Exhibit 10.12
FOURTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
This Fourth Amended and Restated Investors' Rights Agreement is made
this 21st day of April, 1999, by and among Centra Software, Inc., a Delaware
corporation (the "Company"), the persons and entities listed on Exhibit A hereto
(each, a "Purchaser" and collectively, the "Purchasers"), and Xxxx Xxxxxxxx (the
"Founder"). The Purchasers and the Founder are sometimes referred to in this
Agreement collectively as the "Stockholders."
RECITALS:
WHEREAS, the Founder owns 1,200,000 shares (the "Founder's Shares") of
the Common Stock, $.01 par value per share (the "Common Stock"), of the Company;
WHEREAS, certain of the Stockholders hold shares of Series A
Convertible Participating Preferred Stock, $.001 par value (the "Series A
Preferred Stock"), of the Company;
WHEREAS, certain of the Stockholders hold shares of Series B
Convertible Participating Preferred Stock, $.001 par value (the "Series B
Preferred Stock"), of the Company;
WHEREAS, certain of the Stockholders hold shares of Series C
Convertible Preferred Stock, $.001 par value (the "Series C Preferred Stock"),
of the Company;
WHEREAS, certain of the Stockholders hold shares of Series D
Convertible Preferred Stock, $.001 par value (the "Series D Preferred Stock"),
of the Company;
WHEREAS, certain of the Purchasers are purchasing, concurrently
herewith, certain shares of Series E Convertible Preferred Stock, $.001 par
value (the "Series E Preferred Stock," and, together with the Series A Preferred
Stock, the Series B Preferred Stock, the Series C Preferred Stock, and the
Series D Preferred Stock, the "Preferred Stock"), of the Company pursuant to the
Series E Convertible Preferred Stock Purchase Agreement of even date herewith
(the "Purchase Agreement");
WHEREAS, the Company and the Stockholders wish to provide for (i) their
continuing representation on the Board of Directors of the Company, (ii) certain
arrangements with respect to the registration of shares of capital stock of the
Company under the Securities Act of 1933, and (iii) a right of first refusal
with respect to the sale of any shares of capital stock by the Company;
WHEREAS, the Company, certain of the Purchasers and the Founder entered
into a Third Amended and Restated Investors' Rights Agreement dated as of
December 19, 1997 (the "Third Amended Investors' Rights Agreement");
WHEREAS, certain of the Purchasers have waived any right they may have
to purchase Series E Preferred Stock;
WHEREAS, the Company and the parties to the Third Amended Investors'
Rights Agreement wish to amend and restate the Third Amended Investors' Rights
Agreement in its entirety to make certain changes to the parties and the terms
thereof; and
WHEREAS, the Purchasers who or which have executed this Agreement are
the holders of at least 66.7% of the voting power of the Voting Shares,
Registrable Shares or Eligible Shares as each is defined in the Third Amended
Investors' Rights Agreement.
In consideration of the mutual covenants contained herein and the
consummation of the sale and purchase of shares of capital stock of the Company
pursuant to the Purchase Agreement, and for other valuable consideration,
receipt of which is hereby acknowledged, the parties hereto agree to amend and
restate the Third Amended Investors' Rights Agreement as follows:
ARTICLE I. VOTING RIGHTS
1. VOTING OF SHARES.
(a) In any and all elections of directors of the Company
(whether at a meeting or by written consent in lieu of a meeting), each
Stockholder shall vote or cause to be voted all Voting Shares (as defined in
Section 2 below) owned by him or it, or over which he or it has voting control,
and otherwise use his or its respective best efforts, so as to fix the number of
directors of the Company at eight (8) and to elect (i) the Chief Executive
Officer of the Company, (ii) two (2) members designated by the Purchasers who or
which are holders of Series A Preferred Stock (the "Series A Holders") (by
action of the holders of a majority of the shares of Series A Preferred Stock
held by such Series A Holders), (iii) one (1) member designated by Commonwealth
Capital Ventures L.P. ("Commonwealth"), (iv) one (1) member designated by
Scripps Ventures, LLC ("Scripps"), (v) one (1) member designated by Polaris
Venture Partners ("Polaris"), and (vi) two (2) members mutually agreed upon by
the Purchasers and the Founder (by action of the holders of a majority of the
Shares held by the Purchasers and the Founder). As of the date hereof, there is
one vacancy on the Board of Directors. The directors currently designated by the
Series A Holders are Xxxxxxx X'Xxxxx and Xxxxxxxx Xxxxx. The director currently
designated by Commonwealth is Xxxxxxx Xxxxxxxxxx. The director currently
designated by Scripps is Xxxxxxx X. Xxxxx. The director
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currently designated by Polaris is Xxxxxxxx Xxxxx, it being understood that
Xxxxxxxx Xxxxx will serve both as a designee of the Series A Holders and as the
designee of Polaris. The directors currently mutually agreed upon by the
Purchasers and the Founder are Xxxx Xxxxxxx and Xxxxxxx Xxxxxx. The Chief
Executive Officer of the Company is Xxxx Xxxxxxxx. Additionally, HarbourVest
Partners V-Direct Fund L.P. and The Xxxxxxx Xxxxx Group, L.P. shall each have
the right to appoint a representative (each, an "Observer") to attend all Board
meetings; provided, however, that each Observer shall agree, in writing, to hold
in confidence and trust all information so provided; and provided further, that
the Board shall have the right to withhold any information from or to exclude an
Observer from any meeting or portion thereof if in the good faith judgment of
the Board such actions are necessary to maintain an attorney client privilege.
(b) The Company shall provide the Stockholders with 30 days'
prior written notice of any intended mailing of a notice to stockholders for a
meeting at which directors are to be elected. The Series A Holders,
Commonwealth, Scripps, Polaris, the Purchasers and the Founder shall give
written notice to all other parties to this Agreement, no later than 20 days
prior to such mailing, of the persons designated by them as nominees for
election as directors. The Company agrees to nominate and recommend for election
as directors only the individuals designated, or to be designated, pursuant to
Section 1(a). If the Series A Holders, Commonwealth, Scripps, Polaris, the
Purchasers or the Founder shall fail to give notice to the Company as provided
above, it shall be deemed that their respective designees then serving as
directors shall be their designees for reelection.
