EXHIBIT 10.19
NETCENTIVES, INC.
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AMENDED AND RESTATED RIGHTS AGREEMENT
March 19, 1999
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TABLE OF CONTENTS
Page
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SECTION 1 - Restrictions on Transferability; Registration Rights.................................... 1
1.1 Certain Definitions.................................................................... 1
1.2 Restrictions........................................................................... 3
1.3 Restrictive Legend..................................................................... 3
1.4 Notice of Proposed Transfers........................................................... 3
1.5 Requested Registration................................................................. 4
1.6 Company Registration................................................................... 6
1.7 Registration on Form S-3............................................................... 7
1.8 Limitations on Subsequent Registration Rights.......................................... 8
1.9 Expenses of Registration............................................................... 8
1.10 Registration Procedures............................................................... 8
1.11 Indemnification....................................................................... 9
1.12 Information by Holder................................................................. 10
1.13 Rule 144 Reporting.................................................................... 10
1.14 Transfer of Registration Rights....................................................... 11
1.15 Standoff Agreement.................................................................... 11
1.16 Termination of Rights................................................................. 11
SECTION 2 - Right of Participation.................................................................. 12
2.1 Purchasers'Right of Participation...................................................... 12
2.2 Termination of Participation Right..................................................... 13
2.3 Termination of Prior Right............................................................. 14
SECTION 3 - Miscellaneous........................................................................... 14
3.1 Assignment............................................................................. 14
3.2 Third Parties.......................................................................... 14
3.3 Governing Law.......................................................................... 14
3.4 Counterparts........................................................................... 14
3.5 Notices................................................................................ 14
3.6 Severability........................................................................... 14
3.7 Amendment and Waiver................................................................... 15
3.8 Effect of Amendment or Waiver.......................................................... 15
3.9 Rights of Holders...................................................................... 15
3.10 Delays or Omissions................................................................... 15
3.11 Additional Parties.................................................................... 15
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AMENDED AND RESTATED RIGHTS AGREEMENT
This Amended and Restated Rights Agreement (the "Agreement") is entered
into as of the 19th day of March, 1999, by and among Netcentives Inc., a
California corporation (the "Company") and the investors listed on Exhibit A
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hereto (the "Purchasers").
RECITALS
WHEREAS, pursuant to an Amended and Restated Rights Agreement dated August
14, 1998 (the "Prior Rights Agreement"), certain of the Purchasers (the "Prior
Purchasers") received certain rights with respect to registration and pro-rata
participation.
WHEREAS, the Company and certain of the Purchasers (the "Series E
Purchasers") are entering into a Series E Preferred Stock Purchase Agreement of
even date herewith (the "Purchase Agreement"), pursuant to which the Company
shall sell, and the Series E Purchasers shall acquire, shares of the Company's
Series E Preferred Stock.
WHEREAS, in order to induce the Company to enter into the Purchase
Agreement and to induce the Series E Purchasers to invest funds in the Company,
the parties desire that the Series E Purchasers be granted registration rights
and rights of participation with respect to the Series E Preferred Stock being
purchased by them, and that the rights of the Prior Purchasers be amended and
restated in their entirety as set forth herein.
WHEREAS, pursuant to Section 3.7 of the Prior Rights Agreement provides
that the Prior Rights Agreement may be amended by written consent of the holders
of a majority of the outstanding shares of the Registrable Securities and the
Company.
NOW, THEREFORE, the parties hereby agree that the Prior Rights Agreement is
amended and restated in its entirety as follows:
SECTION 1
Restrictions on Transferability; Registration Rights
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1.1 Certain Definitions. As used in this Agreement, the following terms
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shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission or any
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other federal agency at the time administering the Securities Act.
"Conversion Shares" means the Common Stock issued or issuable upon
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conversion of the Preferred Shares as defined herein.
"Holder" shall mean any Purchaser holding Registrable Securities and
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any person holding Registrable Securities to whom the rights under this
Agreement have been transferred in accordance with Section 1.14 hereof.
"Initiating Holders" shall mean Holders in the aggregate of not less
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than fifty percent (50%) of the Registrable Securities as defined for purposes
of that particular section.
"Preferred Shares" shall mean (i) the 1,452,613 shares of Series A
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Preferred Stock of the Company outstanding as of the date hereof, issued
pursuant to Subscription Agreements dated September 16, 1996 and September 23,
1996, (ii) the 560,000 shares of Series B Preferred Stock of the Company
outstanding as of the date hereof, issued pursuant to Subscription Agreements
dated November 7, 1996 and November 21, 1996 and pursuant to the exercise of
warrants dated June 30, 1997, (iii) the 46,891 shares of Series B Preferred
Stock subject to warrants issued in connection with the issuance of promissory
notes by the Company on June 30, 1997 and August 20, 1997, (iv) the 31,000
shares of Series B Preferred Stock subject to warrants held by Silicon Valley
Bank and Phoenix Leasing dated January 14, 1997 and May 5, 1997, respectively,
(v) the 18,462 shares of Series C Preferred Stock subject to warrants held by
Phoenix Leasing dated May 31, 1998, (vi) the 7,754,847 shares of Series C
Preferred Stock issued pursuant to the Series C Preferred Stock Purchase
Agreement dated September 16, 1997, (vii) the 5,476,192 shares of Series D
Preferred Stock issued pursuant to the Series D Preferred Stock Purchase
Agreement dated August 14, 1998 and (viii) the shares of Series E Preferred
Stock issued pursuant to the Purchase Agreement.
The terms "register," "registered" and "registration" refer to a
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registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registration Expenses" shall mean all expenses incurred by the
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Company in complying with Sections 1.5, 1.6 and 1.7 of this Agreement,
including, without limitation, all registration, qualification and filing fees,
printing expenses, escrow fees, fees and disbursements of counsel for the
Company, blue sky fees and expenses, and the expense of any special audits
incident to or required by any such registration (but excluding the compensation
of regular employees of the Company which shall be paid in any event by the
Company).
