AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
December 21, 1998
To the several persons named at the foot hereof:
Ladies and Gentlemen:
WHEREAS, pursuant to the Series B Preferred Stock and Common Stock
Purchase Agreement, dated as of May 7, 1998 (the "May Purchase Agreement"), by
and among The Xxxxxx.Xxx, Inc., a Delaware corporation (the "Company"), and the
several persons named therein as purchasers (the "May Purchasers"), the May
Purchasers purchased an aggregate of 101,475 shares of Series B 9-1/2%
Cumulative Preferred Stock, $0.01 par value ("Series B Preferred Stock"), of
the Company, and an aggregate of 10,250,000 shares of Common Stock, $0.01 par
value, of the Company; and
WHEREAS, pursuant to the Stock Purchase Agreement, dated as of the
date hereof (the "December Purchase Agreement"), by and among the Company and
the several persons, including the May Purchasers, named therein as purchasers
(the "December Purchasers" and, together with the May Purchasers, the
"Purchasers"), the December Purchasers have agreed to purchase 243,891 shares
of Series B Preferred Stock and 12,218,333 shares of Common Stock; and
WHEREAS, pursuant to the Registration Rights Agreement, dated May 7,
1998 (the "May Registration Rights Agreement"), by and among the Company and
the stockholders named therein ,which included the May Purchasers, the Company
granted certain registration rights to such stockholders; and
WHEREAS, the Company wishes to grant the same registration rights to
the December Purchasers with respect to the shares of Common Stock and shares
of Series B Preferred Stock being purchased by them under the December Purchase
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Agreement, as the Company granted to the May Purchasers in respect of the
shares of Common Stock and shares of Series B Preferred Stock purchased by them
under the May Purchase Agreement; and
WHEREAS, the Company and the May Purchasers agree to amend and restate
in its entirety the May Registration Rights Agreement in order to include the
transactions contemplated by the December Purchase Agreement and make certain
other changes to the registration rights granted by the Company to certain of
its stockholders.
NOW, THEREFORE, as an inducement to each of you to consummate the
transactions contemplated by the December Purchase Agreement, and in order to
amend and restate in its entirety the May Registration Rights Agreement, the
Company hereby covenants and agrees with each of you, and with each subsequent
holder of Restricted Stock (as such terms are defined herein) as follows:
1. Certain Definitions. As used herein, the following terms
shall have the following respective meanings:
"Common Stock" shall mean the Common Stock, par value $0.01
per share, of the Company, or such shares of stock as are issuable upon
conversion thereof.
"Commission" shall mean the Securities and Exchange
Commission, or any other federal agency at the time administering the
Securities Act.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, or any similar federal statute, and the rules and regulations
of the Commission thereunder, all as the same shall be in effect at the time.
"Founders" shall mean, collectively, (i) the several persons
and entities listed as the "Xxxxxx Stockholders" on the signature pages hereto,
(ii) Max Palevksy and (iii) the several persons and entities listed as the
"Peretz Stockholders" on the signature pages hereto.
"Founders' Shares" shall mean an aggregate of (i) 18,547,941
shares of Common Stock held by the Founders (including shares of Common Stock
being purchased by them pursuant to the December Purchase Agreement), (ii) such
number of shares of Common Stock as shall be issuable upon the conversion of
the shares of Series A 9-1/2% Cumulative Preferred Stock, par value $0.01 per
share of the
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Company and Series C Preferred Stock, par value $0.01 per share of the Company,
held by the Founders on the date hereof and (iii) such number of shares of
Common Stock as shall be issuable upon the conversion of the shares of Series B
Preferred Stock (a) purchased by the Founders under the May Purchase Agreement
and (b) being purchased by the Founders under the December Purchase Agreement,
the certificates for all of which are required to bear the legend set forth in
Section 13 of the Stockholders' Agreement.
"IPO" shall mean the initial public offering of the Company's
Common Stock under the Securities Act.
"Investors" shall mean those Purchasers who are not Founders.
"Investors' Shares" shall mean up to an aggregate of (i)
20,398,120 shares of Common Stock held by the Investors (including shares of
Common Stock being purchased by them pursuant to the December Purchase
Agreement) and (ii) such number of shares of Common Stock as shall be issuable
upon the conversion of the shares of Series B Preferred Stock (a) purchased by
the Investors under the May Purchase Agreement and (b) being purchased by the
Investors under the December Purchase Agreement, the certificates for all of
which are required to bear the legend set forth in Section 13 of the
Stockholders' Agreement.
"Public Sale" shall mean any sale of shares of preferred
stock of the Company or Common Stock to the public pursuant to an offering
registered under the Securities Act or to the public pursuant to the provisions
of Rule 144 (or any successor or similar rule) adopted under the Securities
Act.
"Purchase Agreement Shares" shall mean an aggregate of (i)
10,250,000 shares of Common Stock purchased by the May Purchasers pursuant to
the May Purchase Agreement, (ii) 12,218,333 shares of Common Stock being
purchased by the Purchasers pursuant to the December Purchase Agreement and
(iii) such number of shares of Common Stock as shall be issuable upon the
conversion of the shares of Series B Preferred Stock (a) purchased by the May
Purchasers under the May Purchase Agreement and (b) being purchased by the
December Purchasers under the December Purchase Agreement.
"Registration Expenses" shall mean the expenses so described
in Section 8 hereof.
