EXHIBIT 10.19
COPPER MOUNTAIN NETWORKS, INC.
RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
This RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT (the "Agreement") is made
as of this 9th day of October, 1998, by and among COPPER MOUNTAIN NETWORKS,
INC., a California corporation (the "Company"), the holders of the Company's
Series D Preferred Stock listed on Exhibit A hereto (the "Investors"), and
XXXXXX X. XXXXXX, XXXX XXXXXXX and XXXXXXX XXXXXXX (the "Founders").
RECITALS
WHEREAS, the Investors are purchasing shares of the Company's Series D
Preferred Stock (the "Series D Preferred Stock") pursuant to that certain Series
D Preferred Stock Purchase Agreement (the "Purchase Agreement") dated as of the
date hereof, among the Investors and the Company;
WHEREAS, such Investors were induced by the Company to purchase the Series
D Preferred Stock in part by the agreement of the Company and the Founders to
enter into this Agreement; and
WHEREAS, the parties desire to enter into this Agreement in order to grant
rights of first refusal and co-sale to each Investor.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS.
(A) "Co-Sale Stock" shall mean shares of the Company's Common Stock or
Preferred Stock now owned or subsequently acquired by the Founders. The number
of shares of Co-Sale Stock owned by each Founder is set forth on Exhibit B,
which Exhibit shall automatically be amended from time to time to reflect
changes in the number of shares owned by the Founders.
(B) "Common Stock" shall mean the Company's Common Stock and shares of
Common Stock issued or issuable upon conversion of the Company's Preferred
Stock, or upon exercise of any options to acquire such shares.
(C) "Preferred Stock" shall mean the Company's Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock.
2. SALES BY FOUNDERS.
(A) NOTICE REQUIREMENT. If any Founder proposes to sell or transfer any
shares of Co-Sale Stock in one or more transactions, then such Founder shall
promptly give written notice
1.
(the "Notice") simultaneously to the Company and to each of the Investors at
least sixty (60) days prior to the closing of such sale or transfer. The Notice
shall contain the information required by Section 64(a) of the Company's Bylaws
(a copy of which is attached hereto as Exhibit C). In the event that the sale or
transfer is being made pursuant to the provisions of Sections 3(a) and 3(b)
hereof, the Notice shall state under which section (and subsection, if
applicable) the sale or transfer is being made.
(B) COMPANY'S RIGHT OF FIRST REFUSAL. Each Investor hereby acknowledges
and agrees that the Co-Sale Stock is subject to the Company's right of first
refusal set forth in Section 64 of the Company's Bylaws (a copy of which is
attached hereto as Exhibit C). Notwithstanding any contrary provision set forth
in Exhibit C attached hereto, the Company shall give written notice to the
Founder and to all Investors of its election whether or not to purchase Co-Sale
Stock pursuant to the terms of Exhibit C (the "Company Notice") and shall
complete its purchase of the Co-Sale Stock before the expiration of thirty (30)
days from the Company's receipt of the Notice.
(C) INVESTORS' RIGHT OF FIRST REFUSAL. If the Company does not purchase
the Co-Sale Stock available pursuant to its rights described under Section 2(b)
above, then each Investor shall then have the right, exercisable upon written
notice to the Founder (with a copy to the Company) within twenty (20) days of
the date of such Investors receipt of the Company Notice described in Section
2(b), to purchase its Pro Rata Share, as defined below, of such Co-Sale Stock on
the same terms and conditions set forth in the Notice.
(I) For purposes of this Section 2, each Investor's Pro Rata Share
shall be equal to the product obtained by multiplying (x) the aggregate number
of shares of Co-Sale Stock covered by the Notice (less shares purchased by the
Company pursuant to Section 2(b)) by (y) a fraction the numerator of which is
the number of shares of Common Stock owned by the Investor (on an as-if-
converted basis) at the time of the sale or transfer and the denominator of
which is the total number of shares of Common Stock owned by all of the
Investors (on an as-if-converted basis) at the time of the sale or transfer.
(II) Each Investor shall have a right of over allotment, as set forth
in this sub-Section (ii), to purchase shares of Co-Sale Stock not purchased by
the Company or other Investors. Upon any Investor's failure to purchase its Pro
Rata Share, the Founder shall promptly thereafter, via subsequent written notice
delivered within seven (7) calendar days (the "Subsequent Written Notice"),
inform each Investor that elects to purchase all the shares of Co-Sale Stock
available to it (a "Fully Exercising Investor") of any other Investor's failure
to do likewise. During the ten (10) calendar day period commencing after the
Subsequent Written Notice is delivered to each Fully Exercising Investor, each
Fully Exercising Investor may elect to purchase its "Additional Pro Rata Share"
(as defined below) of the shares of Co-Sale Stock for which other Investors were
entitled to subscribe but for which such Investors did not so subscribe, upon
the same terms which the Founder is proposing or is to dispose of such shares,
and the Founder shall sell such shares of Co-Sale Stock to the Fully Exercising
Investor pursuant to such proposed terms. Each Fully Exercising Investor's
"Additional Pro Rata Share" shall mean the ratio of the number of shares of
Common Stock of the Company (including the number of shares of Common Stock into
which the shares of Preferred Stock are then convertible) held by the Fully
Exercising Investor immediately prior to the Founder's proposed sale of the
shares
2.
of Co-Sale Stock divided by the total number of shares of Common Stock of
the Company (including the number of shares of Common Stock into which the
shares of Preferred Stock are then convertible) held by all Fully Exercising
Investors immediately prior to the Founder's proposed sale of the shares of Co-
Sale Stock.
(D) INVESTORS' CO-SALE RIGHT.
