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EXHIBIT 10.3
INFORMATICA CORPORATION
SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
This Second Amended and Restated Investor Rights Agreement (the
"Agreement") is entered into as of this 2nd day of June, 1997, by and among
Informatica Corporation, a California corporation (the "Company"), those parties
to the Amended and Restated Investor Rights Agreement, dated as of July 25, 1997
(the "Rights Agreement"), listed in Exhibit A hereto (the " Prior Investors")
and the persons and entities listed in Exhibit B hereto (the "Series D
Investors" and collectively with the Prior Investors as the "Investors").
RECITALS
1. The Company and the Prior Investors are parties to the Rights
Agreement, which provides at Section 9 thereof for certain rights of first
refusal in favor of certain holders of Registrable Securities of the Company set
forth therein with respect to proposed new issuances by the Company of its
equities securities (or rights to acquire such equity securities) and which
provides at Section 5(j) thereof for certain limitations on subsequent
registration rights for new issuances of securities of the Company.
2. The Company is contemplating the offering to all or certain of the
Series D Investors of up to 2,275,000 shares of its Series D Preferred Stock
(the "Series D Shares") pursuant to that certain Series D Preferred Stock
Purchase Agreement dated as of the date hereof (the "Purchase Agreement").
3. The Company and the Investors wish to enter into this Agreement to
(i) waive the rights of first refusal and limitations on subsequent registration
rights set forth in the Rights Agreement and (ii) amend and supersede the Rights
Agreement so as to modify the registration rights, first refusal rights and
additional covenants contained therein to be as set forth herein and to extend
such rights along with the information rights and visitation rights to the
Series D Investors.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained and in the Purchase Agreement, all parties hereto agree as
follows:
1. CERTAIN DEFINITIONS. All capitalized terms used and not otherwise
defined herein shall have the meanings given them in the Purchase Agreement. As
used in this Agreement, the following terms shall have the following respective
meanings:
(a) "Commission" shall mean the Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act.
(b) "Conversion Stock" means the Common Stock of the Company (the
"Common Stock") issued or issuable pursuant to conversion of the Preferred
Stock.
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(c) "Holder" shall mean (i) any Investor holding Registrable
Securities, and (ii) any person holding Registrable Securities to whom the
rights under this Agreement have been transferred in accordance with Section
5(i) hereof.
(d) "Initiating Holders" shall mean any Holders who in the
aggregate hold not less than 50% of the Registrable Securities.
(e) "Preferred Stock" shall mean the Series D Shares issued or
issuable pursuant to the Purchase Agreement, the Series C Preferred Stock of the
Company issued pursuant to that certain Series C Purchase Agreement dated as of
July 25, 1996, or issuable pursuant to those Warrants issued in accordance with
that certain Loan and Warrant Agreement dated as of May 7, 1996, and the Series
A and Series B Preferred Stock of the Company issued pursuant to that certain
Series A and Series B Preferred Stock Purchase Agreement dated as of September
7, 1995 or that certain Note issued in accordance with such agreement.
(f) "Registrable Securities" means the Conversion Stock and any
Common Stock issued or issuable in respect of the Conversion Stock upon any
stock split, dividend, recapitalization, or similar event, or any Common Stock
otherwise issuable with respect to the Conversion Stock; provided, however, that
shares of Conversion Stock or other securities shall only be treated as
Registrable Securities if and so long as they have not been (a) sold to or
through a broker or dealer or underwriter in a public distribution or a public
securities transaction, or (b) sold in a single transaction exempt from the
registration and prospectus delivery requirements of the Securities Act, so that
all transfer restrictions and restrictive legends with respect thereto are
removed prior to any such sale.
(g) The terms "register," "registered" and "registration" refer
to a registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
(h) "Registration Expenses" shall mean all expenses, except as
otherwise stated below, incurred by the Company in complying with Sections 5(a),
5(b) and 5(c) hereof, including, without limitation, all registration,
qualification and filing fees, printing expenses, escrow fees, fees and
disbursements of counsel for the Company, blue sky fees and expenses, 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) and the fees and disbursements of one
counsel for all Holders.
(i) "Restricted Securities" shall mean the securities of the
Company required to bear the legend set forth in Section 3 hereof.
(j) "Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
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(k) "Securities Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended, or any similar federal statute and the rules and
regulations of the Commission thereunder, all as the same shall be in effect at
the time.
(l) "Selling Expenses" shall mean all underwriting discounts,
selling commissions and stock transfer taxes applicable to the securities
registered by the Holders and, except as set forth under "Registration
Expenses," all fees and disbursements of counsel for any Holder.
2. RESTRICTIONS ON TRANSFERABILITY. The Preferred Stock, the Conversion
Stock and any other securities issued in respect of the Preferred Stock or the
Conversion Stock upon any stock split, stock dividend, recapitalization, merger,
consolidation or similar event shall not be sold, assigned, transferred or
pledged except upon the conditions specified in this Agreement, which conditions
are intended to ensure compliance with the provisions of the Securities Act. The
Investors will cause any proposed purchaser, assignee, transferee, or pledgee of
any such shares held by the Investors to agree to take and hold such securities
subject to the provisions and upon the conditions specified in this Agreement.
3. RESTRICTIVE LEGEND. Each certificate representing (i) the Preferred
Stock, (ii) the Conversion Stock, and (iii) any other securities issued in
respect of the Preferred Stock or the Conversion Stock upon any stock split,
stock dividend, recapitalization, merger, consolidation or similar event, shall
(unless otherwise permitted by the provisions of Section 4 below) be stamped or
otherwise imprinted with a legend in substantially the following form (in
addition to any legend required under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN
CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. SUCH SHARES
MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL
REASONABLY ACCEPTABLE TO IT STATING THAT SUCH SALE OR TRANSFER
IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS OF SAID ACT.
COPIES OF THE AGREEMENT RESTRICTING THE TRANSFER OF THESE SHARES
MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER
OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE
CORPORATION AT THE PRINCIPAL EXECUTIVE OFFICES OF THE
CORPORATION.