(c) The Founder shall not vote to remove any director
designated by the Series A Holders, Commonwealth, Scripps or Polaris, except for
bad faith, willful misconduct or the consistent failure by any such director to
attend meetings of the Company's Board of Directors.
2. VOTING SHARES. "Voting Shares" shall mean and include any and all
shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock
and/or any other shares of capital stock of the Company, by whatever name
called, which carry voting rights (including voting rights which arise by reason
of default) now owned or subsequently acquired by a Stockholder, however
acquired, including, without limitation, by stock split or stock dividend.
3. NO REVOCATION. The voting agreements contained herein are coupled
with an interest and may not be revoked, except by written consent of all of the
Stockholders.
4. INDEMNIFICATION. In the event that any director elected (i) pursuant
to Section 1 of this Article I or (ii) pursuant to Article 4(B) Section 3(b) of
the Company's Certificate of Incorporation shall be made or threatened to be
made a party to any action, suit or proceeding with respect to which he may be
entitled to indemnification by the Company pursuant to its
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Certificate of Incorporation or By-Laws, or otherwise, he shall be entitled to
be represented in such action, suit or proceeding by counsel of his choice and
the reasonable expenses of such representation shall be reimbursed by the
Company to the extent provided in or authorized by said Certificate of
Incorporation or By-laws. In the event of an action, suit or proceeding against
more than one director in which there are no actual or potential differing
interests among more than one director, such directors shall use reasonable
efforts to choose one counsel to represent all such directors. Each of the
Stockholders agrees not to take any action to amend any provisions of the
Certificate of Incorporation or the By-Laws of the Company which would reduce or
limit the indemnification of directors, as presently in effect, unless such
amendment would have only prospective effect, without the prior written consent
of all of the Stockholders.
5. RESTRICTIVE LEGEND. All certificates representing Voting Shares
owned or hereafter acquired by the Stockholders or any transferee of the
Stockholders bound by this Agreement shall have affixed thereto a legend
substantially in the following form:
"The shares of stock represented by this certificate
are subject to certain voting agreements as set forth
in an Investors' Rights Agreement by and among the
registered owner of this certificate, the Company and
certain other stockholders of the Company, a copy of
which is available for inspection at the offices of
the Secretary of the Company."
6. TRANSFERS OF VOTING RIGHTS. Any transferee to whom Voting Shares are
transferred by a Stockholder, whether voluntarily or by operation of law, shall
be bound by the voting obligations imposed upon the transferor under this
Agreement, and shall be entitled to the rights granted to the transferor under
this Agreement, to the same extent as if such transferee were a Stockholder
hereunder.
ARTICLE II. REGISTRATION RIGHTS
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the following respective meanings:
"COMMISSION" means the Securities and Exchange Commission, or
any other Federal agency at the time administering the Securities Act.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, or any similar Federal statute, and the rules and regulations of the
Commission issued under such Act, as they each may, from time to time, be in
effect.
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"REGISTRATION STATEMENT" means a registration statement filed
by the Company with the Commission for a public offering and sale of Common
Stock (other than a registration statement on Form S-8 or Form S-4, or their
successors, or any other form for a similar limited purpose, or any registration
statement covering only securities proposed to be issued in exchange for
securities or assets of another corporation).
"REGISTRATION EXPENSES" means the expenses described in
Section 5 of this Article II.
"REGISTRABLE SHARES" means (i) the shares of Common Stock
issued or issuable upon conversion of the Shares, (ii) any shares of Common
Stock, and any shares of Common Stock issued or issuable upon the conversion or
exercise of any other securities, acquired by the Purchasers pursuant to Article
III of this Agreement (or any predecessor agreement) and (iii) any other shares
of Common Stock issued in respect of such shares (because of stock splits, stock
dividends, reclassifications, recapitalizations, or similar events); PROVIDED,
HOWEVER, that shares of Common Stock which are Registrable Shares shall cease to
be Registrable Shares (i) upon any sale pursuant to a Registration Statement or
Rule 144 under the Securities Act or (ii) upon any sale in any manner to a
person or entity which, by virtue of Article IV, Section 2 of this Agreement, is
not entitled to the rights provided by this Agreement. Wherever reference is
made in this Article II to a request or consent of holders of a certain
percentage of Registrable Shares, the determination of such percentage shall
include shares of Common Stock issuable upon conversion of the Shares even if
such conversion has not yet been effected.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
or any similar Federal statute, and the rules and regulations of the Commission
issued under such Act, as they each may, from time to time, be in effect.
"SHARES" shall have the meaning specified, and include all
such Shares referred to, in Subsection 1.2 of the Purchase Agreement, Subsection
1.2 of the Series D Convertible Preferred Stock Purchase Agreement dated
December 19, 1997, Subsection 1.2 of the Series C Convertible Preferred Stock
Purchase Agreement dated March 6, 1997, Subsection 1.2 of the Series B
Convertible Participating Preferred Stock Purchase Agreement dated May 1, 1996,
and Subsection 1.2 of the Series A Convertible Participating Preferred Stock
Purchase Agreement dated April 11, 1995 by and among the Company, the Founder
and certain of the Purchasers.
"STOCKHOLDERS" means the Purchasers and Founder, any persons
or entities to whom the rights granted under this Article II are transferred by
any Purchasers or the Founder, and their successors or assigns pursuant to
Article IV, Section 2 of this Agreement.
2. REQUIRED REGISTRATIONS.
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(a) At any time after the earlier of April 21, 2002 or the
closing of the Company's first underwritten public offering of shares of Common
Stock pursuant to a Registration Statement, a Stockholder or Stockholders
holding in the aggregate at least a majority of the Registrable Shares may
request, in writing, that the Company effect the registration on Form S-1 or
Form S-2 (or any successor form) of Registrable Shares owned by such Stockholder
or Stockholders having an aggregate offering price of at least $10,000,000
(based on the then current market price or fair value). If the holders
initiating the registration intend to distribute the Registrable Shares by means
of an underwriting, they shall so advise the Company in their request. In the
event such registration is underwritten, the right of other Stockholders to
participate shall be conditioned on such Stockholders' participation in such
underwriting. Upon receipt of any such request, the Company shall promptly give
written notice of such proposed registration to all Stockholders. Such
Stockholders shall have the right, by giving written notice to the Company
within 30 days after the Company provides its notice, to elect to have included
in such registration such of their Registrable Shares as such Stockholders may
request in such notice of election; provided that if the underwriter (if any)
managing the offering determines that, because of market factors, all of the
Registrable Shares requested to be registered by all Stockholders may not be
included in the offering, then all Stockholders who have requested registration
shall participate in the registration pro rata based upon the number of
Registrable Shares which they have requested to be so registered. Thereupon, the
Company shall, as expeditiously as possible, use its best efforts to effect the
registration on Form S-1 or Form S-2 (or any successor form) of all Registrable
Shares which the Company has been requested to so register.