"Registrable Securities" means (i) the Conversion Shares; and (ii) any
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Common Stock of the Company issued or issuable in respect of the Preferred
Shares or Conversion Shares or other securities issued or issuable with respect
to the Preferred Shares or Conversion Shares upon any stock split, stock
dividend, recapitalization, or similar event, or any Common Stock otherwise
issued or issuable with respect to the Conversion Shares or Preferred Shares;
provided, however, that shares of Common Stock or other securities shall only be
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treated as Registrable Securities if and so long as they have not been (A) sold
to or through a broker or dealer or underwriter in a public distribution or a
public securities transaction, or (B) sold in a transaction exempt from the
registration and prospectus delivery requirements of the Securities Act under
Section 4(1) thereof so that all transfer restrictions and restrictive legends
with respect thereto are removed upon the consummation of such sale.
"Restricted Securities" shall mean the securities of the Company
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required to bear the legend set forth in Section 1.3 of this Agreement.
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"Securities Act" shall mean the Securities Act of 1933, as amended, or
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any similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean all underwriting discounts, selling
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commissions and stock transfer taxes applicable to the securities registered by
the Holders and all fees and disbursements of counsel for the Holders (except as
provided by Section 1.9).
1.2 Restrictions. The Preferred Shares and the Conversion Shares shall
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not be sold, assigned, transferred or pledged except upon the conditions
specified in this Agreement, which conditions are intended to ensure compliance
with the provisions of the Securities Act. The Purchasers will cause any
proposed purchaser, assignee, transferee or pledgee of the Preferred Shares or
the Conversion Shares to agree to take and hold such securities subject to the
provisions and upon the conditions specified in this Agreement.
1.3 Restrictive Legend. Each certificate representing (i) the Preferred
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Shares, (ii) the Conversion Shares, and (iii) any other securities issued in
respect of the securities referenced in clauses (i), (ii) and (iii) upon any
stock split, stock dividend, recapitalization, merger, consolidation or similar
event, shall (unless otherwise permitted by the provisions of Section 1.4 below)
be stamped or otherwise imprinted with legends in the following form (in
addition to any legend required under applicable state securities laws):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933. SUCH SHARES MAY NOT BE SOLD, TRANSFERRED OR PLEDGED
IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE COMPANY
RECEIVES AN OPINION OF COUNSEL (WHICH MAY BE COUNSEL FOR THE
COMPANY) REASONABLY ACCEPTABLE TO IT STATING THAT SUCH SALE OR
TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS OF SAID ACT."
"THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE TRANSFERRED
ONLY IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT BETWEEN THE
COMPANY AND THE SHAREHOLDER, A COPY OF WHICH IS ON FILE WITH THE
SECRETARY OF THE COMPANY."
Each Purchaser and Holder consents to the Company making a notation on
its records and giving instructions to any transfer agent of the Restricted
Securities in order to implement the restrictions on transfer established in
this Section 1.
1.4 Notice of Proposed Transfers. The holder of each certificate
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representing Restricted Securities, by acceptance thereof, agrees to comply in
all respects with the provisions of this Section 1. Prior to any proposed sale,
assignment, transfer or pledge of any Restricted Securities, unless there is in
effect a registration statement under the Securities Act covering the
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proposed transfer, the holder thereof shall give written notice to the Company
of such holder's intention to effect such transfer, sale, assignment or pledge.
Each such notice shall describe the manner and circumstances of the proposed
transfer, sale, assignment or pledge in sufficient detail, and shall be
accompanied at such holder's expense by either (i) an unqualified written
opinion of legal counsel who shall, and whose legal opinion shall be, reasonably
satisfactory to the Company, addressed to the Company, to the effect that the
proposed transfer of the Restricted Securities may be effected without
registration under the Securities Act, or (ii) a "no action" letter from the
Commission to the effect that the transfer of such securities without
registration will not result in a recommendation by the staff of the Commission
that action be taken with respect thereto, whereupon the holder of such
Restricted Securities shall be entitled to transfer such Restricted Securities
in accordance with the terms of the notice delivered by the holder to the
Company. The Company will not require such a legal opinion or "no action" letter
(a) in any transaction in compliance with Rule 144, (b) in any transaction in
which a Purchaser which is a corporation distributes Restricted Securities after
six (6) months after the purchase thereof solely to its majority-owned
subsidiaries or affiliates for no consideration, or (c) in any transaction in
which a Purchaser which is a partnership distributes Restricted Securities after
six (6) months after the purchase thereof solely to partners thereof for no
consideration, provided that each transferee agrees in writing to be subject to
the terms of this Section 1.4. Each certificate evidencing the Restricted
Securities transferred as above provided shall bear, except if such transfer is
made pursuant to Rule 144, the appropriate restrictive legend set forth in
Section 1.3 above, except that such certificate shall not bear such restrictive
legend if, in the opinion of counsel for such holder and the Company, such
legend is not required in order to establish compliance with any provisions of
the Securities Act.
1.5 Requested Registration.
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(a) Request for Registration. In case the Company shall receive from
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Initiating Holders a written request that the Company effect any qualification,
compliance or registration the reasonably anticipated aggregate price to the
public of which net of underwriting discounts and commissions, would exceed
$10,000,000:
(i) promptly give written notice of the proposed registration,
qualification or compliance to all other Holders; and
(ii) as soon as practicable, use its best efforts to effect such
registration, qualification or compliance (including, without limitation, the
execution of an undertaking to file post-effective amendments, appropriate
qualification under applicable blue sky or other state securities laws and
appropriate compliance with applicable regulations issued under the Securities
Act and any other governmental requirements or regulations) as may be so
requested and as would permit or facilitate the sale and distribution of all or
such portion of such Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any Holder or
Holders joining in such request as are specified in a written request received
by the Company within twenty (20) days after receipt of such written notice from
the Company; provided, however, that the Company shall not be obligated to take
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any action to effect any such registration, qualification or compliance pursuant
to this Section 1.5:
(1) In any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in effecting such
registration, qualification or compliance unless the Company is already subject
to service in such jurisdiction and except as may be required by the Securities
Act;
(2) Prior to the earlier of (i) six (6) months following the
Company's initial public offering or (ii) March 19, 2001;
(3) During the period ending on the date three (3) months immediately
following the effective date of, any registration statement pertaining to
securities of the Company (other than a registration of securities in a Rule 145
transaction or with respect to an employee benefit plan);
(4) After the Company has effected two (2) such registrations
pursuant to this subparagraph 1.5(a), such registrations have been declared or
ordered effective and the securities offered pursuant to such registrations have
been sold; or
(5) If the Company shall furnish to such Holders a certificate,
signed by the President of the Company, stating that in the good faith judgment
of the Board of Directors it would be seriously detrimental to the Company or
its shareholders for a registration statement to be filed in the near future,
then the Company's obligation to use its best efforts to register, qualify or
comply under this Section 1.5 shall be deferred for a single period not to
exceed one hundred-twenty (120) days from the date of receipt of written request
from the Initiating Holders.