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"Restricted Stock" shall mean the Founders' Shares and the
Investors' Shares, the certificates for which are required to bear the legend
set forth in Section 13 of the Stockholders' Agreement, excluding Founders'
Shares or Investors' Shares which have been (i) registered under the Securities
Act pursuant to an effective registration statement filed thereunder and
disposed of in accordance with the registration statement covering them or (ii)
publicly sold pursuant to Rule 144 under the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereun der, all as the same shall be in effect at the time.
"Selling Expenses" shall mean the expenses so described in
Section 6 hereof.
2. Required Registration.
(a) At any time on or after the first anniversary of
the effective date of the IPO, the holders of at least 33-1/3% of the Purchase
Agreement Shares outstanding at such time may request the Company to register
all or any portion of the Restricted Stock held by such requesting holder or
holders for sale in the manner specified in such notice; provided, however,
that the only securities which the Company shall be required to register
pursuant hereto shall be shares of Common Stock; provided further, that the
Company shall not be obligated to effect any such registration unless the
proceeds to be realized in connection with such registration shall not
reasonably be expected to be less than $500,000.
(b) Promptly following receipt of any notice under
this Section 2, the Company shall immediately notify any holders of Restricted
Stock from whom notice has not been received and shall use its best efforts to
register under the Securities Act, for Public Sale in accordance with the
method of disposition specified in such notice from requesting holders, the
number of shares of Restricted Stock specified in such notice (and in any
notices received from other holders of Restricted Stock within thirty (30) days
after their receipt of notice from the Company); provided, however, that the
number of shares of Restricted Stock to be included in such an underwriting may
be reduced (first, pro rata among the requesting holders of Restricted Stock
based upon the number of shares of Restricted Stock which are not Purchase
Agreement Shares for which registration has been requested and then, if
necessary, pro rata among holders of Restricted Stock so requesting
registration based upon the number of Purchase Agreement Shares for
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which registration has been requested) if and to the extent that the managing
underwriter, if the proposed method of disposition specified by the requesting
holders shall be an underwritten public offering, shall be of the opinion that
such inclusion would materially adversely affect the marketing of the
Restricted Stock. If such method of disposition shall be an underwritten public
offering, the Company shall designate the managing underwriter of such
offering, subject to the approval of the selling holders of a majority of the
Restricted Stock covered by the offering, which approval shall not be
unreasonably withheld. The Company shall be obligated to register Restricted
Stock pursuant to this Section 2 on two (2) occasions only; provided that such
obligation shall be deemed satisfied only when a registration statement
covering all shares of Restricted Stock specified in notices received as
aforesaid, for sale in accordance with the method of disposition specified by
the requesting holders, shall have become effective and, if such method of
disposition is a firm commitment underwritten public offering, all such shares
shall have been sold pursuant thereto.
(c) Notwithstanding anything to the contrary in this
Agreement, the Company may delay for up to ninety (90) days the filing or
effectiveness of a registration statement pursuant to a request under this
Section 2 if the Board of Directors of the Company shall determine that such a
registration would not be in the best interests of the Company at such time,
during which period the requesting holders may withdraw their request (provided
that, if not so withdrawn, the Company will not have breached its obligations
under this Section 2 during such delay period), in which case the requesting
holders will not be deemed to have made a request for registration under this
Section 2.
(d) The Company shall be entitled to include in any
registration statement referred to in this Section 2, for sale in accordance
with the method of disposition specified by the requesting holders, shares of
Common Stock to be sold by the Company for its own account, except as and to
the extent that, in the opinion of the managing underwriter (if such method of
disposition shall be an underwritten public offering), such inclusion would
adversely affect the marketing of the Restricted Stock (if any) to be sold.
Except for registration statements on Form X-0, X-0 or any successor form
thereto, the Company will not file with the Commission any other registration
statement with respect to its Common Stock, whether for its own account or that
of other holders, from the date of receipt of a notice from requesting holders
pursuant to this Section 2 until the earliest of (x) six (6) months following
the effective date of such registration, (y) completion of the period of
distribution of the registration contemplated thereby and (z) withdrawal of
such registration.
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3. Form S-3 Registration.
If at any time (i) the Company shall receive from any holder
or holders of Restricted Stock a written request or requests that the Company
effect a registration of all or any portion of the shares of Restricted Stock
on Form S-3 or any successor thereto, and (ii) the Company is a registrant
entitled to use Form S-3 or any successor thereto to register such shares, the
Company will:
(i) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all
other holders of any shares of Restricted Stock; and
(ii) as soon as practicable, effect such
registration (including, without limitation, the execution of an
undertaking to file post-effective amendments, appropriate
qualifications under applicable blue sky or other state securities
laws and appropriate compliance with applicable regulations issued
under the Securities Act and any other government 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 holder's or
holders' Restricted Stock as are specified in such request, together
with all or such portion of the Restricted Stock of any holder or
holders of Restricted Stock joining in such request as are specified
in a written request given within thirty (30) days after receipt of
such written notice from the Company; provided that the Company shall
not be obligated to effect any such registration, qualification or
compliance pursuant to this Section 3 more than once in any 180-day
period and provided further that the Company shall not be obligated to
effect any such registration unless the proceeds to be realized in
connection with such registration shall not reasonably be expected to
be less than $500,000. Subject to the foregoing, the Company shall
file a registration statement covering the Restricted Stock so
requested to be registered as soon as practicable after receipt of the
request or requests of the holder or holders of Restricted Stock to do
so.
