Exhibit (e) (20)
TELOCITY, INC.
SECOND AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
DECEMBER 13, 1999
SECOND AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
This Second Amended and Restated Investors' Rights Agreement (the
"Agreement") is entered into as of December 13, 1999, by and among Telocity,
Inc., a California corporation (the "Company"), the undersigned purchasers of
Series C Preferred Stock of the Company (individually, an "Investor" and
collectively, the "Investors")), the existing holders of Investor Rights of the
Company by virtue of their purchase of Series A Preferred Stock and Series B
Preferred Stock of the Company and parties to that, certain Amended and Restated
Investors' Rights Agreement (the "Rights Agreement"), dated as of February 16,
1999 ("Existing Holders") and, with respect to Section 5 below, the undersigned
holders of Common Stock of the Company, Xxxxx X. Xxxxx, Xxxxxx Xxxxxxxxx,
Xxxxxxx Xxxxxxx, Xxxxxxx X. Xxxxxxxxx and Xxxxx Xxxxxx (collectively, the
"Founders"). This Agreement is being entered into pursuant to Section 5.1(h) of
that certain Series C Preferred Stock Purchase Agreement of even date herewith
between the Company and the Investors (the "Purchase Agreement"). By this
Agreement, the Company, the Existing Holders and the Founders desire to, and by
signing below do, amend and restate the Rights Agreement, and with the
Investors, desire to set forth certain registration and other rights of the
parties as set forth below.
NOW THEREFORE, in consideration of the foregoing and of the mutual promises
and covenants contained herein, the parties mutually agree as follows:
1. Registration; Restrictions on Transfers.
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1.1 Definitions. As used in this Agreement the following terms shall
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have the following respective meanings:
"Holder" means any person owning or having the right to acquire Registrable
Securities, including Existing Holders and Investors , or any assignee of record
thereof in accordance with Section 1.11 hereof.
"Initial Offering" shall mean the Company's initial public offering
registered under the Securities Act, which shall be a Qualifying Offering (as
such term is defined in the Company's Articles of Incorporation).
"Initiating Holders" means any Holder or Holders holding 10% or greater of
the aggregate number of the Registrable Securities then outstanding.
"Register," "registered," and "registration" refer to a registration
effected by preparing and filing a registration statement or similar document in
compliance with the Securities Act, and the declaration or ordering of
effectiveness of such registration statement or document.
"Registrable Securities" means (i) Common Stock of the Company issued or
issuable upon conversion of the Shares; and (ii) any Common Stock of the Company
issued as (or
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issuable upon the conversion or exercise of any warrant, right or other security
which is issued as) a dividend or other distribution with respect to, or in
exchange for or in replacement of, the Shares. Notwithstanding the foregoing,
Registrable Securities shall not include any securities sold by a person to the
public either pursuant to a registration statement or Rule 144 or sold in a
private transaction in which the transferor's rights under Section 2 of this
Agreement are not assigned or, as to any Holder, if the Registrable Securities
held by such Holder may be sold immediately pursuant to Rule 144 without
restriction.
"Registrable Securities then outstanding" shall be the number of shares
determined by calculating the total number of shares of the Company's Common
Stock that are Registrable Securities or may be received upon conversion of
other Registrable Securities and either (1) are then issued and outstanding or
(2) are issuable pursuant to then exercisable or convertible securities.
"Registration Expenses" shall mean all expenses incurred by the Company in
complying with Sections 1.3 and 1.6 hereof, including, without limitation, all
registration, filing and qualification fees, printing expenses, fees and
disbursements of counsel of the Company and one special counsel to the
Investors, 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).
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Selling Expenses" shall mean all underwriting discounts and selling
commissions applicable to the sale.
"Shares" shall mean the Company's Series C Preferred Stock, Series B
Preferred Stock and Series A Preferred Stock.
"Form S-3" means such form under the Securities Act as in effect on the
date hereof or any successor registration form under the Securities Act
subsequently adopted by the SEC which permits inclusion or incorporation of
substantial information by reference to other documents filed by the Company
with the SEC.
"SEC" or "Commission" means the Securities and Exchange Commission.
1.2 Restrictions on Transfer.
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1.2.1 Each of the Holders agrees not to make any disposition of
all or any portion of the Shares (or the Common Stock of the Company issuable
upon the conversion thereof) unless and until the transferee has agreed in
writing for the benefit of the Company to be bound by the terms of this
Agreement and:
(a) There is then in effect a registration statement
under the Securities Act covering such proposed disposition and such disposition
is made in accordance with such registration statement; or
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(b) (i) Such Holder shall have notified the Company of
the proposed disposition and the name and address of the transferee, and (ii) if
reasonably requested by the Company, such Holder shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company, that
such disposition will not require registration of such shares under the
Securities Act. It is agreed that the Company will not unreasonably require
opinions of counsel for transactions made pursuant to Rule 144.
(c) Notwithstanding the provisions of paragraphs (a) and
(b) above, no such registration statement or opinion of counsel shall be
necessary for a transfer by a Holder (i) which is a partnership, to its
partners, funds administered by any such partner, or retired partners in
accordance with partnership interests, (ii) to its members and any affiliates of
such members, (iii) which is a corporation, to its affiliates, (iv) to any
charitable donee or (v) to such Holder's family member or trust for the benefit
of an individual Holder, provided the transferee agrees in writing to be subject
to the terms of this Agreement to the same extent as if he were an original
Holder hereunder. For purposes of this Agreement, "affiliate," with respect to
any person, means any other person that controls, is controlled by, is under
common control or investment discretion with such person.
1.2.2 Each certificate representing Shares or Registrable
Securities shall (unless otherwise permitted by the provisions of the Agreement)
be stamped or otherwise imprinted with a legend as follows (in addition to any
legend required under applicable state securities laws or as provided elsewhere
in the Agreement):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED
UNDER THE ACT OR, IN THE OPINION OF COUNSEL OR BASED ON OTHER WRITTEN
EVIDENCE IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE ISSUER OF
THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS
IN COMPLIANCE THEREWITH.
1.2.3 The Company shall be obligated to reissue promptly
unlegended certificates at the request of any holder thereof if the holder shall
have obtained an opinion of counsel (which counsel may be counsel to the
Company) reasonably satisfactory to the Company to the effect that the
securities proposed to be disposed of may lawfully be so disposed of without
registration, qualification or legend.
1.2.4 Any legend endorsed on an instrument pursuant to
applicable state securities laws and the stop-transfer instructions with respect
to such securities shall be removed upon receipt by the Company of an order of
the appropriate blue sky authority authorizing such removal or an opinion of
counsel (which counsel may be counsel to the Company) reasonably satisfactory to
the Company to the effect that the securities may be distributed lawfully
without such legend.
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1.3 Demand Registration.
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1.3.1 Request for Registration. In case the Company shall
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receive from Initiating Holders a written request that the Company effect any
registration, qualification or compliance with respect to at least 10% of the
aggregate number of Registrable Securities then outstanding, provided that the
anticipated aggregate offering price of such registration, qualification or
compliance, net of standard underwriting discounts, would exceed $5,000,000, the
Company will:
(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 all such registrations, qualifications and compliances (including,
without limitation, the execution of an undertaking to file post-effective
amendments, appropriate qualifications under the applicable blue sky or other
state securities laws and appropriate compliance with exemptive 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 Initiating Holder's or
Initiating Holders' 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 given
within 30 days after receipt of such written notice from the Company; provided
that the Company shall not be obligated to take any action to effect such
registration, qualification or compliance pursuant to this Section 1.3:
(a) at any time prior to the earlier of February 16, 2002
or six (6) months after the Company's Initial Offering;
(b) in any particular jurisdiction in which the Company
would be required to execute a general qualification or compliance unless the
Company is already subject to service in such jurisdiction and except as
required by the Securities Act; or
(c) after the Company has effected four (4) such
registrations pursuant to this Section 1.3.1 and such registrations have been
declared or ordered effective.
Subject to the foregoing clauses (a) through (c), the Company
shall file a registration statement covering the Registrable Securities so
requested to be registered as soon as practical, but in any event within 90
days, after receipt of the request or requests of the Initiating Holders;
provided, however, that if the Company shall furnish to such holders within ten
(10) days of its receipt of the request for registration 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 and its
shareholders for such registration to be filed at the date filing would be
required and it is therefore essential to defer the filing of such registration
statement, the Company shall have the right to defer the offering for a period
of not more than ninety (90) days after receipt of the request for registration;
provided, however, that this right cannot be exercised more than once in any
twelve month period.
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1.4 Piggyback Registrations. The Company shall notify all Holders of
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Registrable Securities in writing at least thirty (30) days prior to the filing
of any registration statement under the Securities Act for purposes of a public
offering of securities of the Company (including, but not limited to,
registration statements relating to secondary offerings of securities of the
Company, but excluding registration statements relating to employee benefit
plans and corporate reorganizations) and will afford each such Holder an
opportunity to include in such registration statement all or part of such
Registrable Securities held by such Holder, provided, that such notice shall not
obligate the Company to file such registration statement. Each Holder desiring
to include in any such registration statement all or any part of the Registrable
Securities held by it shall, within twenty (20) days after receipt of the above-
described notice from the Company, so notify the Company in writing. Such
notice shall state the intended method of disposition of the Registrable
Securities by such Holder. If a Holder decides not to include all of its
Registrable Securities in any registration statement thereafter filed by the
Company, such Holder shall nevertheless continue to have the right to include
any Registrable Securities in any subsequent registration statement or
registration statements as may be filed by the Company with respect to offerings
of its securities, all upon the terms and conditions set forth herein.