Subject to the foregoing clauses (1) through (5), the Company shall file a
registration statement covering the Registrable Securities so requested to be
registered as soon as practicable after receipt of the request or requests of
the Initiating Holders.
(b) Underwriting. In the event that a registration pursuant to
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Section 1.5 is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as part of the notice given pursuant to
Section l.5(a)(i). The right of any Holder to registration pursuant to Section
1.5 shall be conditioned upon such Holder's participation in the underwriting
arrangements required by this Section 1.5 and the inclusion of such Holder's
Registrable Securities in the underwriting, to the extent requested, to the
extent provided in this Agreement.
The Company shall (together with all Holders proposing to distribute their
securities through such underwriting) enter into an underwriting agreement in
customary form with the managing underwriter selected for such underwriting by a
majority in interest of the Initiating Holders (which managing underwriter shall
be reasonably acceptable to the Company). Notwithstanding any other provision
of this Section 1.5, if the managing underwriter advises the Initiating Holders
in writing that marketing factors require a limitation of the number of shares
to be underwritten, then the Company shall so advise all Holders of Registrable
Securities and the
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number of shares of Registrable Securities that may be included in the
registration and underwriting shall be allocated among all Holders thereof in
proportion, as nearly as practicable, to the respective amounts of Registrable
Securities held by such Holders at the time of filing the registration
statement. No Registrable Securities excluded from the underwriting by reason of
the underwriter's marketing limitation shall be included in such registration.
To facilitate the allocation of shares in accordance with the above provisions,
the Company or the underwriters may round the number of shares allocated to any
Holder to the nearest 100 shares.
If any Holder of Registrable Securities disapproves of the terms of the
underwriting, such person may elect to withdraw therefrom by written notice to
the Company, the managing underwriter and the Initiating Holders. The
Registrable Securities and/or other securities so withdrawn shall also be
withdrawn from registration, and such Registrable Securities shall not be
transferred in a public distribution prior to one hundred eighty (180) days
after the effective date of such registration.
1.6 Company Registration.
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(a) Notice of Registration. If at any time or from time to time, the
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Company shall determine to register any of its securities, either for its own
account or the account of a security holder or holders other than (i) a
registration relating solely to employee benefit plans, or (ii) a registration
relating solely to a Commission Rule 145 transaction, the Company will:
(i) promptly give to each Holder written notice thereof; and
(ii) include in such registration (and any related qualification
under blue sky laws or other compliance), and in any underwriting involved in
such registration, all the Registrable Securities specified in a written request
or requests received within twenty (20) days after receipt of such written
notice from the Company by any Holder, but only to the extent that such
inclusion will not diminish the number of securities included by the Company or
by holders of the Company's securities who have demanded such registration.
(b) Underwriting. If the registration of which the Company gives
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notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 1.6(a)(i). In such event, the right of any Holder to
registration pursuant to Section 1.6 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of Registrable Securities
in the underwriting to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting shall (together with the
Company and the other holders distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the
managing underwriter selected for such underwriting by the Company (or by the
holders who have demanded such registration). Notwithstanding any other
provision of this Section 1.6, if the managing underwriter determines that
marketing factors require a limitation of the number of shares to be
underwritten, the managing underwriter may limit the Registrable Securities to
be included in such registration to a minimum of 30% of the total shares to be
included in such underwriting or exclude them entirely in the case of the
Company's initial public offering. The Company shall so advise all Holders and
the other holders distributing their securities through
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such underwriting pursuant to piggyback registration rights similar to this
Section 1.6, and the number of shares of Registrable Securities and other
securities that may be included in the registration and underwriting shall be
allocated among all Preferred Purchasers in proportion, as nearly as
practicable, to the respective amounts of Registrable Securities held by such
Preferred Purchasers at the time of filing the registration statement. To
facilitate the allocation of shares in accordance with the above provisions, the
Company or the underwriters may round the number of shares allocated to any
Holder or other holder to the nearest 100 shares. If any Holder or other holder
disapproves of the terms of any such underwriting, he or she may elect to
withdraw therefrom by written notice to the Company and the managing
underwriter. Any securities excluded or withdrawn from such underwriting shall
be withdrawn from such registration, and shall not be transferred in a public
distribution prior to one hundred eighty (180) days after the effective date of
the registration statement relating thereto (the "Lock-Up Period"); provided,
however, that if such registration is not the Company's initial public offering
such Lock-Up Period shall be one hundred twenty (120) days unless the managing
underwriter determines that marketing factors require a longer period in which
case the Lock-Up Period shall be specified by the managing underwriter but shall
not exceed one hundred eighty (180) days.
(c) Right to Terminate Registration. The Company shall have the right
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to terminate or withdraw any registration initiated by it under this Section 1.6
prior to the effectiveness of such registration, whether or not any Holder has
elected to include securities in such registration.
1.7 Registration on Form S-3.
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(a) If the Initiating Holder requests that the Company file a
registration statement on Form S-3 (or any successor form to Form S-3) for a
public offering of shares of the Registrable Securities, the reasonably
anticipated aggregate price to the public of which, net of underwriting
discounts and commissions, would exceed $500,000, and the Company is a
registrant entitled to use Form S-3 to register the Registrable Securities for
such an offering, the Company shall use its best efforts to cause such
Registrable Securities to be registered for the offering on such form; provided,
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however, that the Company shall not be required to effect more than two
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registrations pursuant to this Section 1.7 in any twelve (12) month period. The
Company will (i) promptly give written notice of the proposed registration to
all other Holders, and (ii) as soon as practicable, use its best efforts to
effect such registration (including, without limitation, the execution of an
undertaking to file post-effective amendments, appropriate qualification under
applicable blue sky or other state securities laws and appropriate compliance
with applicable regulations issued under the Securities Act and any other
governmental requirements or regulations) as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion of such
Registrable Securities as are specified in such request, together with all or
such portion of the Registrable Securities of any Holder or Holders joining in
such request as are specified in a written request received by the Company
within twenty (20) days after receipt of such written notice from the Company.
