Exhibit 4.1
SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT,
dated as of March 16, 2000 (this "AGREEMENT"), among Xxxxx.xxx, Inc., a Delaware
corporation (the "CORPORATION"), and the stockholders of the Corporation
identified on Annex I (each a "STOCKHOLDER" and, collectively, the
"STOCKHOLDERS").
R E C I T A L S
WHEREAS, the Corporation and the Stockholders except the New
Investors (as defined herein) entered into a First Amended and Restated
Registration Rights Agreement dated as of December 23, 1999 (the "EXISTING
AGREEMENT");
WHEREAS, pursuant to a securities purchase agreement dated as
of the date hereof (the "SECURITIES PURCHASE AGREEMENT"), the New Investors have
agreed to purchase 11,353,107 newly issued shares of 8% Series F Convertible
Preferred Stock, par value $.01 per share (the "SERIES F PREFERRED STOCK"), from
the Corporation, and certain other Stockholders have agreed to purchase, in the
aggregate, 3,918,974 newly issued shares of Series F Preferred Stock from the
Corporation;
WHEREAS, the parties wish to amend and restate the Existing
Agreement by adding the New Investors as parties thereto and modifying certain
other provisions thereof;
NOW, THEREFORE, the parties hereby agree that the Existing
Agreement is amended and restated in its entirety as follows:
SECTION 1. DEFINITIONS. As used in this Agreement, the
following terms shall have the following meanings:
"COMMISSION" means the U.S. Securities and Exchange Commission
or any successor agency.
"COMMON STOCK" means the common stock, par value $.001 per
share, of the Corporation.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder,
all as the same shall be in effect from time to time.
"FOUNDERS" means Xxxxxx Xxxx and Xxxx Xxxx.
"FOUNDERS' REGISTRABLE SHARES" means the shares of the Common
Stock held by the Founders.
"NEW INVESTORS" means, collectively, Starbucks Asset
Management Corporation, Hikari Tsushin, Inc., Techvantage Partners, L.P.,
Techvantage Overseas Fund Inc., Techvantage Qualified Partners, L.P., Semper
Ventures, LLC, Amerindo Technology Growth Fund II, Inc., Sands Brothers/Amerindo
Technology Associates LLC, Sands Brothers/Amerindo Technology Associates
Institution LLC, Sands Brothers/Amerindo Technology Offshore Associates LLC,
Xxxxxx Master Trust, Xxxxx Xxxxxxxxxx, Xxxxxxx Xxxxxx-Xxxxxxx, Xxxx Xxxxx,
Axalon (Offshore) I, L.P, Hyosung Corporation, NeoCarta Ventures, L.P., NeoCarta
Scout Fund, L.L.C., X. Xxxxxx Xxxxxx, Xxxxx Brothers Venture Capital LLC, SB
e-Order Associates LLC, PCG Ventures, eTrillium, L.L.C., Gramercy Trust III, The
Roosevelt Group, Time Warner Entertainment Company, L.P., Columbia TriStar Home
Video and Liberty Digital, Inc.
"OTHER SHARES" means at any time those shares of Common Stock
which do not constitute Primary Shares or Registrable Shares.
"PRIMARY SHARES" means at any time the authorized but unissued
shares of Common Stock and shares of Common Stock held by the Corporation in its
treasury.
"REGISTRATION DATE" means the date upon which a registration
statement pursuant to which the Corporation shall have initially registered
shares of Common Stock under the Securities Act for sale to the public shall
have been declared effective.
"REGISTRABLE SHARES" means, collectively, the Series F
Registrable Shares, the Series E Registrable Shares, the Series D Registrable
Shares, the Series C Registrable Shares, the Series B Registrable Shares and the
Founder's Registrable Shares. For purposes of this Agreement, any Registrable
Shares shall cease to be Registrable Shares (i) when they have been registered
under the Securities Act (the registration statement in connection therewith has
been declared effective) and disposed of pursuant to such effective registration
statement, (ii) when they are sold by a person in a transaction in which the
rights under the provisions of this Agreement are not assigned, (iii) when they
have been sold or distributed pursuant to Rule 144 (including, without
limitation, Rule 144(k)) or (iv) on the last day of any three-month period
within which they may be sold or distributed without registration pursuant to
Rule 144.
"RULE 144" means Rule 144 promulgated under the Securities Act
or any successor rule thereto or any complementary rule thereto (such as Rule
144A).
"SECURITIES ACT" means the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder, all as
the same shall be in effect from time to time.
"SERIES B PREFERRED STOCK" means the 8% Series B Convertible
Preferred Stock, par value $.01 per share, of the Corporation.
"SERIES B PREFERRED STOCKHOLDERS" means the holders of the
Series B Preferred Stock, and shall include any successor to, or assignee or
transferee of, any of the Series B Preferred Stockholders who shall agree in
writing to be treated as a Series B Preferred Stockholder and to be bound by the
terms and to comply with the provisions of this Agreement.
"SERIES B REGISTRABLE SHARES" means shares of Common Stock
issuable upon the conversion of shares of the Series B Preferred Stock.
"SERIES C PREFERRED STOCK" means the 8% Series C Convertible
Preferred Stock, par value $.01 per share, of the Corporation.
"SERIES C PREFERRED STOCKHOLDERS" means the holders of the
Series C Preferred Stock, and shall include any successor to, or assignee or
transferee of, any of the Series C Preferred Stockholders who shall agree in
writing to be treated as a Series C Preferred Stockholder and to be bound by the
terms and to comply with the provisions of this Agreement.
"SERIES C REGISTRABLE SHARES" means shares of Common Stock
issuable upon the conversion of the Series C Preferred Stock.
"SERIES D MAJORITY IN INTEREST" means, at any point in time on
an as-converted basis, holders of Series D Preferred Stock representing in the
aggregate at least two-thirds of the Common Stock issuable upon the conversion
of the Series D Preferred Stock.
"SERIES D PREFERRED STOCK" means the 8% Series D Convertible
Preferred Stock, par value $.01 per share, of the Corporation.
"SERIES D PREFERRED STOCKHOLDERS" means the holders of the
Series D Preferred Stock, and shall include any successor to, or assignee or
transferee of, any of the Series D Preferred Stockholders who shall agree in
writing to be treated as a Series D Preferred Stockholder and to be bound by the
terms and to comply with the provisions of this Agreement.
"SERIES D REGISTRABLE SHARES" means shares of Common Stock
issuable upon the conversion of shares of the Series D Preferred Stock.
"SERIES E MAJORITY IN INTEREST" means, at any point in time on
an as-converted basis, holders of Series E Preferred Stock representing in the
aggregate at least a majority of the Common Stock issuable upon the conversion
of the Series E Preferred Stock (including, for purposes of this Agreement,
those shares of Common Stock issuable upon conversion of those shares of Series
E Preferred Stock issuable upon exercise of any warrants to acquire Series E
Preferred Stock granted by the Corporation).
"SERIES E PREFERRED STOCK" means the 8% Series E Convertible
Preferred Stock, par value $.01 per share, of the Corporation.
"SERIES E PREFERRED STOCKHOLDERS" means the holders of the
Series E Preferred Stock, and shall include any successor to, or assignee or
transferee of, any of the Series E Preferred Stockholders who shall agree in
writing to be treated as a Series E Preferred Stockholder and to be bound by the
terms and to comply with the provisions of this Agreement.
"SERIES E REGISTRABLE SHARES" means shares of Common Stock
issuable upon the conversion of shares of the Series E Preferred Stock,
including shares of Common Stock issuable upon conversion of shares of Series E
Preferred Stock issuable upon exercise of any warrants granted by the
Corporation to Amazon.
"SERIES F MAJORITY IN INTEREST" means, at any point in time on
an as-converted basis, holders of Series F Preferred Stock representing in the
aggregate at least a majority of the Common Stock issuable upon the conversion
of the Series F Preferred Stock.
"SERIES F PREFERRED STOCK" shall have the meaning set forth in
the recitals.
"SERIES F PREFERRED STOCKHOLDERS" means the holders of the
Series F Preferred Stock, and shall include any successor to, or assignee or
transferee of, any of the Series F Preferred Stockholders who shall agree in
writing to be treated as a Series F Preferred Stockholder and to be bound by the
terms and to comply with the provisions of this Agreement.
"SERIES F REGISTRABLE SHARES" means shares of Common Stock
issuable upon the conversion of shares of the Series F Preferred Stock.
"STOCKHOLDERS' AGREEMENT" means the Second Amended and
Restated Stockholders' Agreement dated as of the date hereof among the
Corporation and the other parties thereto.
SECTION 2. REQUIRED REGISTRATION.
(a) On any date after the Registration Date, if holders of not
less than 33% of the Registrable Shares then outstanding shall in writing state
that such holders desire to sell at least 20% of the Registrable Shares held by
them in the public securities markets and request the Corporation to effect the
registration under the Securities Act of such Registrable Shares, the
Corporation shall promptly use its best efforts to effect the registration under
the Securities Act of such Registrable Shares which the Corporation has been so
requested to register. If the Corporation determines to have the Registrable
Shares distributed by means of an underwritten offering, the Corporation and the
requesting holders shall enter into an underwriting agreement with a major
bracket or nationally known underwriter.