1.5 Underwriting. If the registration statement under which the
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Company gives notice under Section 1.4 is for an underwritten offering of the
Common Stock of the Company, the Company shall so advise the Holders of
Registrable Securities. In such event, the right of any such Holder to be
included in a registration pursuant to this Section shall be conditioned upon
such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting to the extent provided
herein. All Holders proposing to distribute their Registrable Securities
through such underwriting shall enter into an underwriting agreement in
customary form with the underwriter or underwriters selected by the Company for
such underwriting. Notwithstanding any other provision of the Agreement, if the
underwriter determines in good faith that marketing factors require a limitation
of the number of shares to be underwritten, the number of shares that may be
included in the underwriting shall be allocated, in the case of a registration
statement filed pursuant to a request under Section 1.4, first to the Company
and next to the Holders participating in such registration on a pro rata basis
based on the total number of Registrable Securities held by such Holders, or, in
the case of a registration statement filed pursuant to a request under Section
1.3, to all of the Holders participating in such registration on a pro rata
basis based on the total number of Registrable Securities held by such Holders;
provided, however, in no event shall any shares which are not Registrable
Securities be included in any registration in which the number of Registrable
Securities to be sold in such registration have been limited pursuant to this
Section 1.5, unless the inclusion of such shares has been approved by the
holders of three quarters (3/4) of the Registrable Securities and provided,
further that in no event shall the limitation on the number of shares included
in such registration by the Holders exercising rights under Section 1.4 be
reduced below fifty percent (50%) of the total number of securities included in
such registration, unless such registration is the Company's Initial Offering,
in which case the selling Holders may be excluded if the underwriter makes the
determination described above and no other shareholder's securities are included
in the registration. No such reduction shall reduce the securities being
offered by the Company for its own account to be included in the registration
and underwriting in the Initial Offering.
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1.6 Form S-3. In case the Company shall receive a written request or
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requests from Holders of 10% of Registrable Securities then outstanding that the
Company effect a registration on Form S-3 or any successor form to S-3 and any
related qualification or compliance with respect to all or a part of the
Registrable Securities owned by such Holder, the Company will, provided that it
is able to utilize a Form S-3:
1.6.1 promptly give written notice of the proposed registration,
and any related qualification or compliance, to all other Holders of Registrable
Securities; and
1.6.2 at any time after 180 days following the effective date of
the Initial Offering and after 90 days following the effective date of any
subsequent registered underwritten offering of the Company's Common Stock to the
general public, effect such registration and all such qualifications and
compliances as may be so requested and as would permit or facilitate the sale
and distribution of all or such portion of such Holder's or Holders' Registrable
Securities as are specified in such request, together with all or such portion
of the Registrable Securities of any other Holder or Holders joining in such
request as are specified in a written request given within twenty (20) days
after receipt of such written notice from the Company; provided, however, that
the Company shall not be obligated to effect any such registration,
qualification or compliance pursuant to this Section 1.6: (i) if the Holders,
together with the holders of any other securities of the Company entitled to
inclusion in such registration, propose to sell Registrable Securities and such
other securities (if any) at an aggregate price to the public of less than
$1,000,000, (ii) if the Company shall furnish to the Holders a certificate
signed by the President or Chairman of the Board of Directors of the Company
stating that in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company and its shareholders
for such registration to be effected at such time, in which event the Company
shall have the right to defer the filing of the registration statement for a
period of not more than sixty (60) days after receipt of the request of the
Holder or Holders under this Section 1.6.2, provided that such right shall not
be exercised more than once in any twelve month period, (iii) if the Company
has, within the six (6) month period preceding the date of such request, already
effected one (1) registration for the Holders pursuant to this Section 1.6, or
(iv) in any particular jurisdiction in which the Company would be required to
qualify to do business or to execute a general consent to service of process in
effecting such registration, qualification or compliance. In addition, the
Company shall not be required to effect a registration pursuant to this Section
if within thirty (30) days receipt of a written request from Holders pursuant to
this Section, the Company gives notice to the Holders of the Company's good
faith intention to make a public offering of the Company's Common Stock within
sixty (60) days of such request and the Holders shall be provided with piggyback
registration rights for such registration pursuant to Section 1.4 hereof (and
may actually sell Shares thereunder) and provided that such Company notice shall
not be given more than once in a twelve month period.
1.6.3 Subject to the foregoing, the Company shall file such
registration statement as is then available to the Company covering the
Registrable Securities and other securities so requested to be registered as
soon as practicable, but in any event not later than thirty (30) days after
receipt of the request or requests of the Holders.
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1.7 Expenses of Registration. All Registration Expenses incurred in
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connection with any registration under this Section 1 shall be borne by the
Company. All Selling Expenses incurred in connection with any registrations
hereunder, shall be borne by the holders of the securities so registered pro
rata on the basis of the number of shares of such Holders so registered. The
Company shall not, however, be required to pay for the Registration Expenses of
any registration proceeding begun pursuant to Section 1.3 or Section 1.6, the
request of which has been subsequently withdrawn by the Initiating Holders
unless (a) the withdrawal is based upon material adverse information concerning
the Company or a public offering of the Company of which the Initiating Holders
were not aware at the time of such request or that arose or developed after the
date of such request or (b) the Holders of a majority of Registrable Securities
agree to forfeit their right to one requested registration pursuant to Section
1.3 or Section 1.6 in which event such right shall be forfeited by all Holders).
If the Holders are required to pay the Registration Expenses, such expenses
shall be borne solely by those holders of securities (including Registrable
Securities) who withdraw such request for registration in proportion to the
number of shares for which registration was requested.
1.8 Obligations of the Company. Whenever required to effect the
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registration of any Registrable Securities, the Company shall, as expeditiously
as reasonably possible:
1.8.1 Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its best efforts to cause
such registration statement to become effective, and, unless otherwise requested
by the Holders of a majority of the Registrable Securities registered
thereunder, keep such registration statement effective for up to ninety (90)
days.
1.8.2 Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement.
1.8.3 Furnish to the Holders such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them.
1.8.4 Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions.
1.8.5 In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter(s) of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
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1.8.6 Notify each Holder of Registrable Securities covered by
such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
1.8.7 Furnish, at the request of a majority of the Holders
participating in the registration, on the date that such Registrable Securities
are delivered to the underwriters for sale, if such securities are being sold
through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective, (i) an opinion, dated as of such date, of the
counsel representing the Company for the purposes of such registration, in form
and substance as is customarily given to underwriters in an underwritten public
offering and reasonably satisfactory to a majority in interest of the Holders
requesting registration, addressed to the underwriters, if any, and to the
Holders requesting registration of Registrable Securities and (ii) a letter
dated as of such date, from the independent certified public accountants of the
Company, in form and substance as is customarily given by independent certified
public accountants to underwriters in an underwritten public offering and
reasonably satisfactory to a majority in interest of the Holders requesting
registration, addressed to the underwriters, if any, and to the Holders
requesting registration of Registrable Securities.
1.9 Delay of Registration; Furnishing Information.
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1.9.2 It shall be a condition precedent to the obligations of
the Company to register the Registrable Securities of any selling Holder that
such selling Holder shall have furnished to the Company such information
regarding itself, the Registrable Securities held by it and the intended method
of disposition of such securities as shall be reasonably required to effect the
registration of their Registrable Securities within a reasonable period after
having received a written request from the Company for such information.
1.10 Indemnification. In the event any Registrable Securities are
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included in a registration statement under Sections 1.3, 1.4 or 1.6:
1.10.1 To the extent permitted by law, the Company will
indemnify and hold harmless each Holder, the partners, affiliates, officers,
directors, representatives, agents and legal counsel of each Holder, any
underwriter (as defined in the Securities Act) for such Holder and each person,
if any, who controls such Holder or underwriter within the meaning of the
Securities Act or the Securities Exchange Act of 1934, as amended, (the "1934
Act"), against any losses, claims, damages, or liabilities (joint or several) to
which they may become subject under the Securities Act, the 1934 Act or other
federal or state law, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any of the following
statements, omissions or violations (collectively a "Violation") by the Company:
(i) any untrue statement or alleged untrue statement of a material fact
contained in such registration statement, including any preliminary prospectus
or final prospectus contained therein
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or any amendments or supplements thereto, (ii) the omission or alleged omission
to state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Securities Act, the 1934 Act, any state
securities law or any rule or regulation promulgated under the Securities Act,
the 1934 Act or any state securities law in connection with the offering covered
by such registration statement; and the Company will reimburse each such Holder,
partner, affiliate, officer, director, representative, agent, legal counsel,
underwriter or 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 as such expenses are incurred; provided
however, that the indemnity agreement contained in this Section 1.10.1 shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability
or action if such settlement is effected without the consent of the Company
(which consent shall not be unreasonably withheld), nor shall the Company be
liable in any such case for any such loss, claim, damage, liability or action to
the extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by such Holder, partner, affiliate,
officer, director, underwriter or controlling person of such Holder.
1.10.2 To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers, each person, if any, who controls the Company within the meaning of
the Securities Act, any underwriter and any other Holder selling securities
under such registration statement or any of such other Holder's partners,
directors or officers or any person who controls such Holder, against any
losses, claims, damages or liabilities (joint or several) to which the Company
or any such director, officer, controlling person, underwriter or other such
Holder, or partner, director, officer or controlling person of such other Holder
may become subject under the Securities Act, the 1934 Act or other federal or
state law, insofar as such losses, claims, damages or liabilities (or actions in
respect thereto) arise out of or are based upon any Violation, in each case to
the extent (and only to the extent) that such Violation occurs in reliance upon
and in conformity with written information expressly furnished by such Holder
under an instrument duly executed by such Holder and stated to be specifically
for use in connection with such registration; and each such Holder will
reimburse any legal or other expenses reasonably incurred by the Company or any
such director, officer, controlling person, underwriter or other Holder, or
partner, officer, director or controlling person of such other Holder in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the indemnity agreement contained
in this Section 1.10.2 shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of the Holder, which consent shall not be unreasonably withheld;
provided further, that in no event shall any indemnity under this Section 1.10
exceed the net proceeds from the offering received by such Holder.