(b) At any time after the Company becomes eligible to file a
Registration Statement on Form S-3 (or any successor form relating to secondary
offerings), a Stockholder or Stockholders may request the Company, in writing,
to effect the registration on Form S-3 (or such successor form), of Registrable
Shares having an aggregate offering price of at least $500,000 (based on the
then current public market price). Upon receipt of any such request, the Company
shall promptly give written notice of such proposed registration to all
Stockholders. Such Stockholders shall have the right, by giving written notice
to the Company within 30 days after the Company provides its notice, to elect to
have included in such registration such of their Registrable Shares as such
Stockholders may request in such notice of election; provided that if the
underwriter (if any) managing the offering determines that, because of market
factors, all of the Registrable Shares requested to be registered by all
Stockholders may not be included in the offering, then all Stockholders who have
requested registration shall participate in the registration pro rata based upon
the number of Registrable Shares which they have requested to be so registered.
Thereupon, the Company shall, as expeditiously as possible, use its best efforts
to effect the registration on Form S-3 (or such successor form) of all
Registrable Shares which the Company has been requested to so register.
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(c) The Company shall not be required to effect more than two
registrations pursuant to paragraph (a) above; PROVIDED, HOWEVER, that such
obligation shall be deemed satisfied only when a registration statement covering
the applicable Registrable Shares shall have (i) become effective and, if such
method of disposition is a firm commitment underwritten public offering, all
such Registrable Shares have been sold pursuant thereto or (ii) been withdrawn
at the request of the Stockholders requesting such registration (other than as a
result of information concerning the business or financial condition of the
Company which is made known to the Stockholders after the date on which such
registration was requested). There shall be no limit on the number of
registrations which may be requested and obtained pursuant to paragraph (b)
above. In addition, the Company shall not be required to effect any registration
(other than on Form S-3 or any successor form relating to secondary offerings)
within six months after the effective date of any other Registration Statement
on Form S-1 of the Company, in which, subject to Section 3(b) of this Article
II, the holders of Registrable Shares shall have been entitled to join pursuant
to Section 3 of this Article II.
(d) If at the time of any request to register Registrable
Shares pursuant to this Section 2, the Company is engaged or has fixed plans to
engage within 30 days of the time of the request in a registered public offering
as to which the Stockholders may include Registrable Shares pursuant to Section
3 of this Article II or is engaged in any other activity which, in the good
faith determination of the Company's Board of Directors, would be adversely
affected by the requested registration to the material detriment of the Company,
then the Company may at its option direct that such request be delayed for a
period not in excess of six months from the effective date of such offering or
the date of commencement of such other material activity, as the case may be,
such right to delay a request to be exercised by the Company not more than once
in any two-year period.
(e) If at any time when a registration statement on Form S-3
is in effect a material event occurs which the Company's Board of Directors
determines, in good faith, should not be immediately disclosed, the Company
shall so inform each Stockholder which has included Registrable Shares in such
registration statement. Each such Stockholder shall suspend the making of offers
or sales under such registration statement until such material event is
disclosed. The Company shall disclose such material event as soon as is
practicable thereafter in the good faith judgment of its Board of Directors.
3. INCIDENTAL REGISTRATION.
(a) Whenever the Company proposes to file a Registration
Statement (other than pursuant to Section 2 of this Article II) at any time and
from time to time, it will, prior to such filing, give written notice to all
Stockholders of its intention to do so and, upon the written request of a
Stockholder or Stockholders given within 20 days after the Company provides such
notice (which request shall state the intended method of disposition of such
Registrable Shares), the Company shall use its best efforts to cause all
Registrable Shares
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which the Company has been requested by such Stockholder or Stockholders to
register to be registered under the Securities Act to the extent necessary to
permit their sale or other disposition in accordance with the intended methods
of distribution specified in the request of such Stockholder or Stockholders;
provided that the Company shall have the right to postpone or withdraw any
registration effected pursuant to this Section 3 without obligation to any
Stockholder.
(b) In connection with any registration under this Section 3
involving an underwriting, the Company shall not be required to include any
Registrable Shares in such registration unless the holders thereof accept the
terms of the underwriting as agreed upon between the Company and the
underwriters selected by it (provided that such terms must be consistent with
this Agreement and such terms shall not provide for indemnification or
contribution obligations on the part of sellers of Registrable Shares greater
than the obligations imposed pursuant to Section 6(b) hereof). If in the opinion
of the managing underwriter it is appropriate because of marketing factors to
limit the number of Registrable Shares to be included in the offering, then the
Company shall be required to include in the registration only that number of
Registrable Shares, if any, that the managing underwriter believes should be
included therein; provided that (i) except in the case of the first Registration
Statement filed by the Company, in no event shall the number of Registrable
Shares included in the offering be reduced below 35% of the total number of
shares of Common Stock (giving effect to the conversion into Common Stock of all
securities convertible thereinto) included in the offering, and (ii) no persons
or entities other than the Company, the Stockholders and persons or entities
holding registration rights granted in accordance with Section 10 of this
Article II shall be permitted to include securities in the offering. If the
number of Registrable Shares to be included in the offering in accordance with
the foregoing is less than the total number of shares which the holders of
Registrable Shares have requested to be included, then the holders of
Registrable Shares who have requested registration and other holders of
securities entitled to include them in such registration shall participate in
the registration pro rata based upon their total ownership of shares of Common
Stock (giving effect to the conversion into Common Stock of all securities
convertible thereinto). If any holder would thus be entitled to include more
securities than such holder requested to be registered, the excess shall be
allocated among other requesting holders pro rata in the manner described in the
preceding sentence.
