EXHIBIT 10.4
EXECUTION COPY
AMENDED AND RESTATED INVESTORS' RIGHT OF FIRST REFUSAL
AND CO-SALE AGREEMENT
This Amended and Restated Investors' Right of First Refusal and Co-Sale
Agreement (the "Agreement") is made as of April 17, 2002 by and among
RedEnvelope, Inc., a Delaware corporation (the "Company"), the persons or
entities listed on Exhibit A-1 hereto (the "Prior Investors"), the persons
listed on Exhibit A-2 hereto (individually, each a "Founder," and collectively,
the "Founders") and the new investors listed on Exhibit B hereto (the "New
Investors"). The Prior Investors and the New Investors are referred to herein
collectively as the "Investors" and each individually as an "Investor".
RECITALS
The Company, the Founders and the Prior Investors entered into an Amended
and Restated Investors' Right of First Refusal and Co-Sale Agreement on July 17,
2000 (the "Existing Agreement").
The Company and the New Investors have entered into a Series F Preferred
Stock Purchase Agreement (the "Purchase Agreement") of even date herewith
pursuant to which the Company desires to sell to the New Investors and the New
Investors desire to purchase from the Company shares of the Company's Series F
Preferred Stock. A condition to the New Investors' obligations under the
Purchase Agreement is that the Company, the Founders and the Prior Investors
enter into this Agreement in order to provide the New Investors with certain
rights of first refusal and co-sale. The Company, the Founders and the Prior
Investors desire to induce the New Investors to purchase shares of Series F
Preferred Stock pursuant to the Purchase Agreement by agreeing to amend and
restate in its entirety the Existing Agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties agree as follows
SECTION 1
RIGHT OF FIRST REFUSAL AND RIGHT OF CO-SALE ON FOUNDER STOCK
Except as set forth in Sections 1.3 and 1.4 below, before any Series A
Preferred Stock or Common Stock of the Company, now held or hereafter acquired,
registered in the name of a Founder (the "Founder Stock") may be sold or
transferred to a third party (a "Proposed Transferee(s)"), including a transfer
by operation of law or other involuntary transfer, subject to the prior right of
first refusal (the "Right of First Refusal") held by the Company pursuant to the
Exchange Agreement or Restricted Stock Purchase Agreement between the Company
and such
Founder (collectively, the "Restricted Stock Purchase Agreements"), such Founder
Stock (the "Offered Founder Stock") shall be offered to the investors in the
following manner:
1.1 Investors' Right of First Refusal.
(a) The Founder shall notify each Investor of the Company's decision to
elect or not to elect the Right of First Refusal within 10 days of the Founder's
receipt of notification of such decision. If the Company elects not to exercise
its Right of First Refusal in full, then the Investors shall have the right to
purchase all, but not less than all, of the Offered Founder Stock not purchased
by the Company (the "Investors' Right of First Refusal"), at the price per share
specified in the notice delivered by the Founder to the Company pursuant to a
Restricted Stock Purchase Agreement (the "Notice"). Concurrently with delivering
or mailing such Notice to the Company, the Founder shall deliver such Notice to
each Investor. Each Investor desiring to participate in the Investors' Right of
First Refusal (an "Electing Investor") and/or the Co-Sale Right (as defined
below) must so notify the Founder within 15 days of receipt of the Notice that
such Electing Investor desires to purchase and/or sell a minimum of such
Investor's Pro Rata Portion (as defined below) and shall also indicate the
maximum number of Offered Founder Stock such Electing Investor desires to
purchase (the "Maximum Purchase Amount") and/or sell (the "Maximum Sale
Amount"). Such Electing Investor shall be entitled to purchase that portion of
the Offered Founder Stock (the "Pro Rata Portion") that is up to the number of
shares of Offered Founder Stock multiplied by a fraction, the numerator of which
shall be the number of shares of Common Stock of the Company issued or issuable
upon conversion of Company Preferred Stock held by such Electing Investor
(collectively, "Conversion Shares") on the date of the Notice, and the
denominator of which shall be the total number of Conversion Shares held by all
Investors on the date of the Notice.
(b) If any Investor failed to participate in the Investors' Right of First
Refusal, the Founder shall promptly inform, in writing, each Electing Investor
of such failure. Each Electing Investor desiring to purchase shares of Offered
Founder Stock in addition to its Pro Rata Portion (a "Further Electing
Investor") shall so notify the Founder within five (5) days of receipt of such
information, and shall thereby be entitled to obtain that portion of Offered
Founder Stock that such other Investors were entitled to subscribe for but which
was not subscribed for ("Remaining Offered Founder Stock") that is equal to the
number of shares of Remaining Offered Founder Stock multiplied by a fraction,
the numerator of which shall be the number of Conversion Shares held by such
Further Electing Investor on the date of the Notice, and the denominator of
which shall be the total number of Conversion Shares held by all Further
Electing Investors on the date of the Notice.