(b) Anything contained in Section 2(a) to the contrary
notwithstanding, the Corporation shall not be obligated to effect any
registration under the Securities Act pursuant to Section 2(a) except in
accordance with the following provisions:
(i) The Corporation shall not be obligated to use its best
efforts to file and cause to become effective (A) more than two
registration statements initiated pursuant to this Section 2, or (B)
any registration statement during any period in which any other
registration statement (other than on Form S-4 or Form S-8 promulgated
under the Securities Act or any successor forms thereto) pursuant to
which Primary Shares, Other Shares or Registrable Shares included
pursuant to Section 3 are to be or were sold has been filed and not
withdrawn or has been declared effective within the prior 90 days.
(ii) The Corporation may delay or suspend the filing or
effectiveness of any registration statement for a period of up to 90
days after the date of a request for registration pursuant to this
Section 2 if at the time of such request (i) the Corporation is
engaged, or has fixed plans to engage within 90 days of the time of
such request, in a firm commitment underwritten public offering of
Primary Shares in which the holders of Registrable Shares may include
Registrable Shares pursuant to Section 3 or (ii) the Corporation
reasonably determines that such registration and offering would
interfere with any material transaction involving the Corporation, as
approved by the Board of Directors, or if there exists at the time,
material non-public information relating to the Corporation, which in
the opinion of the Corporation, should not be disclosed or if the sale
of shares thereunder would, in the opinion of the Corporation, be
reasonably likely to cause a violation of the Securities Act or the
Exchange Act and result in potential liability to the Corporation;
PROVIDED, HOWEVER, that the Corporation may only delay or suspend the
filing or effectiveness of a registration statement pursuant to this
Section 2(b)(ii) for a total of 180 days after the date of a request
for registration pursuant to this Section 2.
(iii) With respect to any registration pursuant to this
Section 2, the Corporation shall give notice of such registration to
the holders of Registrable Shares who do not request registration
hereunder. The Corporation shall include in such registration any
Registrable Shares requested, within 10 days after the Corporation has
given such notice, to be included by such holders and may include in
such registration any Primary Shares or Other Shares; PROVIDED,
HOWEVER, that if the managing underwriter advises the Corporation that
the inclusion of all Registrable Shares, Primary Shares and/or Other
Shares proposed to be included in such registration would interfere
with the successful marketing (including pricing) of the Registrable
Shares proposed to be included in such registration, then the number of
Registrable Shares, Primary Shares and/or Other Shares proposed to be
included in such registration shall be included in the following order:
(A) first, the Registrable Shares requested to be
included in such registration which are Series F Registrable
Shares, Series E Registrable Shares and Series D Registrable
Shares (or, if necessary, such Registrable Shares PRO RATA
among the holders thereof based upon the number of Registrable
Shares requested to be registered by each such holder);
(B) second, the Registrable Shares requested to be
included in such registration which are Founders' Registrable
Shares (or, if necessary, such
Registrable Shares PRO RATA among the holders thereof based
upon the number of Registrable Shares requested to be
registered by each such holder);
(C) third, the Registrable Shares requested to be
included which are Series C Registrable Shares and Series B
Registrable Shares and the Primary Shares (or, if necessary,
such Registrable Shares and Primary Shares PRO RATA among the
holders thereof and the Corporation based upon the number of
Registrable Shares and Primary Shares requested to be
registered by each such holder and the Corporation); and
(D) fourth, the Other Shares.
(iv) Notwithstanding anything to the contrary contained in
Section 2(b)(iii), with respect to any registration pursuant to this
Section 2, the Corporation shall include no less than 15% of the
Registrable Shares requested to be included in such registration.
SECTION 3. PIGGYBACK REGISTRATION.
(a) On any date after the Registration Date, if the
Corporation proposes for any reason to register shares of Common Stock under the
Securities Act (other than on Form S-4 or Form S-8 promulgated under the
Securities Act or any successor forms thereto), it shall give written notice to
the holders of Registrable Shares of its intention to so register such shares of
Common Stock at least 30 days before the initial filing of such registration
statement. Upon the written request of the holders of Registrable Shares to
include Registrable Shares in such registration (which request (i) must be
delivered to the Corporation within 20 days after delivery by the Corporation of
any notice pursuant to this Section 3(a), (ii) shall specify the number of
Registrable Shares proposed to be included in such registration and (iii) shall
state that such holders of Registrable Shares desire to sell such Registrable
Shares in the public securities markets), the Corporation shall use its best
efforts to cause all such Registrable Shares to be included in such registration
on the same terms and conditions as the securities otherwise being sold in such
registration; PROVIDED, HOWEVER, that if the managing underwriter advises the
Corporation that the inclusion of all Registrable Shares proposed to be included
in such registration would interfere with the successful marketing (including
pricing) of the Primary Shares or Other Shares proposed to be registered by the
Corporation, then the number of Primary Shares, Registrable Shares and/or Other
Shares proposed to be included in such registration shall be included in the
following order:
(i) first, the Primary Shares;
(ii) second, the Registrable Shares requested to be included
in such registration which are Series F Registrable Shares, Series E
Registrable Shares and Series D Registrable Shares (or, if necessary,
such Registrable Shares PRO RATA among the holders thereof based upon
the number of Registrable Shares requested to be registered by each
such holder);
(iii) third, the Registrable Shares requested to be included
in such registration which are Founders Registrable Shares (or, if
necessary, such Registrable Shares PRO RATA among the holders thereof
based upon the number of Registrable Shares requested to be registered
by each such holder);
(iv) fourth, the Registrable Shares requested to be included
in such registration which are Series C Registrable Shares and Series B
Registrable Shares (or, if necessary, such Registrable Shares PRO RATA
among the holders thereof based upon the number of Registrable Shares
requested to be registered by each such holder); and
(v) fifth, the Other Shares.
(b) Notwithstanding anything to the contrary contained in
Section 3(a), with respect to any registration pursuant to this Section 3, the
Corporation shall include no less than 15% of the Registrable Shares requested
to be included in such registration.
(c) The number of requests permitted by the holders of
Registrable Shares pursuant to this Section 3 shall be unlimited.
SECTION 4. REGISTRATIONS ON FORM S-3.
(a) Anything contained in Section 2 to the contrary
notwithstanding, at such time as the Corporation shall have qualified for the
use of Form S-3 promulgated under the Securities Act or any successor form
thereto, the holders of the Registrable Shares then outstanding shall have the
right to request in writing that the Corporation effect the registration of
Registrable Shares on Form S-3 or such successor form, which request or requests
shall (i) specify the number of Registrable Shares intended to be sold or
disposed of and the holders thereof and (ii) state the intended method of
disposition of such Registrable Shares. A requested registration on Form S-3 or
any such successor form in compliance with this Section 4 shall not count as a
registration statement initiated pursuant to Section 2 but shall otherwise be
treated as a registration initiated pursuant to, and shall, except as otherwise
expressly provided in this Section 4, be subject to, Section 2, including,
without limitation, Section 2(a).
(b) The number of requests permitted by the holders of
Registrable Shares pursuant to this Section 4 shall be unlimited.
SECTION 5. HOLDBACK AGREEMENT.
(a) If the Corporation at any time shall register shares of
Common Stock under the Securities Act (including any registration pursuant to
Sections 2, 3 or 4 hereof) for sale to the public, the Stockholders shall not
sell publicly or privately, make any short sale of, grant any option for the
purchase of, or otherwise dispose publicly of, any Registrable Shares (other
than those shares of Common Stock included in such registration pursuant to
Sections 2, 3 or 4 hereof) without the prior written consent of the Corporation,
for a period as shall be determined by the relevant managing underwriters, which
period shall begin not more than 10 days prior to
the initial filing of the registration statement pursuant to which such public
offering shall be made and shall not last more than 180 days after the effective
date of such registration statement; PROVIDED, HOWEVER, that the officers and
directors of the Corporation who own capital stock of the Corporation and all
other holders of 5% or more of the capital stock of the Corporation shall each
be subject to similar restrictions. The Corporation shall obtain the agreement
of any Person permitted to sell shares of stock in such registration to be bound
by and to comply with this Section 5 as if such Person were a Stockholder
hereunder.
(b) If the Corporation shall at any time pursuant to Sections
2, 3 or 4 of this Agreement register under the Securities Act Registrable Shares
for sale to the public pursuant to an underwritten offering, the Corporation
shall not effect any public sale or distribution of securities similar to those
being registered (excluding any registration statement on Form S-4 or S-8), or
any securities convertible into or exercisable or exchangeable for such
securities, for such period as shall be determined by the managing underwriters
which period shall not extend more than 90 days after the effective date of such
registration statement.
SECTION 6. PREPARATION AND FILING.