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Each Investor and/or Holder consents to the Company making a notation on its
records and giving instructions to any transfer agent of the Preferred Stock or
the Common Stock in order to implement the restrictions on transfer established
in this Agreement.
4. NOTICE OF PROPOSED TRANSFER. The holder of each certificate
representing Restricted Securities by acceptance thereof agrees to comply in all
respects with the provisions of this Section 4. Prior to any proposed sale,
assignment, transfer or pledge of any Restricted Securities (other than (i) a
transfer not involving a change in beneficial ownership, (ii) in transactions
involving the distribution without consideration of Restricted Securities by the
Investor to any of its partners, or retired partners, or to the estate of any of
its partners or retired partners, (iii) in transactions involving the transfer
without consideration of Restricted Securities by the Investor during his
lifetime by way of gift or on death by will or intestacy, (iv) in transactions
involving the transfer or distribution of Restricted Securities by a corporation
to any subsidiary, parent or affiliated corporation of such corporation, or (v)
in transactions in compliance with Rule 144 promulgated under the Securities Act
("Rule 144"), unless there is in effect a registration statement under the
Securities Act covering the proposed transfer, the holder thereof shall give
written notice to the Company of such holder's intention to effect such
transfer, sale, assignment or pledge. Each such notice shall describe the manner
and circumstances of the proposed transfer, sale, assignment or pledge in
sufficient detail, and shall be accompanied, at such holder's expense by either
(i) an unqualified written opinion of legal counsel who shall be, and whose
legal opinion shall be, reasonably satisfactory to the Company addressed to the
Company, to the effect that the proposed transfer of the Restricted Securities
may be effected without registration under the Securities Act, or (ii) a "no
action" letter from the Commission to the effect that the transfer of such
securities without registration will not result in a recommendation by the staff
of the Commission that action be taken with respect thereto, whereupon the
holder of such Restricted Securities shall be entitled to transfer such
Restricted Securities in accordance with the terms of the notice delivered by
the holder to the Company. Each certificate evidencing the Restricted Securities
transferred as above provided shall bear, except if such transfer is made
pursuant to Rule 144, the appropriate restrictive legend set forth in Section 3
above, except that such certificate shall not bear such restrictive legend if,
in the opinion of counsel for such holder and the Company, such legend is not
required in order to establish compliance with any provision of the Securities
Act.
5. REGISTRATION.
(a) Demand Registration.
(i) Demand for Registration. In case the Company shall
receive from Initiating Holders a written request that the Company effect any
registration, qualification or compliance with respect to not less than forty
(40) percent of the shares of Preferred Stock or Conversion Stock, the Company
will:
a. promptly give written notice of the proposed
registration, qualification or compliance to all other Holders; and
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b. as soon as practicable, use its best efforts to
effect such registration, qualification or compliance (including, without
limitation, appropriate qualification under applicable blue sky or other state
securities laws and appropriate compliance with applicable regulations issued
under the Securities Act and any other governmental requirements or regulations)
as may be so requested and as would permit or facilitate the sale and
distribution of all or such portion of such Registrable Securities as are
specified in such request, together with all or such portion of the Registrable
Securities of any Holder or Holders joining in such request as are specified in
a written request received by the Company within twenty (20) days after receipt
of such written notice from the Company; provided, however, that the Company
shall not be obligated to take any action to effect any such registration,
qualification or compliance pursuant to this Section 5(a):
(1) In any particular jurisdiction in which the
Company would be required to execute a general consent to service of process in
effecting such registration, qualification or compliance unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Securities Act;
(2) Prior to the earlier of June 2, 1999 or six
months after the effective date of the Company's first bona fide, firm
commitment underwriting pursuant to a registration statement filed pursuant to
the Securities Act, the public offering price of which is not less than $9.00
per share (adjusted to reflect subsequent stock dividends, stock splits,
combinations or other recapitalizations) and the proceeds thereof (net of
underwriting commissions and offering expenses) equal or exceed $18,000,000;
(3) If the Company, within ten (10) days of the
receipt of the request of the Initiating Holders, gives notice of its bona fide
intention to effect the filing of a registration statement with the Commission
within ninety (90) days of receipt of such request;
(4) During the period starting with the date of
filing of, and ending on the date 180 days immediately following the effective
date of, any registration statement pertaining to securities of the Company,
provided that the Company is actively employing in good faith all reasonable
efforts to cause such registration statement to become effective;
(5) After the Company has effected two such
registrations pursuant to this Section 5(a)(i);
(6) Within twelve (12) months after the Company
has effected such a registration pursuant to this Section 5(a)(i); or
(7) If the Company shall furnish to such
Initiating Holders a certificate signed by the President of the Company stating
that in the good faith judgment of the Board of Directors of the Company (the
"Board") it would be seriously detrimental to the Company or its shareholders
for a registration statement to be filed at the date filing would be required,
in which case the Company's obligation to use its best efforts to
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register, qualify or comply under this Section 5(a) shall be deferred for a
period not to exceed 120 days from the date of receipt of written request from
the Initiating Holders, provided that the Company may not exercise this deferral
right more than once during any twelve (12) month period.
Subject to the foregoing clauses (1) through (7), the Company shall file a
registration statement covering the Registrable Securities so requested to be
registered as soon as practicable after receipt of the request or requests of
the Initiating Holders.
(ii) Underwriting. Any registration pursuant to Section
5(a) shall be firmly underwritten by an underwriter of national recognition. In
the event that a registration pursuant to Section 5(a) is for a public offering
involving an underwriting, the Company shall so advise the Holders as part of
the notice given pursuant to Section 5(a)(i)a., and the right of any Holder to
registration pursuant to Section 5(a) shall be conditioned upon such Holder's
participation in such underwriting arrangements, and the inclusion of such
Holder's Registrable Securities in the underwriting to the extent requested
shall be limited to the extent provided herein.