1.10.3 Promptly after receipt by an indemnified party under this
Section 1.10 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 1.10, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to
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the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with counsel
mutually satisfactory to the parties; provided, however, that an indemnified
party shall have the right to retain its own counsel, with the fees and expenses
to be paid by the indemnifying party, if representation of such indemnified
party by the counsel retained by the indemnifying party would be inappropriate
due to material actual or potential differing interests between such indemnified
party and any other party represented by such counsel in such proceeding. The
failure to deliver written notice to the indemnifying party within a reasonable
time of the commencement of any such action, if materially prejudicial to its
ability to defend such action, shall relieve such indemnifying party of any
liability to the indemnified party under this Section 1.10 to the extent
materially prejudicial, but the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 1.10.
1.10.4 If the indemnification provided for in this Section 1.10
is held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any losses, claims, damages or liabilities referred to
herein, the indemnifying party, in lieu of indemnifying such indemnified party
thereunder, shall to the extent permitted by applicable law contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the indemnified
party on the other in connection with the Violation(s) that resulted in such
loss, claim, damage or liability, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by a court of law by reference to, among
other things, whether the Violation relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission; provided that in no event shall any contribution by a
Holder under this Section 1.10.4 exceed the net proceeds received from the
offering by such Holder.
1.10.5 The foregoing indemnity agreements of the Company and
Holders are subject to the condition that, insofar as they relate to any
Violation made in a preliminary prospectus but eliminated or remedied in the
amended prospectus on file with the SEC at the time the registration statement
in question becomes effective or the amended prospectus filed with the SEC
pursuant to SEC Rule 424(b) (the "Final Prospectus"), such indemnity agreement
shall not inure to the benefit of any person if a copy of the Final Prospectus
was furnished in a timely manner to the indemnified party and was not furnished
to the person asserting the loss, liability, claim or damage at or prior to the
time such action is required by the Securities Act.
1.10.6 The obligations of the Company and Holders under this
Section 1.10 shall survive the completion of any offering of Registrable
Securities in a registration statement and the termination of this Agreement.
1.11 Assignment of Registration Rights. The rights to cause the
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Company to register Registrable Securities pursuant to this Section 1 may be
assigned by a Holder to a transferee or assignee of Registrable Securities;
provided, however, that no such transferee or assignee shall be entitled to
registration rights under Sections 1.3 or 1.6 hereof unless it acquires
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at least two hundred fifty thousand (250,000) shares of Registrable Securities
(as adjusted for stock splits and combinations) and the Company shall, within a
reasonable time, be furnished with written notice of the name and address of
such transferee or assignee and the securities with respect to which such
registration rights are being assigned. Notwithstanding the foregoing, rights to
cause the Company to register securities may be assigned to any subsidiary,
parent, affiliate, partner or retired partner of a Holder, any family member or
trust for the benefit of any individual Holder or any entity affiliated with the
Holder by common ownership.
1.12 Amendment of Registration Rights. Any provision of this Section
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1 may be amended and the observance thereof may be waived (either generally or
in a particular instance and either retroactively or prospectively), only with
the written consent of the Company and the Holders of at least two-thirds (2/3)
of the Registrable Securities. Any amendment or waiver effected in accordance
with this Section 1.12 shall be binding upon each Holder and the Company. By
acceptance of any benefits under this Section 1, Holders of Registrable
Securities hereby agree to be bound by the provisions hereunder.
1.13 "Market Stand-Off" Agreement. If requested by the Company and
----------------------------
an underwriter of Common Stock (or other securities) of the Company, a Holder
shall not sell or otherwise transfer or dispose of any Common Stock (or other
securities) of the Company held by such Holder (other than those included in the
registration) for a period specified by the underwriters not to exceed one
hundred eighty (180) days following the effective date of a registration
statement of the Company filed under the Securities Act relating to the Initial
Offering, provided that all officers and directors of the Company and
shareholders and optionholders of 1% or more of the Company's outstanding shares
enter into similar agreements, provided, further, that such market stand-off
-------- -------
shall be memorialized in a letter agreement containing customary terms and
conditions. The obligations described in this Section 1.13 shall apply solely
to a registration relating to the Initial Offering. The Company may impose stop-
transfer instructions with respect to the shares (or securities) subject to the
foregoing restriction until the end of said one hundred eighty (180) day period;
provided that the underwriter of the Initial Offering has not released such
--------
Holder from such market stand-off.
1.14 Termination of Registration Rights. All registration rights
----------------------------------
granted under this Section 1 shall terminate and be of no further force and
effect seven (7) years after the date following the closing of the Company's
Initial Offering or, as to any Holder, if the Registrable Securities held by
such Holder may be sold immediately pursuant to Rule 144 without restriction.
1.15 Reports Under the 1934 Act. With a view to making available to
--------------------------
the Holders the benefits of Rule 144 promulgated under the Securities Act and
any other rule or regulation of the SEC that may at any time permit a Holder to
sell securities of the Company to the public without registration, the Company
agrees to:
(i) make and keep public information available, as those
terms are understood and defined in SEC Rule 144, at all times after the
effective date of the first registration statement filed by the Company for the
offering of its securities to the general public;
11
(ii) file with the SEC in a timely manner all reports and
other documents required of the Company under the Securities Act and the 1934
Act; and
(iii) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of SEC Rule 144,
the Securities Act and the 1934 Act (at any time after it has become subject to
such reporting requirements), and (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed by
the Company.
2. Covenants of the Company.
------------------------
2.1 Financial Information and Reporting.
-----------------------------------
2.1.1 The Company will maintain true books and records of
account in which full and correct entries will be made of all its business
transactions pursuant to a system of accounting established and administered in
accordance with generally accepted accounting principles consistently applied,
and will set aside on its books all such proper accruals and reserves as shall
be required under generally accepted accounting principles consistently applied.
2.1.2 The Company will furnish to each Holder as soon as
practicable after the end of each fiscal year of the Company, and in any event
within 90 days thereafter, a consolidated balance sheet of the Company, as at
the end of such fiscal year, and a consolidated statement of income and a
consolidated statement of cash flows of the Company, for such year, all prepared
in accordance with generally accepted accounting principles and setting forth in
each case in comparative form the figures for the previous fiscal year, all in
reasonable detail. Such financial statements shall be audited and accompanied by
a report and opinion thereon by independent public accountants of national
standing selected by the Company's Board of Directors.
2.1.3 The Company will furnish to each Holder within thirty (30)
days after the end of each month, an unaudited balance sheet and statements of
income and cash flows, prepared in accordance with generally accepted accounting
principles, with the exception that no notes need be attached to such statements
and year-end audit adjustments may not have been made.
2.1.4 The Company will furnish to each Holder forty-five (45)
days prior to the beginning of each fiscal year, the Company's annual operating
plan for the succeeding fiscal year.
2.1.5 Notwithstanding anything to the contrary stated in this
Section 2.1, the Company shall not be obligated to provide financial information
to any Holder (i) if such Holder and its affiliates do not continue to hold at
least an aggregate of 500,000 Shares or at least 500,000 shares of Common Stock
of the Company issued or issuable upon conversion of the Shares, or (ii) upon
the closing of the Initial Offering. For purposes of calculating the number of
shares held by a Holder for purposes of this Section 2.1.5, all shares held by
Holders who are
12
affiliates (as such term is defined in Rule 405 promulgated under the Securities
Act) shall be aggregated.
2.1.6. Upon the reasonable request of any Holder, who owns
together with its affiliates at least an aggregate of 500,000 Shares or at least
500,000 shares of Common Stock of the Company issued or issuable upon conversion
of the Shares, the Company shall provide to such Holder (i) reasonable access
during regular business hours to the management of the Company for the purpose
of discussing matters related to the Company and (ii) information regarding the
Company and its operations.
2.2 Reservation of Common Stock. The Company will at all times
---------------------------
reserve and keep available, solely for issuance and delivery upon the conversion
of the Shares, all Common Stock of the Company issuable from time to time upon
such conversion.
2.3 Right to Observe. The Company will furnish to holders of Series
----------------
B Preferred Stock, who, with their affiliates, hold at least 750,000 Shares,
notice of, and permit the attendance at, all meetings of the Board of Directors
of the Company, or any committee thereof. Such holders of Series B Preferred
Stock shall be entitled to attend such meetings as non-voting observers. The
Company will furnish to GE Capital Equity Investments, Inc. ("GE Capital"), for
so long as it or any of its affiliates continues to hold at least 250,000
Shares, notice of, and permit its attendance at, all meetings of the Board of
Directors of the Company, or any committee thereof. GE Capital shall be
entitled to attend such meetings as non-voting observers. Notwithstanding the
foregoing, GE Capital agrees not to disclose confidential matters discussed at
the Board meeting and the Company shall have the right to exclude such
representative if the Company and the Company's counsel reasonably believe it is
necessary to protect the attorney-client privilege or the Company's interests.
This Section 2.3, other than the first sentence hereof, may not be amended
without the written consent of GE Capital.
2.4 Termination of Covenants. All covenants of the Company contained
------------------------
in Sections 2.1 and 2.2 of this Agreement shall expire and terminate as to each
Holder immediately after the Company's Initial Offering.