Notwithstanding anything to the contrary in this Agreement, (i) the Company may
delay for up to ninety (90) days the effectiveness of, and (ii) the Company may
suspend for up to thirty (30) days, not more than once during the term of this
Agreement, the effectiveness of, a registration statement pursuant to a request
under this Section 3 if the Board of Directors of the Company shall determine
such registration (or, in the case of a suspension of a registration, sales
under such registration statement) would not be in the best interests of the
Company at such
6
time, during which period the requesting holders may withdraw their request, in
which case the requesting holders will not be deemed to have made a request for
registration under this Section 3.
(a) Commencing one year after the Company becomes
subject to the requirements of Section 12 or 15(d) of the Securities Exchange
Act of 1934, as amended, the Company shall use its reasonable best efforts to
satisfy the registrant requirements applicable for use of registration
statements on Form S-3 (or any successor form thereto) for the resale of
securities by selling stockholders.
(b) Registrations effected pursuant to this Section
3 shall not be counted as requests for registration effected pursuant to
Section 2.
4. Incidental Registration. If the Company at any time (other
than pursuant to Section 2 or 3 hereof) proposes to register any of its Common
Stock under the Securities Act for sale for cash only to the public, whether
for its own account or for the account of other security holders or both
(except with respect to registration statements on Forms S-4 or S-8 or another
form not available for registering the Restricted Stock for sale to the public,
a registration statement on Form S-3 to be filed by the Company to register
shares of Common Stock issued in consideration for an acquisition, or a
registration statement on Form S-1 covering solely an employee benefit plan),
it will give written notice at such time to all holders of outstanding
Restricted Stock of its intention to do so. Upon the written request of any
such holder, given within thirty (30) days after receipt of any such notice by
the Company, to register any of its Restricted Stock (which request shall state
the intended method of disposition thereof), the Company will use its
reasonable best efforts to cause the Restricted Stock as to which registration
shall have been so requested, to be included in the securities to be covered by
the registration statement proposed to be filed by the Company, all to the
extent requisite to permit the sale or other disposition by the holder (in
accordance with its written request) of such Restricted Stock so registered;
provided that nothing herein shall prevent the Company from abandoning or
delaying any such registration at any time. In the event that any registration
pursuant to this Section 4 shall be, in whole or in part, an underwritten
public offering of Common Stock, any request by a holder pursuant to this
Section 4 to register Restricted Stock shall specify that either (i) such
Restricted Stock is to be included in the underwriting on the same terms and
conditions as the shares of Common Stock otherwise being sold through
underwriters under such registration or (ii) such Restricted Stock is to be
sold in the open market without any underwriting, on terms and conditions
comparable to those normally applicable to offerings of common stock in
reasonably similar circumstances. The number of
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shares of Restricted Stock to be included in such an underwriting may be
reduced (first, pro rata among the requesting holders of Restricted Stock based
upon the number of shares of Restricted Stock which are not Purchase Agreement
Shares for which registration has been requested and then, if necessary, pro
rata among holders of Restricted Stock so requesting registration based upon
the number of Purchase Agreement Shares for which registration has been
requested), if and to the extent that the managing underwriter shall be of the
opinion that such inclusion would adversely affect the marketing of the
securities to be sold by the Company therein; and provided, however, that
except with respect to the IPO, in no event shall such number of shares of
Restricted Stock be reduced so that shares of Restricted Stock constitute less
than thirty percent (30%) of the aggregate number of shares to be offered in
such underwriting.
5. Registration Procedures. If and whenever the Company is
required by the provisions of Section 2, 3 or 4 hereof to use its reasonable
best efforts or best efforts, as the case may be, to effect the registration of
any of the Restricted Stock under the Securities Act, the Company will, as
expeditiously as possible:
(a) prepare (and afford counsel for the selling
holders up to 10 business days' opportunity to review and comment thereon) and
file with the Commission a registration statement (which, in the case of an
underwritten public offering pursuant to Section 2 hereof, shall be on Form S-1
or other form of general applicability satisfactory to the managing underwriter
selected as therein provided) with respect to such securities and use its
reasonable best efforts or best efforts, as the case may be, to cause such
registration statement to become and remain effective for the period of the
distribution contemplated thereby (determined as hereinafter provided);
(b) prepare (and afford counsel for the selling
holders up to 10 business days' opportunity to review and comment thereon) and
file with the Commission such amendments and supplements to such registration
statement and the prospectus used in connection therewith as may be necessary
to keep such registration statement effective for the period specified in
paragraph (a) above and to comply with the provisions of the Securities Act
with respect to the disposition of all Restricted Stock covered by such
registration statement in accordance with the sellers' intended method of
disposition set forth in such registration statement for such period;
(c) furnish to each seller and to each underwriter
such number of copies of the registration statement and the prospectus included
therein
8
(including each preliminary prospectus) as such persons may reasonably request
in order to facilitate the Public Sale or other disposition of the Restricted
Stock covered by such registration statement;
(d) use its reasonable best efforts or best efforts,
as the case may be, to register or qualify the Restricted Stock covered by such
registration statement under the securities or blue sky laws of such
jurisdictions as the sellers of Restricted Stock or, in the case of an
underwritten public offering, the managing underwriter, shall reasonably
request (provided that the Company will not be required to (i) qualify
generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this paragraph (d), (ii) subject itself to taxation
in any such jurisdiction or (iii) consent to general service of process in any
jurisdiction);
(e) use its reasonable best efforts or best efforts,
as the case may be, to list the Restricted Stock covered by such registration
statement with any securities exchange on which any Common Stock of the Company
is then listed;
(f) immediately notify each seller under such
registration statement and each underwriter, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of the
happening of any event as a result of which the prospectus contained in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of the