4. REGISTRATION PROCEDURES. If and whenever the Company is required by
the provisions of Article II of this Agreement to use its best efforts to effect
the registration of any of the Registrable Shares under the Securities Act, the
Company shall:
(a) file with the Commission a Registration Statement with
respect to such Registrable Shares and use its best efforts to cause that
Registration Statement to become and remain effective;
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(b) as expeditiously as possible prepare and file with the
Commission any amendments and supplements to the Registration Statement and the
prospectus included in the Registration Statement as may be necessary to keep
the Registration Statement effective, in the case of a firm commitment
underwritten public offering, until each underwriter has completed the
distribution of all securities purchased by it and, in the case of any other
offering, until the earlier of the sale of all Registrable Shares covered
thereby or 120 days after the effective date thereof;
(c) as expeditiously as possible furnish to each selling
Stockholder such reasonable numbers of copies of the prospectus, including a
preliminary prospectus, in conformity with the requirements of the Securities
Act, and such other documents as the selling Stockholder may reasonably request
in order to facilitate the public sale or other disposition of the Registrable
Shares owned by the selling Stockholder; and
(d) as expeditiously as possible use its best efforts to
register or qualify the Registrable Shares covered by the Registration Statement
under the securities or Blue Sky laws of such states as the selling Stockholders
shall reasonably request, and do any and all other acts and things that may be
necessary or desirable to enable the selling Stockholders to consummate the
public sale or other disposition in such states of the Registrable Shares owned
by the selling Stockholder; PROVIDED, HOWEVER, that the Company shall not be
required in connection with this paragraph (d) to qualify as a foreign
corporation or execute a general consent to service of process in any
jurisdiction.
If the Company has delivered preliminary or final prospectuses to the
selling Stockholders and after having done so the prospectus is amended to
comply with the requirements of the Securities Act, the Company shall promptly
notify the selling Stockholders and, if requested, the selling Stockholders
shall immediately cease making offers of Registrable Shares and return all
prospectuses to the Company. The Company shall promptly provide the selling
Stockholders with revised prospectuses and, following receipt of the revised
prospectuses, the selling Stockholders shall be free to resume making offers of
the Registrable Shares.
5. ALLOCATION OF EXPENSES. The Company will pay all Registration
Expenses of all registrations under this Agreement; PROVIDED, HOWEVER, that if a
registration under Section 2 of this Article II is withdrawn at the request of
the Stockholders requesting such registration (other than as a result of
information concerning the business or financial condition of the Company which
is made known to the Stockholders after the date on which such registration was
requested) and if the requesting Stockholders elect not to have such
registration counted as a registration requested under Section 2 of this Article
II, the requesting Stockholders shall pay the Registration Expenses of such
registration pro rata in accordance with the number of their Registrable Shares
included in such registration. For purposes of this Section 5, the term
"Registration Expenses" shall mean all expenses incurred by the Company in
complying with
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this Agreement, including, without limitation, all registration and filing fees,
exchange listing fees, printing expenses, fees and expenses of counsel for the
Company and the reasonable fees and expenses of one counsel selected by the
selling Stockholders to represent the selling Stockholders, state Blue Sky fees
and expenses, and the expense of any special audits incident to or required by
any such registration, but excluding underwriting discounts, selling commissions
and the fees and expenses of selling Stockholders' own counsel (other than the
counsel selected to represent all selling Stockholders).
6. INDEMNIFICATION AND CONTRIBUTION.
(a) In the event of any registration of any of the Registrable
Shares under the Securities Act pursuant to this Agreement, the Company will
indemnify and hold harmless each seller of such Registrable Shares, each holder
of Registrable Securities, each underwriter of such Registrable Shares, each of
their respective officers, directors and partners and each other person, if any,
who controls such seller, holder or underwriter within the meaning of the
Securities Act or the Exchange Act against any losses, claims, damages or
liabilities, joint or several, to which such seller, holder, underwriter or
controlling person may become subject under the Securities Act, the Exchange
Act, state securities or Blue Sky laws or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement under which such Registrable Shares
were registered under the Securities Act, any preliminary prospectus or final
prospectus contained in the Registration Statement, or any amendment or
supplement to such Registration Statement, or arise out of or are based upon the
omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and the
Company will reimburse such seller, underwriter and each such controlling person
for any legal or any other expenses reasonably incurred by such seller,
underwriter or controlling person in connection with investigating or defending
any such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any untrue statement
or omission made in such Registration Statement, preliminary prospectus or final
prospectus, or any such amendment or supplement, in reliance upon and in
conformity with information furnished to the Company, in writing, by or on
behalf of such seller, underwriter or controlling person specifically for use in
the preparation thereof.
(b) In the event of any registration of any of the Registrable
Shares under the Securities Act pursuant to this Agreement, each seller of
Registrable Shares, severally and not jointly, will indemnify and hold harmless
the Company, each holder of Registrable Securities, each underwriter (if any),
each of their respective officers, directors and partners, and each person, if
any, who controls the Company or any such holder of Registrable Securities or
underwriter, within the meaning of the Securities Act or the Exchange Act,
against any losses, claims, damages or liabilities, joint or several, to which
the Company, such
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directors, officers and partners, such holder of Registrable Securities, such
underwriter or such controlling person may become subject under the Securities
Act, Exchange Act, state securities or Blue Sky laws or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in any Registration Statement under which such
Registrable Shares were registered under the Securities Act, any preliminary
prospectus or final prospectus contained in the Registration Statement, or any
amendment or supplement to the Registration Statement, or arise out of or are
based upon any omission or alleged omission to state a material fact required to
be stated therein or necessary to make the statements therein not misleading, if
the statement or omission was made in reliance upon and in conformity with
information relating to such seller furnished in writing to the Company by or on
behalf of such seller specifically for use in connection with the preparation of
such Registration Statement, prospectus, amendment or supplement; PROVIDED,
HOWEVER, that the obligations of such Stockholders hereunder shall be limited to
an amount equal to the proceeds to each Stockholder of Registrable Shares sold
in connection with such registration.
(c) Each party entitled to indemnification under this Section
6 (the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; PROVIDED, that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld); and, PROVIDED, FURTHER, that the failure of any Indemnified Party to
give notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Section 6. The Indemnified Party may participate in such
defense at such party's expense; PROVIDED, HOWEVER, that the Indemnifying Party
shall pay such expense 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 the Indemnified Party and any other
party represented by such counsel in such proceeding. No Indemnifying Party, in
the defense of any such claim or litigation shall, except with the prior written
consent of each Indemnified Party, consent to entry of any judgment or enter
into any settlement (i) which includes an admission of fault on behalf of the
Indemnified Party, or (ii) which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such Indemnified Party of a
release from all future liability in respect of such claim or litigation.