(a) If and whenever the Corporation is under an obligation
pursuant to the provisions of this Agreement to use its best efforts to effect
the registration of any Registrable Shares, the Corporation shall, as
expeditiously as practicable:
(i) use its best efforts to cause a registration statement
that registers such Registrable Shares to become and remain effective
for a period of 150 days or until all of such Registrable Shares have
been disposed of (if earlier);
(ii) furnish, at least five business days before filing a
registration statement, to counsel designated by the Series F Preferred
Stockholders, Series E Preferred Stockholders and Series D Preferred
Stockholders ("INVESTORS' COUNSEL"), a copy of the registration
statement proposed to be filed and the prospectus relating thereto or
any amendments or supplements relating to such a registration statement
or prospectus (it being understood that such five-business-day period
need not apply to successive drafts of the same document proposed to be
filed so long as such successive drafts are supplied to the Investors'
Counsel in advance of the proposed filing by a period of time that is
reasonable under the circumstances);
(iii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus relating
thereto as may be necessary to keep such registration statement
effective for at least a period of 150 days or until all of such
Registrable Shares have been disposed of (if earlier) and to comply
with the provisions of the Securities Act with respect to the sale or
other disposition of such Registrable Shares;
(iv) provide written notice to Investors' Counsel concerning
(i) the receipt by the Corporation of any comments of the Commission
with respect to such registration
statement or prospectus or any amendment or supplement thereto or any
request by the Commission for the amending or supplementing thereof or
for additional information with respect thereto, (ii) the receipt by
the Corporation of any notification with respect to the issuance by the
Commission of any stop order suspending the effectiveness of such
registration statement or prospectus or any amendment or supplement
thereto or the initiation or threatening of any proceeding for that
purpose and (iii) the receipt by the Corporation of any notification
with respect to the suspension of the qualification of such Registrable
Shares for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purposes;
(v) use its best efforts to register or qualify such
Registrable Shares under such other securities or blue sky laws of such
jurisdictions as the holders of the Registrable Shares reasonably
request and do any and all other acts and things which may be
reasonably necessary or advisable to enable such holders to consummate
the disposition in such jurisdictions of such holders' Registrable
Shares; PROVIDED, HOWEVER, that the Corporation will not be required
(i) to qualify generally to do business, subject itself to general
taxation or consent to general service of process in any jurisdiction
where it would not otherwise be required to do so but for this
paragraph (v), (ii) to provide any material undertaking or make any
changes in its by-laws or certificate of incorporation which the Board
of Directors determines to be contrary to the best interests of the
Corporation or (iii) to modify any of its contractual relationships
then existing;
(vi) furnish to the holders of such Registrable Shares such
number of copies of a summary prospectus, if any, or other prospectus,
including a preliminary prospectus, in conformity with the requirements
of the Securities Act, and such other documents as such holders may
reasonably request in order to facilitate the public sale or other
disposition of such Registrable Shares;
(vii) without limiting subsection (v) above, use its best
efforts to cause such Registrable Shares to be registered with or
approved by such other governmental agencies or authorities as may be
necessary (by virtue of the business and operations of the Corporation)
to enable the holders of such Registrable Shares to consummate the
disposition of such Registrable Shares;
(viii) notify the holders of such Registrable Shares on a
timely basis of the happening of any event as a result of which a
prospectus included in the registration statement relating to such
Registrable Shares, 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
light of the circumstances then existing and, at the request of such
holders, prepare and furnish to such holders a reasonable number of
copies of a supplement to or an amendment of such prospectus as may be
necessary to cause such prospectus, as so supplemented or amended, not
to include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing;
(ix) subject to the execution of confidentiality agreements in
form and substance satisfactory to the Corporation and upon reasonable
notice and during normal business hours, make available for inspection
by the holders of such Registrable Shares, any underwriter
participating in any disposition pursuant to such registration
statement and any attorney, accountant or other agent retained by the
Series F Preferred Stockholders, Series E Preferred Stockholders,
Series D Preferred Stockholders or underwriter (collectively, the
"INSPECTORS"), all pertinent financial and other records, pertinent
corporate documents and properties of the Corporation (collectively,
the "RECORDS"), as shall be reasonably necessary to enable them to
exercise their due diligence responsibility, and cause the
Corporation's officers, directors and employees to supply all
information (together with the Records, the "INFORMATION") reasonably
requested by any such Inspector in connection with such registration
statement. Notwithstanding the foregoing, any of the Information which
the Corporation determines in good faith to be confidential, and of
which determination the Inspectors are so notified, shall not be
disclosed to or by the Inspectors unless (i) the disclosure of such
Information is necessary to avoid or correct a misstatement or omission
in the registration statement, (ii) the release of such Information is
ordered pursuant to a subpoena or other order from a court of competent
jurisdiction or (iii) such Information is generally available to the
public other than as a result of disclosure by the Inspectors; the
holders of such Registrable Shares agree that they will, upon learning
that disclosure of such Information is sought in a court of competent
jurisdiction, give notice to the Corporation and allow the Corporation,
at the Corporation's expense, to undertake appropriate action to
prevent disclosure of the Information deemed confidential; and the
Inspectors shall use best efforts to maintain the confidentiality of
all information disclosed pursuant to this Section 6(a)(ix);
(x) use its best efforts to obtain from its independent
certified public accountants "cold comfort" letters in customary form,
at customary times and covering matters of the type customarily covered
by cold comfort letters;
(xi) obtain from its counsel an opinion or opinions in
customary form;
(xii) provide a transfer agent and registrar (which may be the
same entity and which may be the Corporation) for such Registrable
Shares;
(xiii) issue to any underwriter to which the holders of such
Registrable Shares may sell shares in such offering certificates
evidencing such Registrable Shares;
(xiv) list such Registrable Shares on any national securities
exchange on which any shares of the Common Stock are listed or, if the
Common Stock is not listed on a national securities exchange, use its
best efforts to qualify such Registrable Shares for listing on the
Nasdaq National Market, or such other national securities exchange as
the holders of a majority of such Registrable Shares shall reasonably
request;
(xv) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission and make available
to its security holders, as soon as reasonably practicable, earnings
statements (which need not be audited) covering a period of 12 months
beginning within three months after the effective date of the
registration statement, which earnings statements shall satisfy the
provisions of Section 11(a) of the Securities Act; and
(xvi) subject to all the other provisions of this Agreement,
use its best efforts to take all other steps necessary to effect such
registration of such Registrable Shares contemplated hereby (including,
without limitation, if the method of distribution is by means of an
underwriting agreement in customary form).
(b) Each holder of the Registrable Shares, upon receipt of any
notice from the Corporation of any event of the kind described in Section
6(a)(viii) hereof, shall forthwith discontinue disposition of the Registrable
Shares pursuant to the registration statement covering such Registrable Shares
until such holder's receipt of the copies of the supplemented or amended
prospectus contemplated by Section 6(a)(viii) hereof, and, if so directed by the
Corporation, such holder shall deliver to the Corporation all copies, other than
permanent file copies then in such holder's possession, of the prospectus
covering such Registrable Shares at the time of receipt of such notice.
SECTION 7. EXPENSES
All expenses (other than underwriting discounts and
commissions relating to the Registrable Shares, as provided in the last sentence
of this Section 7) incurred by the Corporation in complying with Section 6,
including, without limitation, all registration and filing fees (including all
expenses incident to filing with the National Association of Securities Dealers,
Inc.), fees and expenses of complying with securities and blue sky laws,
printing expenses, fees and expenses of the Corporation's counsel and
accountants and reasonable fees and expenses of the Investors' Counsel, shall be
paid by the Corporation; PROVIDED, HOWEVER, that all underwriting discounts and
selling commissions applicable to the Registrable Shares and Other Shares shall
be borne by the holders selling such Registrable Shares and Other Shares, in
proportion to the number of Registrable Shares and Other Shares sold by each
such holder.
SECTION 8. INDEMNIFICATION
(a) In connection with any registration of any Registrable
Shares under the Securities Act pursuant to this Agreement, the Corporation
shall indemnify and hold harmless the holders of Registrable Shares, each
underwriter, broker or any other Person acting directly on behalf of the holders
of Registrable Shares in connection with the distribution thereof and each other
Person, if any, who controls any of the foregoing Persons within the meaning of
the Securities Act against any losses, claims, damages or liabilities, joint or
several (or actions in respect thereof), to which any of the foregoing Persons
may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or allegedly untrue statement of a
material fact contained in the registration statement under which such
Registrable Shares were registered under the Securities Act, any preliminary
prospectus or final prospectus contained therein or otherwise filed with the
Commission, any amendment or supplement thereto or any document incident to
registration or qualification of any Registrable Shares, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading or, with respect to any prospectus, necessary to make the statements
therein in light of the circumstances under which they were made not misleading,
or any violation by the Corporation of the Securities Act or state securities or
blue sky laws applicable to the Corporation and relating to action or inaction
required of the Corporation in connection with such registration or
qualification under such state securities or blue sky laws; and shall reimburse
the holders of Registrable Shares, such underwriter, such broker or such other
Person acting on behalf of the holders of Registrable Shares and each such
controlling Person for any legal or other expenses reasonably incurred by any of
them in connection with investigating or defending any such loss, claim, damage,
liability or action; PROVIDED, HOWEVER, that the Corporation shall not be liable
in any such case to the extent that any such loss, claim, damage, liability or
action (including any legal or other expenses incurred) arises out of or is
based upon an untrue statement or allegedly untrue statement or omission or
alleged omission made in said registration statement, preliminary prospectus,
final prospectus, amendment, supplement or document incident to registration or
qualification of any Registrable Shares in reliance upon and in conformity with
written information furnished to the Corporation through an instrument duly
executed by the holders of Registrable Shares or their counsel or underwriter
specifically for use in the preparation thereof; PROVIDED FURTHER, HOWEVER, that
the foregoing indemnity agreement is subject to the condition that, insofar as
it relates to any untrue statement, allegedly untrue statement, omission or
alleged omission made in any preliminary prospectus but eliminated or remedied
in the final prospectus (filed pursuant to Rule 424 of the Securities Act), such
indemnity agreement shall not inure to the benefit of any holder of Registrable
Shares, underwriter, broker or other Person acting on behalf of holders of
Registrable Shares from whom the Person asserting any loss, claim, damage,
liability or expense purchased the Registrable Shares which are the subject
thereof, if a copy of such final prospectus had been made available to such
holder of Registrable Shares, underwriter, broker or other Person acting on
behalf of holders of the Registrable Shares and such final prospectus was not
delivered to such Person with or prior to the written confirmation of the sale
of such Registrable Shares to such Person, and the legal effect of delivery of
such final prospectus would have been to eliminate the liability otherwise
suffered or incurred by the Person asserting such loss, claim, damage, liability
or expense.