(c) If the total number of shares elected (and/or been deemed to have
elected) to be purchased by the Electing Investors and the Further Electing
Investors is less than the Offered Founder Stock, and one or more Further
Electing Investors have not yet elected (and/or been deemed to have elected) to
purchase their Maximum Purchase Amount, then the remaining Offered Founder Stock
shall be divided among such Further Electing Investors in the manner set forth
in Section 1.1(b) above (or in such other manner as mutually agreed to by such
Further Electing Investors) until all of the Offered Founder Stock has been
allocated.
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1.2 Payment; Co-Sale Right in the Event of a Failure to Exercise. If,
pursuant to the operation of Section 1.1 above, the Electing Investors elect
(and/or have been deemed to have elected) to purchase all of the Offered Founder
Stock it shall be deemed an "Exercise;" if not, it shall be deemed a "Failure to
Exercise."
(a) In the event of an Exercise, payment of the purchase price shall be
made, at the option of each Electing Investor, in cash (by check) or by wire
transfer or by any combination thereof within 45 days after receipt of the
Notice or in the manner and at the times set forth in the Notice or as otherwise
mutually agreed to by the Founder and each Electing Investor.
(b) In the event of a Failure to Exercise, each Investor who notified the
Founder pursuant to Section 1.1 above that it desired to exercise the Co-Sale
Right has the right to participate in the sale of the Offered Founder Stock on
the same terms and conditions available to such Founder (the "Co-Sale Right").
Each Investor who elects to exercise the Co-Sale Right (the "Co-Selling
Investor") shall be deemed to have elected to sell that number of shares of
Founder Stock equal to the lesser of (i) its Maximum Sale Amount and (ii) the
number of shares of Offered Founder Stock multiplied by a fraction (the "Co-Sale
Fraction"), the numerator of which shall be the number of Conversion Shares held
by such Co-Selling Investor on the date of the Notice, and the denominator of
which shall be the total number of Conversion Shares held by all Investors plus
the number of shares of Company Common and Preferred Stock held by the Selling
Founder on the date of such Notice.
(c) If the total number of shares deemed to have been elected to be sold
by the Co-Selling Investors is less than the Offered Founder Stock multiplied by
the sum of the Co-Sale Fractions of all Co-Selling Investors (the "Investor
Co-Sale Portion"), and one or more Co-Selling Investors have not yet been deemed
to have elected to sell their Maximum Sale Amount (each a "Further Co-Selling
Investor"), then each Further Co-Selling Investor shall thereby be deemed to
have elected to sell the lesser of (i) its Maximum Sale Amount and (ii) the
number of shares of Common Stock that such Further Co-Selling Investor was
deemed to have elected to sell pursuant to Section 1.2(b) above, plus that
portion of stock that such other Co-Selling Investors were entitled to sell
pursuant to this Agreement but did not elect to sell ("Remaining Co-Sale Stock")
that is equal to the number of shares of Remaining Co-Sale Stock multiplied by a
fraction, the numerator of which shall be the number of Conversion Shares held
by such Further Co-Selling Investor on the date of the Notice, and the
denominator of which shall be the total number of Conversion Shares held by all
Further Co-Selling Investors plus the number of shares of Company Common or
Preferred Stock held by the selling Founder on the date of the Notice.
(d) If the total number of shares elected (and/or been deemed to have
elected) to be sold by the Co-Selling Investors and the Further Co-Selling
Investors is less than the Investor Co-Sale Portion and one or more Further
Co-Selling Investors have not yet elected (and/or been deemed to have elected)
to sell their Maximum Sale Amount, then the remaining Offered Founder Stock
shall be divided among such Further Co-Selling Investors in the manner set forth
in Section 1.2(c) above until all of the Investor Co-Sale Portion has been
allocated. To the extent that any Investor elects to exercise the Co-Sale Right,
the number of shares of capital
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stock that the Founder may sell to third parties pursuant to Section 1.2(e)
below shall be correspondingly reduced.
(e) In the event of a Failure to Exercise, the Founder may then sell all
of the Offered Founder Stock (reduced by such number of shares as are sold by
Investors pursuant to this Section 1.2) to any person at the price specified in
the Notice, provided that such sale or transfer is consummated within 90 days of
the date of the Notice, and provided further that any such sale is in accordance
with all the terms and conditions hereof. If the Founder fails to consummate the
sale or transfer within such 90-day period, the Investors' Right of First
Refusal and Co-Sale Right provided in Sections 1.1 and 1.2, respectively, shall
be deemed to be revived with respect to the Offered Founder Stock and no sale or
transfer of the Founder Stock shall be effected without first offering the
shares in accordance therewith.