(d) In order to provide for just and equitable contribution to
joint liability under the Securities Act in any case in which either (i) any
holder of Registrable Shares exercising rights under this Agreement, or any
controlling person of any such holder, makes a claim for indemnification
pursuant to this Section 6 but it is judicially determined (by the entry of a
final judgment or decree by a court of competent jurisdiction and the expiration
of time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced
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in such case notwithstanding the fact that this Section 6 provides for
indemnification in such case, or (ii) contribution under the Securities Act may
be required on the part of any such selling Stockholder or any such controlling
person in circumstances for which indemnification is provided under this Section
6; then, in each such case, the Company and such Stockholder will contribute to
the aggregate losses, claims, damages or liabilities to which they may be
subject (after contribution from others) in such proportions so that such holder
is responsible for the portion represented by the percentage that the public
offering price of its Registrable Shares offered by the Registration Statement
bears to the public offering price of all securities offered by such
Registration Statement, and the Company is responsible for the remaining
portion; PROVIDED, HOWEVER, that, in any such case, (A) no such holder will be
required to contribute any amount in excess of the proceeds to it of all
Registrable Shares sold by it pursuant to such Registration Statement, and (B)
no person or entity guilty of fraudulent misrepresentation, within the meaning
of Section 11(f) of the Securities Act, shall be entitled to contribution from
any person or entity who is not guilty of such fraudulent misrepresentation.
7. INDEMNIFICATION WITH RESPECT TO UNDERWRITTEN OFFERING. In the event
that Registrable Shares are sold pursuant to a Registration Statement in an
underwritten offering pursuant to Section 2 of this Article II, the Company
agrees to enter into an underwriting agreement containing customary
representations and warranties with respect to the business and operations of an
issuer of the securities being registered and customary covenants and agreements
to be performed by such issuer, including without limitation customary
provisions with respect to indemnification by the Company of the underwriters of
such offering.
8. INFORMATION BY HOLDER. Each Stockholder including Registrable Shares
in any registration shall furnish to the Company such information regarding such
Stockholder and the distribution proposed by such Stockholder as the Company may
reasonably request in writing and as shall be required in connection with any
registration, qualification or compliance referred to in this Agreement.
9. "STAND-OFF" AGREEMENT. Each Stockholder, if requested by the Company
and the managing underwriter (the "Underwriter") of an offering by the Company
of Common Stock or other securities of the Company pursuant to a Registration
Statement, shall agree not to sell publicly or otherwise transfer or dispose of
any Registrable Shares or other securities of the Company held by such
Stockholder for a specified period of time (not to exceed 180 days) following
the effective date of such Registration Statement; PROVIDED, that:
(a) such agreement shall only apply to the first Registration
Statement covering Common Stock to be sold on its behalf to the public in an
underwritten offering;
(b) all Stockholders, all other stockholders of the Company
holding in excess of 1% of the outstanding Common Stock, (including shares of
Common Stock issuable
12
upon the conversion of Shares, or other convertible securities, or upon the
exercise of options, warrants or rights) and all officers and directors of the
Company enter into similar agreements; and
(c) The Underwriter agrees not to release any party from any
such lock-up agreement or similar agreement (a "Lock-Up Release") without (i)
providing all Stockholders who are party thereto at least seven days prior
written notice of the effective date of the Lockup Release and (ii)
simultaneously releasing all Stockholders who are party thereto to the same
extent from any such lock-up letter or similar agreement.
Notwithstanding anything herein to the contrary, this
Agreement shall not restrict Xxxxxxx, Xxxxx & Co. and its affiliates from
engaging in any brokerage, investment advisory, financial advisory, anti-raid
advisory, merger advisory, financing, asset management, trading, market making,
arbitrage and other similar activity conducted in the ordinary course of its, or
its affiliates' business.
10. LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. The Company shall
not, without the prior written consent of Stockholders holding at least 66.7% of
the Registrable Shares, enter into any agreement (other than this Agreement)
with any holder or prospective holder of any securities of the Company which
would allow such holder or prospective holder (a) to include securities of the
Company in any Registration Statement, unless under the terms of such agreement,
such holder or prospective holder may include such securities in any such
registration only on terms substantially similar to the terms on which holders
of Registrable Shares may include shares in such registration, or (b) to make a
demand registration which could result in such registration statement being
declared effective prior to April 21, 2002. Notwithstanding anything to the
contrary herein, any right given by the Company to any holder or prospective
holder of the Company's securities in connection with the registration of
securities shall be conditioned such that it shall be subordinate to the rights
of the Stockholders provided in this Agreement unless Stockholders holding at
least 66.7% of the Registrable Shares consent in writing to such arrangements
and, provided that, such arrangement will not result in materially detrimental
treatment of one or more series of Preferred Stock owned by a Purchaser on the
one hand and the other series of Preferred Stock on the other hand.
11. RULE 144 REQUIREMENTS. After the earliest of (i) the closing of the
sale of securities of the Company pursuant to a Registration Statement, (ii) the
registration by the Company of a class of securities under Section 12 of the
Exchange Act, or (iii) the issuance by the Company of an offering circular
pursuant to Regulation A under the Securities Act, the Company agrees to:
(a) comply with the requirements of Rule 144(c) under the
Securities Act with respect to current public information about the Company;
13
(b) use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act (at any time after it has become subject to
such reporting requirements); and
(c) furnish to any holder of Registrable Shares upon request
(i) a written statement by the Company as to its compliance with the
requirements of said Rule 144(c), and the reporting requirements of the
Securities Act and the Exchange Act (at any time after it has become subject to
such reporting requirements), (ii) a copy of the most recent annual or quarterly
report of the Company, and (iii) such other reports and documents of the Company
as such holder may reasonably request to avail itself of any similar rule or
regulation of the Commission allowing it to sell any such securities without
registration.