circumstances then existing;
(g) use its reasonable best efforts or best efforts,
as the case may be (if the offering is underwritten and at the request of any
seller of Restricted Stock), to furnish, at the request of any seller, on the
date that Restricted Stock is delivered to the underwriters for sale pursuant
to such registration: (i) an opinion dated such date of counsel representing
the Company, for the purposes of such registration, addressed to the
underwriters and either addressed to such seller or specifically entitling such
seller to rely thereupon, stating that such registration statement has become
effective under the Securities Act and that (A) to the best knowledge of such
counsel, no stop order suspending the effectiveness thereof has been issued and
no proceedings for that purpose have been instituted or are pending or
contemplated under the Securities Act, (B) the registration statement, the
related prospectus, and each amendment or supplement thereof, comply as to form
in all material respects with the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder (except that such
counsel need express
9
no opinion as to financial statements, the notes thereto, and the financial
schedules and other financial and statistical data contained therein) and (C)
to such other effects as may reasonably be requested by counsel for the
underwriters or by such seller or its counsel; and (ii) a letter dated such
date from the independent public accountants retained by the Company, addressed
to the underwriters and to such seller, stating that they are independent
public accountants within the meaning of the Securities Act and that, in the
opinion of such accountants, the financial statements of the Company included
in the registration statement or the prospectus, or any amendment or supplement
thereof, comply as to form in all material respects with the applicable
accounting requirements of the Securities Act, and such letter shall
additionally cover such other financial matters (including information as to
the period ending no more than five (5) business days prior to the date of such
letter) with respect to the registration in respect of which such letter is
being given as such underwriters or seller may reasonably request; and
(h) make available for inspection by each seller,
any underwriter participating in any distribution pursuant to such registration
statement, and any attorney, accountant or other agent retained by such seller
or underwriter, all financial and other records, pertinent corporate documents
and properties of the Company, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such seller,
underwriter, attorney, accoun tant or agent in connection with such
registration statement.
For purposes of paragraphs (a) and (b) above and of Section 2(d) hereof, the
period of distribution of Restricted Stock in a firm commitment underwritten
public offering shall be deemed to extend until each underwriter has completed
the distribution of all securities purchased by it, and the period of
distribution of Restricted Stock in any other registration shall be deemed to
extend until the earlier of the sale of all Restricted Stock covered thereby
or six (6) months after the effective date thereof.
In connection with each registration hereunder, as a
condition to the right to sell under any registration statement (a) the selling
holders of Restricted Stock will furnish to the Company in writing such
information with respect to themselves and the proposed distribution by them as
shall be reasonably necessary in order to assure compliance with federal and
applicable state securities laws; (b) any such selling holder of Restricted
Stock will enter into a written agreement with the underwriters and the Company
in such form and containing such provisions as are customary in the securities
business for such an arrangement between major underwriters and companies of
the Company's size and investment stature, and such selling holder of
Restricted Stock will use its reasonable best efforts to cause its
10
counsel to give any opinion customarily given, in connection with secondary
distributions under similar circumstances; (c) during such time as any such
selling holder of Restricted Stock may be engaged in a distribution of such
stock, such selling holder of Restricted Stock will comply with all applicable
laws and, to the extent required by such laws, will, among other things (i) not
engage in any stabilization activity in connection with the securities of the
Company in contravention of such rules, (ii) distribute the Restricted Stock
owned by such selling holder of Restricted Stock solely in the manner described
in applicable registration statement or as otherwise permitted by law, (iii)
cause to be furnished to each agent or broker-dealer to or through whom the
Restricted Stock owned by such selling holder of Restricted Stock may be
offered, or to the offeree if an offer is made directly by such holder, such
copies of the applicable prospectus (as amended and supplemented to such date)
and the documents incorporated by reference therein as may be required by such
agent, broker-dealer or offeree, provided that the Company shall have provided
such selling holder of Restricted Stock with an adequate number of copies
thereof and (iv) not bid for or purchase any securities of the Company or
attempt to induce any person to purchase any securities of the Company; and (d)
on notice from the Company of the happening of any event specified in paragraph
(e) of Section 5 hereof, it requires the suspension by such selling holder of
Restricted Stock of the distribution of any of the Restricted Stock, then such
selling holder will cease offering or distributing the Restricted Stock until
the Company notifies such selling holder that the offering and distribution of
the Restricted Stock may recommence.
In connection with each registration pursuant to Sections 2,
3 and 4 hereof covering an underwritten public offering, the Company agrees to
enter into a written agreement with the managing underwriter selected in the
manner herein provided in such form and containing such provisions as are
customary in the securities business for such an arrangement between major
underwriters and companies of the Company's size and investment stature;
provided, however, that such agreement shall not contain any such provision
applicable to the Company which is inconsistent with the provisions hereof; and
provided, further, that the time and place of the closing under said agreement
shall be as mutually agreed upon between the Company and such managing
underwriter.
6. Expenses. All expenses incurred by the Company in
complying with Sections 2, 3 or 4 hereof, including without limitation all
registration and filing fees, printing expenses, fees and disbursements of
counsel and independent public accountants for the Company, fees of the
National Association of Securities Dealers, Inc., transfer taxes, fees of
transfer agents and registrars, costs of insurance and reasonable fees and
expenses of not more than one counsel for the sellers of
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Founders' Shares and not more than one counsel for the sellers of Investors'
Shares (not more than $25,000 in fees for both such counsel), but excluding any
Selling Expenses, are herein called "Registration Expenses". All underwriting
discounts and selling commissions applicable to the sale of Restricted Stock
are herein called "Selling Expenses".
