EXHIBIT 4.2
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BRIO TECHNOLOGY, INC.
AMENDED AND RESTATED RIGHTS AGREEMENT
June 27, 1997
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TABLE OF CONTENTS
Page
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Section 1. Termination Of Prior Rights...................................... 1
Section 2. Amendment........................................................ 2
Section 3. Registration Rights.............................................. 2
3.1 Definitions...................................................... 2
3.2 Requested Registration........................................... 3
3.3 Company Registration............................................. 4
3.4 Obligations of the Company....................................... 4
3.5 Furnish Information.............................................. 6
3.6 Expenses of Demand Registration.................................. 6
3.7 Expenses of Company Registration................................. 6
3.8 Underwriting Requirements........................................ 6
3.9 Delay of Registration............................................ 7
3.10 Indemnification.................................................. 7
3.11 Reports Under Securities Exchange Act of 1934.................... 9
3.12 Form S-3 Registration............................................ 10
3.13 Assignment of Registration Rights................................ 11
3.14 Limitations on Subsequent Registration Rights.................... 11
3.15 "Market Stand-Off" Agreement..................................... 11
3.16 Termination of Registration Rights............................... 11
Section 4. Additional Rights................................................ 12
4.1 Right of First Offer............................................. 12
4.2 Information Rights............................................... 14
Section 5. Waiver of Right of First Refusal................................. 15
Section 6. Miscellaneous.................................................... 15
6.1 Assignment....................................................... 15
6.2 Third Parties.................................................... 15
6.3 Governing Law.................................................... 15
6.4 Counterparts..................................................... 15
6.5 Notices.......................................................... 15
5.6 Severability..................................................... 16
5.7 Amendment and Waiver............................................. 16
5.8 Effect of Amendment or Waiver.................................... 16
5.9 Rights of Holders................................................ 16
5.10 Delays or Omissions.............................................. 16
5.11 Aggregation of Stock............................................. 17
AMENDED AND RESTATED RIGHTS AGREEMENT
THIS AMENDED AND RESTATED RIGHTS AGREEMENT (the "AGREEMENT") is entered
into as of June 27, 1997, by and among Brio Technology, Inc., a California
corporation (the "COMPANY"), and the individuals and entities set forth on
EXHIBIT A attached hereto (the "SHAREHOLDERS").
RECITALS
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WHEREAS, the Company and certain of the Shareholders have entered into a
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Series A Preferred Stock Purchase Agreement dated March 21, 1995 (the "SERIES A
AGREEMENT"), pursuant to which the Company sold, and the purchasers party
thereto acquired, shares of the Company's Series A Preferred Stock (the "SERIES
A SHARES");
WHEREAS, the Company and certain of the Shareholders have entered into a
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Series B Preferred Stock Purchase Agreement (the "SERIES B AGREEMENT") dated
June 12, 1996, pursuant to which the Company sold, and the purchasers party
thereto acquired, shares of the Company's Series B Preferred Stock (the "SERIES
B SHARES");
WHEREAS, the Company and certain of the Shareholders have entered into a
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Series C Preferred Stock Purchase Agreement (the "SERIES C AGREEMENT") of even
date herewith, pursuant to which the Company will sell, and the purchasers party
thereto will acquire, shares of the Company's Series C Preferred Stock (the
"SERIES C SHARES" and collectively with the Series A Shares and the Series B
Shares, the "SHARES");
WHEREAS, the Company and the Shareholders, exclusive of Shareholders
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purchasing only under the Series C Agreement, are also parties to an Amended and
Restated Rights Agreement dated as of June 12, 1996 (the "SERIES B AGREEMENT"),
pursuant to which the Company granted to such Shareholders certain registration
rights and a right of first offer;
WHEREAS, the parties desire that the Shareholders be granted substantially
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identical registration rights and rights of first offer with respect to the
Series C Shares;
WHEREAS, the execution of this Agreement by the Company is a condition to
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the obligations of the purchasers under the Series C Agreement;
WHEREAS, the Company wishes to execute this Agreement and grant to the
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Shareholders the rights contained herein in order to fulfill such condition;
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties agree as follows:
Section 1. Termination of Series B Agreement. The Shareholders, who
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include a majority in interest of the "Shareholders" who are parties to the
Series B Agreement, and the Company hereby
terminate the Series B Agreement and in place thereof enter into this Agreement
which shall be the sole agreement among the Shareholders and the Company
relating to the subject matter hereof.
Section 2. Amendment. Except as expressly provided herein, neither this
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Agreement nor any term hereof may be amended, waived, discharged or terminated
other than by a written instrument signed by the party against whom enforcement
of any such amendment, waiver, discharge or termination is sought; provided,
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however, that any provisions hereof may be amended, waived, discharged or
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terminated upon the written consent of the Company and the holders of a majority
of the Registrable Securities then outstanding (as defined below), determined on
the basis of assumed conversion of all Shares into Registrable Securities.