(b) In connection with any registration of Registrable Shares
under the Securities Act pursuant to this Agreement, each holder of Registrable
Shares shall severally and not jointly indemnify and hold harmless the
Corporation, each director of the Corporation, each officer of the Corporation
who shall sign such registration statement, each underwriter, broker or other
Person acting on behalf of the holders of Registrable Shares and each Person who
controls any of the foregoing Persons within the meaning of the Securities Act
against any losses, claims, damages or liabilities, joint or several (or actions
in respect thereof), to which any of the foregoing Persons may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
an untrue statement or allegedly untrue statement of a material fact contained
in the registration statement under which such Registrable Shares were
registered under the Securities Act, any preliminary prospectus or final
prospectus contained therein or otherwise filed with the Commission, any
amendment or supplement thereto or any document incident to registration or
qualification of any Registrable Shares, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading or,
with respect to any prospectus, necessary to make the statements therein in
light of the circumstances under which they were made not misleading, if such
untrue statement or allegedly untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information furnished
to the Corporation or such underwriter by or on behalf of such holder of
Registrable Shares specifically for use in connection with the preparation of
such registration statement, preliminary prospectus, final prospectus,
amendment, supplement or document; PROVIDED, HOWEVER, that the maximum amount of
liability in respect of such indemnification shall be limited, in the case of
each seller of Registrable Shares, to an amount equal to the net proceeds
actually received by such seller from the sale of Registrable Shares effected
pursuant to such registration.
(c) Promptly after receipt by an indemnified party of notice
of the commencement of any action involving a claim referred to in the preceding
paragraphs of this Section 8, such indemnified party will, if a claim in respect
thereof is made against an indemnifying party, give written notice to the latter
of the commencement of such action. The failure of any indemnified party to
notify an indemnifying party of any such action shall not (unless such failure
shall have a material adverse effect on the indemnifying party) relieve the
indemnifying party from any liability in respect of such action that it may have
to such indemnified party on account of this Section 8. In case any such action
is brought against an indemnified party, the indemnifying party will be entitled
to participate in and to assume the defense thereof, jointly with any other
indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be responsible for any
legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof; PROVIDED, HOWEVER, that if any indemnified
party shall have reasonably concluded that there may be one or more legal or
equitable defenses available to such indemnified party which are additional to
or conflict with those available to the indemnifying party, or that such claim
or litigation involves or could have an effect upon matters beyond the scope of
the indemnity agreement provided in this Section 8, the indemnifying party shall
not have the right to assume the defense of such action on behalf of such
indemnified party (but shall have the right to participate therein with counsel
of its choice) and such indemnifying party shall reimburse such indemnified
party for that portion of the reasonable fees and expenses of any counsel
retained by the indemnified party which is reasonably related to the matters
covered by the indemnity agreement provided in this Section 8. If the
indemnifying party is not entitled to, or elects not to, assume the defense of a
claim or series of claims of all indemnified parties, it will not be obligated
to pay the fees and expenses of more than one counsel with respect to all
indemnified parties as to any claim or series of related claims. The
indemnifying party may not settle any such claim without the consent of the
indemnified party.
(d) If the indemnification provided for in this Section 8 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, claim, damage, liability or action referred to
herein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amounts paid or payable by such
indemnified party as a result of such loss, claim, damage, liability or action
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions which resulted in such loss, claim,
damage, liability or action as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The parties agree that it would not be just
and equitable if contribution pursuant hereto were determined by PRO RATA
allocation or by any other method or allocation which does not take account of
the equitable considerations referred to herein. No Person guilty of fraudulent
misrepresentation shall be entitled to contribution from any Person.
SECTION 9. UNDERWRITING AGREEMENT
Notwithstanding the provisions of Sections 5, 6, 7 and 8, to
the extent that the holders of Registrable Shares shall enter into an
underwriting or similar agreement, which agreement contains provisions covering
one or more issues addressed in such Sections, the provisions contained in such
agreement addressing such issue or issues shall control; PROVIDED, HOWEVER, that
any such agreement to which the Corporation is not a party shall not be binding
upon the Corporation. No holder may participate in any underwritten registration
hereunder unless such holder (a) agrees to sell such holders' securities on the
basis provided in any underwriting arrangements and (b) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably and customarily required under the terms of such
underwriting arrangements.
SECTION 10. INFORMATION BY HOLDERS OF REGISTRABLE SHARES
Each holder of Registrable Shares shall furnish to the
Corporation such written information regarding such Person and the distribution
proposed by such Person as the Corporation may reasonably request in writing and
as shall be reasonably required in connection with any registration,
qualification or compliance referred to in this Agreement.
SECTION 11. EXCHANGE ACT COMPLIANCE
From the Registration Date or such earlier date as a
registration statement filed by the Corporation pursuant to the Exchange Act
relating to any class of the Corporation's securities shall have become
effective, the Corporation shall comply with all of the reporting
requirements of the Exchange Act applicable to it and shall comply with all
other public information reporting requirements of the Commission which are
conditions to the availability of Rule 144 for the sale of the Common Stock. The
Corporation shall cooperate with each holder of Registrable Shares in supplying
such information as may be necessary for such holder to complete and file any
information reporting forms presently or hereafter required by the Commission as
a condition to the availability of Rule 144.
SECTION 12. NO CONFLICT OF RIGHTS
The Corporation shall not, after the date hereof, grant any
registration rights unless such registration rights are substantially similar to
and no more favorable than those registration rights granted hereby and do not
conflict with or otherwise impair any registration rights contained herein.
SECTION 13. TERMINATION
This Agreement shall terminate and be of no further force or
effect on December 23, 2006.
SECTION 14. SUCCESSORS AND ASSIGNS
This Agreement shall bind and inure to the benefit of the
Corporation and the Stockholders and, subject to Section 15, their respective
successors and assigns.
SECTION 15. ASSIGNMENT
Each holder of Registrable Shares may assign its rights
hereunder to any purchaser or transferee of such Registrable Shares; PROVIDED,
HOWEVER, that such purchaser or transferee shall, as a condition to the
effectiveness of such assignment, be required to execute a counterpart to this
Agreement agreeing to be treated as a holder of Series F Registrable Shares,
Series E Registrable Shares, Series D Registrable Shares, Series C Registrable
Shares, Series B Registrable Shares or Founders Registrable Shares, as
applicable, whereupon such purchaser or transferee shall have the benefits of,
and shall be subject to the restrictions contained in, this Agreement as if such
purchaser or transferee had originally been a party hereto; and PROVIDED,
FURTHER, that such purchaser or transferee shall not be a competitor of the
Corporation (as determined by the Board).
SECTION 16. ENTIRE AGREEMENT
This Agreement, the Securities Purchase Agreement, the
Stockholders' Agreement and the other writings referred to herein and therein or
delivered pursuant hereto or thereto, contain the entire agreement among the
Stockholders, the Corporation and any other parties to each of the foregoing
with respect to the subject matter hereof and supersede all prior and
contemporaneous arrangements or understandings with respect thereto.
SECTION 17. NOTICES
(a) All notices, requests, consents and other communications
hereunder to any party shall be deemed to be sufficient if contained in a
written instrument delivered in person or sent by telecopy,
nationally-recognized overnight courier or first class registered or certified
mail, return receipt requested, postage prepaid, addressed to such party at the
address set forth below or such other address as may hereafter be designated in
writing by such party to the other parties:
(i) if to the Corporation or the Founders, to:
Xxxxx.xxx, Inc.
00 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx Xxxx
with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.;
(ii) if to the Series F Preferred Stockholders, to their
respective addresses set forth on ANNEX I hereto, with a copy to:
Xxxxx Xxxxxx Xxxxxxxx LLP
0000 X.X. Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
Attention: Xxxxxxxx X. Xxxxx, Esq.
(iii) if to the Series E Preferred Stockholders, to their
respective addresses set forth on ANNEX I hereto, with a copy to:
Xxxxxxx Coie LLP
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.;
(iii) if to the Series D Preferred Stockholders, to their
respective addresses set forth on ANNEX I hereto, with a copy to:
X'Xxxxxxxx Graev & Karabell, LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. X'Xxxxx, Esq.; and
(iv) if to the Series B Preferred Stockholders and Series C
Preferred Stockholders, to their respective addresses set forth on ANNEX I
hereto.