The substantive provisions of Section 1.5(b) shall be applicable to each
registration initiated under this Section 1.7.
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(b) Notwithstanding the foregoing, the Company shall not be obligated
to take any action pursuant to this Section 1.7: (i) in any particular
jurisdiction in which the Company would be required to execute a general consent
to service of process in effecting such registration, qualification or
compliance unless the Company is already subject to service in such jurisdiction
and except as may be required by the Securities Act, (ii) during the period
ending on a date three (3) months following the effective date of, a
registration statement (other than with respect to a registration statement
relating to a Rule 145 transaction, an offering solely to employees or any other
registration which is not appropriate for the registration of Registrable
Securities), or (iii) if the Company shall furnish to such Holder a certificate
signed by the President of the Company stating that, in the good faith judgment
of the Board of Directors, it would be seriously detrimental to the Company or
its shareholders for registration statements to be filed in the near future,
then the Company's obligation to use its best efforts to file a registration
statement shall be deferred for a single period not to exceed one hundred twenty
(120) days from the receipt of the request to file such registration by such
Holder or Holders.
1.8 Limitations on Subsequent Registration Rights. From and after the
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date of this Agreement, the Company shall not enter into any agreement granting
any holder or prospective holder of any securities of the Company registration
rights with respect to such securities unless such holder derives its rights as
an additional Holder hereunder, or such shares or securities are entitled to be
included in registrations only to the extent that the inclusion of such
securities will not diminish the amount of Registrable Securities that are
included.
1.9 Expenses of Registration. All Registration Expenses incurred in
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connection with any registration pursuant Sections 1.5, 1.6 or 1.7 and the
reasonable cost of one special legal counsel to represent all of the Holders
together in any such registration shall be borne by the Company, provided that
the Company shall not be required to pay the Registration Expenses of any
registration proceeding begun pursuant to Section 1.5, the request of which has
been subsequently withdrawn by the Initiating Holders. In such case, the Holders
of Registrable Securities to have been registered shall bear all such
Registration Expenses pro rata on the basis of the number of shares to have been
registered unless the Holders of a majority of the Registrable Securities agree
to forfeit their right to one demand registration pursuant to Section 1.5.
Notwithstanding the foregoing, however, if at the time of the withdrawal, the
Holders have learned of a material adverse change in the condition, business or
prospects of the Company from that known to the Holders at the time of their
request, of which the Company had knowledge at the time of the request, then the
Holders shall not be required to pay any of said Registration Expenses or to
forfeit the right to one demand registration.
1.10 Registration Procedures. In the case of each registration,
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qualification or compliance effected by the Company pursuant to this Section 1,
the Company will keep each Holder advised in writing as to the initiation of
each registration, qualification and compliance and as to the completion
thereof. At its expense the Company will:
(a) Prepare and file with the Commission a registration statement
with respect to such securities and use its best efforts to cause such
registration statement to become and remain effective for at least one hundred
eighty (120); and
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(b) Furnish to the Holders participating in such registration and to
the underwriters of the securities being registered such reasonable number of
copies of the registration statement, preliminary prospectus, final prospectus
and such other documents as such underwriters may reasonably request in order to
facilitate the public offering of such securities.
1.11 Indemnification.
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(a) The Company will indemnify each Holder, each of its officers and
directors and partners, and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, with respect to which registration,
qualification or compliance has been effected pursuant to this Section 1, and
each underwriter, if any, and each person who controls any underwriter within
the meaning of Section 15 of the Securities Act, against all expenses, claims,
losses, damages or liabilities (or actions in respect thereof), including any of
the foregoing incurred in settlement of any litigation, commenced or threatened,
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any registration statement, prospectus, offering
circular or other document, or any amendment or supplement thereto, incident to
any such registration, qualification or compliance, or based on any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading, or any violation by the Company of any
rule or regulation promulgated under the Securities Act applicable to the
Company in connection with any such registration, qualification or compliance,
and the Company will reimburse each such Holder, each of its officers and
directors, and each person controlling such Holder, each such underwriter and
each person who controls any such underwriter, for any legal and any other
expenses reasonably incurred in connection with investigating, preparing or
defending any such claim, loss, damage, liability or action, provided that the
Company will not be liable in any such case to the extent that any such claim,
loss, damage, liability or expense arises out of or is based on any untrue
statement or omission or alleged untrue statement or omission, made in reliance
upon and in conformity with written information furnished to the Company by an
instrument duly executed by such Holder, controlling person or underwriter and
stated to be specifically for use therein.
(b) Each Holder will, if Registrable Securities held by such Holder
are included in the securities as to which such registration, qualification or
compliance is being effected, indemnify the Company, each of its directors and
officers, each underwriter, if any, of the Company's securities covered by such
a registration statement, each person who controls the Company or such
underwriter within the meaning of Section 15 of the Securities Act, and each
other such Holder, each of its officers and directors and each person
controlling such Holder within the meaning of Section 15 of the Securities Act,
against all claims, losses, damages and liabilities (or actions in respect
thereof) arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any such registration statement,
prospectus, offering circular or other document, or any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse the
Company, such Holders, such directors, officers, persons, underwriters or
control persons for any legal or any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability or action, in
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each case to the extent, but only to the extent, that such untrue statement (or
alleged untrue statement) or omission (or alleged omission) is made in such
registration statement, prospectus, offering circular or other document in
reliance upon and in conformity with written information furnished to the
Company by an instrument duly executed by such Holder and stated to be
specifically for use therein; provided, however, that the liability of a Holder
for indemnification under this Section 1.11(b) shall not exceed the gross
proceeds from the offering received by such Holder.
(c) Each party entitled to indemnification under this Section 1.11
(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 unreasonably be
withheld), and the Indemnified Party may participate in such defense at such
party's expense, 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 1 unless the failure to give such notice is
materially prejudicial to an Indemnifying Party's ability to defend such action.
No Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement 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 liability in respect to such claim or litigation.
1.12 Information by Holder. The Holder or Holders of Registrable
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Securities included in any registration shall furnish to the Company such
information regarding such Holder or Holders, the Registrable Securities held by
them and the distribution proposed by such Holder or Holders as the Company may
request in writing and as shall be required in connection with any registration,
qualification or compliance referred to in this Section 1.