The Company will pay all Registration Expenses in connection
with each registration statement filed pursuant to Sections 2, 3 and 4 hereof.
All Selling Expenses in connection with any registration statement filed
pursuant to Section 2, 3 or 4 hereof shall be borne by the participating
sellers in proportion to the number of shares sold by each, or by such persons
other than the Company (except to the extent the Company shall be a seller) as
they may agree.
7. Indemnification. (a) In the event of a registration of any
of the Restricted Stock under the Securities Act pursuant to Section 2, 3 or 4
hereof, the Company will indemnify and hold harmless each seller of such
Restricted Stock thereunder and each underwriter of Restricted Stock thereunder
and each officer, director and each other person, if any, who controls such
seller or underwriter within the meaning of the Securities Act, against any
losses, claims, damages or liabilities, joint or several, to which such seller
or underwriter or controlling person may become subject under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in any registration
statement under which such Restricted Stock was registered under the Securities
Act pursuant to Section 2, 3 or 4, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereof, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each such seller, each such
underwriter and each such controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that (i) the
indemnity in this Section 7 shall not apply to any amounts paid in settlement
of any such loss, claim, damage or liability if settlement is affected without
the consent of the Company, and (ii) the Company will not be liable in any such
case if and to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission so made in conformity with information furnished
by such seller, such underwriter or such controlling person in writing
specifically for use in such registration statement or prospectus.
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(b) In the event of a registration of any of the
Restricted Stock under the Securities Act pursuant to Section 2, 3 or 4 hereof,
to the extent permitted by law each seller of such Restricted Stock thereunder,
severally and not jointly, will indemnify and hold harmless the Company and
each officer, director and each other person, if any, who controls the Company
within the meaning of the Securities Act, each officer of the Company who signs
the registration statement, each director of the Company, each underwriter and
each person who controls any underwriter within the meaning of the Securities
Act, against all losses, claims, damages or liabilities, joint or several, to
which the Company or such officer or director or underwriter or controlling
person may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the registration statement under which such
Restricted Stock was registered under the Securities Act pursuant to Section
2, 3 or 4, any preliminary prospectus or final prospectus contained therein, or
any amendment or supplement thereof, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse the Company and each such officer, director, underwriter and
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that such seller will be liable
hereunder in any such case if and only to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with information pertaining to such seller, as such,
furnished in writing to the Company by such seller specifically for use in such
registration statement or prospectus; and provided, further, that the liability
of each seller hereunder shall be limited to the proportion of any such loss,
claim, damage, liability or expense which is equal to the proportion that the
public offering price of shares sold by such seller under such registration
statement bears to the total public offering price of all securities sold
thereunder, but not to exceed the proceeds (net of underwriting discounts and
commissions) received by such seller from the sale of Restricted Stock covered
by such registration statement.
(c) Promptly after receipt by an indemnified party
hereunder of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party hereunder, notify the indemnifying party in writing thereof, but the
omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party other than under this
Section 7. In case any such action shall be
13
brought against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled to
participate in and, to the extent it shall wish, to assume and undertake the
defense thereof with counsel reasonably satisfactory to such indemnified party,
and, after notice from the indemnifying party to such indemnified party of its
election so to assume and undertake the defense thereof, the indemnifying party
shall not be liable to such indemnified party under this Section 7 for any
legal expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation and of
liaison with counsel so selected; provided, however, that, if the defendants
in any such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that there are
reasonable defenses available to it which are different from or additional to
those available to the indemnifying party, or if the interests of the
indemnified party reasonably are in conflict with the interests of the
indemnifying party, the indemnified party shall have the right to select a
separate counsel and to assume such legal defenses and otherwise to participate
in the defense of such action, with the reasonable expenses and fees of such
separate counsel and other expenses related to such participation to be
reimbursed by the indemnifying party as incurred. No settlement of any such
claim, loss, damage, liability or action shall be made by the indemnified party
without the prior written consent (not to be unreasonably withheld or delayed)
of the indemnifying party.
Notwithstanding the foregoing, any indemnified party shall
have the right to retain its own counsel in any such action, but the fees and
disbursements of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party shall have failed to retain counsel for the
indemnified person as aforesaid or (ii) the indemnifying party and such
indemnified party shall have mutually agreed to the retention of such counsel.
It is understood that the indemnifying party shall not, in connection with any
action or related actions in the same jurisdiction, be liable for the fees and
disbursements of more than one separate firm qualified in such jurisdiction to
act as counsel for the indemnified party. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or
judgment.
(d) If the indemnification provided for in
paragraphs (a) and (b) of this Section 7 is unavailable or insufficient to hold
harmless an indemnified party under such paragraphs in respect of any losses,
claims, damages or liabilities or actions in respect thereof referred to
therein, then each indemnifying
14
party shall in lieu of indemnifying such indemnified party contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or actions in such proportion as appropriate to
reflect the relative fault of the Company, on the one hand, and the sellers of
such Restricted Stock, on the other, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
actions as well as any other relevant equitable considerations, including the
failure to give any notice under paragraph (c) of this Section 7. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact relates to information
supplied by the Company, on the one hand, or the sellers of such Restricted
Stock, on the other hand, and to the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the sellers of Restricted Stock agree that it would
not be just and equitable if contributions pursuant to this paragraph were
determined by pro rata allocation (even if all of the sellers of such
Restricted Stock were treated as one entity for such purpose) or by any other
method of allocation which did not take account of the equitable considerations
referred to above in this paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities or
action in respect thereof, referred to above in this paragraph, shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this paragraph, the sellers of such Re
stricted Stock shall not be required to contribute any amount in excess of the
amount, if any, by which the total price at which the Common Stock sold by each
of them was offered to the public exceeds the amount of any damages which they
would have otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission. No person guilty of fraudulent misrepresentations
(within the meaning of Section 11(f) of the Securities Act), shall be entitled
to contribution from any person who is not guilty of such fraudulent
misrepresentation.