3. Rights of First Refusal.
-----------------------
3.1 Subsequent Offerings. Each Holder shall have a right of first
--------------------
refusal to purchase up to its pro rata share of all Equity Securities, as
defined below, that the Company may, from time to time, propose to sell and
issue after the date of this Agreement. Each Holder's pro rata share, for
purposes of this right of first refusal, is equal to the ratio of (a) the number
of Shares (including all shares of Common Stock of the Company issued or
issuable upon conversion of the Shares or options or warrants for Shares) of
which such Holder is deemed to be a holder immediately prior to the issuance of
such Equity Securities to (b) the total number of shares of stock then
outstanding (including all shares of Common Stock of the Company issued or
issuable upon conversion of the Shares and other convertible securities and upon
the exercise of outstanding and options and warrants). The Company shall
promptly, in writing, inform each Holder that elects to purchase all the shares
available to it (a "Fully-Exercising Holder") of any other Holder's failure to
do likewise. During the ten (10) day period commencing after such
13
information is given, each Fully-Exercising Holder may elect to purchase that
portion of the Shares for which Holders were entitled to subscribe but which
were not subscribed for by the Holders that is equal to a fraction of the
unsubscribed shares. The numerator of such fraction shall be the number of
equity securities of the Company (assuming conversion of all such securities to
Common Stock of the Company) owned by a Fully-Exercising Holder and the
denominator of which shall be the total number of equity securities (assuming
the conversion of all such securities to Common Stock of the Company) owned by
all Fully-Exercising Holders who wish to purchase some of the unsubscribed
shares. The term "Equity Securities" shall mean any stock or similar security of
the Company or any security convertible, with or without consideration, into any
stock or similar security, except that the term "Equity Securities" shall not
refer to securities specified in Section 3.5 below. For purposes of determining
each Holder's pro rata share, all entities that are affiliates (as such term is
defined in Rule 405 promulgated under the Securities Act) shall be aggregated
and any such affiliated entities may purchase some or all of the shares
available to such affiliated entities pursuant to this Section 3.1.
3.2 Exercise of Rights. If the Company proposes to issue any Equity
------------------
Securities, it shall give each Holder written notice of its intention,
describing the Equity Securities, the price and the terms and conditions upon
which the Company proposes to issue the same. Each Holder shall have thirty
(30) days from the giving of such notice to agree to purchase up to its pro rata
share of the Equity Securities for the price and upon the terms and conditions
specified in the notice by giving written notice to the Company and stating
therein the quantity of Equity Securities to be purchased. Notwithstanding the
foregoing, the Company shall not be required to offer or sell such Equity
Securities to such Holders if such issuance would cause the Company to be in
violation of applicable federal securities laws by virtue of such offer or sale.
In the event that the price, terms or conditions of such proposed issuance
becomes less favorable to the Company, the Company shall re-offer such Equity
Securities to each Holder in accordance with this Section 3.
3.3 Termination of Rights of First Refusal. The rights of first
--------------------------------------
refusal established by this Section 3 shall terminate (i) immediately prior to
the closing of the Initial Offering or (ii) upon conversion of all of the Shares
into Common Stock of the Company.
3.4 Transfer of Rights of First Refusal. The rights of first refusal
-----------------------------------
of the Holders under this Section 3 may be transferred to any constituent
partner or affiliate of the Holders, to any successor in interest to all or
substantially all the assets of such Holder, or to any transferee or assignee
who holds at least two hundred fifty thousand (250,000) shares (as adjusted for
stock splits, combinations and the like) of Registrable Securities, provided
that such transferee or assignee agrees in writing to be bound by the provisions
of this Agreement. Notwithstanding the foregoing, rights to cause the Company
to register securities may be assigned to any subsidiary, parent, partner,
member or retired partner of a Holder, any family member or trust for the
benefit of any individual Holder or any affiliate (as such term is defined in
Rule 405 promulgated under the Securities Act) of any such Holder.
3.5 Excluded Securities. The rights of first refusal established by
-------------------
this Section shall have no application to any of the following:
14
3.5.1 Up to 13,950,000 shares of Common Stock of the Company
(and/or options, warrants or other Common Stock of the Company purchase rights
issued pursuant to such options, warrants or other rights) issued or to be
issued to employees, officers or directors of, or consultants or advisors to the
Company or any subsidiary, pursuant to stock purchase or stock option plans or
other arrangements that are approved by the Board of Directors, including the
director elected by the holders of shares of Series C Preferred Stock;
3.5.2 stock issued pursuant to any rights, agreements, options
or warrants outstanding as of the date of this Agreement and stock issued
pursuant to any such rights, agreements, options or warrants granted after the
date of this Agreement, provided that the rights of first refusal established by
this Section 3 applied with respect to the initial sale or grant by the Company
of such rights, agreements, options or warrants;
3.5.3 any Equity Securities issued pursuant to a merger,
consolidation, acquisition (including technology acquisitions) or similar
business combination;
3.5.4 any Equity Securities that are issued by the Company as
part of an underwritten public offering, except as set forth in Section 4 below;
3.5.5 shares of Common Stock of the Company issued in connection
with any stock split, stock dividend or recapitalization by the Company approved
by the Company's Board of Directors, including the director elected by the
holders of shares of Series C Preferred Stock;
3.5.6 shares of Common Stock of the Company issued upon
conversion of the Preferred Stock of the Company;
3.5.7 any Equity Securities issued pursuant to any equipment
leases, commercial loans, or debt financings approved by the Company's Board of
Directors, including the director elected by the holders of shares of Series C
Preferred Stock; and
3.5.8 any Equity Securities issued in connection with strategic
transactions involving the Company and other entities, including joint ventures,
manufacturing, marketing or distribution arrangement or technology transfer or
development arrangement, approved by the Company's Board of Directors, including
the director elected by the holders of shares of Series C Preferred Stock.
4. Company's Initial Offering. In the event of the Company's Initial
--------------------------
Offering and subject to all applicable rules, requirements and restrictions of
the SEC and the National Association of Securities Dealers, Inc. (the "NASD"),
the Company will use reasonable efforts to allow the Investors (including any
fund with the same or an affiliated general partner of an Investor or any
affiliate of an Investor or any designee of an Investor ) to purchase in any
directed share program associated with the Initial Offering; provided, however
the Company will have the right to allocate the remaining shares offered in the
Initial Offering as the Company determines, in its sole discretion, is in the
best interest of the Company and, provided further that, if the underwriter
advises the Company that allowing the Investors to participate in the
15
Initial Offering may reduce the marketability of the offering or otherwise
adversely affect the Company then the Company shall not be required to take any
action in connection with this Section 4. In connection with any potential
purchase under this Section 4, the Investors agree to take all action that the
Company or its counsel reasonably deems necessary, appropriate or desirable in
connection with such potential purchase, including without limitation prompt
notice of whether each Investor desires to participate in the Initial Offering
if offered the opportunity by the Company. This Section 4 does not constitute an
offer to sell, or a solicitation of an offer to buy any securities of the
Company nor shall this Section 4 be construed as granting a right to purchase
such securities to the Investors or any other person.
5. Agreements Between Holders and Founders.
---------------------------------------
5.1 Right of First Refusal and Co-Sale.
----------------------------------
5.1.1 The Right of First Refusal. If at any time one or more of
--------------------------
the Founders propose to sell or otherwise transfer any Common Shares (as defined
in Section 5.1.5 below) to parties other than the Holders (on a pro rata basis)
in a transaction (a "Transaction") not registered under the Securities Act, then
such Founder (a "Selling Founder") shall first promptly notify the Holders of
its intention to do so pursuant to Section 5.1.3. Each Holder shall have a right
of first refusal to purchase its pro rata share of all Common Shares proposed to
be sold by any Selling Founder after such Selling Founder first offers such
Common Shares to the Company pursuant to existing agreements containing such
right. The Selling Founder shall promptly, in writing, inform each Fully-
Exercising Holder of any other Holder's failure to exercise its right of first
refusal. During the ten (10) day period commencing after such information is
given, each Fully-Exercising Holder may elect to purchase that portion of the
Common Shares for which the Holders were entitled to subscribe but which were
not subscribed for by the Holders that is equal to a fraction of the
unsubscribed shares. The numerator of such fraction shall be the number of
equity securities of the Company (assuming conversion of all such securities to
Common Stock) owned by a Fully-Exercising Holder and the denominator of which
shall be the total number of equity securities (assuming the conversion of all
such securities to Common Stock) owned by all Fully-Exercising Holders who wish
to purchase some of the unsubscribed shares. For purposes of determining each
Holder's pro rata share, all affiliates shall be aggregated and any of such
affiliates may sell some or all of the shares available to such affiliates
pursuant to this Section 5.1.1.
5.1.2 The Right of Co-Sale. If the Company and any Holders have
--------------------
waived or failed to timely exercise their Rights of First Refusal as to all or
any part of the Common Shares proposed to be sold by a Selling Founder, then
each Holder that has not exercised its Right of First Refusal shall have a Right
of Co-Sale as set forth in this Section 5.1.2. Any Holder which notifies such
Founder in writing within thirty (30) days after receipt of the notification
from such Founder referred to in Section 5.1.3 shall have the opportunity to
sell up to a pro rata portion of the Common Shares which the Founder proposes to
sell to such third party in the Transaction. In such instance, the Selling
16
Founder shall assign so much of his interest in the proposed agreement of sale
as the Selling Founder shall be entitled to and shall request hereunder, and the
Holder shall assume such part of the obligations of the Selling Founder under
such agreement as shall relate to the sale of the securities by the Selling
Founder. For the purposes of this Section 5.1.2, the "pro rata portion" which
the Holder shall be entitled to sell shall be an amount of Common Shares equal
to a fraction of the total amount of Common Shares proposed to be sold to such
third party. The numerator of such fraction shall be the number of equity
securities of the Company (assuming the conversion of all such securities to
Common Stock) owned by Holder and the denominator shall be the total number of
equity securities (assuming the conversion of all such securities to Common
Stock) owned by all participating Selling Founders and the other Holders
proposing to sell shares in the Transaction (individually a "Selling Holder" and
collectively the "Selling Holders"). Each Holder shall notify the Selling
Founder whether it elects to sell an amount equal to or less than its pro rata
share of the Common Shares so offered. The Selling Founder shall promptly, in
writing, inform each Selling Holder of any other Selling Holder's failure to
exercise its right of co-sale in full. During the ten (10) day period
commencing after such information is given, each Selling Holder may elect to
sell that portion of the Common Shares for which the Selling Holders were
entitled to sell but which were not sold by the Selling Holders that is equal to
their pro rata portion of the unsold shares. Each Holder shall be entitled to
apportion Common Shares to be sold among its partners, members, or affiliates,
provided that such Holder notifies the Selling Founder and the Company of such
allocation, and provided that such allocation does not preclude the Company's
reliance on any exemption from the registration provisions of the Securities Act
or the applicable qualifications provisions. For purposes of this Section 5.1.,
the stock of the Company shall be arithmetically adjusted for stock dividends,
stock splits, recapitalizations and the like.