1.3 Limitations on Right of First Refusal and Co-Sale Right. This
Investors' Right of First Refusal and Co-Sale Right shall not apply where:
(a) the number of shares of Founder Stock offered by a Founder, when
aggregated with all other transfers by such Founder during the 12 months prior
to the effective date of transfer to which the Right of First Refusal was not
applicable, is less than or equal to 10% in the aggregate, of the number of
shares of Founder Stock of which such Founder was the beneficial owner on the
later of (i) the first day of such 12-month period or (ii) the date such Founder
initially acquired Founder Stock. For purposes of this Section 1.3, "beneficial
owner" shall have the same meaning as set forth in Rule 13d-3(a) under the
Securities Exchange Act of 1934, as amended; and
(b) the sale, assignment, transfer or other conveyance of Offered Founder
Stock is:
(i) to that Founder's spouse, parents, or children or other members
of the Founders family (including relatives by marriage), or to a custodian,
trustee or other fiduciary for the account of the Founder or members of his
family in connection with a bona fide estate planning transaction;
(ii) by way of bequest or inheritance upon death;
(iii) to the Company;
(iv) by way of a bona fide gift; or
(v) by way of any pledge of Offered Founder Stock pursuant to a bona
fide loan transaction that creates a mere security interest;
provided, however, that any transferees pursuant to this Section 1.3 shall
receive and hold such shares subject in all respects to the provisions of this
Agreement, and that there shall be no further transfer of such shares except in
accordance herewith.
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1.4 Termination of Right of First Refusal and Co-Sale Right. The
Investors' Right of First Refusal and Co-Sale Right shall terminate and be of no
further force and effect immediately upon:
(a) the effectiveness of a Qualified Public Offering (as defined in the
Investors' Rights Agreement of even date herewith by and between the Company,
the Investors and the Founders); or
(b) the closing of a Liquidation Transaction (as defined in that certain
Amended and Restated Investors' Rights Agreement of even date herewith by and
between the Company, the Investors and the Founders) of the Company.
SECTION 2
PROHIBITED TRANSFERS
2.1 Treatment of Prohibited Transfers. In the event a Founder sells any
Founder Stock in contravention of the rights of first refusal and co-sale rights
of the Investors under this Agreement (a "Prohibited Transfer"), the Investors,
in addition to such other remedies as may be available at law, in equity or
hereunder, shall have the put option provided in Section 2.2 below, and the
Founder shall be bound by the applicable provisions of such put option.
2.2 Put Option. In the event of a Prohibited Transfer, each Investor shall
have the right to sell to the Founder who effected the Prohibited Transfer, and,
if such right is exercised, the Founder shall have the obligation to purchase
from each Investor, a number of shares of Common Stock of the Company (either
directly or through purchase of Convertible Securities) equal to the number of
shares each Investor would have been entitled to sell to the purchaser in the
Prohibited Transfer pursuant to the terms hereof. Such sale shall be made on the
following terms and conditions:
(a) The price per share at which the shares are to be sold to the Founder
shall be equal to the price per share paid by the purchaser to the Founder in
the Prohibited Transfer. The Founder shall also reimburse each Investor for any
and all reasonable fees and expenses, including legal fees and expenses,
promptly following demand therefor, incurred pursuant to the exercise or the
attempted exercise of the Investor's rights under this Section 2.
(b) Within twenty (20) business days after the later of the dates on which
the Investors (i) received notice from the Founder of the Prohibited Transfer or
(ii) otherwise become aware of the Prohibited Transfer, each Investor shall, if
exercising the put option created hereby, deliver to the Founder the certificate
or certificates representing shares to be sold, each certificate to be properly
endorsed for transfer.
(c) The Founder shall, upon receipt of the certificate or certificates for
the shares to be sold by an Investor, pursuant to Section 2.2(b), immediately
pay the aggregate purchase price therefor and the amount of reimbursable fees
and expenses, as specified in Section 2.2(a), by certified check, wire transfer
or bank draft made payable to the order of such Investor.
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(d) NOTWITHSTANDING THE FOREGOING, ANY ATTEMPT TO TRANSFER SHARES OF
THE COMPANY IN VIOLATION OF SECTION 1 HEREOF SHALL BE VOID AND THE COMPANY
AGREES IT WILL NOT EFFECT SUCH A TRANSFER NOR WILL IT TREAT ANY ALLEGED
TRANSFEREE AS THE HOLDER OF SUCH SHARES WITHOUT THE WRITTEN CONSENT OF THE
INVESTORS. THE COMPANY AND THE FOUNDERS AGREE THAT ANY AND ALL CERTIFICATES
REPRESENTING ANY SHARES OR OTHER SECURITIES OF THE COMPANY HELD FROM TIME TO
TIME DURING THE TERM OF THIS AGREEMENT SHALL BEAR A LEGEND REFERENCING THE
RESTRICTIONS IMPOSED BY THIS AGREEMENT.
2.3 Assignment of Rights. The rights of the Investors set forth in
this Agreement may be assigned (but only with all related obligations) only to a
transferee or assignee of all of such Investor's Company Preferred Stock (or
Common Stock issued upon conversion thereof) provided that (a) the Company is,
within a reasonable time after such transfer, furnished with written notice of
the name and address of such transferee or assignee and the securities with
respect to which such registration rights are being assigned, (b) such
transferee agrees in writing to be bound by the provisions of this Agreement,
and (c) such transferee is not an actual or potential competitor of the Company,
as determined in good faith by the Company's Board of Directors. Notwithstanding
the foregoing, any Investor may transfer its rights set forth in this Agreement
if the transferee is a constituent partner or member of such Investor or an
entity controlling, controlled by or under common control with such Investor.