1.13 Rule 144 Reporting. With a view to making available the benefits
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of certain rules and regulations of the Commission which may at any time permit
the sale of the Restricted Securities to the public without registration, after
such time as a public market exists for the Common Stock of the Company, the
Company agrees to use its best efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all times after
the effective date that the Company becomes subject to the reporting
requirements of the Securities Act or the Securities Exchange Act of 1934, as
amended (the "Exchange Act");
(b) 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) So long as a Purchaser owns any Restricted Securities, to
furnish to the Purchaser forthwith upon request a written statement by the
Company as to its compliance with
-10-
the reporting requirements of said Rule 144 (at any time after ninety (90) days
after the effective date of the first registration statement filed by the
Company for an offering of its securities to the general public), and of the
Securities Act and the Exchange Act (at any time after it has become subject to
such reporting requirements), a copy of the most recent annual or quarterly
report of the Company, and such other reports and documents of the Company and
other information in the possession of or reasonably obtainable by the Company
as a Purchaser may reasonably request in availing itself of any rule or
regulation of the Commission allowing a Purchaser to sell any such securities
without registration.
1.14 Transfer of Registration Rights. The rights to cause the Company
-------------------------------
to register securities granted Purchasers under Sections 1.5, 1.6 and 1.7 may be
assigned to a transferee or assignee reasonably acceptable to the Company in
connection with any transfer or assignment of Registrable Securities by a
Purchaser (together with any affiliate); provided, that (a) such transfer may
--------
otherwise be effected in accordance with applicable securities laws, (b) notice
of such assignment is given to the Company, and (c) such transferee or assignee
(i) is a wholly-owned subsidiary, affiliated investment fund or constituent
partner (including limited partners) of such Purchaser, or (ii) acquires from
such Purchaser the lesser of (a) 150,829 more shares of Restricted Securities
(as appropriately adjusted for stock splits and the like) or (b) all of the
Restricted Securities then owned by such Purchaser.
1.15 Standoff Agreement. Each Holder agrees in connection with the
------------------
initial registration of the Company's securities that, upon request of the
Company or the underwriters managing any underwritten initial public offering of
the Company's securities, not to sell, make any short sale of, loan, grant any
option for the purchase of, or otherwise dispose of any Registrable Securities
(other than those included in the registration) without the prior written
consent of the Company or such underwriters, as the case may be, for such period
of time (not to exceed one hundred eighty (180) days from the effective date of
such registration) as may be requested by the Company or such managing
underwriters; provided, however, that the officers and directors of the Company
who own stock of the Company also agree to such restrictions.
1.16 Termination of Rights. No Holder shall be entitled to exercise any
---------------------
right provided for in this Section 1:
(a) after three (3) years following the consummation of the sale of
securities pursuant to a registration statement filed by the Company under the
Act in connection with the initial firm commitment underwritten offering of its
securities to the general public, or
(b) on or after the closing of a public offering of the Common Stock
of the Company, initiated by the Company, when all shares of the Holder's
Registrable Securities may be sold under Rule 144 during any 90-day period;
provided, however, that the provisions of this subsection (b) shall not apply
where the Holder owns more than two percent (2%) of the Company's outstanding
stock until such time as such Holder owns less than two percent (2%) of the
outstanding stock.
-11-
SECTION 2
Right of Participation
----------------------
2.1 Purchasers' Right of Participation.
----------------------------------
(a) Right of Participation. Subject to the terms and conditions
----------------------
contained in this Section 2.1, the Company hereby grants to each Holder the
right of participation to purchase its Pro Rata Portion of any New Securities
(as defined in subsection 2.1(b)) which the Company may, from time to time,
propose to sell and issue. A Holder's "Pro Rata Portion" for purposes of this
Section 2.1 is the ratio that (x) the sum of the number of shares of the
Company's Common Stock then held by such Holder and the number of shares of the
Company's Common Stock issuable upon conversion of the Preferred Stock then held
by such Holder, bears to (y) the sum of the total number of shares of the
Company's Common Stock then outstanding, the number of shares of the Company's
Common Stock issuable upon the exercise of any issued and outstanding rights,
options or warrants, and the number of shares of the Company's Common Stock
issuable upon conversion of the then outstanding Preferred Stock.
(b) Definition of New Securities. Except as set forth below, "New
----------------------------
Securities" shall mean any shares of capital stock of the Company, including
Common Stock and Preferred Stock, whether authorized or not, and rights, options
or warrants to purchase said shares of Common Stock or Preferred Stock, and
securities of any type whatsoever that are, or may become, convertible into said
shares of Common Stock or Preferred Stock. Notwithstanding the foregoing, "New
Securities" does not include (i) the Preferred Shares or the Conversion Shares,
(ii) securities offered to the public generally pursuant to a registration
statement under the Securities Act, (iii) securities issued pursuant to the
acquisition of another corporation by the Company by merger, purchase of
substantially all of the assets or shares or other reorganization whereby the
Company or its shareholders own not less than a majority of the voting power of
the surviving or successor corporation, (iv) shares of the Company's Common
Stock or related options or warrants convertible into or exercisable for such
Common Stock issued to employees, officers and directors of, and consultants to,
the Company, pursuant to any arrangement approved by the Board of Directors of
the Company, (v) shares of the Company's Non-Voting Convertible Stock or related
options or warrants convertible into or exercisable for such Non-Voting
Convertible Stock issued to customers and vendors of the Company pursuant to any
arrangement unanimously approved by the Board of Directors of the Company; (vi)
shares of the Company's Common Stock or related options convertible into or
exercisable for such Common Stock issued to banks, commercial lenders, lessors
and other financial institutions in connection with the borrowing of money or
the leasing of equipment by the Company, (vii) stock issued pursuant to any
rights or agreements, including, without limitation, convertible securities,
options and warrants, provided that the Company shall have complied with the
rights of participation established by this Section 2.1 with respect to the
initial sale or grant by the Company of such rights or agreements, or (viii)
stock issued in connection with any stock split, stock dividend or
recapitalization by the Company.
-12-
(c) Notice of Right. In the event the Company proposes to undertake
---------------
an issuance of New Securities, it shall give each Purchaser written notice of
its intention, describing the type of New Securities and the price and terms
upon which the Company proposes to issue the same. Each Purchaser shall have
twenty (20) days from the date of receipt of any such notice to agree to
purchase shares of such New Securities (up to the amount referred to in
subsection 2.1(a)), for the price and upon the terms specified in the notice, by
giving written notice to the Company and stating therein the quantity of New
Securities to be purchased.