(I) Should the Investors and/or the Company fail to exercise their
respective rights to purchase all of the shares of Co-Sale Stock described in
the Notice issued pursuant to Section 2(a) following the exercise or expiration
of the rights of purchase described in Sections 2(b) and 2(c), then the Founder
will, via written notice, inform all Investors of such fact and permit the
Investors to participate in the sale of such shares of Co-Sale Stock at the same
price, and upon the same terms upon which the Founder is proposing or is to
dispose of such shares of Co-Sale Stock in accordance with the provisions of
Section 2(d)(ii) herein. Such written notice is hereinafter referred to as the
"Co-Sale Notice."
The Co-Sale Notice shall specify the number of shares of Co-Sale Stock to
be sold by the Founder, the sales price, the purchasers and all other terms of
sale, shall be titled "Co-Sale Notice" and shall be delivered to each Investor
within seven (7) calendar days after all Investors exercise or decline to
exercise their right of first refusal and over-allotment rights, as set forth in
this Section 2.
(II) Within seven (7) calendar days of its receipt of the Co-Sale
Notice, each Investor shall notify the Founder of such Investor's intent to sell
to the prospective purchaser of the Co-Sale Stock (or at the Investor's option
and demand, to the Founder, who hereby agrees to purchase in the event that a
direct sale from the Founder to the prospective purchaser is consummated) all or
any part of the Investor's "Co-Sale Allocation" pursuant to the terms the
Founder proposes to sell the Co-Sale Stock. For purposes of this section
2(d)(ii), an Investor's "Co-Sale Allocation" with respect to any single sale of
shares of Co-Sale Stock by a Founder shall be equal to the product obtained by
multiplying (x) the aggregate number of shares of Co-Sale Stock covered by the
Notice (as reduced by any purchases pursuant to Sections 2(b) or 2(c)) by (y) a
fraction the numerator of which is the number of shares of Common Stock owned by
the Investor at the time of the sale or transfer (on an as-if-converted basis)
and the denominator of which is the total number of shares of Common Stock owned
by the selling Founder and all of the Investors at the time of the sale or
transfer (on an as-if-converted basis).
(E) INVESTOR'S FAILURE TO NOTIFY. If, on or before the latest to occur of:
(i) twenty (20) calendar days after receipt by an Investor of the Company
Notice; (ii) ten (10) calendar days after receipt by an Investor of the
Subsequent Written Notice; and, (iii) seven (7) calendar days after receipt by
an Investor of the Co-Sale Notice, the Investor does not send notice to the
Founder of such Investor's intent to exercise its rights of first refusal or
right of co-sale pursuant to Sections 2(c) and (d), respectively, then the
Founder shall be free to sell shares of Co-Sale Stock to such prospective
purchasers, but only on the same terms and conditions as provided for in the
Notice; provided, however, that in the event such shares are not sold within
ninety (90) days of the date of the Notice, such shares of Co-Sale Stock shall
once again be subject to the right of first refusal and right of co-sale as
provided for herein.
3.
(F) DELIVERY REQUIREMENTS. Each Investor shall effect its participation in
any Founder's sale of shares of Co-Sale Stock by promptly delivering to the
Founder for transfer to the prospective purchaser:
(I) one or more certificates, properly endorsed for transfer, which
represent that number of shares of Preferred Stock which is at such time
convertible into the number of shares of Common Stock which such Investor elects
to sell; provided, however, that if the prospective purchaser objects to the
delivery of Preferred Stock in lieu of Common Stock, such Investor shall convert
such Preferred Stock into Common Stock and deliver such Common Stock in lieu
thereof. The Company agrees to make any such conversion concurrent with the
actual transfer of such shares to the purchaser; and,
(II) if necessary, an Assignment Separate from Certificate, via
facsimile or otherwise, which represents the Investor's Pro Rata Share, as that
term is defined in Section 2(c)(i) hereof, Additional Pro Rata Share, as that
term is defined in Section 2(c)(ii) hereof, or the Investor's Co-Sale
Allocation, as that term is defined in Section 2(d)(ii) hereof (the "Assignment
Separate from Certificate"). The Company agrees to effect any such assignment
concurrent with the actual transfer of such shares to the purchaser.
(G) TRANSFER OF CO-SALE STOCK; REMITTANCE OF SALE PROCEEDS. The stock
certificate or certificates that the Investor delivers to the Founder pursuant
to Section 2(f)(i) shall be transferred to the prospective purchaser in
consummation of the sale of the Co-Sale Stock pursuant to the terms and
conditions specified in the Notice, and the Founder shall concurrently therewith
remit to such Investor that portion of the sale proceeds to which such Investor
is entitled by reason of its participation in such sale. To the extent that any
prospective purchaser or purchasers prohibits such assignment or otherwise
refuses to purchase shares or other securities from an Investor exercising its
rights of co-sale hereunder, the Founder shall not sell to such prospective
purchaser or purchasers any shares of Co-Sale Stock unless and until,
simultaneously with such sale, the Founder shall purchase such shares or other
securities from such Investor.
3. EXEMPT TRANSFERS.
(A) Notwithstanding the foregoing, the rights of first refusal and the co-
sale rights of the Investors (the "Rights") shall not apply to (i) any pledge of
Co-Sale Stock made pursuant to a bona fide loan transaction with a financial
institution that creates a mere security interest, or (ii) any transfer to the
ancestors, descendants or spouse of a Founder or to trusts for the benefit of
such persons or such Founder and any subsequent transfer involving a
distribution from such trusts to such beneficiaries; provided that in the event
of any transfer made pursuant to one of the exemptions provided by clauses (i)
and (ii) above, (A) such Founder shall inform the Company and the Investors in
writing of such pledge or transfer prior to effecting it and (B) the pledgee or
transferee shall furnish the Company and the Investors with a written agreement
to be bound by and to comply with all provisions of Section 2 hereof.
Notwithstanding anything to the contrary in this Agreement, such transferred Co-
Sale Stock pursuant to the terms hereof shall remain "Co-Sale Stock" hereunder,
and such pledgee or transferee shall be treated as a " Founder" for purposes of
this Agreement.
4.