Section 3. Registration Rights.
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3.1 Definitions. As used in this Agreement:
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(a) The terms "REGISTER," "REGISTERED," and "REGISTRATION" refer
to a registration effected by preparing and filing a registration statement in
compliance with the Securities Act of 1933, as amended (the "SECURITIES ACT")
and the subsequent declaration or ordering of the effectiveness of such
registration statement.
(b) The term "REGISTRABLE SECURITIES" means:
(i) the shares of Common Stock issuable or issued upon
conversion of the Series A Shares, Series B Shares or Series C Shares issued
pursuant to the Series A Agreement, the Series B Agreement or Series C Agreement
(such shares of Common Stock are referred to hereafter as the "STOCK"), and
(ii) any other shares of Common Stock of the Company issued
as (or issuable upon the conversion or exercise of any warrant, right or other
security which is issued as) a dividend or other distribution with respect to,
or in exchange for or in replacement of, the Stock, excluding in all cases,
however, any Registrable Securities sold by a person in a transaction in which
his or her rights under this Agreement are not assigned;
provided, however, that Common Stock or other securities shall only be treated
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as Registrable Securities if and so long as they have not been (A) sold to or
through a broker or dealer or underwriter in a public distribution or a public
securities transaction, or (B) sold in a transaction exempt from the
registration and prospectus delivery requirements of the Securities Act under
Section 4(1) thereof so that all transfer restrictions, and restrictive legends
with respect thereto, if any, are removed upon the consummation of such sale.
(c) The number of shares of "REGISTRABLE SECURITIES THEN
OUTSTANDING" shall be determined by the number of shares of Common Stock
outstanding which are, and the number of shares of Common Stock issuable
pursuant to then exercisable or convertible securities which are, Registrable
Securities.
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(d) The term "HOLDER" means any holder of outstanding
Registrable Securities who, subject to the limitations set forth in Section 3.13
below, acquired such Registrable Securities in a transaction or series of
transactions not involving any registered public offering.
(e) The term "FORM S-3" means such form under the Securities Act
as in effect on the date hereof or any registration form under the Securities
Act subsequently adopted by the Securities and Exchange Commission ("SEC") which
permits inclusion or incorporation of substantial information by reference to
other documents filed by the Company with the SEC.
3.2 Requested Registration.
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(a) If the Company shall receive at any time after the earlier
of (i) March 21, 1998, or (ii) six (6) months 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 an SEC Rule 145 transaction), a written request from the Holders
of at least a majority of the Registrable Securities then outstanding that the
Company file a registration statement under the Securities Act covering the
registration of at least twenty percent (20%) of the Registrable Securities then
outstanding (or a lesser percent if the anticipated aggregate offering price,
net of underwriting discounts and commissions, would exceed $2,000,000), then
the Company shall, within ten (10) days of the receipt thereof, give written
notice of such request to all Holders and shall, subject to the limitations of
subsection 3.2(b), effect as soon as practicable, and in any event within 90
days of the receipt of such request, the registration under the Securities Act
of all Registrable Securities which the Holders request to be registered within
thirty (30) days of the effective date of such notice delivered by the Company
in accordance with Section 5.5.
(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 this Section 3.2 and the Company
shall include such information in the written notice referred to in subsection
3.2(a). 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
3.4(e)) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting by a majority in
interest of the Initiating Holders. Notwithstanding any other provision of this
Section 3.2, 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 which would otherwise be underwritten pursuant hereto,
and the number of shares of Registrable Securities that may be included in the
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,
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that the number of shares of Registrable
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Securities to be included in such underwriting shall not be reduced unless all
other securities are first entirely excluded from such underwriting.
(c) The Company is obligated to effect only two (2) such
registrations pursuant to this Section 3.2.
(d) Notwithstanding the foregoing, if the Company shall furnish
to Holders requesting a registration statement pursuant to this Section 3.2, a
certificate signed by the President of the Company stating that in the good
faith judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its Shareholders 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 such filing
for a period of not more than ninety (90) 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-month period.
3.3 Company Registration. If (but without any obligation to do so)
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the Company proposes to register (including for this purpose a registration
effected by the Company for Shareholders other than the Holders) any of its
Common Stock or other securities under the Securities Act in connection with the
public offering of such securities solely for cash (other than a registration
relating either to the sale of securities to participants in a Company stock
option, stock purchase or similar plan or to an SEC Rule 145 transaction, or a
registration on any form which 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), 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 5.5, the Company shall,
subject to the provisions of Section 3.8, cause to be registered under the
Securities Act all of the Registrable Securities that each such Holder has
requested to be registered.