12. MERGERS, ETC. The Company shall not, directly or indirectly, enter
into any merger, consolidation or reorganization in which the Company shall not
be the surviving corporation unless the proposed surviving corporation shall,
prior to such merger, consolidation or reorganization, agree in writing to
assume the obligations of the Company under this Agreement, and for that purpose
references hereunder to "Registrable Shares" shall be deemed to be references to
the securities which the Stockholders would be entitled to receive in exchange
for Registrable Shares under any such merger, consolidation or reorganization;
PROVIDED, HOWEVER, that the provisions of this Section 12 shall not apply in the
event of any merger, consolidation or reorganization in which the Company is not
the surviving corporation if all Stockholders are entitled to receive in
exchange for their Registrable Shares consideration consisting solely of (i)
cash, (ii) securities of the acquiring corporation which may be immediately sold
to the public without registration under the Securities Act, or (iii) securities
of the acquiring corporation which the acquiring corporation has agreed to
register within 90 days of completion of the transaction for resale to the
public pursuant to the Securities Act.
ARTICLE III. RIGHT OF FIRST REFUSAL REGARDING NEW ISSUANCES
1. RIGHT OF FIRST REFUSAL.
(a) The Company shall not issue, sell or exchange, agree to
issue, sell or exchange, or reserve or set aside for issuance, sale or exchange,
(i) any shares of Common Stock, (ii) any other equity securities of the Company,
including, without limitation, shares of Preferred Stock, (iii) any option,
warrant or other right to subscribe for, purchase or otherwise acquire any
equity securities of the Company, or (iv) any debt securities convertible into
capital stock of the Company (collectively, the "Offered Securities"), unless in
each such case the Company shall have first complied with this Article III. The
Company shall deliver to each Stockholder a written notice of any proposed or
intended issuance, sale or exchange of Offered Securities (the "Offer"), which
Offer shall (i) identify and describe the Offered Securities, (ii) describe
generally the price and other material terms upon which they are to be
14
issued, sold or exchanged, and the number or amount of the Offered Securities to
be issued, sold or exchanged, (iii) identify the persons or entities to which or
with which the Offered Securities are to be offered, issued, sold or exchanged
and (iv) offer to issue and sell to or exchange with such Stockholder (A) such
portion of the Offered Securities as the aggregate number of Eligible Shares
then held by such Stockholder bears to the total number of Eligible Shares then
held by all Stockholders (the "Basic Amount"), and (B) any additional portion of
the Offered Securities as such Stockholder shall indicate it will purchase or
acquire should the other Stockholders subscribe for less than their Basic
Amounts (the "Undersubscription Amount"). Each Stockholder shall have the right,
for a period of 15 days following delivery of the Offer, to purchase or acquire,
at a price and upon the other terms specified in the Offer, the number or amount
of Offered Securities described above. The Offer by its term shall remain open
and irrevocable for such 15-day period.
(b) "Eligible Shares" shall mean and include all shares of
capital stock of the Company held by the Stockholders, whether now owned or
hereafter acquired, other than shares acquired by an employee Stockholder due to
his status as an employee of the Company (including but not limited to the
Founder's Shares or any shares issued pursuant to any employee stock option,
purchase or similar plan). For purposes of calculating a Stockholder's ownership
of Eligible Shares, all shares of convertible Preferred Stock of the Company
shall be deemed to have been converted into shares of Common Stock.
(c) To accept an Offer, in whole or in part, a Stockholder
must deliver a written notice to the Company prior to the end of the 15-day
period of the Offer, setting forth the portion of the Stockholder's Basic Amount
that such Stockholder elects to purchase and, if such Stockholder shall elect to
purchase all of its Basic Amount, the Undersubscription Amount (if any) that
such Stockholder elects to purchase (the "Notice of Acceptance"). If the Basic
Amounts subscribed for by all Stockholders are less than the total Offered
Securities, then each Stockholder who has set forth Undersubscription Amounts in
its Notice of Acceptance shall be entitled to purchase, in addition to the Basic
Amounts subscribed for, all Undersubscription Amounts it has subscribed for;
PROVIDED, HOWEVER, that should the Undersubscription Amounts subscribed for
exceed the difference between the Offered Securities and the Basic Amounts
subscribed for (the "Available Undersubscription Amount"), each Stockholder who
has subscribed for any Undersubscription Amount shall be entitled to purchase
only that portion of the Available Undersubscription Amount as the
Undersubscription Amount subscribed for by such Stockholder bears to the total
Undersubscription Amounts subscribed for by all Stockholders, subject to
rounding by the Board of Directors to the extent it reasonably deems necessary.
(d) In the event that Notices of Acceptance are not given by
the Stockholders in respect of all the Offered Securities, the Company shall
have 90 days from the expiration of the period set forth in Section 1(a) above
to issue, sell or exchange all or any part of such Offered Securities as to
which a Notice of Acceptance has not been given by the
15
Stockholders (the "Refused Securities"), but only to the offerees or purchasers
described in the Offer and only upon terms and conditions (including, without
limitation, unit prices and interest rates) which are not more favorable, in the
aggregate, to the acquiring person or persons or less favorable to the Company
than those set forth in the Offer.
(e) In the event the Company shall propose to sell less than
all the Refused Securities (any such sale to be in the manner and on the terms
specified in Section 1(d) above), then each Stockholder may, at its sole option
and in its sole discretion, reduce the number or amount of the Offered
Securities specified in its Notice of Acceptance to an amount that shall be not
less than the number or amount of the Offered Securities that the Stockholder
elected to purchase pursuant to Section 1(c) above multiplied by a fraction, (i)
the numerator of which shall be the number or amount of Offered Securities the
Company actually proposes to issue, sell or exchange (including Offered
Securities to be issued or sold to Stockholders pursuant to Section 1(c) above
prior to such reduction) and (ii) the denominator of which shall be the amount
of all Offered Securities. In the event that any Stockholder so elects to reduce
the number or amount of Offered Securities specified in its Notice of
Acceptance, the Company may not issue, sell or exchange more than the reduced
number or amount of the Offered Securities unless and until such securities have
again been offered to the Stockholders in accordance with Section 1(a) above.
(f) Upon the closing of the issuance, sale or exchange of all
or less than all the Refused Securities, the Stockholders shall acquire from the
Company, and the Company shall issue to the Stockholders, the number or amount
of Offered Securities specified in the Notices of Acceptance, as reduced
pursuant to Section 1(e) above if the Stockholders have so elected, upon the
terms and conditions specified in the Offer. The purchase by the Stockholders of
any Offered Securities is subject in all cases to the preparation, execution and
delivery by the Company and the Stockholders of a purchase agreement relating to
such Offered Securities reasonably satisfactory in form and substance to the
Stockholders and their respective counsel.