(d) Exercise of Right. If any Purchaser exercises its right of
-----------------
participation under this Agreement, the closing of the purchase of the New
Securities with respect to which such right has been exercised shall take place
within ninety (90) calendar days after the Purchaser gives notice of such
exercise, which period of time shall be extended in order to comply with
applicable laws and regulations. Upon exercise of such right of participation,
the Company and the Purchaser shall be legally obligated to consummate the
purchase contemplated thereby and shall use their best efforts to secure any
approvals required in connection therewith.
(e) Lapse and Reinstatement of Right. In the event a Purchaser fails
--------------------------------
to exercise the right of participation provided in this Section 2.1 within said
twenty (20) day period, the Company shall have ninety (90) days thereafter to
sell or enter into an agreement (pursuant to which the sale of New Securities
covered thereby shall be closed, if at all, within sixty (60) days from the date
of said agreement) to sell the New Securities not elected to be purchased by
such Purchaser at the price and upon the terms no more favorable to the
purchasers of such securities than specified in the Company's notice. In the
event the Company has not sold the New Securities or entered into an agreement
to sell the New Securities within said ninety (90) day period (or sold and
issued New Securities in accordance with the foregoing within sixty (60) days
from the date of said agreement), the Company shall not thereafter issue or sell
any New Securities without first offering such securities to the Purchasers in
the manner provided above.
(f) Assignment. The right of the Purchasers to purchase any part of
----------
the New Securities may be assigned in whole or in part to any partner,
subsidiary, affiliate or shareholder of a Purchaser, or other persons or
organizations who acquire the lesser of (i) 250,000 or more shares of Restricted
Securities (as adjusted for stock splits and the like) or (ii) all of the
Restricted Securities then owned by such Purchaser.
2.2 Termination of Participation Right. The rights of participation
----------------------------------
granted under Section 2.1 of this Agreement shall terminate on and be of no
further force or effect upon the earlier of (i) the consummation of the
Company's sale of its Common Stock in an underwritten public offering pursuant
to an effective registration statement filed under the Securities Act
immediately subsequent to which the Company shall be obligated to file annual
and quarterly reports with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act or (ii) the registration by the Company of a class of its equity
securities under Section 12(b) or 12(g) of the Exchange Act.
2.3 Termination of Prior Right. By executing this Agreement, the Prior
--------------------------
Investors hereby waive any right of first offer accruing to them under the
Prior Agreement (and notice
-13-
provisions related thereto) or relating to any issuance of securities by the
Company prior to and including the date hereof, including without limitation,
the issuance of Series E Preferred Stock under the Purchase Agreement.
SECTION 3
Miscellaneous
-------------
3.1 Assignment. Except as otherwise provided in this Agreement, the
----------
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties to this
Agreement.
3.2 Third Parties. Nothing in this Agreement, express or implied, is
-------------
intended to confer upon any party, other than the parties to this Agreement, and
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.
3.3 Governing Law. This Agreement shall be governed by and construed
-------------
under the laws of the State of California in the United States of America
without giving effect to the conflicts of laws principles thereof.
3.4 Counterparts. This Agreement may be executed in counterparts, each
------------
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
3.5 Notices. Any notice required or permitted by this Agreement shall
-------
be in writing and shall be sent by prepaid registered or certified mail, return
receipt requested, or otherwise delivered by hand or by messenger addressed to
the other party at the address shown below or at such other address for which
such party gives notice under this Agreement. Such notice shall be deemed to
have been given when delivered if delivered personally, or, if sent by mail, at
the earlier of its receipt or three (3) days after deposit in the mail.
3.6 Severability. If one or more provisions of this Agreement are held
------------
to be unenforceable under applicable law, portions of such provisions, or such
provisions in their entirety, to the extent necessary, shall be severed from
this Agreement, and the balance of this Agreement shall be enforceable in
accordance with its terms.
3.7 Amendment and Waiver. Any provision of this Agreement may be
--------------------
amended or waived with the written consent of the Company and the Holders of at
least a majority of the outstanding shares of the Registrable Securities, so
long as the effect is to treat all Holders equally. Any amendment or waiver
effected in accordance with this paragraph shall be binding upon each Holder of
Registrable Securities and the Company. In addition, the Company may waive
performance of any obligation owing to it, as to some or all of the Holders of
Registrable Securities, or agree to accept alternatives to such performance,
without obtaining the consent of any Holder of Registrable Securities. In the
event that an underwriting agreement is entered into between the Company and any
Holder, and such underwriting agreement contains terms differing
-14-
from this Agreement, as to any such Holder the terms of such underwriting
agreement shall govern.
3.8 Effect of Amendment or Waiver. The Purchasers and their successors
-----------------------------
and assigns acknowledge that by the operation of Section 3.7 of this Agreement
the holders of a majority of the outstanding Registrable Securities, acting in
conjunction with the Company, will have the right and power to diminish or
eliminate any or all rights or increase any or all obligations pursuant to this
Agreement.
3.9 Rights of Holders. Each holder of Registrable Securities shall have
-----------------
the absolute right to exercise or refrain from exercising any right or rights
that such holder may have by reason of this Agreement, including, without
limitation, the right to consent to the waiver or modification of any obligation
under this Agreement, and such holder shall not incur any liability to any other
holder of any securities of the Company as a result of exercising or refraining
from exercising any such right or rights.
3.10 Delays or Omissions. No delay or omission to exercise any right,
-------------------
power or remedy accruing to any party to this Agreement, upon any breach or
default of the other party, shall impair any such right, power or remedy of such
non-breaching party nor shall it be construed to be a waiver of any such breach
or default, or an acquiescence therein, or of or in any similar breach or
default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any party of any breach or default under this
Agreement, or any waiver on the part of any party of any provisions or
conditions of this Agreement, must be made in writing and shall be effective
only to the extent specifically set forth in such writing. All remedies, either
under this Agreement, or by law or otherwise afforded to any holder, shall be
cumulative and not alternative.
3.11 Additional Parties. The Purchasers agree that any person who
------------------
becomes a "Purchaser" in a Subsequent Closing (as such term is defined in the
Purchase Agreement) under the Purchase Agreement at any time after the date
hereof shall become a Purchaser under this Agreement upon their execution hereof
without further action by any other Purchaser.