3.4 Obligations of the Company. Whenever required under this Section
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3 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 its best 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 the earlier of one hundred twenty (120)
days or until the distribution contemplated in the registration statement has
been completed; provided, however, that (i) such 120-day period shall be
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extended for a period of time equal to the period the Holder refrains from
selling any securities included in such registration at the request of an
underwriter of Common Stock (or other securities) of the Company; and (ii) in
the case of any registration of Registrable Securities on Form S-3 which are
intended to be offered on a continuous or delayed basis, such 120-day period
shall be extended, if necessary, to keep the registration statement effective
until all such Registrable Securities are sold, provided that Rule 415, or any
successor rule under the Securities Act, permits an offering on a continuous or
delayed basis, and the obligation to file a post-effective amendment permit, in
lieu of filing a post-effective amendment which (A) includes any prospectus
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required by Section 10(a)(3) of the Securities Act or (B) reflects facts or
events representing a material or fundamental change in the information set
forth in the registration statement, the incorporation by reference of
information required to be included in (A) and (B) above to be contained in
periodic reports filed pursuant to Sections 13 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "1934 ACT"), in the registration
statement.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders,
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter 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 Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
(g) Cause all such Registrable Securities registered pursuant to
this Section 3 to be listed on each securities exchange on which similar
securities issued by the Company are then listed.
(h) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant to this Section 3 and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
(i) Furnish, at the request of any Holder requesting
registration of Registrable Securities pursuant to this Section 3, on the date
that such Registrable Securities are delivered to the underwriters for sale in
connection with a registration pursuant to this Section 3, if such
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securities are being sold through underwriters, or, if such securities are not
being sold through underwriters, on the date that the registration statement
with respect to such securities becomes effective, an opinion, dated such date,
of the counsel representing the Company for the purposes of such registration,
in form and substance as is customarily given to underwriters in an underwritten
public offering, addressed to the underwriters, if any, and to the Holders
requesting registration of Registrable Securities.
3.5 Furnish Information. It shall be a condition precedent to the
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obligations of the Company to take any action pursuant to this Section 3 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.
3.6 Expenses of Demand Registration. All expenses other than
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underwriting discounts and commissions and the fees and disbursements of special
counsel for the selling Holders, if any, incurred in connection with
registrations, filings or qualifications pursuant to Section 3.2, including
(without limitation), all registration, filing and qualification fees, printers
and accounting fees, 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
3.2 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 3.2; 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, then the Holders shall not be
required to pay any of such expenses and shall retain their rights pursuant to
Section 3.2.
3.7 Expenses of Company Registration. The Company shall bear and pay
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all expenses incurred in connection with registrations, filings or
qualifications of Registrable Securities with respect to the registrations
pursuant to Section 3.3 for each Holder (which right may be assigned as provided
in Section 3.13), including (without limitation) all registration, filing, and
qualification fees, printers and accounting fees relating or apportionable
thereto, but excluding underwriting discounts and commissions relating to
Registrable Securities and the fees and disbursements of special counsel for the
selling Holders, if any.
3.8 Underwriting Requirements. In connection with any offering
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involving an underwriting of shares being issued by the Company, the Company
shall not be required under Section 3.3 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, and then
only in such quantity as will not, in the opinion of the underwriters,
jeopardize the success of the offering by the Company. If the total amount of
securities, including Registrable Securities, requested by shareholders to be
included in such offering exceeds the amount of securities sold other than by
the Company that the underwriters reasonably believe compatible with the success
of the offering, then the Company shall be required to include in the offering
only that number of such securities which the
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underwriters believe will not jeopardize the success of the offering (the
"Selling Shareholder Securities"), provided, however, that the Selling
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Shareholder Securities shall first be allocated among the requesting Holders pro
rata according to the total amounts of Registrable Securities entitled to be
included in such offering by such requesting Holders and then among all other
holders of securities requesting and legally entitled to include securities in
such offering pro rata based on the total amount of such securities entitled to
be included in such offering by such holders and provided, further, that in no
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event shall (i) the amount of Registrable Securities of the selling Holders
included in the offering be reduced below thirty percent (30%) 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
shareholders may be excluded if the underwriters make the determination
described above and no other shareholder's securities are included or (ii)
notwithstanding (i) above, any shares being sold by a Holder exercising a demand
registration right similar to that granted in Section 3.2 be excluded from such
offering. For purposes of the preceding parenthetical concerning apportionment,
for any selling Holder which is a holder of Registrable Securities and which is
a partnership or corporation, the partners, retired partners and shareholders 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 shareholder," and any pro rata reduction with
respect to such "selling shareholder" shall be based upon the aggregate amount
of shares carrying registration rights owned by all entities and individuals
included in such "selling shareholder," as defined in this sentence.
3.9 Delay of Registration. No Holder shall have any right to obtain
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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 3.
