________________________
Xxxx Xxxxxxxxxx
SIGNATURE PAGE TO CLEARCOMMERCE CORPORATION
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
________________________________________
Xxxxxx Xxxxxxxx
________________________________________
Xxxxx Xxxxxx
________________________________________
Xxxxxx X. Xxxxxxxx
________________________________________
Xxxxx Xxxxxxxxx
________________________________________
Xxxxx Xxxxxx
SIGNATURE PAGE TO CLEARCOMMERCE CORPORATION
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
SCHEDULE A
Series C Purchasers
Number of Shares Purchase Price
Investor Purchased of Shares
-------- ---------------- --------------
Austin Ventures V, L.P. 230,674 $ 1,630,865.18
000 Xxxx 0/xx/ Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
11,691 $ 82,655.37
Austin Ventures V Affiliates Fund, L.P.
000 Xxxx 0/xx/ Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Austin Ventures VII, L.P. 1,368,235 $ 9,673,421.45
000 Xxxx 0/xx/ Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Internet Capital Group, Inc. 265,698 $ 1,878,484.86
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Voyager Capital Fund I, L.P. 304,354 $ 2,151,782.78
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Voyager Capital Founders Fund I, L.P. 16,525 $ 116,831.75
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
New Enterprise Associates VIII, 819,843 $ 5,796,290.01
Limited Partnership
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
[TO COME]
Investor
--------
Xxxxxxx X. Xxxxxxx 1,667 $ 11,785.69
c/o ClearCommerce Corporation
00000 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Intel Corporation
0000 Xxxxxxx Xxxxxxx Xxxx. 212,056 $ 1,499,235.92
Xxxxx Xxxxx, XX 00000
Middlefield Ventures, Inc. 59,072 $ 417,639.04
c/o Intel Corporation
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, XX 00000
X.X. Xxxxx 54,076 $ 362,323.36
c/o ClearCommerce Corporation
00000 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Xxxxxx Xxxxx 70,892 $ 501,206.44
c/o ClearCommerce Corporation
00000 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Xxxxx Xxxxxxxx 35,360 $ 249,995.20
0000 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Xxxxxxxxx Xxxxxx 1,000 $ 7,070.00
X.X. Xxx 00
Xxxxxxx, XX 00000-0000
Burtzloff Family Trust 12,200 $ 86,254.00
00000 Xxxxxx Xxxxx Xxxx
Xxxxxx Xxxxx, XX 00000
Xxxxxx Xxxxxx 6,778 $ 47,920.46
00000 Xxxxxx Xxxxx Xxxx
Xxxxxx Xxxxx, XX 00000
Xxxxx Xxxxxxx 21,335 $ 150,838.45
00000 Xxx Xxxxx Xxxx
Xxxxxx, XX 00000
WS Investment Company 99B 3,536 $ 24,999.52
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Investor
--------
Xxxx Xxxxx
00 Xxxxx Xxxxx 1,414 $ 9,996.98
Fetchum, Surrey
KT 22 9ET UK
Xxxxxx Cinnader, Jr. 3,536 $ 24,999.52
00 Xxxx 00/xx/, Xxx. 0X
Xxx Xxxx, XX 00000
Xxxxxxx X. Xxxxx 8,400 $ 59,388.00
Venture Architecture
000 Xxxxxxxxxx Xxxxxx
Xxxxx X000
Xxxx Xxxx, XX 00000
Xxx Xxxxxxx 8,400 $ 59,388.00
The Chasm Group
000 Xxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000-0000
Xxxxxxx Xxxxxxx 2,828 $ 19,993.96
00000 Xxx Xxxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Xxxx Xxxxxxx 3,536 $ 24,999.52
0 Xx. Xxxx Xxxxx
Xxxxxxxx, Xxxxx
XX XX0 0XX
Xxxxx Xxxxxx 867 $ 6,129.69
0000 Xxxx Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Xxxx Xxxxxxx 5,002 $ 35,364.14
00 Xxxxxxx Xxxx
Xx. Xxxxxxxxxx, XX 00000-0000
Investor
--------
Xxxx Xxxxxxxxxx 2,501 $ 17,682.07
00 00/xx/ Xx., 00/xx/ Xx.
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxxx 500 $ 3,535.00
000 X. Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Xxxxx Xxxxxx 2,121 $ 14,995.47
X.X. Xxx 0000
Xx Xxxxxxx, XX 00000
Xxxxxx X. Xxxxxxxx 1,414 $ 9,996.98
000 X. 0/xx/ Xx., Xxxxx 0000
Xxxxxx, XX 00000
Xxxxx Xxxxxxxxx 543 $ 3,839.01
00000 Xxxxxx Xxxx., Xxxxx 000
Xxxxxx, XX 00000
Financial Technology Ventures, L.P. 15,149 $ 81,000.99
000 Xxxxxxxxxx Xxxxxx
00/xx/ Xxxxx
Xxx Xxxxxxxxx, XX 00000
Financial Technology (Q) Ventures, L.P. 409,179 $ 2,892,895.53
000 Xxxxxxxxxx Xxxxxx
00/xx/ Xxxxx
Xxx Xxxxxxxxx, XX 00000
Hewlett-Packard Company 282,885 $ 1,999,996.95
0000 Xxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: General Counsel
TOTAL: 4,243,267 $29,999,897.69
** Notices should be sent to the following parties:
To either Middlefield Ventures, Inc. or Intel Corporation, as appropriate.