5.1.3 Notice. Prior to any sale by a Founder of any Common
------
Shares, the Founder shall notify each Holder, in writing, of his intention to
sell such securities (the "Offered Securities"), setting forth in reasonable
detail the general terms under which he proposed to make such sale including the
number of Common Shares to be sold or transferred, the nature of the sale or
transfer, the consideration to be paid and the identity of the Holder. Within
thirty (30) days after receipt of such notice, any Holder which desires to
exercise its rights under this Section 5.1 shall notify the Founder of its
desire to do so. Each Holder shall be entitled to apportion Offered Securities
to be sold or purchased among its partners and affiliates, provided that such
Holder notifies the Founder of such intention to do so.
5.1.4 Failure to Notify. If within thirty (30) days after the
-----------------
Founder gives his aforesaid notice to the Holders, the Holders do not notify the
Founder that they desire to sell or purchase all of their pro rata portions of
the Common Shares described in such notice for the price and on the terms and
conditions set forth therein, then the Founder may sell during the 90-day period
thereafter such Common Shares as to which the Holders do not elect to sell or
purchase. Any such sale or purchase shall be made only to persons identified in
the Founder's notice and at the same price and upon the same terms and
conditions as those set forth in the notice. In the event the Founder has not
sold the Common Shares or entered into an agreement to sell the Common Shares
within such 90-day period set forth in Section 5.1.3, the Founder shall not
thereafter sell any Common Shares without first notifying the Holders in the
manner provided above.
17
5.1.5 Definition. The term "Common Shares" shall mean all shares
----------
of Common Stock of the Company owned or subsequently acquired by a Founder and
all shares of Common Stock of the Company issuable upon exercise or conversion
of any exercisable or convertible securities held or subsequently acquired by
Founder.
5.1.6 Limitations to Rights of Co-Sale and First Refusal.
--------------------------------------------------
Notwithstanding the provisions of this Section 5.1:
(a) a Founder may sell or otherwise assign, without
consideration, Common Shares to any or all of his ancestors, descendants,
spouse, or members of his immediate family, or to a custodian, trustee
(including a trustee of a voting trust), executor, or other fiduciary for the
account of his ancestors, descendants, spouse, or members of his immediate
family without compliance with this Section 5.1, provided that each such
transferee or assignee, prior to the completion of the sale, transfer, or
assignment, shall have executed documents assuming the obligations of such
Founder under this Agreement with respect to the transferred securities;
(b) the Company may exercise in full its rights to
repurchase unvested Common Stock of the Company issued pursuant to stock
purchase or option agreements entered into between the Company and the Founders
without compliance with this Section 5.1;
(c) a Founder may sell, transfer or pledge up to ten
percent (10%), in the aggregate, of the Common Stock of the Company held by such
Founder as of the date hereof without compliance with this Section 5.1, except
that such Founder shall give the Company detailed notice of such sale at least
ten (10) days prior to the consummation of such sale and such transferee shall
agree to assume the obligations of transferor as provided herein;
(d) a Founder may sell the Common Stock of the Company
held by such Founder in connection with the Initial Offering without compliance
with this Section 5.1, so long as the Holders are also permitted to sell in the
Initial Offering the same proportion of their Registrable Securities as the
maximum proportion of the Common Stock of any Founder that such Founder is
permitted to sell.
5.2 Board of Directors. So long as at least 1,000,000 Shares are
------------------
issued and outstanding, the Founders and the Holders agree to vote all shares
held by them by written consent or a duly held meeting of shareholders in favor
of each of (i) any two (2) representatives of the holders of Series A Preferred
Stock (the "Series A Designees") to serve as nominees to the Company's Board of
Directors, who, as of the date hereof, are Xxxxxx X. Xxxxxxxxx and Xxxxx Xxxxx,
and (ii) any two (2) representatives of the holders of Series C Preferred Stock
(the "Series C Designees") to serve as nominees to the Company's Board of
Directors, of which one (1) member shall be appointed by NBCi, who initially
shall be Xxxxxx Xxxxxxx, and one (1) member shall be appointed by NBC upon the
earlier of (A) the closing of the Initial Offering or (B) one year after the
date hereof; provided that at such time NBC owns, directly or indirectly, all of
the shares of Series C Preferred Stock (or Common Stock into which such Series C
Preferred Stock is converted) that it acquires pursuant to this Agreement.
Until such time that
18
NBC is allowed to appoint one member of the Board of Directors, there shall
remain one vacancy on the Board of Directors. NBC shall continue to have the
right to elect a director until such time as it no longer holds at least 66% of
the shares of Series C Preferred Stock that it acquires pursuant to the Purchase
Agreement. The Founders and Holders agree to vote all shares held by them by
written consent or a duly held meeting of shareholders in favor of each of any
two (2) representatives of the holders of the Company's Common Stock to serve as
nominees to the Company's Board of Directors, who, as of the date hereof, are
Xxxxx Xxxxx and Xxxxxxx Xxxxxxx. The seventh member of the Board of Directors,
who, as of the date hereof, is Xxxxx Xxxxxxx, shall be agreeable to two-thirds
of the members of the Board of Directors.
5.3 Legends.
-------
5.3.1. Founders. All instruments evidencing Common Shares held
---------
by the Founders shall bear the following legends:
"THE SALE, PLEDGE, HYPOTHECATION OR TRANSFER OF THE SECURITIES REPRESENTED
BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN
RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT CONTAINED IN THE SECOND
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT DATED DECEMBER 13, 1999.
COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE
SECRETARY OF THE CORPORATION."
"THE SHARES EVIDENCED HEREBY ARE SUBJECT TO A VOTING AGREEMENT CONTAINED IN
THE SECOND AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT DATED DECEMBER
13, 1999 (A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY), AND BY
ACCEPTING ANY INTEREST IN SUCH SHARES THE PERSON ACCEPTING SUCH INTEREST
SHALL BE DEEMED TO AGREE TO AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF
SAID VOTING AGREEMENT."
5.3.1. Holders. All instruments evidencing Shares held by the
--------
Holders shall bear the following legend:
"THE SHARES EVIDENCED HEREBY ARE SUBJECT TO A VOTING AGREEMENT CONTAINED IN
THE SECOND AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT DATED DECEMBER
13, 1999 (A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY), AND BY
ACCEPTING ANY INTEREST IN SUCH SHARES THE PERSON ACCEPTING SUCH INTEREST
SHALL BE DEEMED TO AGREE TO AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF
SAID VOTING AGREEMENT."
19
5.4 Termination. The obligations of the Founders under Sections 5.1
-----------
and 5.2 shall terminate and be of no further force and effect after two (2)
years following the effective date of the Company's Initial Offering.
5.5 Assignment. Upon written notice to the Founders, the rights
----------
granted pursuant to this Section 5.1 may be assigned by a Holder or its
transferees upon a sale or transfer (other than a sale thereof to the public) of
Shares or the Common Stock of the Company issued or issuable upon conversion of
the Shares held by such Holder; so long as (i) such transferee holds at least
500,000 Shares or 500,000 shares of the Common Stock of the Company issued or
issuable upon conversion of the Shares or (ii) such transferee is a charitable
donee and holds 50,000 Shares or 50,000 shares of Common Stock of the Company
issued or issuable upon conversion of the Shares, and provided that any
transferee of a Holder shall agree to become subject to the obligations of the
Holders hereunder. Notwithstanding the foregoing, rights to cause the Company
to register securities may be assigned to any subsidiary, parent, partner or
retired partner of a Holder, any family member or trust for the benefit of any
individual Holder or any affiliate of any such Holder.
5.6 Amendment. The rights and obligations of the Founders and the
---------
Holders under this Section 5 may only be amended (either generally or in a
particular instance) by a statement in writing signed by (i) a majority of the
shares held by the Founders whose rights and obligations are to be amended and
(ii) two-thirds (2/3) of the shares held by the Holders.
5.7 No Waiver. The exercise or non-exercise of the rights of a
---------
Holder hereunder to participate in one or more sales of Common Shares made by a
Founder shall not adversely affect their rights to participate in subsequent
sales of Common Shares subject to Section 5.1.
6. Covenants.
---------
6.1 Consent of NBC and NBCi for Certain Matters. The prior written
-------------------------------------------
consent of NBC and NBCi will be required for any action which results in: (a)
the issuance of any equity or debt securities to any NBCi Competitor or NBC
Competitor (each as defined below), (b) any merger of the Company with, or sale
of assets of the Company with a fair market value of at least $100,000 to, any
NBCi Competitor or NBC Competitor, or (c) the issuance of equity or equity-
linked securities senior to the Series C Preferred Stock; provided that after
June 30, 2000, in the event that the Company receives a bona fide offer from an
NBC Competitor or NBCi Competitor to purchase any equity or debt securities of
the Company or all or substantially all of its assets, the Company may accept
such offer without the prior written consent of consent of NBC or NBCi if
neither NBC nor NBCi offers to purchase such securities or assets on the same
terms within ten (10) days of receipt of a notice, which notice shall include
the identity of the offeror and a complete description of the terms and
conditions of such offer; including the number and type of securities or assets
to be purchased, the purchase price and the terms upon which securities are to
be purchased and which shall be delivered to NBC and NBCi within ten (10) days
of receipt of such offer, it being understood that if the terms and conditions
of such offer become more favorable to the offeror, then the Company shall
provide NBC and NBCi with an
20
additional ten(10) business day period in which to match such revised offer. NBC
and/or NBCi may match any offer made by an NBC Competitor or NBCi Competitor
with cash or stock (or a combination thereof) of equal value to the purchase
price proposed by the offeror. "NBC Competitor" means Disney/ABC, CBS/Viacom,
News Corporation/Fox, Time Warner, Liberty Media, USA Network or their
affiliates. "NBCi Competitor" means Yahoo!, MSN, AOL/Netcenter, Excite AtHome,
Lycos, Go Network, Xx0Xxx.xxx, AltaVista, CMGI (so long as CMGI continues to own
a controlling interest in an Internet e-commerce/content company which could
provide services/content which may compete with those provided by NBCi), Amazon
or their respective affiliates. As used above, "affiliates" shall include
entities that directly, or indirectly through one or more intermediaries,
control, or are controlled by, or are under common control with one or more of
the entities listed above. The rights and obligations under this Section 6.1
shall terminate immediately upon the closing of the Initial Offering.