The Company shall (together with all Holders proposing to distribute
their securities through such underwriting) enter into an underwriting agreement
in customary form with the managing underwriter selected for such underwriting
by a majority in interest of the Initiating Holders, but subject to the
Company's reasonable approval. Notwithstanding any other provision of this
Section 5(a), if the managing underwriter advises the Initiating Holders in
writing that marketing factors require a limitation of the number of shares to
be underwritten, then the Company shall so advise all holders of Registrable
Securities, and the number of shares of Registrable Securities that may be
included in the registration and underwriting shall be allocated among all
Holders in proportion, as nearly as practicable, to the respective amounts of
Registrable Securities held by such Holders at the time of filing the
registration statement. No Registrable Securities excluded from the underwriting
by reason of the underwriter's marketing limitation shall be included in such
registration. To facilitate the allocation of shares in accordance with the
above provisions, the Company or the underwriters may round the number of shares
allocated to any Holder to the nearest 100 shares.
If any Holder of Registrable Securities disapproves of the terms of the
underwriting, such person may elect to withdraw therefrom by written notice to
the Company, the managing underwriter and the Initiating Holders. The
Registrable Securities and/or other securities so withdrawn shall also be
withdrawn from registration, and such Registrable Securities shall not be
transferred in a public distribution prior to 180 days after the effective date
of such registration, or such other shorter period of time as the underwriters
may require. If the underwriter has not limited the number of Registrable
Securities to be underwritten, the Company may include securities for its own
account (or for the account of other shareholders) in such registration if the
underwriter so agrees and if the number of Registrable Securities that would
otherwise have been included in such registration and underwriting will not
thereby be limited.
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(b) Company Registration.
(i) Notice of Registration. If at any time or from time to
time the Company shall determine to register any of its equity securities,
either for its own account or for the account of a security holder or holders,
other than (A) a registration relating solely to employee benefit plans, or (B)
a registration relating solely to a Rule 145 transaction, the Company will:
a. promptly give to each Holder written notice
thereof; and
b. include in such registration (and any related
qualification under blue sky laws or other compliance), and in any underwriting
involved therein, all the Registrable Securities specified in a written request
or requests, made within thirty (30) days after receipt of such written notice
from the Company by any Holder.
(ii) Underwriting. If the registration of which the
Company gives notice is for a registered public offering involving an
underwriting, the Company shall so advise the Holders as a part of the written
notice given pursuant to Section 5(b)(i)a. In such event the right of any Holder
to registration pursuant to Section 5(b) shall be conditioned upon such Holder's
participation in such underwriting, and the inclusion of Registrable Securities
in the underwriting shall be limited to the extent provided herein.
All Holders proposing to distribute their securities through such
underwriting shall (together with the Company and the other holders distributing
their securities through such underwriting) enter into an underwriting agreement
in customary form with the managing underwriter selected for such underwriting
by the Company. Notwithstanding any other provision of this Section 5(b), if the
managing underwriter determines that marketing factors require a limitation of
the number of shares to be underwritten, the managing underwriter may limit the
number of the Registrable Securities to be included in such registration (i) in
the case of the Company's initial public offering, to zero, and (ii) in the case
of any other offering, to an amount no less than 25% of all shares to be
included in such offering; provided however, that (x) any such limitation or
"cutback" shall be first applied to all shares proposed to be sold in such
offering other than for the account of the Company which are not Registrable
Securities, and (y) notwithstanding clause (x), in no event shall any shares
being sold by a shareholder exercising a demand registration right similar to
that granted in Section 5(a) be excluded from such offering. The Company shall
so advise all Holders and other holders distributing their securities through
such underwriting, and the number of shares of Registrable Securities or other
securities that may be included in the registration and underwriting shall be
first allocated among all the Holders in proportion, as nearly as practicable,
to the respective amounts of Registrable Securities held by such Holder at the
time of filing of a registration statement. To facilitate the allocation of
shares in accordance with the above provisions, the Company may round the number
of shares allocated to any Holder or holder to the nearest 100 shares.
If any Holder disapproves of the terms of any such underwriting, he may
elect to withdraw therefrom by written notice to the Company and the managing
underwriter. Any securities excluded or withdrawn from such underwriting shall
be withdrawn from such
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registration, and shall not be transferred in a public distribution prior to 180
days after the effective date of the registration statement thereto, or such
other shorter period of time as the underwriters may require.
(iii) Right to Terminate Registration. The Company shall
have the right to terminate or withdraw any registration initiated by it under
this Section 5(b) prior to the effectiveness of such registration whether or not
any Holder has elected to include securities in such registration.
(c) Registration on Form S-3.
(i) If any Holder or Holders of not less than thirty
percent (30%) of the Registrable Securities request that the Company file a
registration statement on Form S-3 (or any successor form to Form S-3) for a
public offering of the shares of Registrable Securities, the reasonably
anticipated aggregate price to the public of which would equal or exceed Five
Hundred Thousand dollars ($500,000), and the Company is a registrant entitled to
use Form S-3 to register the Registrable Securities for such an offering, the
Company shall use its best efforts to cause such Registrable Securities to be
registered for the offering on such form and to cause such Registrable
Securities to be qualified in such jurisdictions as such Holder or Holders may
reasonably request; provided, however, that the Company shall not be required to
effect more than one registration pursuant to this Section 5(c) in any twelve
(12) month period. The Company shall inform other Holders of the proposed
registration and offer them the opportunity to participate. In the event the
registration is proposed to be part of a firm commitment underwritten public
offering, the substantive provisions of Section 5(a)(ii) shall be applicable to
each such registration initiated under this Section 5(c).