The indemnification of underwriters provided for in this
Section 7 shall be on such other terms and conditions as are at the time
customary and reasonably required by such underwriters. In that event the
indemnification of the sellers of Restricted Stock in such underwriting shall
at the sellers' request be modified to conform to such terms and conditions.
8. Changes in Restricted Stock. If, and as often as, there
are any changes in the Common Stock by way of stock split, stock dividend,
combination or reclassification, or through merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions
15
hereof, as may be required, so that the rights and privileges granted hereby
shall continue with respect to the Common Stock as so changed and shall apply
to any securities received in any such transaction.
9. Rule 144 Reporting. The Company agrees with you as
follows:
(a) From and after such time as the Company becomes
subject to the reporting requirements of the Exchange Act, the Company shall
make and keep public information available, as those terms are understood and
defined in Rule 144 under the Securities Act, at all times from and after the
date it is first required to do so.
(b) The Company shall file with the Commission in a
timely manner all reports and other documents as the Commission may prescribe
under Section 13(a) or 15(d) of the Exchange Act at any time after the Company
has become subject to such reporting requirements of the Exchange Act.
(c) The Company shall furnish to such holder of
Restricted Stock forthwith upon request (i) a written statement by the Company
as to its compliance with the reporting requirements of Rule 144 (at any time
from and after the date it first becomes subject to such reporting
requirements), and of the Securities Act and the Exchange Act (at any time
after it has become subject to such reporting requirements), (ii) a copy of the
most recent annual or quarterly report of the Company, and (iii) such other
reports and documents so filed as a holder may reasonably request to avail
itself of any rule or regulation of the Commission allowing a holder of
Restricted Stock to sell any such securities without registration.
10. Miscellaneous.
(a) Each holder of Restricted Stock will agree, to
the extent reasonably requested by any underwriter of securities of the Company
in connection with an initial public offering of the Company's Common Stock, to
enter into an agreement consistent with then market practice for major bracket
underwriters not to sell or otherwise transfer or dispose of any registrable
securities for such period of time (not to exceed 180 days) following the
effective date of a registration statement of the Company filed under the
Securities Act, which agreement shall also bind the executive officers,
directors, and other shareholders holding more than five percent (5%) of the
then-outstanding capital stock of the Company, on terms and
16
conditions substantially similar to those which shall apply to holders of
Restricted Stock.
(b) All covenants and agreements contained in this
Agreement by or on behalf of any of the parties hereto, including, without
limitation, the rights to indemnification under Section 7 hereof, shall bind
and inure to the benefit of the respective successors and permitted assigns of
the parties hereto whether so expressed or not. Without limiting the generality
of the foregoing, the registration rights conferred herein on the holders of
Restricted Stock shall inure to the benefit of any and all subsequent holders
from time to time of the Restricted Stock.
(c) All notices, requests, consents and other
communications hereunder shall be in writing and shall be mailed by first
class registered mail, postage prepaid, addressed as follows:
if to the Company, to it at Xxx Xxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, attention: Chief Financial Officer, facsimile number (212)
271-4005, with a copy to Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx
Xxxxxx, Xxx Xxxx, XX 00000, attention: Xxxxx Xxxxxxxxxxx, Esq., facsimile
number (000) 000-0000;
if to any holder of Restricted Stock, to him, her or it, as
the case may be, at its address as set forth on Annex I hereto;
if to any subsequent holder of Restricted Stock, to it at
such address as may have been furnished to the Company in writing by such
holder;
or, in any case, at such other address or addresses as shall have been
furnished in writing to the Company (in the case of a holder of Restricted
Stock), or to the holders of Restricted Stock (in the case of the Company).
(d) This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
(e) This Agreement constitutes the entire agreement
of the parties with respect to the subject matter hereof. This Agreement may
not be waived, modified or amended, nor may the Company grant any third party
any registration rights more favorable than or inconsistent with any of those
contained herein as long as any of the registration rights under this Agreement
remains in effect, except in writing executed by the Company, the holders of a
majority of the
17
Investors' Shares and the holders of a majority of the Founders' Shares;
provided, however, that any such amendment, modification or waiver shall affect
all of the holders of Investors' Shares in the same manner and that no such
amendment, modification or waiver that would adversely affect the rights or
alter the obligations of any holder of Investors' Shares hereunder or confer on
any holder of Investors' Shares any benefit not shared ratably by all of the
other holders of Investors' Shares will be effective without the prior written
approval of any such adversely affected holder of Investors' Shares.
(f) This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(g) If any provision of this Agreement shall be held
to be illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any
manner affect or render illegal, invalid or unenforceable any other provision
of this Agreement, and this Agreement shall be carried out as if any such
illegal, invalid or unenforceable provision were not contained herein.
Please indicate your acceptance of the foregoing by signing
and returning the enclosed counterpart of this letter, whereupon this letter
(herein sometimes called "this Agreement") shall be a binding agreement between
the Company and you, and shall amend and restate in its entirety the May
Registration Rights Agreement.