3.10 Indemnification. In the event any Registrable Securities are
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included in a registration statement under this Section 3:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Holder, any underwriter (as defined in the Securities
Act) for such Holder and each person, if any, who controls such Holder or
underwriter within the meaning of the Securities Act or the 1934 Act, against
any losses, claims, damages, or liabilities (joint or several) to which they may
become subject under the Securities Act, the 1934 Act or other federal or state
law, insofar as such losses, claims, damages, or liabilities (or actions in
respect thereof) arise out of or are based upon any of the following statements,
omissions or violations (collectively a "VIOLATION"): (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 Securities Act, the 1934 Act, any
state securities law or any rule or regulation promulgated under the Securities
Act, the 1934 Act or any state securities law; and the Company will pay as
incurred to each such Holder, underwriter or controlling person, 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 3.10(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
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shall not be unreasonably withheld), nor shall the Company be liable in any such
case for any such loss, claim, damage, liability, or action to the extent that
it arises out of or is based upon a Violation which occurs in reliance upon and
in conformity with written information furnished expressly for use in connection
with such registration by 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 Securities 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 Securities 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 3.10(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 3.10(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
3.10(b) exceed the gross proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 3.10 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 3.10, 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, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 3.10, 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
3.10.
d) If the indemnification provided for in this Section 3.10 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, will 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
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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. The relative fault of the indemnifying
party and of the indemnified party will 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 will control.
(f) The obligations of the Company and Holders under this
Section 3.10 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 3, and otherwise.
3.11 Reports Under Securities Exchange Act of 1934. With a view to
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making available to the Holders the benefits of Rule 144 promulgated under the
Securities 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:
(a) make and keep public information available, as those terms
are understood and defined in SEC Rule 144, at all times after ninety (90) days
after the effective date of the first registration statement filed by the
Company for the offering of its securities to the general public;
(b) take such action, including the voluntary registration of
its Common Stock under Section 12 of the 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 Securities 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 Securities 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
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any rule or regulation of the SEC which permits the selling of any such
securities without registration or pursuant to such form.
3.12 Form S-3 Registration. In case the Company shall receive from
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any Holder or Holders owning in the aggregate at least twenty percent (20%) of
the Registrable Securities then outstanding a written request or requests 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 15 days after receipt of such written notice from the Company; provided,
however, that the Company shall not be obligated to effect any such
registration, qualification or compliance, pursuant to this Section 3.12, (i) if
Form S-3 is not available for such offering by the Holders; (ii) if the Holders,
together with the holders of any other securities of the Company entitled to
inclusion in such registration, propose to sell Registrable Securities and such
other securities (if any) at an aggregate price to the public (net of any
underwriters' discounts or commissions) of less than $250,000; (iii) if the
Company shall furnish to the Holders a certificate signed by the president of
the Company stating that in the good faith judgment of the Board of Directors of
the Company, it would be seriously detrimental to the Company and its
Shareholders for such Form S-3 Registration to be effected at such time, in
which event the Company shall have the right to defer the filing of the Form S-3
registration statement for a period of not more than ninety (90) days after
receipt of the request of the Holder or Holders under this Section 3.12;
provided, however, that the Company shall not utilize this right more than once
in any twelve month period; (iv) if the Company has, within the twelve-month
period preceding the date of such request, already effected two registrations on
Form S-3 for the Holders pursuant to this Section 3.12; or (v) in any particular
jurisdiction in which the Company would be required to qualify to do business or
to execute a general consent to service of process in effecting such
registration, qualification or compliance.
(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 3.12, 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, shall be borne pro rata by the Holder or Holders
participating in the Form S-3 Registration and, if it participates, the Company
(on a pro rata basis); provided, however, that the Company shall bear any
auditing expenses that shall be incurred in the normal course of business and
shall bear all regular salary expenses of its employees. Registrations effected
pursuant to this Section 3.12 shall not be counted as demands for registration
or registrations effected pursuant to Sections 3.2 or 3.3.
-10-
3.13 Assignment of Registration Rights. The rights to cause the
---------------------------------
Company to register Registrable Securities pursuant to this Section 3 may be
assigned by a Holder to a transferee or assignee provided 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; and provided, further, that
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 Securities Act.
3.14 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 at least a majority of the Registrable Securities then
outstanding, enter into any agreement with any holder or prospective holder of
any securities of the Company which would grant such holder or prospective
holder any or all of the registration rights contemplated herein; provided,
--------
however, that such restriction shall not apply to registration rights granted in
-------
conjunction with the issuance of up to an aggregate of 200,000 shares of Common
Stock, including rights to acquire Common Stock or securities convertible into
Common Stock, issued or issuable in connection with capital equipment leases,
technology acquisitions and other comparable transactions approved by the Board
of Directors.