2.4 Legends. Such Investor understands that the Founder Stock, and
any securities issued in respect thereof or exchange therefor, may bear one or
all of the following legends:
"THE SHARES EVIDENCED HEREBY ARE SUBJECT TO AN INVESTORS' RIGHT OF FIRST
REFUSAL AND CO-SALE AGREEMENT BY AND AMONG THE COMPANY AND CERTAIN STOCKHOLDERS
OF THE COMPANY (A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY) AND, BY
ACCEPTING ANY INTEREST IN SUCH SHARES, THE PERSON ACCEPTING SUCH INTEREST SHALL
BE DEEMED TO AGREE TO AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF SAID
INVESTORS' RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT."
SECTION 3
MISCELLANEOUS
3.1 Future Chief Executive Officers. The Company and Founders agree
to use best efforts to cause any future Chief Executive Officer who is issued
the Company's Common Stock to become a party to this Agreement in connection
with the issuance of such Common Stock.
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3.2 Governing Law. This Agreement shall be governed in all respects by and
construed in all respects in accordance with the laws of the State of California
as applied to contracts entered into and performed in California solely by
residents thereof.
3.3 Successors and Assigns. Except as otherwise expressly provided herein
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, transferees, executors and administrators of the
parties hereto. Nothing in this Agreement, express or implied, is intended to
confer upon any party other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations or liabilities under or
by reason of this Agreement, except as expressly provided in this Agreement.
3.4 Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to rights of first
refusal and co-sale rights with respect to sales of Founder Stock.
3.5 Amendment and Waiver. This Agreement, or any provision hereof, may be
amended or waived only in writing signed by the Company, the Founders holding a
majority of the Company Common Stock held, or issuable upon conversion of
Preferred Stock held, by all Founders and the holders of a majority of the
Series B, Series C, Series D, Series E and Series F Preferred Stock voting
together (including any Common Stock then held by the Investors issued upon
conversion of such Series B, Series C, Series D, Series E and Series F Preferred
Stock), and any amendment or waiver so approved shall be binding upon all the
Investors (including any transferee of an Investor); provided, however, that no
such amendment shall be effective with respect to any Investor if such amendment
materially adversely affects any of the rights granted pursuant to the Agreement
to such Investor (the "Uniquely Affected Investor") in a manner different from
the manner in which such amendment affects all other Investors, unless such
amendment is consented to in writing by the Uniquely Affected Investor. If the
Uniquely Affected Investor does not so consent, then the amendment shall be
effective as to all Investors other than the Uniquely Affected Investor.
3.6 Notices. Any notice required or permitted by this Agreement shall be
in writing and shall be deemed sufficient upon delivery, when delivered
personally, or 24 hours after prepaid deposit, by overnight courier or sent by
telegram or fax after confirmation of receipt of such transmission, or as of 5
business days after being deposited in the U.S. mail, as certified or registered
mail, with postage prepaid, addressed to the party to be notified at such
party's address as set forth below or on Exhibit A hereto, or as subsequently
modified by written notice, if such notice is sent to the Company, with a copy
to Xxxxx X. Xxxxxx, Venture Law Group, 0000 Xxxx Xxxx Xxxx, Xxxxx Xxxx,
Xxxxxxxxxx 00000.
3.7 Severability. Any provision of this Agreement which is held to be
invalid or unenforceable in any jurisdiction shall be ineffective to the extent
of such invalidity or unenforceability without invalidating or rendering
unenforceable the remaining provisions hereof, and any such invalidity or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. If any provision is held
to be invalid or unenforceable, such provision shall be construed by the
appropriate judicial body by limiting or reducing it to the minimum extent
necessary to make it legally enforceable.
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3.8 Titles and Subtitles. The titles of the sections and subsections of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
3.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
3.10 Addition of Investors. Notwithstanding anything to the contrary
contained herein, if the Company shall issue additional shares of its Series F
Preferred Stock pursuant to Section 1.2(c) the Purchase Agreement, any acquiror
of such shares of Series F Preferred Stock shall become a party of this
Agreement by executing and delivering an additional counterpart signature page
to this Agreement and shall be deemed an "Investor'" hereunder.
3.11 Termination of Existing Agreement. This Agreement contains the entire
understanding of the parties, and there are no further or other agreements or
understandings, written or oral, in effect between the parties relating to the
subject matter hereof. The Company, the Founders and the signatories of this
Agreement, as the holder of a majority of the Series B, Series C, Series D and
Series E Preferred Stock, hereby agree that the Existing Agreement is hereby
amended and restated in its entirety by this Agreement, and the Existing
Agreement shall be of no further force or effect.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Investors' Right of First Refusal and Co-Sale Agreement as of the day
and year written above.
COMPANY:
REDENVELOPE, INC.
By: /s/ Xxxxxx X. May
------------------------------------
Name: Xxxxxx Xxx
------------------------------------
Title: President & CEO
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INVESTOR:
MOUSSENVELOPE, L.L.C.