(b) All such notices, requests, consents and other
communications shall be deemed to have been delivered (a) in the case of
personal delivery or delivery by telecopy, on the date of such delivery, (b) in
the case of dispatch by nationally-recognized overnight courier, on the next
business day following such dispatch and (c) in the case of mailing, on the
third business day after the posting thereof.
SECTION 18. MODIFICATIONS; AMENDMENTS; WAIVERS
The terms and provisions of this Agreement may not be modified
or amended, nor may any provision be waived, except pursuant to a writing signed
by the Corporation, the Series F Majority in Interest, the Series E Majority in
Interest and the Series D Majority in Interest.
SECTION 19. COUNTERPARTS; FACSIMILE SIGNATURES
This Agreement may be executed in any number of counterparts
(including by telecopy), and each such counterpart hereof shall be deemed to be
an original instrument, but all such counterparts together shall constitute but
one agreement.
SECTION 20. HEADINGS
The headings of the various sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed to be a
part of this Agreement.
SECTION 21. SEVERABILITY; GOVERNING LAW
It is the desire and intent of the parties that the provisions
of this Agreement be enforced to the fullest extent permissible under the laws
and public policies applied in each jurisdiction in which enforcement is sought.
Accordingly, if any particular provision of this Agreement shall be adjudicated
by a court of competent jurisdiction to be invalid, prohibited or unenforceable
for any reason, such provision, as to such jurisdiction, shall be ineffective,
without invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction. Notwithstanding the
foregoing, if such provision could be more narrowly drawn so as not to be
invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such
jurisdiction, be so narrowly drawn, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed wholly therein.
SECTION 22. AMENDMENT AND RESTATEMENT OF EXISTING
AGREEMENTS
(a) The form, terms and provisions of (i) the Stockholders'
Agreement, dated as of December 7, 1998, among the Corporation and the holders
of the Series B Preferred Stock listed on the signature pages thereof, and (ii)
the Stockholders' Agreement, dated as of April 15, 1999, among the Corporation
and the holders of Series C Preferred Stock listed in the signature pages
thereof, were deemed amended and restated in their entirety by the Registration
Rights Agreement and the Stockholders' Agreement, each dated as of October 4,
1999, among the Corporation and the other parties thereto.
(b) The form, terms and provisions of the Registration Rights
Agreement, dated as of October 4, 1999, among the Corporation and the other
parties thereto, were deemed amended and restated in their entirety by the
Existing Agreement, and the form, terms and provisions of the Stockholders'
Agreement, dated as of October 4, 1999, among the Corporation and the other
parties thereto, were deemed amended and restated in their entirety by the First
Amended and Restated Stockholders' Agreement, dated as of December 23, 1999,
among the Corporation and the other parties thereto.
(c) The form, terms and provisions of the Existing Agreement
and the First Amended and Restated Stockholders' Agreement, dated as of December
23, 1999, between the Corporation and the other parties thereto, are deemed
amended and restated in their entirety by this Agreement and the Stockholders'
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above.
XXXXX.XXX, INC.
By:
-----------------------------------
Name: Xxxxxx Xxxx
Title: Chief Executive Officer
CHASE VENTURE CAPITAL ASSOCIATES, L.P.
By: CHASE CAPITAL PARTNERS, Its
General Partner
By:
-----------------------------------
Name:
Title:
THE FLATIRON FUND 1998/99, LLC
By:
-----------------------------------
Name: I. Xxxxxx Xxxxxx
Title: Managing Member
THE FLATIRON FUND 2000, LLC
By:
-----------------------------------
Name: I. Xxxxxx Xxxxxx
Title: Managing Member
FLATIRON ASSOCIATES, LLC
By:
-----------------------------------
Name: I. Xxxxxx Xxxxxx
Title: Managing Member
OAK INVESTMENT PARTNERS VIII
LIMITED PARTNERSHIP
By: OAK ASSOCIATES VIII, LLC, Its General
Partner
By:
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Managing Member
OAK VIII AFFILIATES FUND
LIMITED PARTNERSHIP
By: OAK VIII AFFILIATES LLC, Its General
Partner
By:
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Managing Member
XXXXXX.XXX, INC.
By:
-----------------------------------
Name:
Title:
STARBUCKS ASSET MANAGEMENT CORPORATION
By:
-----------------------------------
Name:
Title:
HIKARI TSUSHIN, INC.
By:
-----------------------------------
Name: Xxxxxxxx Xxxxx
Title: Managing Director, Corporate
Strategy and Investment
Headquarters
TECHVANTAGE PARTNERS, L.P.
By:
-----------------------------------
Name:
Title:
TECHVANTAGE OVERSEAS FUND INC.
By:
-----------------------------------
Name:
Title:
TECHVANTAGE QUALIFIED PARTNERS, L.P.
By:
-----------------------------------
Name:
Title:
SEMPER VENTURES, LLC
By:
-----------------------------------
Name:
Title:
AMERINDO TECHNOLOGY GROWTH FUND II, INC.
By:
-----------------------------------
Name:
Title:
SANDS BROTHERS/AMERINDO TECHNOLOGY
ASSOCIATES LLC
By:
-----------------------------------
Name:
Title:
SANDS BROTHERS/AMERINDO TECHNOLOGY
ASSOCIATES INSTITUTION LLC
By:
-----------------------------------
Name:
Title:
SANDS BROTHERS/AMERINDO TECHNOLOGY
OFFSHORE ASSOCIATES LLC
By:
-----------------------------------
Name:
Title:
XXXXXX MASTER TRUST
By:
-----------------------------------
Name:
Title:
---------------------------------------
Xxxxx Xxxxxxxxxx
---------------------------------------
Xxxxxxx Xxxxxx-Xxxxxxx
---------------------------------------
Xxxx Xxxxx
AXALON (OFFSHORE) I, L.P.
By: AXALON VENTURES, LLC, its General
Partner
By:
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Member
HYOSUNG CORPORATION
By:
-----------------------------------
Name:
Title:
---------------------------------------
Xxxx Xxx
NEOCARTA VENTURES, L.P.
By:
-----------------------------------
Name:
Title:
NEOCARTA SCOUT FUND, L.L.C.
By:
-----------------------------------
Name:
Title:
---------------------------------------
X. Xxxxxx Xxxxxx
SANDS BROTHERS VENTURE CAPITAL LLC
By: SB VENTURE CAPITAL MANAGEMENT
ASSOCIATES LLC, its
Manager
By:
-----------------------------------
Name:
Title:
SB E-ORDER ASSOCIATES LLC
By:
-----------------------------------
Name:
Title:
PCG VENTURES
By:
-----------------------------------
Name:
Title:
PCG VENTURES
By:
-----------------------------------
Name:
Title:
ETRILLIUM, L.L.C.
By:
-----------------------------------
Name:
Title:
GRAMERCY TRUST III
By:
-----------------------------------
Name:
Title:
THE ROOSEVELT GROUP
By:
-----------------------------------
Name:
Title:
TIME WARNER ENTERTAINMENT COMPANY, L.P.
By:
-----------------------------------
Name:
Title:
COLUMBIA TRISTAR HOME VIDEO
By:
-----------------------------------
Name:
Title:
LIBERTY DIGITAL, INC.
By:
-----------------------------------
Name:
Title:
ANNEX I
STOCKHOLDERS
I. SERIES F PREFERRED STOCKHOLDERS
Amerindo Technology Growth Fund II, Inc.
c/o Amerindo Investment Advisors
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Argossy Limited
Bermuda Commercial Bank Building
44 Church Street
Xxxxxxxx XX 12
Bermuda
Attn: Xxxxxxxxxx Xxxxxxxxxx
Axalon (Offshore) I, L.P.
c/o Axalon Ventures
000 0xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxx
Chase Venture Capital Associates, L.P.
c/o Chase Capital Partners
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: I. Xxxxxx Xxxxxx
Xxxx Xxxx
00 Xxxx Xxxxxx Xxxxxx
# 0000
Xxxxxxxxx, XX 00000
Xxxx Xxx
c/o Xxxxx Xxxx Xxxx Xxx
Hyosung Building, 12th Floor
000 Xxxxxxx-Xxxx, Xxxx-Xx
Xxxxx, Xxxxx 121-020
Columbia TriStar Home Video
00000 X. Xxxxxxxxxx Xxxxxxxxx
SPP 8402
Xxxxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Xxxxxxxx Xxxx Ventures LLC
c/o Russ Pillar
Virgin Entertainment Group, Inc.
0000 Xxxxxxxx Xxxxxxxxx
0xx Xxxxx
Xxx Xxxxxxx, XX 00000
Xxxx Xxxxxx
Xxxxxxx Xxxxx
Xxx Xxx Xxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Flatiron Associates, LLC
c/o Flatiron Partners
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxx
The Flatiron Fund 2000, LLC
c/o Flatiron Partners
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Xxxxxxx Xxxxxx-Xxxxxxx
c/o Amerindo Investment Advisors
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Gramercy Trust III
c/o Xxx Xxx
00 Xxxxx Xxxxxx
Xxxxxx Xxxxxxx, XX 00000
X. Xxxxxx Xxxxxx
000 Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Hikari Tsushin, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Hyosung Corporation
c/o Xxxxx Xxxx Xxxx Xxx
Hyosung Building, 12th Floor
000 Xxxxxxx-Xxxx, Xxxx-Xx
Xxxxx, Xxxxx 121-020
Liberty Digital, Inc.