Very truly yours,
THE XXXXXX.XXX, INC.
By /s/ Xxxxx X. English
------------------------------------
Name: Xxxxx X. English
----------------------------------
Title: Chairman & CEO
---------------------------------
18
/s/ Xxxxx Xxxxxx
--------------------------------------
Xxxxx Xxxxxx
/s/ Xxxxxx Xxxxxx
--------------------------------------
Xxxxxx Xxxxxx
/s/ Xxxxx X. Xxxxx (Attorney-in-Fact)
--------------------------------------
Xxxx Xxxxxx
/s/ Xxxxx X. Xxxxx (Attorney-in-Fact)
--------------------------------------
Xxxxx Xxxxxx
/s/ Xxxxx X. Xxxxx (Attorney-in-Fact)
--------------------------------------
Xxxxxxx Xxxxxx
/s/ Xxxxxx Xxxxx
-------------------------------------
The Xxxxxx.Xxx Distribution Trust
By: Xxxxxx Xxxxx
----------------------------------
Trustee
Trust B under Deed 6.23.81
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Trustee
Trust C under Deed 6.23.81
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Trustee
19
Trust for Xxxxxx Xxxxxx, 1976
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Trustee
/s/ Xxxxx X. Xxxxx (Attorney-in-Fact)
--------------------------------------
Xxxx Xxxxxxxxxx
/s/ Xxxxx X. Xxxxx (Attorney-in-Fact)
--------------------------------------
Xxxxx Xxxxxxxxxx
/s/ Xxxxxx X. Stock
--------------------------------------
Trust for Xxxx Xxxxxx, 1944
By: Xxxxxx X. Stock
-----------------------------------
Trustee
PERETZ PARTNERS, L.L.C.
/s/ Xxxxxx Xxxxxx
--------------------------------------
By: Xxxxxx Xxxxxx
Title: Manager
ACKULA INVESTMENTS LTD.
/s/ Xxxxxx Xxxxx & Xxx Xxxxxxxxxx
--------------------------------------
By: Xxxxxx Xxxxx & Xxx Xxxxxxxxxx
Title:
20
XXXXXX PARTNERS, L.L.C.
/s/ Xxxxx Xxxxxx
-----------------------------------
By: Xxxxx X. Xxxxxx
Title: President
/s/ Xxx Xxxxxxxx
-----------------------------------
Xxx Xxxxxxxx
THE FLATIRON FUND LLC
By: /s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
Title: Managing Member
THE FLATIRON FUND 1998/99, LLC
By: /s/ Xxxx Xxxxxx
---------------------------------
Managing Member
FLATIRON ASSOCIATES, LLC
By: Flatiron Partners LLC,
its Manager
By: /s/ Xxxx Xxxxxx
--------------------------------
Managing Member
21
CHASE VENTURE CAPITAL ASSOCIATES, L.P.
By: Chase Capital Partners, its General Partner
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Partner
SOFTBANK TECHNOLOGY VENTURES IV, L.P.
By: STV IV LLC, its General Partner
By: /s/ Xxxxxxx X. Xxx
-----------------------------------------------
Name: Xxxxxxx X. Xxx
Title:
SOFTBANK TECHNOLOGY ADVISORS
FUND, L.P.
By: /s/ Xxxxxxx X. Xxx
-----------------------------------------------
Name: Xxxxxxx X. Xxx
Title:
CONSTELLATION VENTURE CAPITAL, L.P.
By: /s/ Xxxxxxxx Xxxxxxxx
-----------------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Managing Member
22
CONSTELLATION VENTURE
CAPITAL OFFSHORE, L.P.
By: /s/ Xxxxxxxx Xxxxxxxx
-----------------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Managing Member
PEQUOT PRIVATE EQUITY FUND, L.P.
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxx
Title: CFO
PEQUOT OFFSHORE PRIVATE
EQUITY FUND, L.P.
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxx
Title: CFO
XXXXXX XXXXXXX
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------------
Name:
Title:
NEW YORK CITY INVESTMENT FUND, L.L.C.
By: /s/ Xxxxxxx Xxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxx
Title: President
23
NEW YORK SMALL BUSINESS VENTURE
FUND LLC
By: /s/ Xxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxx Xxxxx
Title: President
/s/ Xxxxxx Xxxxx
-------------------------------------
Xxxxxx Xxxxx
/s/ Xxxxxxx Xxxxx
-------------------------------------
Xxxxxxx Xxxxx
/s/ Xxxxx Xxxxxx
-------------------------------------
Xxxxx Xxxxxx
/s/ Xxxxx Kansas
-------------------------------------
Xxxxx Kansas
/s/ Xxxxx Xxxxx
-------------------------------------
Xxxxx Xxxxx
/s/ Xxxx Xxxxx
-------------------------------------
Xxxx Xxxxx
/s/ Xxxxxxx Xxxxxxxxx
-------------------------------------
Xxxxxxx Xxxxxxxxx
24
OAK INVESTMENT PARTNERS VIII,
LIMITED PARTNERSHIP
By: Oak Associates VIII, LLC
By: /s/ Xxxxxx X. Xxxxxxxxxx
--------------------------------------
A Member
OAK VIII AFFILIATES FUND, LIMITED
PARTNERSHIP
By: Oak VIII Affiliates, LLC
By: /s/ Xxxxxx X. Xxxxxxxxxx
--------------------------------------
A Member
OPTIMIX PRIVATE EQUITY FUND CV
LIMITED PARTNERSHIP
By: Optimix Beheer En Beleggingen NV, its
managing partner
By: /s/ X.X. Xxxxxxxxxx
--------------------------------------
Name: X.X. Xxxxxxxxxx
Title: Managing Director
XXXX XXXXXXX
By: /s/ Xxxx Xxxxxxx
--------------------------------------
Name:
Title:
25
XXXXXX-XXXXXX MEDIA PARTNERS, L.P.