By: Moussescapade, L.P., Managing Member
By: Moussescribe, its General Partner
By: /s/ Xxxxxxx Xxxxxxxxx
--------------------------------------
Xxxxxxx Xxxxxxxxx
President
Address: c/o Mousse Partners Limited
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
WESTON PRESIDIO CAPITAL III, L.P.
By: /s/ Xxxxx X. XxXxxxx
--------------------------------------
Name: Xxxxx X. XxXxxxx
-----------------------------------
Title: General Partner
----------------------------------
Address:
WPC ENTREPRENEUR FUND, L.P.
By: /s/ Xxxxx X. XxXxxxx
--------------------------------------
Name: Xxxxx X. XxXxxxx
-----------------------------------
Title: General Partner
----------------------------------
Address:
SEQUOIA CAPITAL IX
SEQUOIA CAPITAL ENTREPRENEURS FUND
SEQUOIA CAPITAL IX PRINCIPALS FUND
By: SC IX Management, LLC
A Delaware Limited Liability Company
General Partner of Each
By: (ILLEGIBLE)
-------------------------------------
Managing Member
Address:
SEQUOIA CAPITAL FRANCHISE FUND
SEQUOIA CAPITAL FRANCHISE PARTNERS
By: SCFF Management, LLC
A Delaware Limited Liability Company
General Partner of Each
By: (ILLEGIBLE)
-------------------------------------
Managing Member
Address:
SIGNATURE PAGE TO SERIES F PREFERRED STOCK
RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
ATRIUM VENTURE PARTNERS, L.P.
By Atrium Ventures LLC, General Partner
By: /s/ Xxxxxxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
--------------------------------------------
Title: Chief Operating Officer
-------------------------------------------
Address: 0000 Xxxx Xxxx Xx #0-000
Xxxxx Xxxx, XX 00000
CAMELOT VENTURES LLC
By: /s/ Xxxxxxxx Xxxxx
----------------------------------------------
Name: Xxxxxxxx Xxxxx
--------------------------------------------
Title: CFO
-------------------------------------------
Address:
SIPPL XXXXXXXXX VENTURES II, L.P.
By: /s/ Xxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxx
--------------------------------------------
Title: CFO
-------------------------------------------
Address: 0000 Xx Xxxxxx Xxxx
Xxxxx Xxxx, XX 00000
SIPPL XXXXXXXXX VENTURES III, L.P.
By: /s/ Xxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxx
--------------------------------------------
Title: CFO
-------------------------------------------
Address:
/s/ Xxxxx Xxxxxxx
--------------------------------------------------
XXXXX XXXXXXX
Address:
/s/ Xxxxxxx Xxxxxxxx
--------------------------------------------------
XXXXXXX XXXXXXXX
Address:
/s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------------
XXXXXXX X. XXXXXXX
Address: 0000 Xxxxxxxxx Xx
XX, XX 00000
SIGNATURE PAGE TO SERIES F PREFERRED STOCK
RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
CAPITAL RESEARCH & MANAGEMENT
COMPANY, ON BEHALF OF SMALL CAP
WORLD FUND, INC.
By: /s/ [illegible]
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Address:
/s/ Xxxxxxx Xxxxxxxx
-------------------------------------
XXXXXXX XXXXXXXX
Address:
/s/ Xxxxx Xxxxx
-------------------------------------
XXXXX XXXXX
Address: 00 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
XXXXXXX VENTURES
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name:
--------------------------------
Title: Pres.
-------------------------------
Address:
XXXX X. XXXXXXX AND XXXXXXX X. XXXXXXX,
TRUSTEES FOR THE XXXXXXX REVOCABLE TRUST
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Title: Trustees
-------------------------------
Address:
XXXX X. XXXXXXX, TRUSTEE FOR THE XXXX X.