(ii) Notwithstanding the foregoing, the Company shall not
be obligated to take any action pursuant to this Section 5(c):
a. in any particular jurisdiction in which the
Company would be required to execute a general consent to service of process in
effecting such registration, qualification or compliance unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Securities Act;
b. if the Company, within ten (10) days of the
receipt of the request of such initiating Holders, gives notice of its bona fide
intention to effect the filing of a registration statement with the Commission
within ninety (90) days of receipt of such request;
c. during the period starting with the date of
filing of, and ending on the date 180 days immediately following the effective
date of, any registration statement pertaining to securities of the Company,
provided that the Company is actively employing in good faith all reasonable
efforts to cause such registration statement to become effective; or
d. if the Company shall furnish to such Holder or Holders
a certificate signed by the President of the Company stating that in the good
faith judgment of the
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Board it would be seriously detrimental to the Company or its shareholders for
registration statements to be filed at the date filing would be required, in
which case the Company's obligation to use its best efforts to file a
registration statement shall be deferred for a period not to exceed 120 days
from the receipt of the request to file such registration by such Holder or
Holders, provided that the Company may not exercise this deferral right more
than once during any twelve (12) month period.
(d) Expenses of Registration. All Registration Expenses incurred
in connection with (i) two registrations pursuant to Section 5(a) and (ii) all
registrations pursuant to Section 5(b) shall be borne by the Company. Unless
otherwise stated, all expenses incurred in connection with the registrations
pursuant to Section 5(c) of this Agreement and all other Selling Expenses
relating to securities registered on behalf of the Holders shall be borne by the
Holders pro rata on the basis of the number of shares so registered.
Notwithstanding the foregoing, the Company shall not be required to effect or to
pay any Registration Expenses of any registration begun pursuant to Sections
5(a) or 5(c), the request of which has been subsequently withdrawn by Holders of
a number of shares of Registrable Securities such that there are no Holders of
Registrable Securities intending to participate in the registration sufficient
to request such a registration, in which case such expenses shall be borne by
the Holders of securities (including Registrable Securities) requesting or
causing such withdrawal; provided further, however, that if at the time of such
withdrawal, the Holders have learned of a material adverse change in the
condition, business or prospects of the Company from that known to the Holders
at the time of their request, then the Holders shall not be required to pay any
of such Registration Expenses and shall retain their rights pursuant to Sections
5(a) and 5(c).
(e) Registration Procedures. In the case of each registration,
qualification or compliance effected by the Company pursuant to this Agreement,
the Company will keep each Holder advised in writing as to the initiation of
each registration, qualification and compliance and as to the completion
thereof. At its expense the Company will:
(i) Prepare and file with the Commission a registration
statement with respect to such securities and use its best efforts to cause such
registration statement to become and remain effective for at least one hundred
twenty (180) days or until the distribution described in the registration
statement has been completed, whichever first occurs; and
(ii) Furnish to the Holders participating in such
registration and to the underwriters of the securities being registered such
reasonable number of copies of the registration statement, preliminary
prospectus, final prospectus and such other documents as such Holders and
underwriters may reasonably request in order to facilitate the public offering
of such securities.
(iii) 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.
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(iv) 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 of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(v) 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.
(f) Indemnification.
(i) The Company will indemnify each Holder of Registrable
Securities included in a registration pursuant to this Agreement, each of its
officers and directors and partners, and each person controlling such Holder
within the meaning of Section 15 of the Securities Act, with respect to which
registration, qualification or compliance has been effected pursuant to this
Agreement, and each underwriter, if any, and each person who controls any
underwriter within the meaning of Section 15 of the Securities Act, against all
expenses, claims, losses, damages or liabilities (or actions in respect
thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other document, or any
amendment or supplement thereto, incident to any such registration,
qualification or compliance, or based on any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, or any violation by the Company of the
Securities Act, the Securities Exchange Act, state securities law or any rule or
regulation promulgated under the such laws applicable to the Company in
connection with any such registration, qualification or compliance, and the
Company will reimburse each such Holder, each of its officers, directors and
partners, and each person controlling such Holder, each such underwriter and
each person who controls any such underwriter, for any legal and any other
expenses reasonably incurred, as such expenses are incurred, in connection with
investigating, preparing or defending any such claim, loss, damage, liability or
action, provided that the Company will not be liable in any such case to the
extent that any such claim, loss, damage, liability or expense arises out of or
is based on any untrue statement or omission or alleged untrue statement or
omission, made in reliance upon and in conformity with written information
furnished to the Company by an instrument duly executed by any Holder,
controlling person or underwriter and stated to be specifically for use therein;
provided, however, that the foregoing indemnity agreement is subject to the
condition that, insofar as it relates to any such untrue statement, alleged
untrue statement, omission or alleged omission made in a preliminary prospectus,
such indemnity agreement shall not inure to the benefit of any underwriter, or
any Holder, if there is no underwriter, if a copy of the final prospectus filed
with the Commission pursuant to its Rule 424(b) 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, and if such final prospectus cured the
untrue statement, alleged untrue statement, omission of alleged omission giving
rise to the loss, liability, claim or damage.
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(ii) Each Holder will, if Registrable Securities held by
such Holder are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company, each of
its directors and officers, each underwriter, if any, of the Company's
securities covered by such registration statement, each person who controls the
Company or such underwriter within the meaning of Section 15 of the Securities
Act, and each other such Holder, each of its officers, directors and partners
and each person controlling such Holder within the meaning of Section 15 of the
Securities Act, against all expenses, claims, losses, damages and liabilities
(or actions in respect thereof) arising out of or based on any untrue statement
(or alleged untrue statement) of a material fact contained in any such
registration statement, prospectus, offering circular or other document, or any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse the Company, such Holders, such directors, officers, partners,
persons, underwriters or control persons for any legal or any other expenses
reasonably incurred, as such expenses are incurred, in connection with
investigating, preparing or defending any such claim, loss, damage, liability or
action, in each case to the extent, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) is
made in such registration statement, prospectus, offering circular or other
document in reliance upon and in conformity with written information furnished
to the Company by an instrument duly executed by such Holder and stated to be
specifically for use therein. Notwithstanding the foregoing, the liability of
each Holder under this Section 5(f)(ii) shall be limited in an amount equal to
the net proceeds of the shares sold by such Holder, unless such liability arises
out of or is based on willful misconduct by such Holder. In no event will any
Holder be required to enter into any agreement or undertaking for the benefit of
the Company in connection with any registration under this Section 5 providing
for any indemnification or contribution obligations on the part of such Holder
greater than such Holder's obligations under this Section 5(f)(ii).