3.15 "Market Stand-Off" Agreement. Each Shareholder hereby agrees
---------------------------
that during the 180-day period following the effective date of the registration
statement filed by the Company with respect to its initial public offering under
the Securities Act, it shall not, to the extent requested by the Company and
such underwriter, sell or otherwise transfer or dispose of (other than to donees
who agree to be similarly bound) any Common Stock of the Company held by it at
any time during such period except Common Stock included in such registration
and, in the case of Integral Capital Partners III, L.P., Integral Capital
Partners International III, L.P., Raptor Global Fund, L.P., Raptor Global Fund,
Ltd., Tudor BVI Futures, Ltd., and Tudor Arbitrage Partners, L.P. only, Common
Stock acquired in the Company's initial public offering or acquired in the open
market after such initial public offering; provided, however, that (a) the
officers and the directors of the Company enter into similar agreements and (b)
the restrictions set forth in this Section 3.15 shall be applicable only to the
first such registration statement of the Company covering securities to be sold
on its behalf in an underwritten public offering.
To enforce the foregoing covenant, the Company may impose stop-
transfer instructions with respect to the Registrable Securities of the
Purchaser (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period.
3.16 Termination of Registration Rights . No Holder shall be
----------------------------------
entitled to exercise any right provided for in this Section 3 (a) after seven
(7) years following the consummation of the Company's sale of its Common Stock
in a bona fide, firm commitment underwriting pursuant to a registration
statement on Form S-1 under the Securities Act (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) or (b) at such time following the Company's initial public offering
if, and for so long as, such Holder may sell all of such Holder's Registrable
Securities in any one three-month period pursuant to Rule 144 (or such successor
rule as may be adopted).
-11-
Section 4. Additional Rights.
-----------------
4.1 Right of First Offer. Subject to the terms and conditions
--------------------
specified in this Section 4.1, the Company hereby grants to each Shareholder, so
long as such Shareholder holds not less than 560,000 shares of Common Stock
issued or issuable upon conversion of the Preferred Stock held thereby (the
"RIGHTHOLDER"), a right of first offer with respect to future sales by the
Company of its New Securities (as hereinafter defined). For purposes of this
Section 4.1, the term Shareholder includes any partners, shareholders or
affiliates of the Shareholder and shall further include all mutual funds or
other pooled investment vehicles or entities under the control or management of
such Shareholder, or of the general partner or investment advisor thereof, or
any affiliate of any of the foregoing. The Rightholder shall be entitled to
apportion the right of first offer hereby granted among itself and its partners,
Shareholders and affiliates in such proportions as it deems appropriate.
(a) In the event the Company proposes to issue New
Securities, it shall give the Rightholder written notice (the "NOTICE") of its
intention stating (i) a description of the New Securities it proposes to issue,
(ii) the number of shares of New Securities it proposes to offer, (iii) the
price per share at which, and other terms on which, it proposes to offer such
New Securities and (iv) the number of shares that the Rightholder has the right
to purchase under this Section 4.1, based on the Rightholder's Percentage (as
defined in Subsection 4.1(d)(ii)).
(b) Within fifteen (15) days after the Notice is given (in
accordance with Section 6.5), the Rightholder may elect to purchase, at the
price specified in the Notice, up to the number of shares of the New Securities
proposed to be issued that the Rightholder has the right to purchase as
specified in the Notice. An election to purchase shall be made in writing and
must be given to the Company within such 15-day period (in accordance with
Section 6.5). The closing of the sale of New Securities by the Company to the
participating Rightholder upon exercise of its rights under this Section 4.1
shall take place simultaneously with the closing of the sale of New Securities
to third parties.
(c) The Company shall have ninety (90) days after the last
date on which the Rightholder's right of first offer lapsed to enter into an
agreement (pursuant to which the sale of New Securities covered thereby shall be
closed, if at all, within forty-five days from the execution thereof) to sell
the New Securities which the Rightholder did not elect to purchase under this
Section 4.1, at or above the price and upon terms not materially more favorable
to the purchasers of such securities than the terms specified in the initial
Notice given in connection with such sale. In the event the Company has not
entered into an agreement to sell the New Securities within such ninety day
period (or sold and issued New Securities in accordance with the foregoing
within forty-five days from the date of said agreement), the Company shall not
thereafter issue or sell any New Securities without first offering such New
Securities to the Rightholder in the manner provided in this Section 4.1.
(d) (i) "NEW SECURITIES" shall mean any shares of, or
securities convertible into or exercisable for any shares of, any class of the
Company's capital stock; provided that "New Securities" does not include: (A)
the Series A Shares, Series B Shares, or Series C Shares (or the Common Stock
issuable upon conversion thereof); (B) securities issued pursuant to the
-12-
acquisition of another business entity by the Company by merger, purchase of
substantially all of the assets of such entity, or other reorganization whereby
the Company owns not less than a majority of the voting power of such entity;
(C) shares, or options to purchase shares, of the Company's Common Stock and the
shares of Common Stock issuable upon exercise of such options, issued pursuant
to any arrangement approved by the Board of Directors to employees, officers and
directors of, or consultants, advisors or other persons performing services for,
the Company; (D) shares of the Company's Common Stock or Preferred Stock of any
series issued in connection with any stock split, stock dividend or
recapitalization of the Company; (E) Common Stock issued upon exercise of
warrants, options or convertible securities if the issuance of such warrants,
options or convertible securities was a result of the exercise of the right of
first offer granted under this Section 4.1 or was subject to the right of first
offer granted under this Section 4.1; (F) capital stock or warrants or options
for the purchase of shares of capital stock issued by the Company to a lender in
connection with any loan or lease financing transaction; and (G) securities sold
to the public in an offering pursuant to a registration statement filed with the
Securities and Exchange Commission under the Securities Act.