6.2 Right of First Negotiation. So long as the Operating Agreement
--------------------------
is in effect NBC and NBCi shall have the rights as set forth in this Section 6.2
provided that the party exercising such rights owns at least 2,500,000 shares of
Series C Preferred Stock (or any Common Stock issued upon conversion thereof).
6.2.1. In the event that the Company receives a bona fide offer
from an NBC Competitor or NBCi Competitor to purchase a twenty per cent (20%) or
greater interest in the Company or all or substantially all of the Company's
assets, the Company will provide written notice to NBC and NBCi that an offer
has been received within ten (10) business days of receiving such offer,
including the identity of such bona fide offeror and a complete description of
the terms and conditions of such offer. In the event that the Company intends to
accept such offer, the Company first will negotiate exclusively and in good
faith with NBC and NBCi for thirty (30) days to allow NBC and/or NBCi to make an
offer to purchase such interest or such assets. If the Company shall have
negotiated exclusively and in good faith and shall have failed to reach an
agreement with NBC and/or NBCi, as a group or individually, regarding such
purchase within thirty (30) days after NBC and NBCi shall have received such
written notice from the Company, then the Company may sell such interest or
assets to such Competitor on terms which are no less favorable to the Company
than those last offered to NBC and NBCi.
6.2.2 In the event that the Company receives a bona fide offer
from any entity other than an NBC Competitor or NBCi Competitor to purchase a
twenty per cent (20%) or greater interest in the Company or all or substantially
all of the Company's assets, the Company will provide written notice to NBC and
NBCi that an offer has been received within ten (10) business days of receiving
such offer, including the identity of the bona fide offeror and a complete
description of the terms and conditions of such offer. If either NBC or NBCi
desire to make a competitive offer, then the Company shall negotiate exclusively
and in good faith with NBC or NBCi, as the case may be, the terms of such
competitive offer. If the Company shall have negotiated exclusively and in good
faith and shall have failed to reach an agreement with NBC and/or NBCi, as a
group or individually, regarding such competitive offer within thirty (30) days
after NBC and NBCi shall have received such written notice, then the Company may
sell such interest or assets to such entity on terms which are no less favorable
to the Company than those last offered to NBC and NBCi.
21
6.3 Amendment. Sections 6.1 and 6.2 and this Section 6.3 may not be
---------
amended without the written consent of NBC and NBCi.
6.4 Remedies. Upon the breach of any covenant, representation or
--------
warranty which would have a material adverse effect on the business of the
Company and which cannot be cured within a reasonable period of time, or upon
bankruptcy, liquidation or insolvency of the Company, or upon the failure to
make mandatory redemptions of Preferred Stock as set forth in the Company's
Articles of Incorporation within a reasonable period of time, Purchasers shall
have the right to elect up to one (1) additional member to the Board of
Directors of the Company and the Holders and Founders hereby agree to vote their
shares of capital stock in the Company to increase the size of the Board of
Directors in order to accommodate such additional member.
6.5 Amendment of Articles of Incorporation. The Company and all
--------------------------------------
parties to this Agreement hereby agree to amend and restate the Company's Third
Amended and Restated Articles of Incorporation as set forth in Exhibit A
---------
attached hereto as soon as reasonably practicable after the date of this
Agreement and each of the Investors, the Existing Holders and the Founders
agrees to execute on the date hereof the shareholder consent to such effect
attached hereto as Exhibit B.
---------
7. MisceLlaneous.
-------------
7.1 Governing Law. This Agreement shall be governed by and construed
-------------
under the laws of the State of California as applied to agreements among
California residents entered into and to be performed entirely within
California. Any legal action or other legal proceeding relating to this
Agreement or the enforcement of any provision of this Agreement may be brought
or otherwise commenced in any state or federal court located in the County of
Santa Clara, California. Each party to this Agreement: (a) expressly and
irrevocably consents and submits to the jurisdiction of each state and federal
court located in the County of Santa Clara, California (and each appellate court
located in the State of California) in connection with any such legal
proceeding; (b) agrees that each state and federal court located in the County
of Santa Clara, California shall be deemed to be a convenient forum; and (c)
agrees not to assert (by way of motion, as a defense or otherwise), in any such
legal proceeding commenced in any state or federal court located in the County
of Santa Xxxxx, any claim that such party is not subject personally to the
jurisdiction of such court, that such legal proceeding has been brought in an
inconvenient forum, that the venue of such proceeding is improper or that this
Agreement or the subject matter of this Agreement may not be enforced in or by
such court.
7.2 Waiver of Jury Trial. Each party hereto hereby waives, to the
--------------------
fullest extent permitted by applicable state law, any right that it may have to
a trial by jury in respect of any claim, action, lawsuit or proceeding
(collectively, "Litigation") directly or indirectly arising out of, under, or in
connection with this Agreement, whether grounded in tort, contract or otherwise.
Each party hereto (i) certifies that no representative, agent, attorney of the
other party has represented, expressly or otherwise, that the other party would
not, in the event of Litigation, seek to enforce the foregoing waiver and (ii)
acknowledges that it and the other parties hereto
22
have been induced to enter into this Agreement by, among other things, the
mutual waivers and certifications in this subsection.
7.3 Survival. The representations, warranties, covenants, and
--------
agreements made herein shall survive any investigation made by any Holder and
the closing of the transactions contemplated hereby. All statements as to
factual matters contained in any certificate or other instrument delivered by or
on behalf of the Company pursuant hereto in connection with the transactions
contemplated hereby shall be deemed to be representations and warranties by the
Company hereunder solely as of the date of such certificate or instrument.
7.4 Successors and Assigns. Except as otherwise expressly provided
----------------------
herein, this Agreement, and the rights and obligations hereunder, may not be
assigned by any party hereto to a third party (excluding any subsidiary, parent,
affiliate, general partner, limited partner or acquiror of such party hereto)
without the prior written consent of the Company and the holders of at least a
majority in interest of the Shares. The provisions hereof shall inure to the
benefit of, and be binding upon, the successors, permitted assigns, heirs,
executors, and administrators of the parties hereto; provided, however, that
prior to the receipt by the Company of written notice of the transfer of any
Registrable Securities specifying the full name and address of the transferee,
the Company may deem and treat the person listed as the holder of such shares in
its records as the absolute owner and holder of such shares for all purposes,
including the payment of dividends or any redemption price.
7.5 Separability. In case any provision of the Agreement shall be
------------
invalid, illegal, or unenforceable, the validity, legality, and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
7.6 Amendment and Waiver.
--------------------
7.6.1 Except as otherwise expressly provided, this Agreement may
be amended or modified only upon the written consent of the Company and the
holders of at least two-thirds (2/3) of the Shares (including any Common Stock
of the Company issued upon the conversion of the Shares).
7.6.2 Except as otherwise expressly provided, the obligations of
the Company and the rights of the Holders under this Agreement may be waived
only with the written consent of the Company and the holders of at least two-
thirds (2/3) of the Shares (including any Common Stock of the Company issued
upon the conversion of the Shares).
7.7 Delays or Omissions. It is agreed that no delay or omission to
-------------------
exercise any right, power, or remedy accruing to any party hereto, upon any
breach, default or noncompliance of any other party hereto under this Agreement
shall impair any such right, power, or remedy, nor shall it be construed to be a
waiver of any such breach, default or noncompliance, or any acquiescence
therein, or of any similar breach, default or noncompliance thereafter
occurring. It is further agreed that any waiver, permit, consent, or approval
of any kind or character on any party's part of any breach, default or
noncompliance under the Agreement or any waiver on such party's part of any
provisions or conditions of this Agreement must be in
23
writing and shall be effective only to the extent specifically set forth in such
writing. All remedies, either under this Agreement, by law, or otherwise
afforded to the parties hereto, shall be cumulative and not alternative.
7.8 Notices. All notices required or permitted hereunder shall be
-------
in writing and shall be deemed effectively given: (i) upon personal delivery to
the party to be notified, (ii) upon confirmed receipt of telex or facsimile by
the intended recipient, (iii) five (5) days after having been sent by registered
or certified mail, return receipt requested, postage prepaid, or (iv) one (1)
day after deposit with a nationally recognized overnight courier, specifying
next day delivery, with written verification of receipt. All communications
shall be sent to the party to be notified at the address as set forth on the
signature pages hereof or at such other address as such party may designate by
ten (10) days advance written notice to the other parties hereto.
7.9 Titles and Subtitles. The titles of the sections and
--------------------
subsections of this Agreement are for convenience of reference only and are not
to be considered in construing this Agreement.
7.10 Pronouns. All pronouns contained herein and any variations
--------
thereof shall be deemed to refer to the masculine, feminine or neuter, singular
or plural, as the identity of the parties hereto may require.
7.11 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
7.12 Entire Agreement. This Agreement constitutes the full and
----------------
entire understanding and agreement between the parties regarding the matters set
forth herein, and supersedes and cancels any prior agreements.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
24
IN WITNESS WHEREOF, the parties hereto have executed this Second Amended
and Restated Investors' Rights Agreement as of the date set forth in the first
paragraph hereof.
COMPANY:
Telocity, Inc.
By: /s/ Xxxxx X. Xxxx
--------------------------------
Xxxxx Xxxx, President and CEO
00000 Xxxxx Xx Xxxx Xxxxxxxxx
Xxx Xxxx, XX 00000
SIGNATURES TO INVESTORS' RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Second Amended
and Restated Investors' Rights Agreement as of the date set forth in the first
paragraph hereof.