(iii) Each party entitled to indemnification under this
Section 5(f) (the "Indemnified Party") shall give notice to the party required
to provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not be
unreasonably withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Agreement unless the failure to
give such notice is materially prejudicial to an Indemnifying Party's ability to
defend such action, and provided further that the Indemnifying Party shall not
assume the defense for matters as to which representation of both the
Indemnifying Party and the Indemnified Party by the same counsel would be
inappropriate due to actual or potential differing interests between them, but
shall instead in such event pay the fees and costs of separate counsel for the
Indemnified Party. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation.
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(g) Information by Holder. The Holder or Holders of Registrable
Securities included in any registration shall furnish to the Company such
information regarding such Holder or Holders, the Registrable Securities held by
them and the distribution proposed by such Holder or Holders as the Company may
request in writing and as shall be required in connection with any registration,
qualification or compliance referred to in this Agreement.
(h) Rule 144 Reporting. With a view to making available the
benefits of certain rules and regulations of the Commission which may at any
time permit the sale of the Restricted Securities to the public without
registration, after such time as a public market exists for the Common Stock of
the Company, the Company agrees to use its best efforts to:
(i) Make and keep public information available, as those
terms are understood and defined in Rule 144, at all times after the effective
date that the Company becomes subject to the reporting requirements of the
Securities Act or the Securities Exchange Act;
(ii) File with the Commission in a timely manner all
reports and other documents required of the Company under the Securities Act and
the Securities Exchange Act (at any time after it has become subject to such
reporting requirements); and
(iii) So long as a Holder owns any Restricted Securities
to furnish to such Holder forthwith upon request a written statement by the
Company as to its compliance with the reporting requirements of said Rule 144
(at any time after 90 days after the effective date of the first registration
statement filed by the Company for an offering of its securities to the general
public) and of the Securities Act and the Securities Exchange Act (at any time
after it has become subject to such reporting requirements), a copy of the most
recent annual or quarterly report of the Company, and such other reports and
documents of the Company and other information in the possession of or
reasonably obtainable by the Company as the Holder may reasonably request in
availing itself of any rule or regulation of the Commission allowing the Holder
to sell any such securities without registration.
(i) Transfer of Registration Rights. The rights to cause the
Company to register securities granted Investors under Sections 5(a), 5(b) and
5(c) may be assigned to a transferee or assignee in connection with any transfer
or assignment of Registrable Securities by the Investor provided that: (i) such
transfer may otherwise be effected in accordance with applicable securities
laws, (ii) such assignee or transferee acquires at least 100,000 shares of
Registrable Securities held by the assignor or transferor (appropriately
adjusted for recapitalizations, stock splits and the like) (iii) written notice
is promptly given to the Company and (iv) such transferee agrees to be bound by
the provisions of this Agreement. Notwithstanding the foregoing, the rights to
cause the Company to register securities may be assigned to (A) any affiliated
partnership or constituent partner or retired partner of an Investor which is a
partnership, or (B) a family member or trust for the benefit of an Investor who
is an individual, provided written notice thereof is promptly given to the
Company and the transferee agrees to be bound by the provisions of this
Agreement.
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(j) Limitations on Subsequent Registration Rights. From and after
the date of this Agreement, the Company shall not, without the prior written
consent of Holders holding more than fifty percent (50%) of the Registrable
Securities, enter into any agreement with any holder or prospective holder of
any securities of the Company which would allow such holder or prospective
holder to (i) require the Company to effect a registration, prior to the date
set forth in Section 5(a)(i)b.(2) or (ii) include any securities in any
registration filed under Section 5(a) hereof, unless, under the terms of such
agreement, such holder or prospective holder may include such securities in any
such registration only to the extent that the inclusion of such securities will
not diminish the amount of Registrable Securities which are included in such
registration and includes the equivalent of Section 11 as a term.
(k) Termination of Registration Rights. The rights granted
pursuant to Section 5(a) of this Agreement shall terminate as to any Holder at
such time as such Holder (i) can sell all of his Registrable Securities pursuant
to Rule 144(k) promulgated under the Securities Act or (ii) can sell all of his
Registrable Securities pursuant to Rule 144 in any single ninety (90) day
period. The rights granted pursuant to Sections 5(a), 5(b) and 5(c) of this
Agreement shall terminate as to all Holders five (5) years after the
consummation of a bona fide, firm commitment underwriting pursuant to a
registration statement filed pursuant to the Securities Act, the public offering
price of which is not less than $9.00 per share (adjusted to reflect subsequent
stock dividends, stock splits, combinations or other recapitalizations) and the
proceeds thereof (net of underwriting commissions and offering expenses) equal
or exceed $18,000,000.
6. FINANCIAL INFORMATION.
(a) The Company will provide the following reports to each holder
of Preferred Stock and/or Conversion Stock:
(i) As soon as practicable after the end of each fiscal
year, and in any event within 90 days thereafter, consolidated balance sheets of
the Company, as of the end of such fiscal year, and consolidated statements of
operations and of cash flows and shareholders' equity of the Company, for such
year, prepared in accordance with generally accepted accounting principles, all
in reasonable detail and audited by independent public accountants of national
standing selected by the Company.
(b) The Company will provide the following reports to each holder
of at least One Hundred Thousand (100,000) shares of Preferred Stock and/or
Conversion Stock (appropriately adjusted for recapitalizations, stock splits and
the like):
(i) At least thirty days prior to the beginning of each
fiscal year, a budget and business plan adopted by the Board for the fiscal
year, and, as soon as prepared, any other budgets or revised budgets prepared by
the Company;
(ii) Within 30 days after the end of each quarterly
accounting period, an unaudited consolidated condensed balance sheet of the
Company, as of the end of each such monthly period, an unaudited consolidated
condensed statement of operations of the Company
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for such period and for the current fiscal year to date, prepared in accordance
with generally accepted accounting principles (other than for accompanying
notes), subject to changes resulting from year-end audit adjustment and a
comparison of the results of such quarterly accounting period to the budget
delivered under Section 6(b)(i) above.