00000 Xxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Director of Business Development and Strategy
Xxxxxx Master Trust
c/o Amerindo Investment Advisors
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Xxxxxx Fund
0 Xxxxxxxx Xxxxxx Xxxxx
0000 X Xxxxxx, XX
Xxx. 0000
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxx Xxxxx
NeoCarta Scout Fund, L.L.C.
Xxx Xxxxxxxxxxx Xxxxxx
Xxx. 000
Xxx Xxxxxxxxx, XX 00000
NeoCarta Ventures, L.P.
Xxx Xxxxxxxxxxx Xxxxxx
Xxx. 000
Xxx Xxxxxxxxx, XX 00000
Oak VIII Affiliates Fund, Limited Partnership
c/o Oak Investment Partners
00 Xxxxx 0xx Xxxxxx
Xxx. 0000
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxx
Oak Investment Partners VIII, Limited Partnership
c/o Oak Investment Partners
00 Xxxxx 0xx Xxxxxx
Xxx. 0000
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxx
Odyssey Venture Partners L.P.
Bermuda Commercial Bank Building
44 Church Street
Xxxxxxxx XX 12
Bermuda
Attn: Xxxxxxxxxx Xxxxxxxxxx
PGC Ventures
000 X. Xxxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxx Xxxxxxxxxx
The Xxxxxxxxx Group
c/o Xxx Xxxxxxx
000 Xxxxxxxxxx Xxxx
Xxxxxx Xxxx, XX 00000
Sands Brothers/Amerindo Technology Associates LLC
c/o Amerindo Investment Advisors
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Xxxxx Brothers/Amerindo Technology Associates Institution LLC
c/o Amerindo Investment Advisors
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Sands Brothers/Amerindo Technology Offshore Associates LLC
c/o Amerindo Investment Advisors
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Xxxxx Brothers Venture Capital LLC
00 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxxx
SB e-Order Associates LLC
00 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxxx
Xxxxxxxx Investment Opportunities (Master) Fund - NTV Portfolio
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
Xxxxxxxx New Technologies Fund, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
Semper Ventures, LLC
000 X. Xxxxxx Xxxx Xxxxx
Xxx. 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxx Xxx
SOFTBANK Capital Advisors Fund LP
00 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
SOFTBANK Capital Partners LP
00 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Xxxxx Xxxxxxxxxx
c/o Amerindo Investment Advisors
00 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx X0X 0XX
Starbucks Asset Management Corporation
c/o Starbucks Corporation
0000 Xxxx Xxx. Xxxxx
Xxxxxxx, XX 00000-0000
Attn: General Counsel
Xxxxxxx Xxxxx
000 Xxxxxxxxx Xxxxxx
Xxx. 000
Xxx Xxxx, XX 00000
Xxxxxx Xxxxx
000 Xxxxxxxxx Xxxxxx
Xxx. 000
Xxx Xxxx, XX 00000
Xxxx Xxx Xxxxx
0 Xxxxxxxx Xxxxxx Xxxxx
0000 X Xxxxxx, XX
Xxx. 0000
Xxxxxxxxxx, XX 00000
Xxxx Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx. 000
Xxx Xxxx, XX 00000
Xxxxxx & Xxxxxx Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Xxxx Xxxxx
0000 Xxxxxx Xxxxxx
Xxx. 000
Xxxxxxxxxxxx, XX 00000
TechVantage Overseas Fund Inc.
x/x Xxxxxxx Xxxxxxx
00 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx Xxxx
TechVantage Partners, L.P.
x/x Xxxxxxx Xxxxxxx
00 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx Xxxx
TechVantage Qualified Partners, L.P.
x/x Xxxxxxx Xxxxxxx
00 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx Xxxx
Xxxxxxxxx Xxxxxxxx
Xxxxxxx Xxxxx
Xxx Xxx Xxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Time Warner Entertainment Company, L.P.
Xxxxxxxx 000
Xxxx 000
0000 Xxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxxx Weirwick
eTrillium, L.L.C.
c/o Xxxx Xxxxx
Stonington Partners
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
TWB Investment Partnership
c/o Xxxxxx Xxxxx
Xxxxxxx Coie LLP
0000 Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
Xxxx Xxxxx
c/o Amerindo Investment Advisors
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
XX. SERIES E PREFERRED STOCKHOLDERS
Xxxxxxxx Xxxxxxxx
0000 X Xxxxxx XX
Xxxxxxxxxx, XX 00000
Access Technology Partners, L.P.
Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxx
Access Technology Partners Brokers Fund, L.P.
Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxx
Xxxxxx.xxx, Inc.
0000 00xx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Argossy Limited
Bermuda Commercial Bank Building
44 Church Street
Xxxxxxxx XX 12
Bermuda
Attn: Xxxxxxxxxx Xxxxxxxxxx
Aurora Investment II LLC
c/o Xxxxx Xxxxxx
Kravis Partners/KKR
0 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
Xxxxx Xxxx
Xxxxxxx Xxxxx
Xxx Xxx Xxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxxx Xxxxx
00 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Xxx Xxxxxxx
Xxxxxx Strategic Development Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxxx Xxxxxxx
00 Xxxxxx Xxx
Xxxxxxxxx, XX 00000
Chase Venture Capital Associates, L.P.
c/o Chase Capital Partners
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: I. Xxxxxx Xxxxxx
Xxxx Xxxx
00 Xxxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxx Xxx
c/o Xxxxx Xxxx Xxxx Xxx
Hyosung Building, 12th Floor
000 Xxxxxxx-Xxxx, Xxxx-Xx
Xxxxx, Xxxxx 121-020
Xxxxxxxx Xxxx Ventures LLC
c/o Russ Pillar
Virgin Entertainment Group, Inc.
0000 Xxxxxxxx Xxxxxxxxx
0xx Xxxxx
Xxx Xxxxxxx, XX 00000
Xxxxxxx Xxxx
000 Xxxxx Xxxxxx
XXX 000
Xxx Xxxx, XX 00000
Xxxx Xxxxxx
Xxxxxxx Xxxxx
Xxx Xxx Xxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxxx Xxxxxx
0000 Xxxxxxxx
Xxxxx 00X
Xxx Xxxx, XX 00000
Flatiron Associates, LLC
c/o Flatiron Partners
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxx
The Flatiron Fund 2000, LLC
c/o Flatiron Partners
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Xxxxxxxxx Xxxxxxxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxx
CIBOX
Zl du bois de l'Epine
11 Ave. Joliot Xxxxx
91130 Ris Orangis
Gracie Partners LLC
000 Xxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Gramercy Trust II
c/o Xxx Xxx
00 Xxxxx Xxxxxx
Xxxxxx Xxxxxxx, XX 00000
H&Q Employee Venture Fund 2000, L.P.
c/o Access Technology Partners, L.P.
Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxx
H&Q Xxxxx.xxx Investors, LLC
c/o Access Technology Partners, L.P.
Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxx
Xxxxxxxxx & Xxxxx California
c/o Access Technology Partners, L.P.
Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxx
Xxxxxx Capital Inc.
Xxx Xxxxxx Xxxxxxxxx
XxXxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx
ISM Consulting
x/x Xxx Xxx
00 Xxxxx Xxxxxx
Xxxxxx Xxxxxxx, XX 00000
Xxxxxxxx X. Xxxxxx
000 Xxxx 0xx Xxxxxx
Xxx. 0
Xxx Xxxx, XX 00000
Xxxxxxxx Xxxxx
000 Xxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Levy Group Investment Fund, LLC
0000 0/0 Xxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxx
Xxxx-Xxxxxx Xxxxxx
The Xxxxxxx Group
112 Ave. Kleber
00000 Xxxxx
Xxxxxx
Moriah Fund
0 Xxxxxxxx Xxxxxx Xxxxx
0000 X Xxxxxx, XX
Xxx. 0000
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxx Xxxxx
New York City Investment Fund, LLC
0 Xxxxxxx Xxxx Xxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Xxxxxxx
00 Xxxx 00xx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Oak VIII Affiliates Fund Limited Partnership
c/o Oak Investment Partners
00 Xxxxx 0xx Xxxxxx
Xxx. 0000
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxx
Oak Investment Partners VIII Limited Partnership
c/o Oak Investment Partners
00 Xxxxx 0xx Xxxxxx
Xxx. 0000
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxx
Odyssey Venture Partners L.P.