XXXXXXX XX. TRUST
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name:
--------------------------------
Title: Trustee
-------------------------------
Address:
SIGNATURE PAGE TO SERIES F PREFERRED STOCK
RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
XXXX X. XXXXXXX, TRUSTEE FOR THE
XXXXXXX XXX XXXXXXX TRUST
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Name:
-------------------------------------
Title: Trustee
------------------------------------
Address:
XXXX X. XXXXXXX, TRUSTEE FOR THE
XXXXXXX XXXXXXX TRUST
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Name:
-------------------------------------
Title: Trustee
------------------------------------
Address:
XXXXXXX X. XXXXXXX, TRUSTEE FOR THE
XXXXXXX X. XXXXXXX SEPARATE PROPERTY
TRUST
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name:
-------------------------------------
Title: Trustee
------------------------------------
Address:
XXXXXXX X. XXXXXXX, TRUSTEE OF THE
ROLAPP TRUST
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name:
-------------------------------------
Title: Trustee
------------------------------------
Address:
/s/ Xxxxx Xxxxx
------------------------------------------
XXXXX XXXXX
Address: Xxxxx
0 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
GCC REDENVELOPE
By: /s/ R. Xxx Xxxxxxx
---------------------------------------
Name: R. Xxx Xxxxxxx
-------------------------------------
Title: Partner
------------------------------------
Address: 000 Xx Xxxxxx
Xx Xxxxx, XX 00000
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
XXXXXXX X. XXXXXXX
Address: Crosslink Capital
#0 Xxxxxxxxxxx Xxxxxx
Xxx 0000
Xxx Xxxxxxxxx, XX 00000
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
XXXXXXX X. XXXXXXX
Address:
SIGNATURE PAGE TO SERIES F PREFERRED STOCK
RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
THE XXXX AND XXXXXXX XXXXXXX TRUST,
XXXX AND XXXXXXX XXXXXXX AS TTEE
U/A/T DATE 5/12/99
By: /s/ Xxxx Xxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxx
-------------------------------------
Title: Trustee
------------------------------------
Address:
/s/ Xxxxx Xxxxxxx
------------------------------------------
XXXXX XXXXXXX
Address:
XXXXXXX X. XXXXX LIVING TRUST
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx Living Trust
-------------------------------------
Title: Trustee
------------------------------------
Address: 0000 Xxxxx Xxx
Xxxxxx Xxxxx, XX 00000
/s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------------
XXXXXXX X. XXXXXXXXX
Address:
W. XXXXXX XXXXX, III AND XXXXX X. XXXXX,
TRUSTEES OF XXXXX FAMILY TRUST, UDT
DATED 10/13/94, AS AMENDED
By: /s/ Xxxxx Family Trust
---------------------------------------
Name: DR
-------------------------------------
Title: Trustee
------------------------------------
Address:
SIGNATURE PAGE TO SERIES F PREFERRED STOCK
RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
XXXXXXXX-XXXXX SPECIALTY RETAIL GROUP III,
L.P.
By: Xxxxxxxx-Xxxxx Management
Company, L.P., its General Partner
By: /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
-------------------------------
Title: Managing General Partner
------------------------------
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx 000 Xxxx
Xxxxxxx, XX 00000
/s/ Xxxx Xxxxx
---------------------------------
XXXX XXXXX
Address: 0 XXXXXX XXXXX
XXXXXXXXX, XX 00000
SENIORTRAK, INC.
By: /s/ Xxx X. Xxxxxxx
---------------------------------
Name: Xxx X. Xxxxxxx
-------------------------------
Title: President
------------------------------
Address: 0000 Xxxxxxxx Xx, #00X
Xxx Xxxxxxxxx, XX 00000
/s/ Xxxxx Xxxxx
---------------------------------
XXXXX XXXXX
Address:
/s/ Xxxxxxx Xxxxx
---------------------------------
XXXXXXX XXXXX
Address: Crosslink Capital
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
SIGNATURE PAGE TO SERIES F PREFERRED STOCK
RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
/S/ Xxxxx X. Xxxxxxxxxx
-----------------------
XXXXX X. XXXXXXXXXX
Address:
XXXXX X. XXXXXXXXXX FAMILY SPRAY TRUST I
By: /s/ Xxxxx X. Xxxxxxxxxx
------------------------
Name:
----------------------
Title:
---------------------
Address:
XXXXX X. XXXXXXXXXX FAMILY SPRAY TRUST II
By: /s/ Xxxxx X. Xxxxxxxxxx
------------------------
Name:
----------------------
Title:
---------------------
Address:
XXXXX X. XXXXXXXXXX FAMILY SPRAY TRUST III
By: /s/ Xxxxx X. Xxxxxxxxxx
------------------------
Name:
----------------------
Title:
---------------------
Address:
/s/ Xxxxxx Xxxxxx
---------------------------
XXXXXX XXXXXX
Address: 00 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
/s/ Xxxxx X. Xxxxxx
---------------------------
XXXXX X. XXXXXX
Address:
XXXXXXX XXXXXXXXX, TRUSTEE OF THE XXXXXX
FAMILY FUND DATED APRIL 5, 1999
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------
Name: Xxxxxxx Xxxxxxxxx
----------------------
Title: Trustee, Xxxxxx Family Fund
----------------------------
Address: 000 Xxxxxxx Xxx. #0000
Xxxx Xxxxxx, XX 00000
SIGNATURE PAGE TO SERIES F PREFERRED STOCK
RIGHT TO FIRST REFUSAL AND CO-SALE AGREEMENT
DIRECT EQUITY PARTNERS, L.P.
By: /s/ Claire Gruppo
--------------------------------
Name: Claire Gruppo
------------------------------
Title: President
-----------------------------
Address: Attn: Claire Gruppo
Direct Equity Partners
00 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
/s/ Xxxxxx XxXxxxxx
--------------------------------
XXXXXX XXXXXXXX
Address: 000 0xx Xxx
Xxx Xxxxxxxxx, XX 00000
XXXXXX XXX
Address: 0000 00xx Xx.