(iii) Such other information relating to the financial
condition, business, prospects or corporate affairs of the Company as such
holder may from time to time request.
7. VISITATION AND INSPECTION.
(a) The Company will afford each holder of Preferred Stock and/or
Conversion Stock reasonable access during normal business hours to the Company's
accounting books and records and minutes of proceedings of the shareholders and
the Board and committees of the Board, and all information distributed to the
Board, for a purpose reasonably related to such holder's interests as a
shareholder of the Company.
(b) As long as Integral Capital Partners III, L.P. and Integral
Capital Partners International III, L.P. (collectively, "Integral") owns not
less than thirty percent (30%) of the shares of the Series C Preferred Stock of
the Company issued to it pursuant to that certain Series C Preferred Stock
Purchase Agreement dated as of July 25, 1996 (or an equivalent amount of Common
Stock issued upon conversion thereof), the Company shall permit a representative
of Integral to attend all meetings of the Board in a nonvoting observer capacity
and, in this respect, shall give such representative copies of all notices,
minutes, consents, and other materials that it provides to its directors;
provided, however, that such representative shall agree to hold in confidence
and trust and to act in a fiduciary manner with respect to all information so
provided; and, provided further, that the Company reserves the right to withhold
any information and to exclude such representative from any meeting or portion
thereof if access to such information or attendance at such meeting could
adversely affect the attorney-client privilege between the Company and its
counsel or would result in disclosure of trade secrets to such representative or
if Integral or its representative is a direct competitor of the Company.
(c) As long as WPG Enterprise Fund III, L.P., Xxxxx, Xxxx & Xxxxx
Venture Associates IV, L.P., and Xxxxx, Xxxx & Xxxxx Venture Associates IV
Cayman, L.P. (collectively, "Xxxxx Xxxx") owns not less than thirty percent
(30%) of the shares of the Series D Preferred Stock of the Company issued to it
pursuant to that certain Series D Preferred Stock Purchase Agreement dated as of
June 2, 1997 (or an equivalent amount of Common Stock issued upon conversion
thereof), the Company shall permit a representative of Xxxxx Xxxx to attend all
meetings of the Board in a nonvoting observer capacity and, in this respect,
shall give such representative copies of all notices, minutes, consents, and
other materials that it provides to its directors; provided, however, that such
representative shall agree to hold in confidence and trust and to act in a
fiduciary manner with respect to all information so provided; and, provided
further, that the Company reserves the right to withhold any information and to
exclude such representative from any meeting or portion thereof if access to
such information or attendance at such meeting could adversely affect the
attorney-client privilege between the Company and its counsel or would result in
disclosure of trade secrets to such representative or if Xxxxx Xxxx or its
representative is a direct competitor of the Company.
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8. CONFIDENTIALITY. Notwithstanding the foregoing, the Company is not
required to disclose trade secrets or confidential information pursuant to
Section 6 or Section 7 if not covered by an appropriate non-disclosure
agreement.
9. RIGHT OF FIRST REFUSAL.
(a) The Company hereby grants to each holder of at least 100,000
shares of Preferred Stock and/or Conversion Stock (appropriately adjusted for
recapitalizations, stock splits and the like) (each such holder referred to
herein as a "Qualified Investor"), the right of first refusal to purchase its
Pro Rata Share of New Securities (as defined in this Section 9) which the
Company may, from time to time, propose to sell and issue. A "Pro Rata Share,"
for purposes of this right of first refusal, is the ratio that (i) the sum of
the number of shares of Common Stock then held by each Qualified Investor and
the number of shares of Common Stock issuable upon conversion of the Preferred
Stock then held by such Qualified Investor bears to (ii) the sum of the total
number of shares of Common Stock then outstanding and the number of shares of
Common Stock issuable upon exercise or conversion of all then outstanding
securities exercisable for or convertible into, directly or indirectly, Common
Stock.
(b) Except as set forth below, "New Securities" shall mean any
securities issued after the date hereof including any shares of capital stock of
the Company, including Common Stock and any series of preferred stock, whether
now authorized or not, and rights, options or warrants to purchase said shares
of Common Stock or preferred stock, and securities of any type whatsoever that
are, or may become, convertible into or exchangeable for said shares of Common
Stock or preferred stock. Notwithstanding the foregoing, "New Securities" does
not include (i) the Conversion Stock, (ii) Common Stock offered to the public
generally pursuant to a registration statement under the Securities Act in
connection with the Company's initial public offering, (iii) securities issued
pursuant to the acquisition of another corporation by the Company by merger,
purchase of all or substantially all of the assets or other reorganization
whereby the Company or its shareholders own more than fifty percent (50%) of the
voting power of the surviving or successor corporation, (iv) shares of the
Common Stock or related options, warrants or other rights to purchase such
Common Stock issued after the date hereof to employees, officers and directors
of, and consultants to, the Company, pursuant to a stock grant, option plan, or
purchase plan or other employee stock incentive program or other arrangements
approved by the Board and a majority of the then-outstanding shares of capital
stock of the Company, (v) stock issued pursuant to any rights, agreements or
convertible securities, including without limitation options and warrants, so
long as the rights of first refusal established by this Section 9 applied with
respect to the initial sale or grant by the Company of such rights, agreements
or convertible securities, or (vi) stock issued in connection with any stock
split, stock dividend or recapitalization by the Company.
(c) In the event the Company proposes to undertake an issuance of
New Securities, it shall give each Qualified Investor written notice of its
intention, describing the amount and type of New Securities, and the price and
terms upon which the Company proposes to issue the same. Each Qualified Investor
shall have fifteen (15) business days from the date of receipt of any such
notice to agree to purchase up to its respective Pro Rata Share of such New
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16
Securities for the price and upon the terms specified in the notice by giving
written notice to the Company and stating therein the quantity of New Securities
to be purchased.