[Signature Pages Follow]
-15-
The parties hereto have executed this Agreement as of the day and year
first above written.
"COMPANY" "PURCHASERS"
NETCENTIVES INC. _______________________________________
a California corporation (Print Name of Purchaser)
By: /s/ Xxxx Xxxxxxxxxx By:____________________________________
---------------------------
Xxxx X. (Xxxx) Xxxxxxxxxx
Senior Vice President and Title:_________________________________
Chief Financial Officer
"PRIOR PURCHASERS"
_______________________________________
(Print Name of Purchaser)
By:____________________________________
Title:_________________________________
[Signature Page to Amended and Restated Rights Agreement]
XXXXXXXX VIII,
A California Limited Partnership
By: Xxxxxxxx VIII Management, L.L.C.
A Delaware Limited Liability Company,
Its General Partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx
Authorized Signatory
XXXXXXXX ASSOCIATES FUND III,
A California Limited Partnership
By: Xxxxxxxx VIII Management, L.L.C.
A Delaware Limited Liability Company,
Its General Partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx
Authorized Signatory
AFFINITY TRUST
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx
Authorized Signatory
XXXXXXX X. & XXXXX X. XXX XXXXX, TTEE, THE
XXXXXXX X. & XXXXX X. XXX XXXXX TRUST U/D/T
9/17/75
By: /s/ Xxxxxxx X. Xxx Xxxxx
---------------------------------
Xxxxxxx X. Xxx Xxxxx, trustee
_____________________________________
Xxxxx X. Xxx Xxxxx, trustee
[Signature Page to Amended and Restated Rights Agreement]
XXXX XXXXX
/s/ XXXX XXXXX
------------------------------------
[Signature Page to Amended and Restated Rights Agreement]
SS VENTURES, LLC.
By: /s/ K.B. Xxxxxxxxxxxxx
---------------------------------
K.B. Xxxxxxxxxxxxx
Title: Managing Member
------------------------------
[Signature Page to Amended and Restated Rights Agreement]
CITICORP STRATEGIC TECHNOLOGY CORP.
By: /s/ Xxxx Xxxxxxx
---------------------------------
Title: VICE PRESIDENT
------------------------------
[Signature Page to Amended and Restated Rights Agreement]
XXXXXXXX X. XXXXXX
/s/ Xxxxxxx X. Xxxxxx
-------------------------------------
XXXXX X. XXXXXXXX TRUST DATED JULY 14, 1998
By: /s/ XXXXX X. XXXXXXXX
---------------------------------
Title: Trustee
------------------------------
HURET FAMILY PARTNERS, L.P.
By: /s/ Xxxxxx Xxxxx
---------------------------------
Title: G.P
------------------------------
[Signature Page to Amended and Restated Rights Agreement]
XXXXXX XXXXXXXX X.X.
By: Xxxxxx Xxxxxxxx Management Company
By: /s/ Xxxxx Xxxxxxxx Xxxxxxx
---------------------------------
Xxxxx Xxxxxxxx Xxxxxxx
Title: Vice President
[Signature Page to Amended and Restated Rights Agreement]
XXXXXX ASSOCIATES, L.P.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Title:___________________
[Signature Page to Amended and Restated Rights Agreement]
XXXXXX XXXXXX ASSOCIATES FUND IV, L.P.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Title: __________________
[Signature Page to Amended and Restated Rights Agreement]
XXXXXX XXXXXX PARTNERS IV, LLC
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Title: __________________
[Signature Page to Amended and Restated Rights Agreement]
WASATCH VENTURE CORPORATION
By: /s/ Talde X. Xxxxxxx
---------------------------------
Title: Secretary / Treasurer
------------------------------
[Signature Page to Amended and Restated Rights Agreement]
INTEGRAL CAPITAL PARTNERS IV, L.P.
By: Integral Capital Management IV, LLC
Its General Partner
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxx
Manager
INTEGRAL CAPITAL PARTNERS IV MS SIDE FUND,
L.P.
By: ICP MS Management, LLC
Its General Partner
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxx
Manager
[Signature Page to Amended and Restated Rights Agreement]
MINDFUL PARTNERS
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Title: GENERAL PARTNER
------------------------------
XXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxx
-------------------------------------
[Signature Page to Amended and Restated Rights Agreement]
NEW ENTERPRISE ASSOCIATES VII, LIMITED
PARTNERSHIP
By: NEA Partners VII, Limited Partnership
Its General Partner
By: /s/ Xxxxxx X. Xxxx
---------------------------------
Title: General Partner
------------------------------
INFORMATION TECHNOLOGY VENTURES, L.P.
a California limited partnership
By: ITV MANAGEMENT, LLC
a California limited liability company
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------
Xxxxxxxx X. Xxxxxxx
Title: Principal Member
ITV AFFILIATES FUND, L.P.
a California limited partnership
By: ITV MANAGEMENT, LLC
a California limited liability company
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------
Xxxxxxxx X. Xxxxxxx
Title: Principal Member
NEA Presidents Fund, L.P.
By: NEA General Partners, L.P.
By: General Partner
By: /s/ Xxxxxx X. Xxxx
---------------------------------
General Partner
[Signature Page to Amended and Restated Rights Agreement]
P. XXXXXXX XXXXXXX
/s/ P. XXXXXXX XXXXXXX
-------------------------------------
[Signature Page to Amended and Restated Rights Agreement]
RRE INVESTORS, L.P.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Title: Member, General Partner
------------------------------
RRE INVESTORS FUND, L.P.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Title: Member, General Partner
------------------------------
[Signature Page to Amended and Restated Rights Agreement]
MINDFUL PARTNERS
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Title: GENERAL PARTNER
------------------------------
XXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxx
-------------------------------------
[Signature Page to Amended and Restated Rights Agreement]
MSD Portfolio L.P.
C/O MSD CAPITAL, L.P.
By: /s/ Xxxx Xxxxxx
---------------------------------
Title: MANAGER
------------------------------
[Signature Page to Amended and Restated Rights Agreement]
BLACK MARLIN INVESTMENTS, LLC
C/O MSD CAPITAL, L.P.
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Title: MANAGER
------------------------------
[Signature Page to Amended and Restated Rights Agreement]
VERMEER INVESTMENTS, LLC
C/O MSD CAPITAL, L.P.