(B) The Company's right of first refusal described in Section 2(b) above
shall be subject to such limitations and conditions as set forth in Section 64
of the Company's Bylaws.
(C) This Agreement is subject to, and shall in no manner limit the right
which the Company may have to repurchase securities from the Founders provided
that any repurchases by the Company shall remain subject to any limitations in
the Company's Amended and Restated Articles of Incorporation.
4. PROHIBITED TRANSFERS.
(A) In the event that a Founder should sell any Co-Sale Stock in
contravention of the co-sale rights of each Investor under this Agreement (a
"Prohibited Transfer"), each Investor, in addition to such other remedies as may
be available at law, in equity or hereunder, shall have the put option provided
below, and such Founder shall be bound by the applicable provisions of such
option.
(B) In the event of a Prohibited Transfer, each Investor shall have the
right to sell to such Founder the type and number of shares of Common Stock
equal to the number of shares each Investor would have been entitled to transfer
to the purchaser under Section 2(d) hereof had the Prohibited Transfer been
effected pursuant to and in compliance with the terms hereof. Such sale shall be
made on the following terms and conditions:
(I) The price per share at which the shares are to be sold to such
Founder shall be equal to the price per share paid by the purchaser to the
Founder in such Prohibited Transfer. The Founder shall also reimburse each
Investor for any and all fees and expenses, including legal fees and expenses,
incurred pursuant to the exercise or the attempted exercise of the Investor's
rights under Section 2(d).
(II) Within ninety (90) days after the later of the dates on which
the Investor (a) received notice of the Prohibited Transfer or (b) otherwise
became aware of the Prohibited Transfer, each Investor shall, if exercising the
option created hereby, deliver to the Founder the certificate or certificates
representing shares to be sold, each certificate to be properly endorsed for
transfer.
(III) The Founder shall, upon receipt of the certificate or
certificates for the shares to be sold by an Investor, pursuant to this Section
4(b), pay the aggregate purchase price therefor and the amount of reimbursable
fees and expenses, as specified in Section 4(b)(i), in cash or by other means
acceptable to the Investor.
(C) Notwithstanding the foregoing, any attempt by a Founder to transfer Co-
Sale Stock in violation of Section 2(b) hereof shall be voidable at the option
of the Company, and any attempt by a Founder to transfer Co-Sale Stock in
violation of Sections 2(c) or 2(d) hereof shall be voidable at the option of a
majority in interest of the Investors if, with respect to a transfer in
violation of Section 2(d), a majority in interest of the Investors does not
elect to exercise the put option set forth in this Section 4. The Company
agrees it will not effect such a transfer nor will it treat any alleged
transferee as the holder of such shares without the written consent of a
majority in interest of the Investors.
5.
5. LEGEND.
(A) Each certificate representing shares of Co-Sale Stock now or hereafter
owned by the Founders or issued to any person in connection with a transfer
pursuant to Section 3(a) hereof shall be endorsed with the following legend:
"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 BY AND AMONG THE SHAREHOLDER, THE COMPANY
AND CERTAIN HOLDERS OF STOCK OF THE COMPANY. COPIES OF SUCH
AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE
SECRETARY OF THE COMPANY."
(B) The Founders agree that the Company may instruct its transfer agent to
impose transfer restrictions on the shares represented by certificates bearing
the legend referred to in Section 5(a) above to enforce the provisions of this
Agreement and the Company agrees to promptly do so. The legend shall be removed
upon termination of this Agreement.
6. MISCELLANEOUS.
(A) CONDITIONS TO EXERCISE OF RIGHTS. Exercise of the Rights under this
Agreement shall be subject to and conditioned upon, and each Founder and the
Company shall use their best efforts to assist, each other party hereto in,
compliance with applicable laws.
(B) GOVERNING LAW. This Agreement, and the rights of the parties hereto,
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.
(C) AMENDMENT. Any provision of this Agreement may be amended and the
observance thereof may be waived (either generally or in a particular instance
and either retroactively or prospectively), only by the written consent of (i)
as to the Company, only by the Company, (ii) as to the Investors, by persons
holding at least at least a majority in interest of the Series D Preferred
Stock, voting as a separate class, and (iii) as to the Founders, by persons
holding at least a majority in interest of the Common Stock held by the Founders
and their assignees.
(D) ENTIRE AGREEMENT; ASSIGNMENT OF RIGHTS. This Agreement constitutes the
entire agreement between the parties relative to the specific subject matter
hereof. Any previous agreement among the parties relative to the specific
subject matter hereof is superseded by this Agreement. This Agreement and the
rights and obligations of the parties hereunder shall inure to the benefit of,
and be binding upon, their respective successors, assigns and legal
representatives.
(E) TERM. Notwithstanding anything herein to the contrary, the Rights held
by the Investors with respect to Co-Sale Stock shall terminate upon the closing
of a firm commitment
6.
underwritten public offering pursuant to an effective registration statement
under the Securities Act of 1933, as amended, covering the offer and sale of the
Company's Common Stock.
(F) 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) when sent by confirmed telex or facsimile if sent
during normal business hours of the recipient; if not, then on the next business
day, (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 or addresses as set forth on the signature
page hereof or at such other address or addresses as such party may designate by
ten (10) days advance written notice to the other parties hereto.
(G) SEVERABILITY. In the event one or more of the provisions of this
Agreement should, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provisions of this Agreement, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein.
(H) ATTORNEYS' FEES. In the event that any dispute among the parties to
this Agreement should result in litigation, the prevailing party in such dispute
shall be entitled to recover from the losing party all fees, costs and expenses
of enforcing any right of such prevailing party under or with respect to this
Agreement, including without limitation, such reasonable fees and expenses of
attorneys and accountants, which shall include, without limitation, all fees,
costs and expenses of appeals.
(I) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(J) The exercise or non-exercise of the rights of the Company or the
Investors hereunder to participate in one or more sales of a Founder's shares of
Co-Sale Stock made by the Founder shall not adversely affect the Company's or
such Investor's rights to participate in subsequent sales of any such shares of
Co-Sale Stock to the terms hereof.