Bermuda Commercial Bank Building
44 Church Street
Xxxxxxxx XX 12
Bermuda
Attn: Xxxxxxxxxx Xxxxxxxxxx
Xxxxx Xxxxxxxxxxx
c/o Xxxxxx Xxxxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
RF Ventures LLC
c/o Xxxxxx Xxxxxxxxx
0000 Xxxx Xxxxxx
Xxx. 0X
Xxx Xxxx, XX 00000
Xxxxxxxxx Xxxx
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxxxxxx Xxxx
0000 X Xxxxxx, XX
Xxx. 0
Xxxxxxxxxx, XX 00000
Xxxxxxxx Xxxxxx
000 Xxxx Xxxxxx Xxxxx
Xxx. 0X
Xxx Xxxx, XX 00000
Xxxxx Xxxxxxxxxxx
00 Xxxxxxxxxxx Xxxxx
Xxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
Xxxxx Xxxxxxxxxx
The Xxxxxxx Group
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxx 000 Xxxxx
Xxxxxxxxxx, XX 00000-0000
Xxxxx Xxxxxxx
Hunter Realty
00 Xxxxxxxx
Xxxx 0000
Xxx Xxxx, XX 00000
Xxxxxxxx Investment Opportunities (Master) Fund - NTV Portfolio
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
Xxxxxxxx New Technologies Fund, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
Xxxxxxxx & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Managing Partner
Xxxxx Xxxxxxxxx
00 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxxxxxxxxx Xxxxxxxx
00 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxxxxxx Xxxxxxx
0000 Xxxxx Xxxxxx
Xxx. 00
Xxx Xxxx, XX 00000
SOFTBANK Capital Partners LP
00 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
SOFTBANK Capital Advisors Fund LP
00 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Xxxxxxx Xxxxx
000 Xxxxxxxxx Xxxxxx
Xxx. 000
Xxx Xxxx, XX 00000
Xxxxxx Xxxxx
000 Xxxxxxxxx Xxxxxx
Xxx. 000
Xxx Xxxx, XX 00000
Xxxx Xxx Xxxxx
0 Xxxxxxxx Xxxxxx Xxxxx
0000 X Xxxxxx, XX
Xxx. 0000
Xxxxxxxxxx, XX 00000
Xxxx Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx. 000
Xxx Xxxx, XX 00000
Xxxxxx Xxxxx
0000 00xx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Xxxx Xxxxxxxxx (1996) Long Term Trust
000 Xxxxx Xxxxxx
Xxx. 0X
Xxx Xxxx, XX 00000
Xxxxxx & Xxxxxx Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Xxxxxxx Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx. 0X
Xxx Xxxx, XX 00000
Tailwind Capital Partners, L.P.
0 Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxxx
Xxxx-Xxxxxxx Xxxxxx
00 Xxxxxxxx Xxxxxx
Xxxxxx X0X 0XX
Xxxxxxxxx Xxxxxxxx
Xxxxxxx Sachs
Xxx Xxx Xxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Trimtab Ventures, LLC
c/o Xxxxx Xxxxxx
0000 00xx Xxxxxx, XX
Xxx. 000
Xxxxxxxxxx, XX 00000
Triad Media Ventures
000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
TWB Investment Partners
c/o Perkins Coie LLP
0000 Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
II. SERIES D PREFERRED STOCKHOLDERS
The 2003 Fund, Inc.
c/o Gramercy Trust
000 Xxxx Xxxxxx; 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
Xxxxx Xxxxxxxx
0000 X Xxxxxx XX
Xxxxxxxxxx, XX 00000
Access Technology Partners, L.P.
Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxx
Access Technology Partners Brokers Fund, L.P.
Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxx
Argossy Limited
Bermuda Commercial Bank Building
44 Church Street
Xxxxxxxx XX 12
Bermuda
Attn: Xxxxxxxxxx Xxxxxxxxxx
Xxxxx Xxxxx
000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Xxx Xxxxxxx
Xxxxxx Strategic Development Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Chase Venture Capital Associates, L.P.
c/o Chase Capital Partners
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: I. Xxxxxx Xxxxxx
Xxxx Xxxx
00 Xxxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxxxx Xxxxxxxx
Xxx Xxxxx Xxxxx, Xxx. 0X
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxx
000 Xxxxxxx Xxxx Xxxx Xxx 00X
Xxx Xxxx, XX 00000
Flatiron Associates, LLC
c/o Flatiron Partners
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxx
The Flatiron Fund 1998/99, LLC
c/o Flatiron Partners
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Xxxxxxx Xxxxxxx
00 Xxxx 00xx Xxxxxx
Xxx. 0X
Xxx Xxxx, XX 00000
Xxxxxx Partners LLC
c/o Xxxxxxx X. Xxxxxxx
000 Xxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
H&Q Xxxxx.xxx Investors, LLC
c/o Access Technology Partners, L.P.
Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxx
Xxxxxxxxx & Xxxxx California
c/o Access Technology Partners, L.P.
Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxx
Xxxxxxxxx & Xxxxx Employee Venture Fund, X.X. XX
c/o Access Technology Partners, L.P.
Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxx
Xxxx Xxxxxxxxx, Xx.
00 Xxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
ISM Consulting, Inc.
c/o Gramercy Trust
000 Xxxx Xxxxxx; 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxx
Xxxxx Xxxxxx
Kravis Partners/KKR
0 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
Levy Group Investment Fund, LLC
c/o Xxxxxxx Xxxx
0000 0/0 Xxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Xxxxxxx Xxxx III
000 Xxxx 00xx Xxxxxx Xxx 0X
Xxx Xxxx, XX 00000
Xxxxxxxxxx XxXxxxx
c/o Xxxxxx Xxxxx
000 Xxxxxxxxx Xxxxxx #000
Xxx Xxxx, XX 00000
Xxxxxx XxXxx Revocable Trust
c/o Xxx XxXxx
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Moriah Fund
x/x Xxxx Xxx Xxxxx
0 Xxxxxxxx Xxxxxx South
0000 X Xxxxxx, XX
Xxx. 0000
Xxxxxxxxxx, XX 00000
Xxxxx X. Xxxxxxxxxxx
00 Xxxx 00xx Xxxxxx, Xxxxx 0X
Xxx Xxxx, XX 00000
Xxxx Xxxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Xxx Xxxx City Investment Fund
0 Xxxxxxx Xxxx Xxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx
c/o Xxxxxx Xxxxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxx Xxxxxxx
c/o Xxxxxx Xxxxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Xxxxxxx
00 Xxxx 00xx Xxxxxx; 0xx Xxxxx
Xxx Xxxx, XX 00000
Oak VIII Affiliates Fund Limited Partnership
c/o Oak Investment Partners
00 Xxxxx 0xx Xxxxxx
Xxx. 0000
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxx
Oak Investment Partners VIII Limited Partnership
c/o Oak Investment Partners
00 Xxxxx 0xx Xxxxxx
Xxx. 0000
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxx
Odyssey Venture Partners L.P.
Bermuda Commercial Bank Building
44 Church Street
Xxxxxxxx XX 12
Bermuda
Attn: Xxxxxxxxxx Xxxxxxxxxx
Xxxxx Xxxxxxxxxxx
c/o Xxxxxx Xxxxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
R. Xxxx Xxxxxx and Xxxxxx Xxxxxx, Tenants in Common
00 Xxxx 00xx Xxxxxx #00X
Xxx Xxxx, XX 00000
Xxxxxxxxx Xxxx
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxxxxxx Xxxx
0000 X Xxxxxx, XX
Xxx. 0
Xxxxxxxxxx, XX 00000
E. Xxxx Xxxx, Jr.
0000 Xxxxxxxxxxxxx Xxxxxx XX
Xxxxxxxxxx, XX 00000
Xxxxx Xxxxxxxxxxx
00 Xxxxxxxxxxx Xxxxx
Xxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
Xxxxx Xxxxxxxxxxxx
000 Xxxxxxx Xxxxxx #000
Xxxxx Xx, XX 00000
Xxxxxxxx Investment Opportunities (Master) Fund - NTV Portfolio
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
Xxxxxxxx New Technologies Fund, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
Xxxxxxxx & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Xxxxx
0000 Xxxxxxxxxx Xxxxx Xxx 000
Xxxxxxx, XX 00000
Xxxxxx Xxxxx
000 Xxxxxxxxx Xxxxxx #000
Xxx Xxxx, XX 00000
Xxxx Xxx Xxxxx
0 Xxxxxxxx Xxxxxx Xxxxx
0000 X Xxxxxx, XX
Xxx. 0000
Xxxxxxxxxx, XX 00000
Xxxx Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx. 000
Xxx Xxxx, XX 00000
Xxxxxx Xxxxx
0000 00xx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Xxxx Xxxxxxxxx and Xxxx Xxxxx, Tenants in Common
000 Xxxxx Xxxxxx #0X
Xxx Xxxx, XX 00000
Xxxx Xxxxxxxxx (1996) Long Term Trust
000 Xxxxx Xxxxxx #0X
Xxx Xxxx, XX 00000
Tailwind Capital Partners, L.P.