EXISTING HOLDERS: AUGUST CAPITAL, L.P., for itself and as
nominee for August Capital Strategic Partners,
L.P. and August Capital Associates, L.P.
/s/ Xxxxx Xxxxx By: August Capital Management, L.L.C., its
----------------------------
Xxxxx Xxxxx general partner
c/o Telocity, Inc. By: /s/ Xxxx X. Xxxxxx
------------------------------
10355 North De Anza Boulevard Xxxx X. Xxxxxx, Member
Xxx Xxxx, XX 00000
/s/ Xxxxxxx Xxxxxxx 0000 Xxxx Xxxx Xxxx, Xxxxx 000
----------------------------
Xxxxxxx Xxxxxxx Xxxxx Xxxx, XX 00000
c/o Telocity, Inc. Bessemer Venture Partners IV L.P.
00000 Xxxxx Xx Xxxx Xxxxxxxxx By: Deer IV & Co. L.L.C, General Partner
Xxx Xxxx, XX 00000
/s/ Xxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------- ----------------------------
Xxxxx Xxxxxx Xxxxxx X. Xxxxxxxx, Manager
c/o Telocity, Inc. Bessemer Venture Partners IV L.P.
00000 Xxxxx Xx Xxxx Xxxxxxxxx By: Deer IV & Co. L.P.
Xxx Xxxx, XX 00000
/s/ Xxxx X. Xxxxxxx
----------------------------
Xxxx Xxxxxxx Bessemer Venture Partners IV L.P.
By: Deer IV & Co. L.P.
0000 Xxxxxxxxx Xxxx
Xxxxxx, XX 00000
By: ___________________________
Xxxxxx X. Xxxxxxxx, Manager
0000 Xxx Xxxxxx Xx., Xxxxx 000
Xxxxxxxx, XX 00000
EXISTING HOLDERS (cont'd)
Comdisco, Inc. Bessemer Venture Partners IV L.P.
SIGNATURES TO INVESTORS' RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Second Amended
and Restated Investors' Rights Agreement as of the date set forth in the first
paragraph hereof.
Comdisco, Inc. Bessec Ventures IV L.P.
By: Deer IV & Co. L.L.C., General Partner
By: /s/ Xxxxx X.Xxxx By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------- ----------------------------
Name: Xxxxx X. Xxxx, President Xxxxxx X. Xxxxxxxx, Manager
------------------------
Its:__________________________ Address: 0000 Xxx Xxxxxx Xx., Xxx. 000
Xxxxxxxx, XX 00000
Xxxx, Xxxxxxx Ventures V, L.P.
0000 X. Xxxxx Xxxx By: Fifth MDV Partners, L.L.C.,
Xxxxxxxx, XX 00000 Its: General Partner
Attn: Xxxx Xxxxxx
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------
Stanford University Xxxxxxxx X. Xxxxxx, Member
By: /s/ Xxxxx Xxxxxx Address: 0000 Xxxx Xxxx Xxxx, Xxxxx 000
--------------------------
Xxxxx Xxxx, XX 00000
Name: Xxxxx Xxxxxx
------------------------
Xxxx, Xxxxxxx Ventures V, L.P.
Its: Gift Administrator, Stanford as nominee for MDV Entrepreneurs' Network
Management Co. On Behalf of the Fund II (A), L.P. and MDV Entrepreneurs'
Board of Trustees Of the Xxxxxx Network Fund II (B), X.X.
Xxxxxxxx Junior University By: Fifth MDV Partners, L.L.C.,
Its: General Partner
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000 By: /s/ Xxxxxxxx X. Xxxxxx
Attn: Xxxxx Xxxxxx ----------------------------
Xxxxxxxx X. Xxxxxx, Member
Xxxxxxxxxx & Xxxxx Address: 0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
By:___________________________
Its:__________________________
Address:______________________
EXISTING HOLDERS (cont'd)
SIGNATURES TO INVESTORS' RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Second Amended
and Restated Investors' Rights Agreement as of the date set forth in the first
paragraph hereof.
Xxxx Xxxx Xxxx & Freidenrich LLP RRE Investors, L.P.
By: /s/ Xxxxxxxx X. Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
------------------------------ ---------------------------
Xxxxxxxx X. Xxxxxxxxx, Partner Xxxxxx X. Xxxxxxx
000 Xxxxxxxx Xxxxxx Xxx: Member, General Partner
Xxxx Xxxx, XX 00000-0000
X. Xxxxxx and Xxxxx X. Xxxxxxxx as Address: RRE Investors
trustees of the Xxxxxxxx Family Trust 000 Xxxx 00xx Xxxxxx
Dated 11/6/89 Xxx Xxxx, XX 00000
By: /s/ H. Xxxxxx Xxxxxxxx RRE Investors Fund, L.P.
---------------------------------
By: /s/ Xxxxxx X. Xxxxxxx
Name: H. Xxxxxx Xxxxxxxx ---------------------------
------------------------------- Xxxxxx X. Xxxxxxx
Its: Trustee Its: Member, General Partner
Address: 00 Xxxxxxxx Xxxxxx Address: X.X. Xxx 00000 XXX
Xxxxxxxx, XX 00000 West Bay Road
Grand Cayman, Cayman
Island B.W.I.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxxxx
Address: 000 Xxxxx Xxx
Xxxxx Xxxx, XX 00000
Labe Revocable Trust, dated
October 15, 1998
By: /s/ [ILLEGIBLE]
---------------------------------
Its:_________________________________
Address:_____________________________
_____________________________
IN WITNESS WHEREOF, the parties hereto have executed this Second Amended
and Restated Investors' Rights Agreements as of the date set forth in the first
paragraph hereof.
FOUNDERS:
/s/ Xxxxxx Xxxxxxxxx
-------------------------
Xxxxxx Xxxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxxxx
SIGNATURES TO INVESTORS' RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Second Amended
and Restated Investors' Rights Agreements as of the date set forth in the first
paragraph hereof.
FOUNDER:
/s/ Xxxxx X. Xxxxx
--------------------------
Xxxxx X. Xxxxx
CONSENT OF SPOUSE
I, Xxxx X. Xxxxx, spouse of Xxxxx X. Xxxxx, acknowledge that I have read
the Agreement and that I know its contents. I am aware that by its provisions
there are certain restrictions imposed upon the sale or other disposition during
my spouse's lifetime of the Common Shares of the Company which my spouse owns. I
hereby agree that my interest, if any, in the Common Shares subject to the
Agreement shall be irrevocably bound by the Agreement and further understand and
agree that any community property interest I may have in the Common Shares shall
be similarly bound by the Agreement.
/s/ Xxxx X. Xxxxx
-----------------------
[Signature]
XXXX X. XXXXX
-----------------------
[Print Name]
SIGNATURES TO INVESTORS' RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Second Amended
and Restated Investors' Rights Agreements as of the date set forth in the first
paragraph hereof.
FOUNDER:
/s/ Xxxxxxx Xxxxxxx
------------------------
Xxxxxxx Xxxxxxx
CONSENT OF SPOUSE
I, Xxxxxxxx Xxxxxxx, spouse of Xxxxxxx Xxxxxxx, acknowledge that I have
read the Agreement and that I know its contents. I am aware that by its
provisions there are certain restrictions imposed upon the sale or other
disposition during my spouse's lifetime of the Common Shares of the Company
which my spouse owns. I hereby agree that my interest, if any, in the Common
Shares subject to the Agreement shall be irrevocably bound by the Agreement and
further understand and agree that any community property interest I may have in
the Common Shares shall be similarly bound by the Agreement.
/s/ Xxxxxxxx Xxxxx
------------------------
[Signature]
Xxxxxxxx Xxxxx
------------------------
[Print Name]
SIGNATURES TO INVESTORS' RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Second Amended
and Restated Investors' Rights Agreements as of the date set forth in the first
paragraph hereof.
FOUNDER:
/s/ Xxxxx Xxxxxx
-----------------------
Xxxxx Xxxxxx
CONSENT OF SPOUSE
I, Xxx Xxxxxx, spouse of Xxxxx Xxxxxx, acknowledge that I have read the
Agreement and that I know its contents. I am aware that by its provisions there
are certain restrictions imposed upon the sale or other disposition during my
spouse's lifetime of the Common Shares of the Company which my spouse owns. I
hereby agree that my interest, if any, in the Common Shares subject to the
Agreement shall be irrevocably bound by the Agreement and further understand and
agree that any community property interest I may have in the Common Shares shall
be similarly bound by the Agreement.
/s/ Xxx Xxxxxx
------------------------
[Signature]
Xxx Xxxxxx
------------------------
[Print Name]
SIGNATURES TO INVESTORS' RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Second Amended
and Restated Investors' Rights Agreements as of the date set forth in the first
paragraph hereof.
INVESTORS:
NBC Internet, Inc. ValueVision International, Inc.
By: /s/ [ILLEGIBLE]
-------------------------------
By: /s/ Xxxxxx X. Xxxxxxx Name: [ILLEGIBLE]
---------------------------------- -----------------------------
Name: Xxxxxx X. Xxxxxxx Its: Vice Chairman
-----------------------------
Its: President and Chief Operating Officer
Address: 0000 Xxxxx Xxx Xx.
Address: 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000 Xxxx Xxxxxxx, XX 00000
Xxx Xxxxxxxxx, XX 00000
Attention: President
National Broadcasting Company, Inc. GE Capital Equity Investments, Inc.