(K) Without limiting the rights of each party hereto to pursue all other
legal and equitable rights available to such party for any other party's failure
to perform its obligations under this Agreement, each such party acknowledges
and agrees that the remedy at law for any failure to perform obligations
hereunder would be inadequate and all such parties shall be entitled to specific
performance, injunctive relief or other equitable remedies in the event of any
such failure.
7.
The foregoing Right of First Refusal and Co-Sale Agreement is hereby
executed as of the date first above written.
COMPANY:
COPPER MOUNTAIN NETWORKS, INC.
By: /s/ XXXXXXX XXXXXXX
__________________________________________
Its: President and Chief Executive Officer
FOUNDERS:
/s/ XXXXXX X. XXXXXX
_____________________________________
Xxxxxx X. Xxxxxx
/s/ XXXX XXXXXXX
_____________________________________
Xxxx Xxxxxxx
/s/ XXXXXXX XXXXXXX
_____________________________________
Xxxxxxx Xxxxxxx
INVESTORS:
TCV II, V.O.F.
a Netherlands Antilles General Partnership
By: Technology Crossover Management II, L.L.C.,
Its: Investment General Partner
By: /s/ XXXXXX X. XXXXXX
__________________________________
Xxxxxx X. Xxxxxx
Chief Financial Officer
8.
TECHNOLOGY CROSSOVER VENTURES II, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II, L.L.C.
Its: General Partner
By: /s/ XXXXXX X. XXXXXX
_____________________________________
Xxxxxx X. Xxxxxx
Chief Financial Officer
TCV II (Q), L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II, L.L.C.
Its: General Partner
By: /s/ XXXXXX X. XXXXXX
_____________________________________
Xxxxxx X. Xxxxxx
Chief Financial Officer
TCV II STRATEGIC PARTNERS, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II, L.L.C.
Its: General Partner
By: /s/ XXXXXX X. XXXXXX
_____________________________________
Xxxxxx X. Xxxxxx
Chief Financial Officer
TECHNOLOGY CROSSOVER VENTURES II, C.V.
a Netherlands Antilles Limited Partnership
By: Technology Crossover Management II, L.L.C.
Its: Investment General Partner
By: /s/ XXXXXX X. XXXXXX
_____________________________________
Xxxxxx X. Xxxxxx
Chief Financial Officer
JULIET CHALLENGER, INC.
By: /s/ XXXXXX X. XxXXXXXXX
_____________________________________
Xxxxxx X. XxXxxxxxx
Vice President
9.
XXXXX X. XXXXXXX, XXXXX XXXXXXXX XXXXXXX AND
X.X. XXXXXXXXXXXX, TRUSTEES OF THE XXXXX X.
XXXXXXX TRUST U/A DATED NOV. 18, 1985
By: /s/ X.X. XXXXXXXXXXXX
_____________________________________
X.X. Xxxxxxxxxxxx, Trustee
X.X. XXXXXXXXXXXX AND XXXXXX X. XXXXXX,
TRUSTEES, U/A/T DATED 12/30/76 FOR CHILDREN
OF JULIET XXX XXXXXXX XXXXXXX
By: /s/ X.X. XXXXXXXXXXXX
_____________________________________
X.X. Xxxxxxxxxxxx, Trustee
By: /s/ XXXXXX X. XXXXXX
_____________________________________
Xxxxxx X. Xxxxxx, Trustee
X.X. XXXXXXXXXXXX AND XXXXXX X. XXXXXX,
TRUSTEES U/A/T DATED 12/30/76 FOR CHILDREN
OF XXXXX XXX XXXXXXX, XX.
By: /s/ X.X. XXXXXXXXXXXX
_____________________________________
X.X. Xxxxxxxxxxxx, Trustee
By: /s/ XXXXXX X. XXXXXX
_____________________________________
Xxxxxx X. Xxxxxx, Trustee
X.X. XXXXXXXXXXXX AND XXXXXX X. XXXXXX,
TRUSTEES U/A/T DATED 12/30/76 FOR CHILDREN
OF XXXXXXX XXXXXXX XXXXXXX
By: /s/ X.X. XXXXXXXXXXXX
_____________________________________
X.X. Xxxxxxxxxxxx, Trustee
By: /s/ XXXXXX X. XXXXXX
_____________________________________
Xxxxxx X. Xxxxxx, Trustee
10.
X.X. XXXXXXXXXXXX AND XXXXXX X. XXXXXX,
TRUSTEES U/A/T DATED 12/30/76 FOR CHILDREN
OF XXXXXX XXXXXXX XXXXXX
By: /s/ X.X. XXXXXXXXXXXX
__________________________________
X.X. Xxxxxxxxxxxx, Trustee
By: /s/ XXXXXX X. XXXXXX
__________________________________
Xxxxxx X. Xxxxxx, Trustee
THE XXXXXXX FOUNDATION
By: /s/ XXXXXX X. XXXXX
__________________________________
Xxxxxx X. Xxxxx
President
XXXXX X. XXXXXXX FOUNDATION
By: /s/ XXXXXX X. XXXXX
__________________________________
Xxxxxx X. Xxxxx
President
CHARTER GROWTH CAPITAL, L.P.
By: /s/ XXXXX X. XxXXXXXXX
__________________________________
Xxxxx X. XxXxxxxxx
CGC INVESTORS, L.P.
By: /s/ XXXXX X. XxXXXXXXX
__________________________________
Xxxxx X. XxXxxxxxx
11.
CHARTER GROWTH CAPITAL CO-INVESTMENT FUND, L.P.
By: /s/ XXXXX X. XxXXXXXXX
__________________________________
Xxxxx X. XxXxxxxxx
RHO MANAGEMENT TRUST I
By: RHO Management Company, Inc.