(g) Any Offered Securities not acquired by the Stockholders or
other persons in accordance with Section 1(d) above may not be issued, sold or
exchanged until they are again offered to the Stockholders under the procedures
specified in this Article.
2. EXCLUDED ISSUANCES.
The rights of the Stockholders under this Article III shall
not apply to:
(a) Common Stock issued as a stock dividend to holders of
Common Stock or upon any subdivision or combination of shares of Common Stock,
16
(b) the issuance of any shares of Common Stock upon conversion
of outstanding shares of convertible Preferred Stock,
(c) up to 1,526,745 shares of Common Stock, or options
exercisable therefor, including options outstanding on the date of this
Agreement (such number to be proportionately adjusted in the event of any stock
splits, stock dividends, recapitalizations or similar events occurring on or
after the date of this Agreement) issuable to officers, directors, consultants
and employees of the Company and any subsidiary pursuant to the Company's 1995
Stock Plan,
(d) up to 257,000 shares of Common Stock, or options
exercisable therefor, including options outstanding on the date of this
Agreement (such number to be proportionately adjusted in the event of any stock
splits, stock dividends, recapitalizations or similar events occurring on or
after the date of this Agreement) issuable to officers, directors, consultants
and employees of the Company and any subsidiary pursuant to the Company's 1995
Stock Plan, provided that for each such share the Corporation has repurchased a
share issued prior to April 11, 1995 to an employee or former employee of the
Corporation,
(e) securities issued solely in consideration for the
acquisition (whether by merger or otherwise) by the Company or any of its
subsidiaries of all or substantially all of the stock or assets of any other
entity, or
(f) shares of Common Stock sold by the Company in an
underwritten public offering pursuant to an effective registration statement
under the Securities Act.
IV. GENERAL
1. TERMINATION.
(i) Article I of this Agreement shall terminate in its
entirety on the earliest of (a) the tenth anniversary of the date of this
Agreement, or (b) the closing of the Company's initial public offering of shares
of Common Stock (a "Qualified Public Offering") pursuant to an effective
registration statement under the Securities Act resulting in at least
$10,000,000 of gross proceeds to the Company at a minimum price of $7.50 per
share (subject to appropriate adjustment for stock splits, stock dividends,
recapitalizations and other similar events). All of the Company's obligations to
register Registrable Shares under Article II of this Agreement shall terminate
on the tenth anniversary of this Agreement. Article III of this Agreement shall
terminate in its entirety upon the earliest of (a) the closing of a Qualified
Public Offering or (b) the date that (i) less than 165,000 shares of Series A
Preferred Stock, less than 195,000 shares of Series B Preferred Stock, less than
200,000 shares of Series C Preferred Stock, less than 500,000 shares of Series D
Preferred Stock and less than 500,000 shares of Series E
17
Preferred Stock remain outstanding (subject to appropriate adjustment for stock
splits, stock dividends, recapitalization or other similar events).
2. TRANSFER OF RIGHTS. This Agreement, and the rights and obligations
of each Stockholder hereunder, may be assigned by such Stockholder to any person
or entity to which Shares are transferred by such Stockholder, and such
transferee shall be deemed a "Stockholder" for purposes of this Agreement;
provided that the transferee provides written notice of such assignment to the
Company. Notwithstanding the foregoing sentence, the rights and obligations of
each Stockholder under Article II of this Agreement may only be assigned by such
Stockholder to any person or entity (i) to which at least 55,000 Shares are
transferred by such Stockholder or (ii) which is a partner, stockholder or
affiliate of such Stockholder, and such transferee shall be deemed a
"Stockholder" for purposes of this Agreement. For purposes of the foregoing
sentence, the shares of Series E Preferred Stock held by any holder shall be
aggregated with the shares of Series E Preferred Stock held by each partner,
stockholder or other affiliate of such holder. No Stockholder may assign any of
its rights or obligations hereunder to any person or entity which is determined
by the Board of Directors to be a "competitor" of the Company.
3. SEVERABILITY. The provisions of this Agreement are severable, so
that the invalidity or unenforceability of any provision of this Agreement shall
not affect the validity or enforceability of any other term or provision of this
Agreement, which shall remain in full force and effect.
4. SPECIFIC PERFORMANCE. In addition to any and all other remedies that
may be available at law in the event of any breach of this Agreement, each
Purchaser shall be entitled to specific performance of the agreements and
obligations of the Company and the Stockholders hereunder and to such other
injunctive or other equitable relief as may be granted by a court of competent
jurisdiction.
5. GOVERNING LAW. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the Commonwealth of Massachusetts.
6. NOTICES. All notices, requests, consents, and other communications
under this Agreement shall be in writing and shall be delivered by hand or
mailed by first class certified or registered mail, return receipt requested,
postage prepaid:
If to the Company, at 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx
00000, Attention: President, or at such other address or addresses as may have
been furnished in writing by the Company to the Purchasers, with a copy to
Xxxxx, Xxxx & Xxxxx LLP, Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxx, XX 00000, Attn: Xxxxxx
X. Xxxxxxxx, Esq.
18
If to a Purchaser, at his or its address set forth on Exhibit A to this
Agreement, or at such other address or addresses as may have been furnished to
the Company in writing by such Purchaser; or
If to the Founder, at his address set forth beneath his signature to
this Agreement, or at such other address or addresses as may have been furnished
to the Company in writing by such Founder.
Notices provided in accordance with this Section 6 shall be deemed
delivered upon personal delivery or two business days after deposit in the mail.
7. COMPLETE AGREEMENT; AMENDMENTS. This Agreement constitutes the full
and complete agreement of the parties hereto with respect to the subject matter
hereof. Any amendment, modification or termination of any provision of this
Agreement shall be valid as to all parties if, but only if, it is in writing and
is signed by the Company and the holders of at least 66.7% of the voting power
of the Voting Shares, Registrable Shares or Eligible Shares, as the case may be,
then held by all Stockholders; PROVIDED, that Article II may be amended with the
consent of the holders of less than all Registrable Shares only in a manner
which affects all Registrable Shares in the same fashion (it being specifically
understood and agreed that the last paragraph of Section 9 of Article II may
only be amended with the consent of The Xxxxxxx Xxxxx Group, L.P. or any
successor thereto) and PROVIDED, FURTHER, that Article I, Section 1 may be
amended as to the member of the Board appointed by the Founder along with the
Purchasers only with prior written consent of the Founder and holders of at
least 66.7% of the Shares of the Purchasers.