(d) In the event all of the New Securities are not elected to be
purchased by Qualified Investors within fifteen (15) business days after the
notice pursuant to Section 9(c) above, the Company shall have ninety (90) days
thereafter to sell the New Securities not elected to be purchased by Qualified
Investors at the price and upon the terms no more favorable to the purchasers of
such securities than specified in the Company's notice. In the event the Company
has not sold the New Securities within said ninety (90) day period, the Company
shall not thereafter issue or sell any New Securities without first offering
such securities in the manner provided above.
(e) The right of first refusal hereunder is not assignable except
by each of such Qualified Investors to any party who acquires at least 100,000
shares of the Preferred Stock and/or Conversion Stock (appropriately adjusted
for recapitalizations, stock splits and the like).
10. TERMINATION OF COVENANTS. The covenants set forth in Sections 6, 7
and 9 shall terminate and be of no further force or effect upon the consummation
of a bona fide, firm commitment underwriting pursuant to a registration
statement filed pursuant to the Securities Act, the public offering price of
which is not less than $9.00 per share (adjusted to reflect subsequent stock
dividends, stock splits, combinations or other recapitalizations) and the
proceeds thereof (net of underwriting commissions and offering expenses) equal
or exceed $18,000,000 or at such time as the Company is required to file reports
pursuant to Section 13 or 15(d) of the Securities Exchange Act, whichever shall
occur first.
11. STANDOFF AGREEMENT. In connection with the initial public
offering of the Company's securities, each Investor and Holder agrees, upon
request of the Company or the underwriters managing any underwritten offering of
the Company's securities, not to sell, make any short sale of, loan, grant any
option for the purchase of, or otherwise dispose of any Registrable Securities
of the Company (other than those included in the registration) without the prior
written consent of the Company or such underwriters, as the case may be, for
such period of time (not to exceed one hundred eighty (180) days) from the
effective date of such registration as may be requested by the underwriters,
provided that all officers and directors of the Company who own stock of or hold
options to purchase stock of the Company also agree to such restrictions. The
Investors and Holders agree that the Company may instruct its transfer agent to
place stop-transfer notations in its records to enforce the provisions of this
Section 11.
12. ADDITIONAL COVENANTS OF THE COMPANY.
(a) Reserved Employee Shares. The 2,633,740 shares of Common
Stock reserved for management, directors, employees and consultants (the
"Employee Shares") shall be issued from time to time under a Stock Option and
Restricted Stock Plan (the "Stock Plan") approved by the Board or such other
arrangements, contracts or plans as are reasonably recommended by management and
approved by the Board. The number of shares reserved for management, directors,
employees and consultants shall be increased to the extent that any of the
2,400,000 shares of Common Stock held by Xxxxxx Xxxxxxx and Xxxx Nesamoney as of
the date
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17
of this Agreement are repurchased by the Company upon termination of employment
or pursuant to the Company's right of first refusal. Unless otherwise agreed to
by a majority of the directors who are not then employees of the Company,
Employee Shares subject to options issued after the date hereof under the Stock
Plan or other approved plans will vest, until the option holder's employment
with or service to the Company terminates, over a four year period on terms no
more favorable than 2.1% at the end of the first month and on an equal monthly
basis thereafter, provided, however, that the first twelve (12) months vesting
shall occur only at the expiration of the first year of vesting, and not
monthly. Unless otherwise agreed to by a majority of the directors who are not
then employees of the Company, all officers, directors and employees of or
consultants to, the Company acquiring Employee Shares after the date hereof
other than pursuant to an option will execute a stock restriction agreement with
the Company under which the Company will retain the right to repurchase the
unvested shares, over a four-year vesting period which shall lapse on terms no
more favorable than 2.1% at the end of the first month and on an equal monthly
basis thereafter, for the original purchase price in the event the holder's
employment with or service to the Company terminates, provided, however, that
the first twelve (12) months vesting shall occur only at the expiration of the
first year of vesting, and not monthly. Pursuant to the option agreement or
restricted stock agreement, as the case may be, the Company shall retain a right
of first refusal with respect to all such Employee Shares subject to such
agreement (which right shall terminate and be of no further force or effect upon
the consummation of a firm commitment underwritten public offering or at such
time as the Company is required to file reports pursuant to Section 13 or 15(d)
of the Exchange Act, whichever shall first occur), and the holder shall agree to
a market standoff provision substantially identical to the market standoff
provision contained in Section 11 hereof.
13. DETERMINATION OF SHARE AMOUNTS AND PERCENTAGES. For the purposes of
determining the minimum holdings set forth in this Agreement, including without
limitation the minimum holdings pursuant to Sections 5(i), 6(b), 7(b), 9(a) and
9(e), the following rules shall govern:
(a) All shares held by entities affiliated with the holder shall
be deemed held by such holder, and any holder which is a partnership shall be
deemed to hold any shares of Preferred Stock and/or Conversion Stock originally
purchased by such holder and subsequently distributed to partners of such
holder, which have not been resold by such partners.
(b) When shares of Preferred Stock are counted together with
shares of Conversion Stock or shares of Common Stock, shares of Preferred Stock
shall be counted on an as-converted into Common Stock basis, and the term
"Conversion Stock" shall mean only the shares of Common Stock which have been
issued pursuant to conversion of Preferred Stock.
14. AMENDMENT. Any provision of this Agreement may be amended or 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 a majority of the Registrable Securities then
outstanding or deemed to be outstanding. Notwithstanding the foregoing, any
amendment or waiver of Section 7(b) or 7(c) above shall also require the written
consent of Integral or Xxxxx Xxxx, respectively. Any amendment or waiver
effected in accordance with this Section 14 shall be binding upon each Investor
and Holder of
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Registrable Securities at the time outstanding or deemed to be outstanding
(including securities into which such securities are convertible), each future
holder of all such securities, and the Company.
15. GOVERNING LAW. This Agreement and the legal relations between the
parties arising hereunder shall be governed by and interpreted in accordance
with the laws of the State of California. The parties hereto agree to submit to
the jurisdiction of the federal and state courts of the State of California with
respect to the breach or interpretation of this Agreement or the enforcement of
any and all rights, duties, liabilities, obligations, powers, and other
relations between the parties arising under this Agreement.
16. ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement between the parties regarding the matters set forth
herein. Except as otherwise expressly provided herein, the provisions hereof
shall inure to the benefit of, and be binding upon the successors, assigns,
heirs, executors and administrators of the parties hereto.
17. NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed effectively given
upon personal delivery to the party to be notified or three (3) days after
deposit with the United States mail, by registered or certified mail, postage
prepaid, addressed (a) if to a Series D Investor, at such investor's address as
set forth in Exhibit C attached hereto, or at such other address as such
investor shall have furnished to the Company in writing in accordance with this
Section 17, (b) if to any other holder of Preferred Stock or Conversion Stock,
at such address as such holder shall have furnished the Company in writing in
accordance with this Section 17, or, until any such holder so furnishes an
address to the Company, then to and at the address of the last holder thereof
who has so furnished an address to the Company, or (c) if to the Company, at its
principal office.
18. ATTORNEYS' FEES. In the event that any suit or action is instituted
to enforce any provision in this Agreement, the prevailing party shall be
entitled to all costs and expenses of maintaining such suit or action, including
reasonable attorney's fees.
19. 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.
20. BINDING EFFECT. Effective as of the first closing pursuant to the
Purchase Agreement and subject to Section 14 of the Rights Agreement, (i) the
Company and the Prior Investors hereby agree to waive the rights of first offer
set forth in Section 9 of the Rights Agreement and the limitations on subsequent
registrations rights set forth in Section 5(j) of the Rights Agreement with
respect to the issuance of Series D Shares to the Series D Investors; (ii) the
Rights Agreement shall be amended and restated in its entirety as herein
provided; and (iii) the Series D Investors shall become a party to the
Agreement.
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The foregoing agreement is hereby executed as of the date first above
written.
"COMPANY"
Informatica Corporation
a California corporation
Xxxxxx Xxxxxxx
Chief Executive Officer
"SERIES D INVESTORS"
BAY PARTNERS SBIC, L.P. DISCOVERY VENTURES I, L.L.C.
By:_________________________________ By:___________________________
Name:_______________________________ Name:_________________________
Title:______________________________ Title:________________________
PARVEST U.S. PARTNERS II, C.V. PARTECH U.S. PARTNERS III,
C.V.
By:_________________________________ By:___________________________
Name:_______________________________ Name:_________________________
Title:______________________________ Title:________________________
MULTINVEST LIMITED C.V. TRADEINVEST LIMITED
By:_________________________________ By:___________________________
Name:_______________________________ Name:_________________________
Title:______________________________ Title:________________________
20
PARTECH INTERNATIONAL PROFIT
SHARING PLAN
U/A Dated 1/1/92
FBO: Xxxxxx X. XxXxxxxx XXXXX XXXXXXX
By:_________________________________ By:___________________________
Name:_______________________________ Name:_________________________
Title:______________________________ Title:________________________
INTEGRAL CAPITAL PARTNERS III, L.P. INTEGRAL CAPITAL PARTNERS
INTERNATIONAL III, L.P.
By: Integral Capital Management III, L.P.
its General Partner By: Integral Capital
Management III, L.P.
its Investment General
Partner
By:_________________________________
a General Partner By:___________________________
a General Partner
WPG ENTERPRISE FUND III, X.X. XXXXX, XXXX & XXXXX VENTURE
ASSOCIATES IV, L.P.
By: WPG Venture Partners IV, L.L.C., By: WPG Venture Partners IV,
General Partner L.L.C.,
General Partner
By:_________________________________ By:___________________________
Xxxx Xxxxx, Managing Member Xxxx Xxxxx, Managing Member
XXXXX, XXXX & XXXXX VENTURE ______________________________
ASSOCIATES IV CAYMAN, L.P.
By: WPG Venture Advisers, Ltd., By:___________________________
Administrative General Partner Name:_________________________
Title:________________________
By:__________________________________
, Director
"PRIOR INVESTORS"
BAY PARTNERS SBIC, L.P. DISCOVERY VENTURES I, L.L.C.
By:_________________________________ By:___________________________
Name:_______________________________ Name:_________________________
Title:______________________________ Title:________________________
21
PARVEST U.S. PARTNERS II, C.V. PARTECH U.S. PARTNERS III,
C.V.
By:_________________________________ By:___________________________
Name:_______________________________ Name:_________________________
Title:______________________________ Title:________________________
MULTINVEST LIMITED C.V. TRADEINVEST LIMITED
By:_________________________________ By:___________________________
Name:_______________________________ Name:_________________________
Title:______________________________ Title:________________________
PARTECH INTERNATIONAL PARTECH INTERNATIONAL PROFIT
SHARING PLAN
U/A Dated 1/1/92
By: FBO: Xxxxxx X. XxXxxxxx
Name:
Title: By:
Name:
Title:
INTEGRAL CAPITAL PARTNERS III, L.P. INTEGRAL CAPITAL PARTNERS
INTERNATIONAL III, L.P.
By: Integral Capital Management III, L.P.
its General Partner By: Integral Capital
Management III, L.P.
its Investment General
Partner
By:__________________________________
a General Partner By:___________________________
a General Partner
XXXXX XXXXXXX ______________________________
By:_________________________________ By:___________________________
Name:_______________________________ Name:_________________________
Title:______________________________ Title:________________________
22
EXHIBIT A
Bay Partners SBIC, L.P.
00000 Xxxxx Xx Xxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Parvest U.S. Partners II C.V.
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Discovery Ventures I, LLC.
0000 Xxxx Xxxx Xxxx, Xxxxxxxx 0
Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Tradeinvest Limited
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Multinvest Limited C.V.
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Partech U.S. Partners III C.V.
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Partech International Profit Sharing Plan
U/A Dated 1/1/92
FBO: Xxxxxx X. XxXxxxxx
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Partech International
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxx Xxxxxxx
00000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Integral Capital Partners III, L.P.
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
23
Integral Capital Partners International III, L.P.
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