As Investment Advisor
By: /s/ XXXXXX XXXX
__________________________________
Name: Xxxxxx Xxxx
________________________________
Title: President
_______________________________
XXXXXX XXXXXXX VENTURE PARTNERS III, L.P.
By: /s/ XXXXXX XXXXXX
__________________________________
Xxxxxx Xxxxxx
XXXXXX XXXXXXX VENTURE INVESTORS III, L.P.
By: /s/ XXXXXX XXXXXX
__________________________________
Xxxxxx Xxxxxx
THE XXXXXX XXXXXXX VENTURE PARTNERS
ENTREPRENEUR FUND, L.P.
By: /s/ XXXXXX XXXXXX
__________________________________
Xxxxxx Xxxxxx
UMBTRU
By: /s/ XXXX XxXXXXX
__________________________________
Xxxx XxXxxxx
12.
BAYVIEW INVESTORS V, L.P.
By: /s/ XXXXX XXXXX
__________________________________
Xxxxx Xxxxx
CFO Xxxxxxxxx Xxxxxxxx
LINCOLN INVESTORS, L.P.
By: CMH Capital Management Corp.
Its General Partner
By: /s/ XXXXX X. XXXXXXXX
__________________________________
Xxxxx X. Xxxxxxxx
President
ANDREESSEN 1996 LIVING TRUST
By: /s/ XXXXXXX XXXX
__________________________________
Xxxxxxx Xxxx, Trustee
ULTIMA PARTNERS LIMITED
By: /s/ XXXXXX X. XXXXXXX
__________________________________
Xxxxxx X. Xxxxxxx
XXXXXXX X. XXXX & XXXXX X. XXXX, TRUSTEES
FBO THE XXXX FAMILY REV TRUST
UTA DATED 2-21-97
By: /s/ XXXXXXX X. XXXX
__________________________________
Xxxxxxx X. Xxxx, Trustee
CANAAN EQUITY, L.P.
By: Canaan Equity Partners, LLC
Its General Partner
By: /s/ XXXX X. XXXXX
__________________________________
Xxxx X. Xxxxx
Member/Manager
13.
INTERWEST PARTNERS VI, LP
By: InterWest Management Partners VI, LLC
Its General Partner
By /s/ XXXXXX X. XXXXXX
__________________________________
Xxxxxx X. Xxxxxx
General Partner
INTERWEST INVESTORS VI, LP
By: InterWest Management Partners VI, LLC
Its General Partner
By /s/ XXXXXX X. XXXXXX
__________________________________
Xxxxxx X. Xxxxxx
General Partner
GREYLOCK EQUITY LIMITED PARTNERSHIP
By: Greylock Equity GP Limited
Its General Partner
By /s/ XXXXX XXXXX
__________________________________
Xxxxx Xxxxx
A General Partner
XXXXXX XXXX VENTURES
a California Limited Partnership
By /s/ XXXXX XXXX
__________________________________
Xxxxx Xxxx
General Partner
TOW PARTNERS
A California Limited Partnership
By /s/ XXXX X. XXXXXX
__________________________________
Xxxx X. Xxxxxx
General Partner
14.
/s/ G. XXXXXXX XXXXX, XX.
_____________________________________
G. Xxxxxxx Xxxxx, Xx.
/s/ XXXXX X. XXXXXXXX
_____________________________________
Xxxxx X. Xxxxxxxx, Trustee
The Xxxxxxxx Living Trust
/s/ XXXXXXX X. XXXXXXX, XX.
_____________________________________
Xxxxx Fargo Bank Trustee
SHV M/P/T FBO Xxxxxxx X. Xxxxxxx, Xx.
/s/ XXXXX XXXX
_____________________________________
Xxxxx Fargo Bank Trustee
SHV M/P/T FBO Xxxxx Xxxx
/s/ XXXXXX X. XXXXXXX
_____________________________________
Xxxxxx X. Xxxxxxx
/s/ XXXXXXX X. XXXXXXX
_____________________________________
Xxxxx Fargo Bank, Trustee
SHV M/P/T FBO Xxxxxxx X. Xxxxxxx, Acct. No. 506192
MATRIX PARTNERS IV, L.P.
By: Matrix IV Management Co., L.P.,
Its General Partner
By /s/ XXXX X. XXXXX
___________________________________
Xxxx X. Xxxxx
General Partner
MATRIX IV ENTREPRENEURS FUND, L.P.
By: Matrix IV Management Co., L.P.,
Its General Partner
By /s/ XXXX X. XXXXX
___________________________________
Xxxx X. Xxxxx
General Partner
15.
COMDISCO, INC.
By /s/ XXX XXXX
___________________________________
Xxx Xxxx
President of Comdisco Ventures Division
INTEL CORPORATION
By /s/ XXXXXX XXXXXXX
___________________________________
Name: Xxxxxx Xxxxxxx
________________________________
Title: Vice President & Treasurer
______________________________
GC&H INVESTMENTS
By /s/ XXXX X. XXXXXXX
___________________________________
Xxxx X. Xxxxxxx
Executive Partner
KOREA TECHNOLOGY BANKING CORPORATION
By /s/ JUNG-XXXX XXXX
___________________________________
Jung-Xxxx Xxxx
Chief Officer/International Business
/s/ XXXXX XXXXXX
_____________________________________
Xxxxx Xxxxxx
/s/ XXXXXXX XXXXX XXXXXXXXX
_____________________________________
Xxxxxxx Xxxxx Xxxxxxxxx
/s/ XXXXXXX XXXXXXX
_____________________________________
Xxxxxxx Xxxxxxx
16.
XXXXXXXXX PUBLIC RELATIONS
By:__________________________________
Name:________________________________
/s/ XXXXXXX XXXXX
_____________________________________
Xxxxxxx Xxxxx
17.