0 Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxxx
Xxxxxxxxx Xxxxxxxx
One New York Plaza
Xxxxxxx Sachs
00xx Xxxxx
Xxx Xxxx, XX 00000
Triad Media Ventures
000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Trimtab Ventures, LLC
c/o Xxxxx Xxxxxx
0000 00xx Xxxxxx, XX
Xxx. 000
Xxxxxxxxxx, XX 00000
Xxxxxx Xxxxx
0000 Xxxxx Xxxxxx Xxxxxxx
Xxxxx, XX 00000
Xxxxxx Wash
00 Xxxx 00xx Xxxxxx #0X
Xxx Xxxx, XX 00000
III. SERIES C PREFERRED STOCKHOLDERS
Xxxxx Xxxxxxxx
0000 X Xxxxxx XX
Xxxxxxxxxx, XX 00000
Argossy Limited
Bermuda Commercial Bank Building
44 Church Street
Xxxxxxxx XX 12
Bermuda
Attn: Xxxxxxxxxx Xxxxxxxxxx
Xxxxx Xxxxxxxx
000X Xxxxx Xxxxxx #0X
Xxx Xxxx, XX 00000
Xxxxx Xxxxx
000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Xxxxxx Xxxxxx
00 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
A. Donald & Xxxxxxxxx Xxxxxxxx
0000 00xx Xxxxxx XX
Xxxxxxxxxx, XX 00000
Xxxxx Xxxxx
000 Xxxx 000xx Xxxxxx
Xxx Xxxx, XX 00000
Xxxx Xxxx
00 Xxxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxxxxx Xxxxx
00 Xxxx 00xx Xxxxxx #0-X
Xxx Xxxx, XX 00000
Colrain Associates
c/o Xxxxx Xxxx
000 Xxxxx Xxxxxx; 00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Xxxxxxxx
Xxx Xxxxx Xxxxx, Xxx. 0X
Xxx Xxxx, XX 00000
Xxxxx Xxxx
000 Xxxxx Xxxxxx Xxxxx 000
Xxx Xxxx, XX 00000
Xxxxxxx Xxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxxxx DeGanon
000 Xxxxx Xxx Xxxxxx #00X
Xxx Xxxx, XX 00000
Xxxxxxx Xxxx, Xx.
c/o Xxxxxxx Xxxx
0000 X. Xxxxxxx #00X
Xxxxxxx, XX 00000
Xxxx Xxxxxxx and Xxxxxx X. Xxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx. X00
Xxx Xxxx, XX 00000-0000
Xxxx Xxxx, Jr.
00 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxxx Xxxxxxx
000 Xxxxxxx Xxxx Xxxx Xxx 00X
Xxx Xxxx, XX 00000
Xxxxxxxxx Xxxxxxxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Gramercy Trust
000 Xxxx Xxxxxx; 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxx
Xxxx Xxxxx
00 Xxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Xxxx Xxxxxxxxx, Xx.
00 Xxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxx Xxxxxxx
00000 Xxxxxx Xxxxx Xxxxx
Xxx Xxxx, XX 00000
Levy Group Investment Fund, LLC
c/o Xxxxxxx Xxxx
0000 0/0 Xxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Xxxx Xxxxxxxxx
Xxxxxx Xxxxxx Partners
Xxx Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxxxx Xxxx III
000 Xxxx 00xx Xxxxxx Xxx 0X
Xxx Xxxx, XX 00000
Xxxxxx XxXxx Revocable Trust
c/o Xxx XxXxx
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxxxxxx X'Xxxx XxXxxxx
0000 Xxxxxx Xxxxxx
Xxxxxx Xxxxx, XX 00000
Xxxx X. Xxxxxxx
00000 Xxxx Xxxx Xxxx
Xxxxxxx, XX 00000
Xxxx X. Xxxxxxx;
00000 Xxxx Xxxx Xxxx
Xxxxxxx, XX 00000
Xxxxxxxxxxx Xxxxxx
00-00 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx X. Xxxxxx
0000 X.X. Xxxxxxxxxx #F508
Xxxxxxxx, XX 00000
Xxxxx X. Xxxxxxxxxxx
000 Xxxx 00xx Xxxxxx, Xxxxx 0X
Xxx Xxxx, XX 00000
Xxxxxxx Xxxxxxx
00 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Xxxx Xxxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Xxxxxx Xxxxxxx
0000 Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
Oasis Direct Venture #3
0000 Xxxxxxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx Xx-Xxxxxx
Odyssey Venture Partners L.P.
Bermuda Commercial Bank Building
44 Church Street
Xxxxxxxx XX 12
Bermuda
Attn: Xxxxxxxxxx Xxxxxxxxxx
R. Xxxx Xxxxxx and Xxxxxx Xxxxxx, Tenants in Common
00 Xxxx 00xx Xxxxxx #00X
Xxx Xxxx, XX 00000
R. Xxxx Xxxxxx Cust. Xxxx Xxxx Xxxxxx UGMA
00 Xxxx 00xx Xxxxxx #00X
Xxx Xxxx, XX 00000
Xxxxxxx Xxxx
000 Xxxx Xxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Xxxx
000 Xxxx Xxxxxx
Xxxxxxxxx 0X
Xxx Xxxx, XX 00000
E. Xxxx Xxxx, Jr.
0000 Xxxxxxxxxxxxx Xxxxxx XX
Xxxxxxxxxx, XX 00000
Xxxxx Xxxxxxxxxxxx
000 Xxxxxxx Xxxxxx #000
Xxxxx Xx, XX 00000
Mario Shiloloski
000 Xxxxxxxx Xxxxxx #0
Xxx Xxxx, XX 00000
Xxxxx Xxxxxx
0000 XxXxxx Xxxxx
Xxxxxxxxx, XX 00000
Xxxxxxx Xxxxx
0000 Xxxxxxxxxx Xxxxx Xxx 000
Xxxxxxx, XX 00000
Xxxxxx Xxxxx
000 Xxxxxxxxx Xxxxxx #000
Xxx Xxxx, XX 00000
Xxxx Xxx Xxxxx
0 Xxxxxxxx Xxxxxx Xxxxx
0000 X Xxxxxx, XX
Xxx. 0000
Xxxxxxxxxx, XX 00000
Xxxx Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx. 000
Xxx Xxxx, XX 00000
Xxxxxx Xxxxx
0000 00xx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Xxxx Xxxxxxxxx and Xxxx Xxxxx, Tenants in Common
000 Xxxxx Xxxxxx #0X
Xxx Xxxx, XX 00000
Xxxx Xxxxx
0000 Xxxxxx Xxxxxx
Xxx. 000
Xxxxxxxxxxxx, XX 00000
Xxxxxxxxx Xxxxxxxx
One New York Plaza
Xxxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Trimtab Ventures, LLC
c/o Xxxxx Xxxxxx
0000 00xx Xxxxxx, XX
Xxx. 000
Xxxxxxxxxx, XX 00000
Xxxxxx Xxxxx
0000 Xxxxx Xxxxxx Xxxxxxx
Xxxxx, XX 00000
Xxxxxx Wash
00 Xxxx 00xx Xxxxxx #0X
Xxx Xxxx, XX 00000
Zoey T. Zebedee
c/o Xxxxxx Xxxxx
000 Xxxxxxxxx Xxxxxx #000
Xxx Xxxx, XX 00000
IV. SERIES B PREFERRED STOCKHOLDERS
Xxxx Xxxxxxxxxxx
Stonington Partners
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Xxx Xxxxx
ING Baring Furnan Xxxx LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Colrain Associates
c/o Xxxxx Xxxx
000 Xxxxx Xxxxxx; 00xx Xx
Xxx Xxxx, XX 00000
Xxxx Xxxxx
Stonington Partners
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxx Xxxxxxxxxxx
KMOC
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Levy Group Investment Fund, LLC
c/o Xxxxxxx Xxxx
0000 0/0 Xxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Merion Partners
c/o Arena Capital Partners
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Monkey Rock Ventures, LLC
00 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxx
Xxx Xxxxx
Xxxxxxxxx.xxx
0 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Xxxxxx Xxxxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Xxxxxxx
00 Xxxx 00xx Xxxxxx; 0xx Xxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Xxxx
000 Xxxx Xxx Xxxxxx
Xxx Xxxx, 00000
Xxxxxxx Xxxx
000 Xxxx Xxxxxx #0-X
Xxx Xxxx, XX 00000
Xxxxx Xxxx
Stonington Partners
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Xxxxx
0000 Xxxxxxxxxx Xxxxx Xxx 000
Xxxxxxx, XX 00000
Xxxxxx Xxxxx
000 Xxxxxxxxx Xxxxxx #000
Xxx Xxxx, XX 00000
Xxxx Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx. 000
Xxx Xxxx, XX 00000
Xxxxxx Xxxxx
0000 00xx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Trimtab Ventures, LLC
c/o Xxxxx Xxxxxx
0000 00xx Xxxxxx, XX
Xxx. 000
Xxxxxxxxxx, XX 00000
-------------------------------
SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
-------------------------------
Among
XXXXX.XXX, INC.
and the
STOCKHOLDERS IDENTIFIED HEREIN
Dated as of March 14, 2000
TABLE OF CONTENTS
PAGE
SECTION 1. Definitions ................................................... 1
SECTION 2. Required Registration ......................................... 4
SECTION 3. Piggyback Registration ........................................ 6
SECTION 4. Registrations on Form S-3 ..................................... 7
SECTION 5. Holdback Agreement ............................................ 7
SECTION 6. Preparation and Filing ........................................ 8
SECTION 7. Expenses ...................................................... 11
SECTION 8. Indemnification ............................................... 11
SECTION 9. Underwriting Agreement ........................................ 14
SECTION 10. Information by Holders of Registrable Shares .................. 14
SECTION 11. Exchange Act Compliance ....................................... 15
SECTION 12. No Conflict of Rights ......................................... 15
SECTION 13. Termination ................................................... 15
SECTION 14. Successors and Assigns ........................................ 15
SECTION 15. Assignment .................................................... 15
SECTION 16. Entire Agreement .............................................. 16
SECTION 17. Notices ....................................................... 16
SECTION 18. Modifications; Amendments; Waivers ............................ 17
SECTION 19. Counterparts; Facsimile Signatures ............................ 17
SECTION 20. Headings ...................................................... 18
SECTION 21. Severability; Governing Law ................................... 18
SECTION 22. Amendment and Restatement of Existing Agreements .............. 18