XX XX 00000
SIGNATURE PAGE TO SERIES F PREFERRED STOCK
RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
FOUNDERS:
/s/ R. Xxx Xxxxxxx
-----------------------------------
R. Xxx Xxxxxxx
/s/ Xxxxx Xxxxxxxx
-----------------------------------
Xxxxx Xxxxxxxx
/s/ Xxxx Xxxxxxx
-----------------------------------
Xxxx Xxxxxxx
/s/ Xxxxxx Xxxxxxxx
-----------------------------------
Xxxxxx Xxxxxxxx
/s/ Xxx Xxxxxxx
-----------------------------------
Xxx Xxxxxxx
/s/ Xxxxxx XxXxxxxx
-----------------------------------
Xxxxxx XxXxxxxx
EXHIBIT A-1
List of Prior Investors
Xxxxx X. X. Xxxxxx
0000 Xxxxx Xxxx
Xxxxxxxx, XX 00000
Sippl Xxxxxxxxx Ventures II, L.P.
c/o Xxxxxxxxxx X. Xxxxxxxxx
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Xxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxxx, Trustees for the Xxxxxxx Revocable Trust
c/o Xxxx X. Xxxxxxx
Xxxxxxx Ventures
000 Xxxxx Xxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxxxx Ventures, LLC
c/o Xxxx X. Xxxxxxx
Xxxxxxx Ventures, LLC
000 Xxxxx Xxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxx X. Xxxxxxx, Trustee for the Xxxxxxx Xxxxxxx Trust
c/o Xxxx X. Xxxxxxx
Xxxxxxx Ventures
000 Xxxxx Xxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxx X. Xxxxxxx, Trustee for the Xxxx X. Xxxxxxx, Xx. Trust
c/o Xxxx X. Xxxxxxx
Xxxxxxx Ventures
000 Xxxxx Xxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxx X. Xxxxxxx, Trustee for the Xxxxxxx Xxx Xxxxxxx Trust
c/o Xxxx X. Xxxxxxx
Xxxxxxx Ventures
000 Xxxxx Xxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
A-1
Xxxxxxx X. Xxxxxxx, Trustee for the Xxxxxxx X. Xxxxxxx Separate Property Trust
c/o Xxxx X. Xxxxxxx
Xxxxxxx Ventures
000 Xxxxx Xxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx, Trustee of the Rolapp Trust
c/o Xxxx X. Xxxxxxx
Xxxxxxx Ventures
000 Xxxxx Xxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxx Living Trust
c/o Xxxxxxx X. Xxxxx 000
Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Xxxxxx Xxxxxxx
Xxxxxxx & Xxxxxxxx
Xxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxxxx
Director, Business Development
911Gifts, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
5 S Ventures LLC
c/o K. B. Xxxxxxxxxxxxx
00000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
M. Xxxxxx Xxxxxxxx
00 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxx Xxxxxxx
President and CEO
Exodus Communications
0000 Xxxxxxx Xxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, XX 00000
A-2
Xxxxxx X. Xxxxx and Xxx X. Xxxxx,
As the Trustees of the Rekhi Family Trust Dated 12/15/89
00000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
Xxx Xxxxxxxx
Xxxxxxxx Sonoma, Inc.
0000 Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxxx Xxx
0000 00xx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxx Xxxxxxx
Green Street Advisors
000 Xxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Xxxxx Xxxxxxx
0000 Xxxx Xxxxxxx Xxxxx Xxxxxxxxx
Xxxxx X
Xxxxxxxx, XX 00000
Xxxx Xxxxx
Akamai Technologies, Inc.
000 Xxxxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx and Xxxxx Xxxxxx Xxxxxxx
Xxxxxxxxx Partners
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
W. Xxxxxx Xxxxx, III and Xxxxx X. Xxxxx, Trustees of Xxxxx Family Trust, UDT
dated October 13, 1994, as amended
c/o Fox, Xxxxx & Company
000 Xxxxx Xxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
VLG INVESTMENTS 1999
c/o Xxxxx X. Xxxxxx
Venture Law Group
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
A-3
The Community Trust Under the Green Family Trust U/T/A
Dated November 6, 1995, Trustee
Xxxxxx X. Xxxxx
c/o Xxxxxx X. Xxxxx
00 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Xxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxx, Trustees U/T/A dated 7/6/98
c/o RS Investment Management
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxxx X. Xxxxx TTEE FBO P. Xxxx Xxxxxxxx UTA dated 12/22/83
c/o RS Investment Management
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxxx X. Xxxxx TTEE FBO W. Xxxx Xxxxxxxx UTA dated 12/22/83
c/o RS Investment Management
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Sequoia Capital IX
Sequoia Capital Angel Fund
Sequoia Capital IX Partners Fund
Sequoia Capital Franchise Fund
Sequoia Capital Franchise Partners
c/o Xxxxxxx Xxxxxx
Sequoia Capital
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
AMB Property, L.P.