EXHIBIT A
LIST OF INVESTORS
NUMBER OF SHARES OF AGGREGATE
NAME AND ADDRESS SERIES D PREFERRED PURCHASE PRICE
---------------- ------------------- --------------
TCV II, V.O.F. 12,031 $ 93,240.25
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxx Xxxxxx 00000
(973) 467-5320
000 Xxxx Xxxxxx, Xxx. 000
Xxxx Xxxx, XX 00000
(000) 000-0000
Technology Crossover Ventures II, L.P. 370,354 2,870,243.50
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxx Xxxxxx 00000
(973) 467-5320
000 Xxxx Xxxxxx, Xxx. 000
Xxxx Xxxx, XX 00000
(000) 000-0000
TCV II (Q), L.P. 284,733 2,206,680.75
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxx Xxxxxx 00000
(973) 467-5320
000 Xxxx Xxxxxx, Xxx. 000
Xxxx Xxxx, XX 00000
(000) 000-0000
TCV II Strategic Partners, L.P. 50,530 391,607.50
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxx Xxxxxx 00000
(973) 467-5320
000 Xxxx Xxxxxx, Xxx. 000
Xxxx Xxxx, XX 00000
(000) 000-0000
NUMBER OF SHARES OF AGGREGATE
NAME AND ADDRESS SERIES D PREFERRED PURCHASE PRICE
---------------- ------------------- --------------
Technology Crossover Ventures II, C.V. 56,546 $ 438,231.50
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxx Xxxxxx 00000
(973) 467-5320
000 Xxxx Xxxxxx, Xxx. 000
Xxxx Xxxx, XX 00000
(000) 000-0000
Juliet Challenger, Inc. 326,613 2,531,250.75
Attn: Xxxxxx X. XxXxxxxxx
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Xxxxx X. Xxxxxxx, Xxxxx Xxxxxxxx Xxxxxxx and 73,889 572,639.75
X.X. Xxxxxxxxxxxx, Trustees of the Xxxxx X.
Xxxxxxx Trust U/A dated
Attn: Xxxxxxx Xxxxx
Nov. 18, 1985
0000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
(000) 000-0000
X.X. Xxxxxxxxxxxx and Xxxxxx X. Xxxxxx, 24,677 191,246.75
Trustees, U/A/T dated 12/30/76 for Children
of Juliet Xxx Xxxxxxx Xxxxxxx
Attn: Xxxxxxx Xxxxx
0000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
(000) 000-0000
X.X. Xxxxxxxxxxxx and Xxxxxx X. Xxxxxx, 24,677 191,246.75
Trustees, U/A/T dated 12/30/76 for Children
of Xxxxx Xxx Xxxxxxx, Xx.
Attn: Xxxxxxx Xxxxx
0000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
(000) 000-0000
X.X. Xxxxxxxxxxxx and Xxxxxx X. Xxxxxx, 24,677 191,246.75
Trustees, U/A/T dated 12/30/76 for Children
of Xxxxxxx Xxxxxxx Xxxxxxx
Attn: Xxxxxxx Xxxxx
0000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
(000) 000-0000
NUMBER OF SHARES OF AGGREGATE
NAME AND ADDRESS SERIES D PREFERRED PURCHASE PRICE
---------------- ------------------- --------------
X.X. Xxxxxxxxxxxx and Xxxxxx X. Xxxxxx, 24,677 $ 191,246.75
Trustees, U/A/T dated 12/30/76 for Children
of Xxxxxx Xxxxxxx Xxxxxx
Attn: Xxxxxxx Xxxxx
0000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
(000) 000-0000
The Xxxxxxx Foundation 48,774 377,998.50
Attn: Xxxxxxx Xxxxx
0000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
(000) 000-0000
Xxxxx X. Xxxxxxx Foundation 32,661 253,122.75
Attn: Xxxxxxx Xxxxx
0000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
(000) 000-0000
Charter Growth Capital, L.P. 391,883 3,037,093.25
Attn: Xxxxx X. XxXxxxxxx
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx, XX 00000
(000) 000-0000
CGC Investors, L.P. 28,126 217,976.50
Attn: Xxxxx X. XxXxxxxxx
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx, XX 00000
(000) 000-0000
Charter Growth Capital Co-Investment Fund, L.P. 70,314 544,933.50
Attn: Xxxxx X. XxXxxxxxx
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx, XX 00000
(000) 000-0000
Rho Management Trust I 258,065 2,000,003.75
Attn: Xxxxxxxx Xxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
(000) 000-0000
NUMBER OF SHARES OF AGGREGATE
NAME AND ADDRESS SERIES D PREFERRED PURCHASE PRICE
---------------- ------------------- --------------
Xxxxxx Xxxxxxx Venture Partners III, L.P. 198,116 $1,535,399.00
Attn: Xxxxxx Xxxxxx
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
(000) 000-0000
Xxxxxx Xxxxxxx Venture Investors III, L.P. 19,022 147,420.50
Attn: Xxxxxx Xxxxxx
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
(000) 000-0000
Xxxxxx Xxxxxxx Venture Entrepreneur 8,668 67,177.00
Fund, L.P.