(ii) The applicable "PERCENTAGE" for the Rightholder
shall be the number of shares of New Securities calculated by dividing (A) the
total number of shares of Common Stock issued or issuable upon conversion of the
Preferred Stock then owned by the Rightholder by (B) the total number of shares
of Common Stock outstanding at the time the Notice is given (assuming conversion
of all Shares of Preferred Stock).
(e) The right of first offer granted under this Section 4.1
shall not apply to and shall expire upon the consummation of the Company's sale
of its Common Stock in a bona fide, firm commitment underwriting pursuant to a
registration statement on Form S-1 under the Securities Act which results in
aggregate gross cash proceeds to the Company in excess of $10,000,000 and the
public offering price of which is not less than $7.04 per share (adjusted to
reflect subsequent stock dividends, stock splits or recapitalization) (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).
(f) The right of first offer granted under this section may be
assigned by the Rightholder to a transferee or assignee of the Rightholder's
shares of the Company's stock acquiring at least 560,000 of the Rightholder's
shares of the Company's Common Stock (treating all shares of Preferred Stock for
this purpose as though converted into Common Stock) (equitably adjusted for any
stock splits, subdivision stock dividends, changes, combinations or the like).
In the event that the Rightholder shall assign its right of first offer pursuant
to this Section 4.1 in connection with the transfer of less than all of its
shares of the Company's stock, the Rightholder shall also retain its right of
first offer to the extent then applicable under this Section 4.1.
4.2 Information Rights.
------------------
(a) The Company shall deliver to each Shareholder 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 as of the end of such year, and a schedule as to the
sources and applications of funds for such year, such year-end financial reports
to be
-13-
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) The Company shall deliver to each Shareholder, so long as
it holds not less than 560,000 shares of Preferred Stock (or Common Stock
issuable upon conversion thereof);
(i) within thirty (30) days of the end of each month,
an unaudited income statement and schedule as to the sources and application of
funds and balance sheet and comparison to budget for and as of the end of such
month, in reasonable detail;
(ii) as soon as practicable, but in any event thirty
(30) days prior to the end of each fiscal year, a budget and business plan for
the next fiscal year, prepared on a monthly basis, including balance sheets and
sources and applications of funds statements for such months and, as soon as
prepared, any other budgets or revised budgets prepared by the Company; and
(iii) such other information relating to the financial
business, prospects or corporate affairs of the Company as the or any assignee
of the Purchaser may from time to time request, provided, however, that the
Company shall not be obligated to provide information which it deems in good
faith to be proprietary.
(c) The Company shall permit each Shareholder holding not less
than 560,000 shares of Preferred Stock, at such Shareholder'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 such Shareholder;
provided, however, that the Company shall not be obligated pursuant to this
subsection 4.2(c) to provide access to any information which it reasonably
considers to be a trade secret or similar confidential information.
(d) The covenants set forth in this Section 4.2 shall
terminate as to all Shareholders and be of no further force or effect
immediately upon the consummation of the Company's sale of its Common Stock in a
bona fide, firm commitment underwriting pursuant to a registration statement on
Form S-1 under the Act (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).
Section 5. Waiver of Right of First Refusal. With respect to the issuance
--------------------------------
of up to 1,704,546 shares of Series C Shares pursuant to the Series C Agreement
and the shares of Common Stock issuable upon conversion of such shares, each
Series A Investor and each Series B Investor holding a right of first refusal to
purchase securities of the Company, by its execution hereof, hereby waives any
rights it may have to purchase such Series C Shares, if any.
-14-
Section 6. Miscellaneous.
-------------
6.1 Assignment. Subject to the provisions of Section 3.13 hereof,
----------
the terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties hereto.
6.2 Third Parties. Nothing in this Agreement, express or implied,
-------------
is intended to confer upon any party, other than the parties hereto, and their
respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
herein.
6.3 Governing Law. This Agreement shall be governed by and
-------------
construed under the laws of the State of California in the United States of
America.
6.4 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.
6.5 Notices.
-------
(a) All notices, requests, demands and other communications
under this Agreement or in connection herewith shall be given to or made upon
the respective parties as follows:
To the Company: Brio Technology, Inc.
0000 X. Xxxxxxxx
Xxxx Xxxx, XX 00000
(000) 000-0000
(000) 000-0000 fax
Attention: President
To a Shareholder: At the Shareholder's address as set forth on EXHIBIT A
hereto.