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Title: MANAGER
------------------------------
[Signature Page to Amended and Restated Rights Agreement]
SPINNAKER CLIPPER FUND, L.P.,
By Xxxxxx Capital Management, L.L.C., its general
partner
By /s/ Xxxxxxx Xxxxxxxx
----------------------------------------
Xxxxxxx Xxxxxxxx
Chief Operating Officer
SPINNAKER FOUNDERS FUND, L.P.,
By Xxxxxx Capital Management, L.L.C., its general
partner
By /s/ Xxxxxxx Xxxxxxxx
----------------------------------------
Xxxxxxx Xxxxxxxx
Chief Operating Officer
SPINNAKER OFFSHORE FOUNDERS FUND CAYMAN LIMITED
By Xxxxxx Capital Management, L.L.C., its
Investment Adviser and attorney-in-fact
By /s/ Xxxxxxx Xxxxxxxx
----------------------------------------
Xxxxxxx Xxxxxxxx
Chief Operating Officer
[Signature Page to Amended and Restated Rights Agreement]
XXXXX VENTURES IV, L.P..
By: /s/ Xxxx X. Xxxxx, Xx.
---------------------------------
Title: General Partner
------------------------------
[Signature Page to Amended and Restated Rights Agreement]
CHANCELLOR PRIVATE CAPITAL PARTNERS III,
L.P.
By CPCP Associates, L.P., its General
By INVESCO Private Capital, Inc., its
General Partner
By: /s/ Xxxxxxxx X. Xxxxx
---------------------------------
Title: Managing Director
------------------------------
CITIVENTURE 96 PARTNERSHIP, L.P.
By INVESCO Private Capital, Inc. as
Investment advisor
By: /s/ Xxxxxxxx X. Xxxxx
---------------------------------
Title: Managing Director
------------------------------
CHANCELLOR PRIVATE CAPITAL OFFSHORE PARTNERS
II, L.P.
By Associates, L.P., its Investment
General Partner
By INVESCO Private Capital, Inc., its
General Partner
By: /s/ Xxxxxxxx X. Xxxxx
---------------------------------
Title: Managing Director
------------------------------
[Signature Page to Amended and Restated Rights Agreement]
CHANCELLOR PRIVATE CAPITAL OFFSHORE PARTNERS
I, C.V.
By Chancellor KME IV Partner, L.P., its
Investment General Partner
By INVESCO Private Capital, Inc., its
General Partner
By: /s/ Xxxxxxxx X. Xxxxx
---------------------------------
Title: Managing Director
------------------------------
DRAKE & CO for the Account CITIVENTURE III
By: /s/ Xxxxxxx Xxxxx
----------------------------------
Title: Drake & Co. Nominee
-------------------------------
[Signature Page to Amended and Restated Rights Agreement]
TWP NETCENTIVES INVESTORS
By: /s/ Xxxxx Xxxxxx
---------------------------------
Title: General Partner
-------------------------------
AMERICAN EXPRESS TRAVEL
RELATED SERVICES COMPANY, INC.
By: /s/ Xxxx Xxxxxxx
---------------------------------
Title: President, AERS
-------------------------------
SPINNAKER TECHNOLOGY FUND, L.P.
By: /s/ Xxxx Xxxxx
---------------------------------
Title: Controller
-------------------------------
SPINNAKER TECHNOLOGY OFFSHORE FUND, Ltd.
By: /s/ Xxxx Xxxxx
---------------------------------
Title: Controller
-------------------------------
SPINNAKER CLIPPER FUND, L.P.
By: /s/ Xxxx Xxxxx
---------------------------------
Title: Controller
-------------------------------
STARWOOD HOTELS & RESORTS WORLDWIDE
By: /s/ Xxxxxxx Xxxxxxxxxx
---------------------------------
Title:
-------------------------------
EXHIBIT A
401(k) Retirement Savings Plan FBO Xxxxx Xxxxxx
5S Ventures, LLC
Affinity Trust
American Express Travel Related Services Company, Inc.
Ms. Xxxx Xxxxx
Black Marlin Investments, LLC
Broderbund Software, Inc.
Xxxxxxxx Family Trust
Chancellor Private Capital Offshore Partners I, C.V.
Chancellor Private Capital Offshore Partners II, X.X.
Xxxxxxxxxx Private Capital Partners III, L.P.
K.B. Xxxxxxxxxxxxx
Citicorp
Citicorp Strategic Technology Corp.
CNATrust, TTEE FBO Venture Law Group 401(k) Plan Xxxxx
Xxxxx X. Xxxxxxxx Trust Dated July 14, 1988
Drake & Co for the account of Citiventure 96
Drake & Co for the account of Citiventure III
Xxxxxx Associates, X.X.
Xxxxxx Xxxxxx Associates Fund IV, X.X.
Xxxxxx Xxxxxx Partners IV, X.X.
Xxxxxx Xxxxxxxx, X.X.
FSD 1997 Investment Partners
Xxxxx Ventures IV, X.X.
Xxxxx Family Partners, L.P.
Information Technology Ventures, L.P.
Integral Capital Partners IV MS Side Fund, L.P.
Integral Capital Partners IV, L.P
ITV Affiliates Fund, L.P.
Xx. Xxxxx X. Xxxxxxx
Xxxxxxxx Associates Fund III
Xxxxxxxx VIII
Merco Ventures
Mindful Partners
MSD Portfolio L.P.-Investments
NEA President's Fund, L.P.
NEA Ventures 1997
New Enterprise Associates VII, L.P.
New Enterprise Associates VII, Limited Partnership
Phoenix Leasing
RRE Investors Fund, L.P.
RRE Investors, LP
Xxxxxx X. Xxxxxx
Silicon Valley Bank
Spinnaker Clipper Fund, LP
Spinnaker Founders Fund, LP
Spinnaker Offshore Founders Fund, Cayman Limited
Spinnaker Technology Fund, L.P.
Spinnaker Technology Offshore Fund, Ltd.
Starwood Hotels and Resorts Worldwide
Xx. Xxxxxxxx X. Xxxxxx
Xxxxx Xxxxxx
TWP Netcentives Investors
Xxxxxxx X. Xxx Xxxxx
Vermeer Investments, LLC
VLG Investments 1996
Wasatch Venture Corporation
Wasatch Venture Fund