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, XX 00000
Attn.: M&A Portfolio Manager M/S RN6 46
Fax Number: (000) 000-0000
With copies to:
Intel Corporation
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, XX 00000
Attn: General Counsel
Fax Number: (000) 000-0000
and
Xxxxxx, Xxxx & Xxxxxxxx LLP
One Xxxxxxxxxx Street
Telesis Tower, 26/th/ and 31/st/ Floors
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx
Fax Number: (000) 000-0000
SCHEDULE B
Schedule of Founders
X.X. Xxxxx
0000 Xxxxxxxx, #000
Xxxxxx, Xxxxx 00000
Xxxxx Xxxxxxxxx
00000 Xxxxxxx Xxxxx Xx.
Xxxxxx, Xxxxx 00000
Xxxx Xxxxxxxxx
00000 Xxxxxxx Xxxxx Xx.
Xxxxxx, Xxxxx 00000
SCHEDULE C
Schedule of Consenting Holders
Voyager Capital Fund I, L.P.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Voyager Capital Founders Fund, L.P.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
New Enterprise Associates VIII, Limited Partnership
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
NEA Presidents Fund, L.P.
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
NEA Ventures 1999, Limited Partnership
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Austin Ventures V, L.P.
000 Xxxx 0xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Austin Ventures V Affiliates Fund, L.P.
000 Xxxx 0xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Internet Capital Group, LLC
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Xxxxx Xxxxxxxxx
00000 Xxxxxxx Xxxxx Xx.
Xxxxxx, Xxxxx 00000
X.X. Xxxxx
0000 Xxxxxxxx, #000
Xxxxxx, Xxxxx 00000
Xxxxx Xxxxxxx
00000 Xxx Xxxxx Xxxx
Xxxxxx, Xxxxx 00000
Xxxxxx X. Xxxxx
0 Xxxxxxx Xx.
Xxxxxx, Xxxxx 00000
Xxxxxxx X. Xxxxxxx
0000 Xxxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Xxxxx Xxxxxx
0000 Xxxxxxx Xxxx Xx.
Xxxxxx, Xxxxx 00000
Xxxxxx Xxxx
0000 Xxxxxxxx
Xxxxxx, Xxxxx 00000
Intel Corporation
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Burtzloff Family Trust
c/o Cardservice International
Attn: Xxxxx Xxxxxxxxx
00000 Xxxxxx Xxxxx Xxxx
Xxxxxx Xxxxx, XX 00000
Xxxxxx Xxxxxx
c/o Cardservice International
00000 Xxxxxx Xxxxx Xxxx
Xxxxxx Xxxxx, XX 00000
3
EXHIBIT 4.4
ADDENDUM TO CLEARCOMMERCE CORPORATION THIRD AMENDED
AND RESTATED INVESTORS' RIGHTS AGREEMENT
Reference is made to the Third Amended and Restated Investors' Rights
Agreement, dated as of December 31, 1999 (the "Agreement"), among ClearCommerce
Corporation, a Delaware corporation (the "Company"), the Founders, the Series C
Purchasers and the Consenting Holders named therein (capitalized terms used
herein but not otherwise defined shall have the meanings given to such terms in
the Agreement).
The undersigned hereby agree that Cardservice International, Inc., a
California corporation ("CSI") and The Burtzloff Family Trust (the "Trust")
hereby become parties to the Agreement to enjoy the rights and benefits and to
be bound by and to observe and perform all obligations, including the Market
Stand-Off provisions of Section 2.14, of a "Series C Purchaser" under the
Agreement with respect to the shares of Common Stock of the Company (the "Common
Shares") acquired pursuant to that certain Common Stock Purchase Agreement dated
March 6, 2000 between the Company, CSI and the Trust; provided, however, that
the Common Shares shall be Registrable Securities only for the purposes of
section 2.3 and 2.12 of the Agreement.
This Addendum will be attached to and become a part of the Agreement and
will be binding upon and inure to the benefit of the Company, CSI, the Trust and
each other party to the Agreement.
CLEARCOMMERCE CORPORATION, a
Delaware corporation
By:
-----------------------------------
Xxxxxxx X. Xxxxxxx, Chief Financial
Officer
CARDSERVICE INTERNATIONAL, a California
corporation
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
BURTZLOFF FAMILY TRUST
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