By: Xxxxxx-Xxxxxx Media, L.L.C., its general
partner
By: /s/ Xxxxxx X. Xxxxxxxxx, Xx.
------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx, Xx.
Title: Vice President
/s/ Xxxxx Xxxxxx
------------------------------------------
Xxxxx Xxxxxx
SPINNAKER CLIPPER FUND, L.P.
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director of Operations
SPINNAKER FOUNDERS FUND, L.P.
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director of Operations
SPINNAKER OFFSHORE FOUNDERS FUND
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director of Operations
/s/ Xxxx Xxxxxxxx
------------------------------------------
Xxxx Xxxxxxxx
26
Annex 1
Addresses for Notice of Holders of Restricted Stock
Xxxxxx Xxxxx
c/x Xxx Enterprises
0000 Xxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
Xxx Xxxxxxxx
000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
THE XXXXXX.XXX DISTRIBUTION TRUST
Xxxxxx Xxxxx
000 Xxxxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
THE FLATIRON FUND LLC
Xxxx Xxxxxx
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
CHASE VENTURE CAPITAL ASSOCIATES, L.P.
I. Xxxxxx Xxxxx, General Partner
c/o Chase Capital Partners
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
THE FLATIRON FUND 1998/99, LLC
Xxxx Xxxxxx
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
SOFTBANK TECHNOLOGY ADVISORS FUND, L.P.
000 X. Xxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xxxxx X.X. Xxxxxxxxx
FLATIRON ASSOCIATES, LLC
Xxxx Xxxxxx
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
PEQUOT OFFSHORE PRIVATE EQUITY FUND, L.P.
Xxxxx Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
SOFTBANK TECHNOLOGY
VENTURES, L.P.
000 X. Xxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xxxxx X.X. Xxxxxxxxx
Xxxxxx Xxxxxx
c/x Xxxxx Estates
Xxx Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
PEQUOT PRIVATE EQUITY FUND, L.P.
Xxxxx Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxx X. Xxxxxx
c/x Xxxxxx Xxxxxxxxx & Co.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
XXXXXX PARTNERS LLC
c/x Xxxxxx Xxxxxxxxx & Co.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxx Xxxxxx
c/o Clark Estates
Xxx Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
00
Xxxxx Xxxxxx
x/x Xxxxx Xxxxxxx
Xxx Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Xxxxxx
c/x Xxxxx Estates
Xxx Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
PERETZ PARTNERS LLC
c/o Clark Estates
Xxx Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
TRUST B
c/o Clark Estates
Xxx Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
TRUST C
c/o Clark Estates
Xxx Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
TRUST FOR XXXXXX XXXXXX, 1976
c/o Clark Estates
Xxx Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Xxxx Xxxxxxxxxx
c/x Xxxxx Estates
Xxx Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Xxxxx Xxxxxxxxxx
c/x Xxxxx Estates
Xxx Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
TRUST FOR XXXX XXXXXX, 1944
c/o Clark Estates
Xxx Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Xxxxx
The Xxxxxx.Xxx, Inc.
0 Xxxxxx Xxxxxx,
00xx Xxxxx Xxx Xxxx, XX 00000
Xxxxx Xxxxx
The Xxxxxx.Xxx, Inc.
0 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxxx Xxxxxx
The Xxxxxx.Xxx, Inc.
0 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxxx Kansas
The Xxxxxx.Xxx, Inc.
0 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxx Xxxxx
The Xxxxxx.Xxx, Inc.
0 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Xxxxxxxxx
The Xxxxxx.Xxx, Inc.
0 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
PERETZ PARTNERS LLC
c/o Clark Estates
Xxx Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
ACKULA INVESTMENTS LTD.
00 Xxx xx xx Xxxxxxxxx case Postale
3501 1211 Geneva 3
CONSTELLATION VENTURE CAPITAL, L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxx
28
CONSTELLATION VENTURE CAPITAL
OFFSHORE, L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxx
NYC INVESTMENT FUND, L.L.C.
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxx, President
Xxxxxx Xxxxxxx
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
NEW YORK SMALL BUSINESS VENTURE FUND LLC
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxx, President
OAK INVESTMENT PARTNERS VIII,
LIMITED PARTNERSHIP
One Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxxx
OAK VIII AFFILIATES FUND,
LIMITED PARTNERSHIP
Xxx Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxxx
OPTIMIX PRIVATE EQUITY FUND
CV LIMITED PARTNERSHIP
Johannes Xxxxxxxxxxxxx
00 Xxxxxxx 00000
0000 XX Xxxxxxxxx
Attn: Xxxx Xxxxxxxxx
BLUE RIDGE
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXX-XXXXXX MEDIA PARTNERS,
L.P.
Xxx Xxxxxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxxx
Xxxxx Xxxxxx
0 Xxxx 00 Xxxxxx
Xxx Xxxx, XX 00000
SPINNAKER CLIPPER FUND, L.P.
0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
SPINNAKER FOUNDERS FUND, L.P.
0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
SPINNAKER OFFSHORE FOUNDERS
FUND
0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
Xxxx Xxxxxxxx
Mainspring Communications
0 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
29