000 Xxxxxxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Angel (Q) Investors, L.P.
c/o Xxxxx XxXxxxx
Xxxxxx Xxxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
A-4
Xxxxx Xxxxxxxxxx
Starwood Hotels & Resorts Worldwide
000 Xxxxxxxxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx
Omega Venture Partners, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx
Omega Venture Partners, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxxxx Xxxxx
Omega Venture Partners, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxx Xxxxxx
Omega Venture Partners, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxx Xxxx
Omega Venture Partners, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxx Xxxxxxx
Omega Venture Partners, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxx Xxxxxxxxx
Omega Venture Partners, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
A-5
Xxxxx Xxxx
Omega Venture Partners, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxx X. Xxxxxxx
Omega Venture Partners, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxx X. XxXxxxx
Weston Presidio Capital
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx XX 00000-0000
Xxxxxxx X. Xxxxxxx
Xxxxxx Presidio Capital
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx XX 00000-0000
Xxxxx X. Xxxxxxxxxx Family Spray Trust I
Xxxxx X. Xxxxxxxxxx Family Spray Trust II
Xxxxx X. Xxxxxxxxxx Family Spray Trust III
Xxxxxxxx-Xxxxx Specialty Retail Group III, L.P.
Xxxxx X. Xxxxx
Weston Presidio Capital III, L.P.
WPC Entrepreneur Fund, L.P.
Xxxxxxx X. Xxxxxxxx
Xxxx X. Xxxxxxx
RE General Partnership
Tsakopoulos Family Partnership
Xxxxxxxx & Xxxxxxx Capital
A-6
Sippl Xxxxxxxxx Ventures III, L.P.
Angel (Q) Investors II, L.P.
Angel Investors II, L.P.
The K.B. and Xxxxxxx Xxxxxxxxxxxxx Living Trust dated August 26, 1998
Xxxxxxx Xxxxxxx
Xxxx X. Xxxxxxxx Trust
Sequoia Capital Entrepreneurs Fund
Sequoia Capital IX Principals Fund
Hybrid Venture Partners, L.P.
Direct Equity Partners I, L.P.
SMALLCAP World Fund, Inc.
Atrium Venture Partners L.P.
Xxxxxx Xxxxxx
Crown Technologies Partners
Camelot Ventures, LLC
X-0
XXXXXXX X-0
List of Founders
R. Xxx Xxxxxxx
Xxxxx Xxxxxxxx
Xxxx Xxxxxxx
Xxxxxx Xxxxxxxx
Xxx Xxxxxxx
Xxxxxx XxXxxxxx
A-8
EXHIBIT B
LIST OF NEW INVESTORS
Moussenvelope, L.L.C.
Weston Presidio Capital III, L.P.
WPC Entrepreneur Fund, L.P.
Sequoia Capital Entrepreneurs Fund
Sequoia Capital Franchise Fund
Sequoia Capital Franchise Partners
Sequoia Capital IX
Sequoia Capital IX Principals Fund
Atrium Venture Partners, L.P.
Camelot Ventures LLC
Sippl Xxxxxxxxx Ventures II, X.X.
Xxxxx Xxxxxxxxx Ventures III, L.P.
Xxxxx Xxxxxxx
Xxxxxxx Xxxxxxxx
Xxxxxxx X. Xxxxxxx
Clipperbay & Co., Nominee for SMALLCAP World Fund, Inc.
Xxxxxxx Xxxxxxxx
GCC RedEnvelope
Xxxxx Xxxxx
Xxxxxxx Ventures
Xxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxxx, Trustees for the Xxxxxxx Revocable Trust
Xxxx X. Xxxxxxx, Trustee for the Xxxx X. Xxxxxxx Xx. Trust
B-1
Xxxx X. Xxxxxxx, Trustee for the Xxxxxxx Xxx Xxxxxxx Trust
Xxxx X. Xxxxxxx, Trustee for the Xxxxxxx Xxxxxxx Trust
Xxxxxxx X. Xxxxxxx, Trustee for the Xxxxxxx X. Xxxxxxx Separate Property Trust
Xxxxxxx X. Xxxxxxx, Trustee of the Rolapp Trust
Xxxxx Xxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
The Xxxx and Xxxxxxx Xxxxxxx Trust, Xxxx and Xxxxxxx Xxxxxxx as TTEE U/A/T
dated 5/12/99
Xxxxx Xxxxxxx
Xxxxxxx X. Xxxxx Living Trust
Xxxxxxx X. Xxxxxxxxx
W. Xxxxxx Xxxxx, III and Xxxxx X. Xxxxx, Trustees of Xxxxx Family Trust, UDT
dated 10/13/94, as amended
Xxxxxxxx-Xxxxx Specialty Retail Group III, L.P.
Xxxx Xxxxx
SeniorTrak, Inc.
Xxxxx Xxxxx
Xxxxxxx Xxxxx
Xxxxx X. Xxxxxxxxxx
Xxxxx X. Xxxxxxxxxx Family Spray Trust I
Xxxxx X. Xxxxxxxxxx Family Spray Trust II
Xxxxx X. Xxxxxxxxxx Family Spray Trust III
Xxxxxx Xxxxxx
Xxxxx X. Xxxxxx
B-2
Xxxxxxx Xxxxxxxxx, Trustee of the Xxxxxx Family Fund dated April 5, 1999
Direct Equity Partners, L.P.
Xxxxxx XxXxxxxx
Xxxxxx Xxx
B-3