(b) All notices, requests, demands and other communications
given or made in accordance with the provisions of this Agreement shall be in
writing, and shall be sent by airmail, return receipt requested, or by telex or
telecopy (facsimile) with confirmation of receipt, and shall be deemed to be
given or made when receipt is so confirmed.
(c) Any party may, by written notice to the other, alter its
address or respondent, and such notice shall be considered to have been given
twenty (20) days after the airmailing, or one (1) day after the telexing or
telecopying thereof.
6.6 Severability. If one or more provisions of this Agreement are
------------
held to be unenforceable under applicable law, portions of such provisions, or
such provisions in their entirety, to
-15-
the extent necessary, shall be severed from this Agreement, and the balance of
this Agreement shall be enforceable in accordance with its terms.
6.7 Amendment and Waiver. Any provision of this Agreement may be
--------------------
amended with the written consent of the Company and the Holders of at least a
majority of the Registrable Securities then outstanding. Any amendment or waiver
effected in accordance with this paragraph shall be binding upon each Holder of
Registrable Securities, and the Company. In addition, the Company may waive
performance of any obligation owing to it, as to some or all of the Holders of
Registrable Securities, or agree to accept alternatives to such performance,
without obtaining the consent of any Holder of Registrable Securities. In the
event that an underwriting agreement is entered into between the Company and any
Holder, and such underwriting agreement contains terms differing from this
Agreement, as to any such Holder the terms of such underwriting agreement shall
govern.
6.8 Effect of Amendment or Waiver. Investor and its successors and
-----------------------------
assigns acknowledge that by the operation of Section 2 hereof the holders of a
majority of the outstanding Registrable Securities, acting in conjunction with
the Company, will have the right and power to diminish or eliminate all rights
pursuant to this Agreement.
6.9 Rights of Holders. Each holder of Registrable Securities shall
-----------------
have the absolute right to exercise or refrain from exercising any right or
rights that such holder may have by reason of this Agreement, including, without
limitation, the right to consent to the waiver or modification of any obligation
under this Agreement, and such holder shall not incur any liability to any other
holder of any securities of the Company as a result of exercising or refraining
from exercising any such right or rights.
6.10 Delays or Omissions. No delay or omission to exercise any
-------------------
right, power or remedy accruing to any party to this Agreement, upon any breach
or default of the other party, shall impair any such right, power or remedy of
such non-breaching party nor shall it be construed to be a waiver of any such
breach or default, or an acquiescence therein, or of or in any similar breach or
default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any party of any breach or default under this
Agreement, or any waiver on the part of any party of any provisions or
conditions of this Agreement, must be made in writing and shall be effective
only to the extent specifically set forth in such writing. All remedies, either
under this Agreement, or by law or otherwise afforded to any holder, shall be
cumulative and not alternative.
6.11 Aggregation of Stock. All shares of Registrable Securities held
--------------------
or acquired by affiliated entities or persons, including Registrable Securities
distributed by a Shareholder which is a partnership to the partners of such
partnership, or shares of Registrable Securities held by a mutual fund or other
pooled investment vehicle or entity under the control or management of such
Shareholder, or of the general partner or investment advisor thereof, or any
affiliate of any of the foregoing, shall be aggregated together for the purpose
of determining the availability of any rights under this Agreement.
-16-
IN WITNESS WHEREOF, this Rights Agreement is hereby executed as of the date
first above written.
COMPANY:
-------
BRIO TECHNOLOGY, INC.
By:/s/ Xxxxxx X. Xxxxxx
----------------------
Its: President
----------------------
SHAREHOLDERS:
------------
INTEGRAL CAPITAL PARTNERS III, X.X. XXXXXXX XXXXXXX XXXXXXXX &
By: Integral Capital Management III, X.X. XXXXX VII
Its: General Partner
/s/ E. Xxxxx Xxxxxx
By: /s/ Xxxxxx X. Heganan --------------------------
---------------------- By: KPCB VII Associates
Its: General Partner
Its: General Partner
INTEGRAL CAPITAL PARTNERS KPCB INFORMATION SCIENCES
INTERNATIONAL III, L.P. ZAIBATSU FUND II
BY: Integral Capital Management III, L.P.
its: Investment General Partner
/s/ E. Xxxxx Xxxxxx
By: /s/ Xxxxxx X. Heganan ----------------------------
-------------------------- By: KPCB VII Associates
Its: General Partner
Its: General Partner
NOVUS VENTURES L.P.
By: DT Associates, its General Partner
By: /s/ Xxx Xxxxxxxx
-----------------
General Partner
[Signature page to the Brio Technology, Inc. Amended and Restated Rights
Agreement dated June 27, 1997.]
-17-
SHAREHOLDERS (CONTINUED):
------------------------
RAPTOR GLOBAL FUND, L.P. RAPTOR GLOBAL FUND, LTD.