Attn: Xxxxxx Xxxxxx
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
(000) 000-0000
UMBTRU 129,032 999,998.00
Attn: Xxxx XxXxxxx
UMB Bank
0 Xxxxxxx Xxxx Xxxxx, 0/xx/ Xxxxx
Xxx Xxxx, XX 00000
(000) 000-0000
Bayview Investors V, L.P. 38,710 300,002.50
c/o BancBoston Xxxxxxxxx Xxxxxxxx
Attn: Xxxxx Xxxxx
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
(000) 000-0000
Lincoln Investors, L.P. 25,806 199,996.50
Attn: Xxxxx X. Xxxxxxxx
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
(000) 000-0000
Andreessen 1996 Living Trust 25,806 199,996.50
c/o Xxxxxxx X. Xxxx
00000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
(000) 000-0000
NUMBER OF SHARES OF AGGREGATE
NAME AND ADDRESS SERIES D PREFERRED PURCHASE PRICE
---------------- ------------------- --------------
Ultima Partners Limited 25,806 $ 199,996.50
Attn: Xxxxxx X. Xxxxxxx
Synetics S.F.S. Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
(000) 000-0000
Xxxxxxx X. Xxxx and Xxxxx X. Xxxx, Trustees 6,452 50,003.00
FBO The Xxxx Family Rev Trust
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Canaan Equity, L.P. 58,527 453,584.25
0000 Xxxx Xxxx Xxxx, Xxx. 000
Xxxxx Xxxx, XX 00000
InterWest Partners VI, L.P. 56,771 439,975.25
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
InterWest Investors VI, LP 1,756 13,609.00
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Greylock Equity Limited Partnership 147,805 1,145,488.75
Xxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
000 Xxxx Xxxx Xxxx
Xxxxx X-000
Xxxx Xxxx, XX 00000-0000
Attn: Xxxxx Xxxxx
(000) 000-0000
Xxxxxx Hill Ventures 110,855 859,126.25
a California Limited Partnership
000 Xxxx Xxxx Xxxx, Xxxxx X-000
Xxxx Xxxx, XX 00000
(000) 000-0000
NUMBER OF SHARES OF AGGREGATE
NAME AND ADDRESS SERIES D PREFERRED PURCHASE PRICE
---------------- ------------------- --------------
Tow Partners 4,918 $ 38,114.50
a California Limited Partnership
000 Xxxx Xxxx Xxxx
Xxxxx X-000
Xxxx Xxxx, XX 00000
(000) 000-0000
Xxxxx X. Xxxxxxxx 8,512 65,968.00
000 Xxxx Xxxx Xxxx
Xxxxx X-000
Xxxx Xxxx, XX 00000
(000) 000-0000
G. Xxxxxxx Xxxxx, Xx. 8,512 65,968.00
000 Xxxx Xxxx Xxxx
Xxxxx X-000
Xxxx Xxxx, XX 00000
(000) 000-0000
Xxxxxxx Xxxxx 645 4,998.75
000 Xxxx Xxxx Xxxx
Xxxxx X-000
Xxxx Xxxx, XX 00000
(000) 000-0000
Xxxxxx X. Xxxxxxx 882 6,835.50
000 Xxxx Xxxx Xxxx
Xxxxx X-000
Xxxx Xxxx, XX 00000
(000) 000-0000
Xxxxx Fargo Bank, Trustee 4,918 38,114.50
SHV M/P/T FBO Xxxxx Xxxx
Attn: Xxxxx Xxxxxx
MAC 0101 021
420 Xxxxxxxxxx Street, 2/nd/ Floor
Xxx Xxxxxxxxx, XX 00000
Xxxxx Fargo Bank, Trustee 294 2,278.50
SHV M/P/T FBO Xxxxxxx X. Xxxxxxx
Attention: Xxxxx Xxxxxx
MAC 0101 021
420 Xxxxxxxxxx, 2/nd/ Floor
Xxx Xxxxxxxxx, XX 00000
(000) 000-0000
NUMBER OF SHARES OF AGGREGATE
NAME AND ADDRESS SERIES D PREFERRED PURCHASE PRICE
---------------- ------------------- --------------
Xxxxx Fargo Bank, Trustee 8,269 $ 64,084.75
SHV M/P/T FBO Xxxxxxx X. Xxxxxxx, Xx.
Attention: Xxxxx Xxxxxx
MAC 0101 021
420 Xxxxxxxxxx, 2/nd/ Floor
Xxx Xxxxxxxxx, XX 00000
(000) 000-0000
Matrix Partners IV, L.P. 71,704 555,706.00
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
(000) 000-0000
Matrix IV Entrepreneurs Fund, L.P. 3,774 29,248.50
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
(000) 000-0000
Comdisco Ventures 7,860 60,915.00
0000 Xxxxx Xxxxx Xxxx
Attn: Xxxx Xxxxxx
Xxxxxxxx, XX 00000
(000) 000-0000
Intel Corporation 135,989 1,053,914.75
Xxxxxxxx Xxxxxxxxxx, XX0-000
Attn: Xxxx Xxxxxxxxx
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, XX 00000
(000) 000-0000
GC&H Investments 2,990 23,172.50
c/o Cooley Godward llp
Xxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Korea Technology Banking Corporation 8,361 64,797.75
Attn: Xx. Xxxx Xxxx Xxxx
Chief Officer, International Business
KTB Xxxxxxxx, 00/xx/ Xxxxx
00-00 Xxxxx-xxxx, Xxxxxxxxxxxx-xx
Xxxxx 000-000 Xxxxx
(00-0) 0000-0000
NUMBER OF SHARES OF AGGREGATE
NAME AND ADDRESS SERIES D PREFERRED PURCHASE PRICE
---------------- ------------------- --------------
Xxxxxxx Xxxxxxx 1,422 $ 11,020.50
Copper Mountain Networks
0000 Xxxxxxxxxxx Xxx
Xxxx Xxxx, XX 00000
(000) 000-0000
Xxxxxxxxx Public Relations 159 1,232.25
0000 Xxxxxx Xxxxxxx Xxxxxxx, Xxx. 000
Xxxxxxx, XX 00000
(000) 000-0000
Xxxxxxx Xxxxx Xxxxxxxxx 119 922.25
0000 Xxxxxx Xxxxxxx Xxxxxxx, Xxx. 000
Xxxxxxx, XX 00000
(000) 000-0000
Xxxxx X. Xxxxxx 119 922.25
Worlds at Work
0000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
(000) 000-0000
EXHIBIT B
LIST OF FOUNDERS
Co-Sale Stock
-------------
Founder Common Stock Preferred Stock
------- ------------ ---------------
Xxxxxx X. Xxxxxx 518,868 50,000 (Series A),
50,000 (Series B)
Xxxx Xxxxxxx 518,868 0
Xxxxxxx Xxxxxxx 0 0
EXHIBIT C
SECTION 64 OF THE COMPANY'S BYLAWS
SECTION 64. RIGHT OF FIRST REFUSAL. No shareholder shall sell, assign,
pledge, or in any manner transfer any of the shares of Common Stock of the
corporation or any right or interest therein, whether voluntarily or by
operation of law, or by gift or otherwise, except by a transfer which meets the
requirements hereinafter set forth in this bylaw:
(A) If the shareholder desires to sell or otherwise transfer any of
his shares of Common Stock, then the shareholder shall first give written notice
thereof to the corporation. The notice shall name the proposed transferee and
state the number of shares to be transferred, the proposed consideration, and
all other terms and conditions of the proposed transfer.