Notwithstanding the foregoing, in the event that a vote with respect to the
foregoing sentence regarding an amendment of Articles I, III or IV would result
in materially detrimental treatment of one or more series of Preferred Stock
owned by a Purchaser on the one hand and the other series of Preferred Stock on
the other hand, the consent of the holders of not less than 51% of the
outstanding Shares of each so detrimentally treated Series of Preferred Stock,
voting separately as an individual class, shall be required to approve such
matters.
8. WAIVERS. No waivers of or exceptions to any term, condition or
provision of this Agreement, in any one or more instances, shall be deemed to
be, or construed as, a further or continuing waiver of any such term, condition
or provision.
9. PRONOUNS. Whenever the content may require, any pronouns used in
this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular form of nouns and pronouns shall include the plural, and
vice versa.
10. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall constitute one Agreement binding on all the
parties hereto.
19
11. CAPTIONS. Captions of sections have been added only for convenience
and shall not be deemed to be a part of this Agreement.
12. TERMINATION OF THIRD AMENDED AGREEMENT. The terms and provisions of
the Third Amended Investors' Rights Agreement are hereby terminated and shall
have no further force or effect.
[Remainder of page intentionally left blank]
20
IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto as of the day and year first above written.
COMPANY:
CENTRA SOFTWARE, INC.
By: /s/ XXXX XXXXXXXX
-------------------------------------
President and Chief Executive Officer
FOUNDER:
/s/ XXXX XXXXXXXX
-------------------------------------
Xxxx Xxxxxxxx
PURCHASERS:
ALTA V LIMITED PARTNERSHIP
By: Alta V Management Partners, L.P.
By /s/ XXXXXX XXXXXXXX
-------------------------------------
General Partner
CUSTOMS HOUSE PARTNERS
By:/s/ XXXXXX XXXXXXXX
-------------------------------------
General Partner
21
NORTH BRIDGE VENTURE PARTNERS, L.P.
By: North Bridge Venture Management, L.P.,
Its General Partner
By:/s/ ILLEGIBLE
-------------------------------------
General Partner
COMMONWEALTH CAPITAL VENTURES L.P.
By: Commonwealth Venture Partners L.P.,
Its General Partner
By: /s/ XXXXXXX XXXXXXXXXX
-------------------------------------
General Partner
----------------------------------------
Xxxxxxx Xxxxxx
----------------------------------------
Xxxxxx Xxxxxx
THE CAREER GROUP, LTD.
By:
-------------------------------------
Title:
----------------------------------------
Xxxxx Xxxxxx
22
XXXX XXXXX'X IDEALAB!
By:
-------------------------------------
Title:
TM PARTNERS
By:/s/ XXXXXXX XXXX
-------------------------------------
Title: Partner
SCRIPPS VENTURES, LLC
By: /s/ ILLEGIBLE
-------------------------------------
Title: Senior Vice President
POLARIS VENTURE PARTNERS, L.P.
By: Polaris Venture Management Co., LLC
Its General Partner
By:/s/ ILLEGIBLE
-------------------------------------
Member
POLARIS VENTURE PARTNERS FOUNDERS'
FUND, L.P.
By: Polaris Venture Management Co., LLC
Its General Partner
By:/s/ ILLEGIBLE
-------------------------------------
Member
23
THE XXXXXXX XXXXX GROUP, L.P.
By: The Xxxxxxx Sachs Corporation
Its General Partner
By: /s/ XXXXXX X. XXXXXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President
XXXXX XXXXXX XXXX 0000, X.X.
By: Stone Street 1999 Corp.
Its General Partner
By: /s/ XXX X. XXXXXXXX
-------------------------------------
Name: Xxx X. Xxxxxxxx
Title: Vice President
BRIDGE STREET FUND 1999 L.P.
By: Stone Street 1999 Corp.
Its General Partner
By:/s/ XXX X. XXXXXXXX
-------------------------------------
Name: Xxx X. Xxxxxxxx
Title: Vice President
HARBOURVEST PARTNERS V-DIRECT FUND L.P.
By: HVP V-Direct Associates L.L.C.
Its General Partner
By: HarbourVest Partners, LLC
Its Managing Member
By: /s/ ILLEGIBLE
-------------------------------------
SL PARTNERS
By: /s/ XXXXXX XXXXXX
-------------------------------------
Title: Partner
24
EXHIBIT A
PURCHASERS
ALTA V LIMITED PARTNERSHIP
c/o Burr, Egan, Deleage & Co.
Xxx Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
CUSTOMS HOUSE PARTNERS
c/o Burr, Egan, Deleage & Co.
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
NORTH BRIDGE VENTURE PARTNERS, L.P.
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
COMMONWEALTH CAPITAL VENTURES L.P.
00 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxxxx Xxxxxx
00 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Xxxxxx Xxxxxx
00 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
THE CAREER GROUP, LTD.
Xxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Xxxxx Xxxxxx
000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
25
XXXX XXXXX'X IDEALAB!
000 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
TM PARTNERS
c/o Xxxxxxx Xxxx
000 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
SCRIPPS VENTURES, LLC
Attention: Xxxxxxxx Xxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
with copy to
Xxxxx & Xxxxxxxxx LLP
3200 National City Center
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
POLARIS VENTURE PARTNERS, L.P.
c/o Polaris Venture Management Co., LLC
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxxxxx 00000
POLARIS VENTURE PARTNERS FOUNDERS' FUND, L.P.
c/o Polaris Venture Management Co., LLC
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxxxxx 00000
THE XXXXXXX XXXXX GROUP, L.P.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxxxx
STONE STREET FUND 1999, L.P.
c/o The Xxxxxxx Xxxxx Group, L.P.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxxxx
00
XXXXXX XXXXXX XXXX 0000 L.P.
c/o The Xxxxxxx Xxxxx Group, L.P.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxxxx
HARBOURVEST PARTNERS V-DIRECT FUND L.P.
Xxx Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000
attn: Xxxx Xxxxxxxxxx
SL Partners
00 Xxxxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
FOUNDER
Xxxx Xxxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
27