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxxxx
----------------------- ------------------------
Name Xxxxxx Xxxxxxxx Name Xxxxxx Xxxxxxxx
------------------- -------------------
Title: Vice President Title: Vice President
----------------- -----------------
TUDOR BVI FUTURES, LTD. TUDOR ARBITRAGE PARTNERS, L.P .
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxxxx
------------------------ ------------------------
Name Xxxxxx Xxxxxxxx Name Xxxxxx Xxxxxxxx
-------------------- --------------------
Title: Vice President Title: Vice President
----------------- ------------------
XXX XXXXXXXXXXX DMG TECHNOLOGY VENTURES, L.L.C.
By: /s/ Xxxx Xxxxxxxxx By: /s/ X.X. Xxxxx
---------------------- ------------------
Its: VP Corporate Business Development Its: Managing Director DMG
---------------------------------- ----------------------
Technology Group
----------------
VENTURE LAW GROUP INVESTMENTS 0000 XXXXX X. XXXXXXX
By: /s/ Xxxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxxxx
---------------------- -----------------
its: Partner
---------
XXXX X. XXXXX
/s/ Xxxx X. Xxxxx
-------------------
[Signature page to the Brio Technology, Inc. Amended and Restated Rights
Agreement dated June 27, 1997.]
EXHIBIT A
---------
SHAREHOLDERS
Integral Capital Partners III, L.P. KPCB Information Sciences Zaibatsu Fund II
0000 Xxxx Xxxx Xxxx 000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000 Xxxxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxx Attn: E. Xxxxx Xxxxxx
Integral Capital Partners International III, X.X. Xxxxxxx Xxxxxxx Xxxxxxxx & Xxxxx VII
0000 Xxxx Xxxx Xxxx 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000 Xxxxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxx Attn: E. Xxxxx Xxxxxx
Novus Ventures L.P. Xxxxxxxx Xxxxxx
20111 Stevens Creek Blvd. c/o Prudential Securities
Xxxxx 000 0 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Attn: Xxx Xxxxxxxx
C. Xxxxx Xxxxxxx VLG Investments 1995
0000 Xxxxxx Xxxxxx c/o Venture Law Group
Xxxxxxxx, XX 00000 Attn: Xxxx X. Xxxxx
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Cotran Investments Limited High Peak Ltd.
00 Xxxxxx Xxxxxx 0 Xxx Xxxx Xxxx
0xx Xxxxx Xxxxxx X0X 0XX England
Xxxxxx X0X 0XX Xxxxxxx Attn: Xxxxx Xxxxxx
Attn: Xxxxxxx Xxxxxxx Fax: 000-00-000-000-0000
Fax: 000-00-000-000-0000
Xxxx & Co.
c/x Xxxxxxxxx Administration PLC
0 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX Xxxxxxx
Attn: Xxx Xxxxxxx
Fax: 000-00-000-000-0000
Send stock certificate to:
Chase Manhattan Bank
0000 Xxxxxx xx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxx
Account CMB London
Account PS75350
Ref: GTI 0000000
EXHIBIT A
---------
SHAREHOLDERS (CONTINUED)
Grangethorpe Pension Scheme
00 Xxxxxx Xxxxxx Xxxxxx X. Xxxx
0xx Xxxxx x/x Xxxxxx & Xxxx
Xxxxxx X0X 0XX Xxxxxxx 000 Xxxxx'x Xxxxxxx Xxxx, Xxxxx 000
Attn: Xxxxx Xxxxxx Xxxxxxxxx, XX 00000
Fax: 000-00-000-000-0000
Raptor Global Fund L. P. DMG Technology Ventures, L.L.C.
c/o Tudor Investment Corporation, Inc. 0000 Xx Xxxxxx Xxxx, Xxxxx 000
00 Xxxxx Xxxxx, 0xx Xxxxx Xxxxx Xxxx XX 00000
Xxxxxx, XX 00000 Attn: Xxxx Xxxxx
Attn: Xxxx Xxxxxx
Raptor Global Fund, Ltd. Tudor BVI Futures, Ltd.
c/o Tudor Investment Corporation, Inc. c/o Tudor Investment Corporation, Inc.
00 Xxxxx Xxxxx, 0xx Xxxxx 00 Xxxxx Xxxxx, 0xx Xxxxx
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Attn: Xxxx Xxxxxx Attn: Xxxx Xxxxxx
Tudor Arbitrage Partners, L.P. XXX Xxxxxxxxxxx
c/o Xxxxx Investment Corporation, Inc. 00 Xxxxxxxx Xxxxx
00 Xxxxx Xxxxx, 0xx Xxxxx Xxxxxxxxx, XX 00000-0000
Xxxxxx, XX 00000 Attn: Xxxx Xxxxxxxxx
Attn: Xxxx Xxxxxx
Venture Law Group Investments 0000 Xxxxx X. Xxxxxxx
0000 Xxxx Xxxx Xxxx c/o Venture Law Group
Xxxxx Xxxx, XX 00000 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Xxxx X. Xxxxx
c/o Venture Law Group
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