By: /s/ Xxxxxx Yudhovitz By: /s/ Xxxxxx X Xxxxx
---------------------------------- --------------------------------
Name: Xxxxxx Yudhovitz Name: Xxxxxx X. Xxxxx
-------------------------------- ------------------------------
Its: President, NBC Interactive Media Its: Senior Vice President
Address: 00 Xxxxxxxxxxx Xxxxx Address: 000 Xxxx Xxxxx Xxxx
Xxx Xxxx, XX 00000 Xxxxxxxx, XX 00000
Attention: President, NBC Interactive
Media
SIGNATURES TO INVESTORS' RIGHTS AGREEMENT
INVESTORS:
Xxxx, Xxxxxxx Ventures V, L.P. Bessemer Venture Partners IV LP
By: Fifth MDV Partners, L.L.C.,
Its: General Partner
By: _______________________________
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------
Xxxxxxxx X. Xxxxxx, Member Name: _____________________________
Address: 0000 Xxxx Xxxx Xxxx, Xxxxx 000 Xxx: ______________________________
Xxxxx Xxxx, XX 00000
Address: 0000 Xxx Xxxxxx Xx., Xxx.
Xxxx, Xxxxxxx Ventures V, L.P. 407 Xxxxxxxx, XX 00000
as nominee for MDV Entrepreneurs'
Network Fund II (A), L.P. and MDV
Entrepreneurs' Network Fund II (B), X.X. Xxxxxx Ventures IV L.P.
By: Fifth MDV Partners, L.L.C.,
Its: General Partner By: _______________________________
By: /s/ Xxxxxxxx X. Xxxxxx Name: _____________________________
-----------------------------------
Xxxxxxxx X. Xxxxxx, Member
Its: ______________________________
Address: 0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000 Address: 0000 Xxx Xxxxxx Xx., Xxx.
000 Xxxxxxxx, XX 00000
AUGUST CAPITAL, L.P., for itself and as Xxxx, Xxxxxxx Ventures X-X, L.P.
nominee for August Capital Strategic By: Fifth MDV Partners, L.L.C.,
Partners, L.P. and August Capital Its: General Partner
Associates, L. P.
By: August Capital Management, L.L.C., By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------
its general partner Xxxxxxxx X. Xxxxxx, Member
Address: 0000 Xxxx Xxxx Xxxx, Xxxxx
Xx: /s/ Xxxx X. Xxxxxx 240 Menlo Park, CA 94025
-----------------------------------
Xxxx X. Xxxxxx, Member
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
SIGNATURES TO INVESTORS' RIGHTS AGREEMENT
INVESTORS:
Stanford University Comdisco, Inc.
By: /s/ Xxxxx Xxxxxx By: _____________________________________
----------------------------------------------
Name: Xxxxx Xxxxxx Name: ___________________________________
--------------------------------------------
Gift Administrator, Stanford Management Co.
On Behalf of the Board of Trustees
Of the Xxxxxx Xxxxxxxx Junior University
Its: -------------------------------------------- Its: ____________________________________
0000 Xxxx Xxxx Xxxx 0000 X. Xxxxx Xxxx
Xxxxx Xxxx, XX 00000 Xxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
By: /s/ Xxxxx Xxxx By: _____________________________________
----------------------------------------------
Xxxxx Xxxx Xxxx Xxxxxxx
c/o Telocity, Inc. 0000 Xxxxxxxxx Xxxx
00000 Xxxxx Xx Xxxx Xxxxxxxxx Xxxxxx, XX 00000
Xxx Xxxx, XX 00000
By: /s/ Xxxxx Xxxxx
----------------------------------------------
Xxxxx Xxxxx
c/o Telocity, Inc.
00000 Xxxxx Xx Xxxx Xxxxxxxxx
Xxx Xxxx, XX 00000
SIGNATURES TO INVESTORS' RIGHTS AGREEMENT
INVESTORS:
RRE Investors Fund, L.P.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxx
Its: Member, General Partner
Address: P.O. Box 31106 SMB
West Bay Road
Grand Cayman, Cayman Islands
B.W.I.
RRE Investors, L.P. Labe Revocable Trust, dated October 15,
1998
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Xxxxxx X. Xxxxxxx
By: /s/ [ILLEGIBLE]
----------------------------------
Its: Member, General Partner Name: ________________________________
Address: RRE Investors Its: TRUSTEE
--------------------------------
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000 Address: X.X Xxx 000000
Xxxxxxxx, XX 00000
By: /s/ Xxxxxx X. Xxxxxxxxx By: /s/ Xxxxx Xxxxxx
------------------------------ ----------------------------------
Xxxxxx X. Xxxxxxxxx Xxxxx Xxxxxx
Address: 000 Xxxxx Xxx
Xxxxx Xxxx, XX 00000 c/o Telocity, Inc.
00000 Xxxxx Xx Xxxx Xxxxxxxxx
Xxx Xxxx, XX 00000
SIGNATURES TO INVESTORS' RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Second Amended
and Restated Investors' Rights Agreement as of the date set forth in the first
paragraph hereof.
INVESTORS:
Xxxx Xxxx Xxxx & Freidenrich LLP Besstel LLC
By:________________________________ By: /s/ Xxxxxx X. Xxxxxxx
----------------------------
Xxxxxxxx X. Xxxxxxxxx, Partner
Name: Xxxxxx X. Xxxxxxx
--------------------------
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000-0000 Its: Authorized Signatory
---------------------------
c/o Bessemer Partners & Co.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
Fax: (000) 000-0000
Phone: (000) 000-0000
Quantum Industrial Partners LDC SFM Domestic Investments LLC
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxx
-------------------------------- ----------------------------
Name: Xxxxxxx X. Xxxx Name: Xxxxxxx X. Xxxx
-------------------------------- ----------------------------
Its: Attorney-In-Fact Its: Attorney-In-Fact
-------------------------------- ----------------------------
Curacao Corporation Company N.V. x/x Xxxxx Xxxx Xxxxxxxxxx XXX
Xxxx Xxxxxxxxxx 0 888 Seventh Avenue, Suite 3300
Willemstad, Curacao Xxx Xxxx, XX 00000
Netherlands Antilles Attn: Xxxxxxx X. Xxxx
Fax: (000) 000-00-000-000 Phone: (000) 000-0000
Phone: (000) 000-00-000-000 Fax: (000) 000-0000
Copy to: Xxxxx Fund Management LLC
-------
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
INVESTORS:
SIGNATURE TO INVESTORS' RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Second Amended
and Restated Investors' Rights Agreement as of the date set forth in the first
paragraph hereof.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxx Xxxxxx
---------------------------------- -----------------------------
Xxxxxx X. Xxxxxx Xxxxx Xxxxxx
Address: Address:
By: /s/ Xxxxxxx X. Xxxxx Xx. By: /s/ J. Xxxxx Xxxxxx
---------------------------------- -----------------------------
Xxxxxxx X. Xxxxx Xx. J. Xxxxx Xxxxxx
Address: Address:
By: /s/ Xxxxxx X. Xxxx By: /s/ Xxxxxx X. Xxxxxxx, XX
---------------------------------- -----------------------------
Xxxxxx X. Xxxx Xxxxxx X. Xxxxxxx, XX
Address: Address:
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxx
---------------------------------- -----------------------------
Xxxxx X. Xxxxxxxx Xxxxxx X. Xxxxx
Address: 00 Xxxxx Xxxx Xxxxxxx:
Xxxxxx XX 00000
By: /s/ Xxxxxxx Xxxxxx, III By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------- -----------------------------
Xxxxxxx Xxxxxx, III Xxxxxxx X. Xxxxxxxxx
Address: Address:
INVESTORS:
SIGNATURE TO INVESTORS' RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Second Amended
and Restated Investors' Rights Agreement as of the date set forth in the first
paragraph hereof.
By: /s/ Xxxxxx X. Xxxxxxxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxxxxxxx
Address: 00 Xxxxxxxxxx Xxx
Xxx, XX 00000
SIGNATURE TO INVESTORS' RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Second Amended
and Restated Investors' Rights Agreement as of the date set forth in the first
paragraph hereof.
INVESTORS:
By: _________________________________ By:________________________________
Xxxxxx X. Xxxxxxxxxxxx Xxxxxxx X. Xxxxx
Address: Address: Xxxxxxxxxx & Xxxxx
0 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
(000) 000-0000
By: /s/ Elise X.X. Xxxxx By: /s/ Xxxx X. Xxxxxxx
---------------------------------- --------------------------------
Elise X.X. Xxxxx Xxxx X. Xxxxxxx
Address: Xxxxxxxxxx & Xxxxx Address: Xxxxxxxxxx & Xxxxx
0000 Xxxxxxxxxxxxx Xxxxxx XX 56 Desert Highlands
Suite 300 00000 Xxxx Xxxxx Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
(000) 000-0000 (000) 000-0000
By: /s/ Xxxxxxx Xxxxxxxxxx By: /s/ Xxxx X. Xxxxx
---------------------------------- --------------------------------
Xxxxxxx Xxxxxxxxxx Xxxx X. Xxxxx
Address: Xxxxxxxxxx & Xxxxx Address: Xxxxxxxxxx & Xxxxx
0000 Xxxxxxxxxxxxx Xxxxxx XX 0000 Xxxxxxxxxxxxx Xxxxxx XX
Xxxxx 000 Xxxxx 000
Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
(000) 000-0000 (000) 000-0000
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------- --------------------------------
Xxxxxxx X. Xxxxx Xxxxx X. Xxxxxxxx
Address: Xxxxxxxxxx & Xxxxx Address: Xxxxxxxxxx & Xxxxx
0000 Xxxxxxxxxxxxx Xxxxxx XX 0000 Xxxxxxxxxxxxx Xxxxxx XX
Xxxxx 000 Xxxxx 000
Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
(000) 000-0000 (000) 000-0000
SIGNATURE TO INVESTORS' RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Second Amended
and Restated Investors' Rights Agreement as of the date set forth in the first
paragraph hereof.
GCWF Investment Partners
By:__________________________________
Xxxxxxxx X. Xxxxxxxxx
By: /s/ Xxxxxxx Xxxxx
--------------------------------
Xxxxxxx Xxxxx, President and c/o Gray Xxxx Xxxx & Freidenrich LLP
Chief Financial Officer 000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000-0000
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000-0000