(B) For thirty (30) days following receipt of such notice, the
corporation shall have the option to purchase all (but not less than all) of the
shares of Common Stock specified in the notice at the price and upon the terms
set forth in such notice; provided, however, that, with the consent of the
shareholder, the corporation shall have the option to purchase a lesser portion
of the shares of Common Stock specified in said notice at the price and upon the
terms set forth therein. In the event of a gift, property settlement or other
transfer in which the proposed transferee is not paying the full price for the
shares of Common Stock, and that is not otherwise exempted from the provisions
of this Section 64, the price shall be deemed to be the fair market value of the
Common Stock at such time as determined in good faith by the Board of Directors.
In the event the corporation elects to purchase all of the shares of Common
Stock or, with consent of the shareholder, a lesser portion of the shares of
Common Stock, it shall give written notice to the transferring shareholder of
its election and settlement for said shares of Common Stock shall be made as
provided below in paragraph (d).
(C) The corporation may assign its rights hereunder.
(D) In the event the corporation and/or its assignee(s) elect to
acquire any of the shares of Common Stock of the transferring shareholder as
specified in said transferring shareholder's notice, the Secretary of the
corporation shall so notify the transferring shareholder and settlement thereof
shall be made in cash within thirty (30) days after the Secretary of the
corporation receives said transferring shareholder's notice; provided that if
the terms of payment set forth in said transferring shareholder's notice were
other than cash against delivery, the corporation and/or its assignee(s) shall
pay for said shares of Common Stock on the same terms and conditions set forth
in said transferring shareholder's notice.
(E) In the event the corporation and/or its assignees(s) do not elect
to acquire all of the shares of Common Stock specified in the transferring
shareholder's notice, said transferring shareholder may, within the sixty-day
period following the expiration of the option rights granted to the corporation
and/or its assignees(s) herein, transfer the shares of Common Stock specified in
said transferring shareholder's notice which were not acquired by the
corporation and/or its assignees(s) as specified in said transferring
shareholder's notice. All shares of Common Stock so sold by said transferring
shareholder shall continue to be subject to the provisions of this bylaw in the
same manner as before said transfer.
(F) Anything to the contrary contained herein notwithstanding, the
following transactions shall be exempt from the provisions of this bylaw:
(1) A shareholder's transfer of any or all shares of Common Stock
held either during such shareholder's lifetime or on death by will or intestacy
to such shareholder's immediate family or to any custodian or trustee for the
account of such shareholder or such shareholder's immediate family or to any
limited partnership of which the shareholder, members of such shareholder's
immediate family or any trust for the account of such shareholder or such
shareholder's immediate family will be the general of limited partner(s) of such
partnership. "Immediate family" as used herein shall mean spouse, lineal
descendant, father, mother, brother, or sister of the shareholder making such
transfer.
(2) A shareholder's bona fide pledge or mortgage of any shares of
Common Stock with a commercial lending institution, provided that any subsequent
transfer of said shares of Common Stock by said institution shall be conducted
in the manner set forth in this bylaw.
(3) A shareholder's transfer of any or all of such shareholder's
shares of Common Stock to the corporation or to any other shareholder of the
corporation.
(4) A shareholder's transfer of any or all of such shareholder's
shares of Common Stock to a person who, at the time of such transfer, is an
officer or director of the corporation.
(5) A corporate shareholder's transfer of any or all of its
shares of Common Stock pursuant to and in accordance with the terms of any
merger, consolidation, reclassification of shares or capital reorganization of
the shareholder, or pursuant to a sale of all or substantially all of the stock
or assets of a corporate shareholder.
(6) A corporate shareholder's transfer of any or all of its
shares of Common Stock to any or all of its shareholders.
(7) A transfer by a shareholder which is a limited or general
partnership to any or all of its partners or former partners.
In any such case, the transferee, assignee, or other recipient
shall receive and hold such stock subject to the provisions of this bylaw, and
there shall be no further transfer of such stock except in accord with this
bylaw.
(G) The provisions of this bylaw may be waived with respect to any
transfer either by the corporation, upon duly authorized action of its Board of
Directors, or by the shareholders, upon the express written consent of the
owners of a majority of the voting power of the corporation (excluding the votes
represented by those shares to be transferred by the transferring shareholder).
This bylaw may be amended or repealed either by a duly authorized action of the
Board of Directors or by the shareholders, upon the express written consent of
the owners of a majority of the voting power of the corporation.
(H) Any sale or transfer, or purported sale or transfer, of Common
Stock of the corporation shall be null and void unless the terms, conditions,
and provisions of this bylaw are strictly observed and followed.
(I) The foregoing right of first refusal shall terminate on either of
the following dates, whichever shall first occur:
(1) On March 9, 2006; or
(2) Upon the date securities of the corporation are first
offered to the public pursuant to a registration statement filed with, and
declared effective by, the United States Securities and Exchange Commission
under the Securities Act of 1933, as amended.
(J) The certificates representing shares of Common Stock of the
corporation shall bear on their face the following legend so long as the
foregoing right of first refusal remains in effect:
"The shares represented by this Certificate are subject to a right of
first refusal option in favor of the Corporation and/or its
Assignee(s), as provided in the Bylaws of the Corporation."
