EXHIBIT 10.13
AGREEMENT
This Agreement is made and entered into as of this 12th day of
September, 1996, by and among XOMED SURGICAL PRODUCTS, INC., a Delaware
corporation (the "Company"), WARBURG, XXXXXX INVESTORS, L.P., a Delaware limited
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partnership ("Warburg"), ACCEL IV L.P., a Delaware limited partnership ("Accel
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IV"), ACCEL INVESTORS '94 L.P., a Delaware limited partnership ("Accel Investors
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'94"), ACCEL KEIRETSU L.P., a Delaware limited partnership ("Accel Keiretsu"),
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XXXXXX X. XXXXXXXXX PARTNERS, a Delaware general partnership ("Xxxxxxxxx"),
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PROSPER PARTNERS, a New York general partnership ("Prosper" and together with
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Accel IV, Accel Investors '94, Accel Keiretsu and Xxxxxxxxx, "Accel"), VERTICAL
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FUND ASSOCIATES, L.P., a Delaware limited partnership ("Vertical"), XXXX X.
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XXXXX ("Xxxxx"), XXXXXXX XXXXXXXXXX ("Xxxxxxxxxx"), XXXXXX X. XXXXXXX
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("Xxxxxxx"), XXXXXXX X. XXXXXX ("Xxxxxx"), XXXXXX X. XXXXXX ("Xxxxxx"), FIRST
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UNION CAPITAL PARTNERS, INC., a Virginia corporation ("First Union"), XXXXX X.
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XXXXXX ("Xxxxx Xxxxxx"), XXXX X. XXXXXX ("Xxxx Xxxxxx"), XXX X. XXXXXX ("Xxx
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Xxxxxx"), F. XXXXX XXXX ("Xxxx"), XXXXXX X. XXXXXX ("Xxxxxx"), XXXXXX XXXXX
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("Xxxxx") and XXXXX X. XXXXX ("Xxxxx"). Warburg, Accel, Vertical, Xxxxx,
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Rosenblatt, Cercone, Miller, Reeves, First Union, Xxxxx Xxxxxx, Xxxx Xxxxxx, Xxx
Xxxxxx, Bays, Timbie, Xxxxx and Grant are hereinafter referred to collectively
as the "Investors".
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W I T N E S S E T H :
WHEREAS, the Investors listed on Schedule A (the "Convertible
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Preferred Holders") hold the number of shares of the Company's Series A
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Convertible Preferred Stock, par value $1.00 per share (the "Series A
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Convertible Preferred Stock"), and Series B Convertible Preferred Stock, par
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value $1.00 per share (the "Series B Convertible Preferred Stock," and together
------------------------------------
with the Series A Convertible Preferred Stock, the "Convertible Preferred
---------------------
Stock"), set forth on such schedule opposite their respective names, which
shares collectively constitute all the outstanding shares of Convertible
Preferred Stock; and
WHEREAS, the Investors listed on Schedule B (the "Redeemable Preferred
--------------------
Holders") hold the number of shares of the Company's Series C Redeemable
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Preferred Stock, par value $1.00 per share (the "Series C Redeemable Preferred
-----------------------------
Stock"), set forth on such schedule opposite their respective names, which
-----
shares collectively constitute all the outstanding shares of Series C Redeemable
Preferred Stock; and
WHEREAS, the Company has granted to the Investors listed on Schedule C
(the "Registration Rights Holders") certain rights under a Stockholders
---------------------------
Agreement, dated as of April 16, 1996, among the Company and the Registration
Rights Holders (the "Stockholders Agreement"), with respect to the registration
----------------------
under the Securities Act of 1993, as amended (the "Securities Act"), of certain
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shares of capital stock of the Company held by such holders; and
WHEREAS, the Company is contemplating an initial public offering (the
"Offering") of shares of its Common Stock, par value $.01 per share (formerly
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designated Class A Common Stock, "Common Stock"), pursuant to a registration
------------
statement on Form S-1, and in connection therewith, the Company and the
Investors desire that (i) the outstanding shares of Series A Convertible
Preferred Stock and Series B Convertible Preferred Stock be converted into
shares of Common Stock and the Company's Non-Voting Common Stock, par value $.01
per share ("Non-Voting Common Stock"), respectively, (ii) a portion of the
outstanding shares of Series C Redeemable Preferred Stock be redeemed by the
Company, (iii) all shares of outstanding Series C Redeemable Preferred Stock not
so redeemed be exchanged for shares of Common Stock and (iv) the Registration
Rights Holders waive any rights that they may have with respect to the inclusion
of their shares in the registration statement relating to the Offering;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions hereinafter set forth, the parties hereto hereby agree as follows:
Section 1. Consent to Conversion of Convertible Preferred Stock.
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(a) Upon the closing of the Offering (the "Consummation Date"), (i)
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all shares of Series A Convertible Preferred Stock shall be converted
automatically into shares of Common Stock in accordance with the terms of the
Series A Convertible Preferred Stock and (ii) all shares of Series B Convertible
Preferred Stock shall be converted automatically into shares of Non-Voting
Common Stock in accordance with the terms of the Series B Convertible Preferred
Stock. No fractional shares of Common Stock or Non-Voting Common Stock shall be
issued upon such conversions. If any fraction of a share of Common Stock or
Non-Voting Common Stock would be issuable to a Convertible Preferred Holder upon
such conversions, such holder shall be entitled to receive in lieu of such
fraction cash from the Company in an amount equal to the product of such
fraction and the initial public offering price per share of the Common Stock as
set forth on the cover page of the final prospectus relating to the Offering
(the "Offering Price"). The execution of this Agreement by the Convertible
--------------
Preferred Holders constitutes the written consent of
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such holders to such automatic conversion in accordance with the terms of the
Convertible Preferred Stock. Each Convertible Preferred Holder hereby
irrevocably waives any right such holder may have to receive notice of the
conversion of Convertible Preferred Stock contemplated by this Section 1(a).
(b) Upon the Consummation Date, the shares of Series A Convertible
Preferred Stock shall cease to exist and the Convertible Preferred Holders who
held such shares shall cease to have any rights with respect thereto, except the
right to receive (i) the requisite whole number of shares of Common Stock in
accordance with the terms of the Series A Convertible Preferred Stock and (ii)
cash in lieu of any fractional shares of Common Stock in accordance with Section
1(a) hereof.
(c) Upon the Consummation Date, the shares of Series B Convertible
Preferred Stock which are all held by Warburg shall cease to exist and Warburg
shall cease to have any rights with respect thereto, except the right to receive
(i) the requisite whole number of shares of Non-Voting Common Stock in
accordance with the terms of the Series B Convertible Preferred Stock and (ii)
cash in lieu of any fraction of a share of Non-Voting Common Stock in accordance
with Section 1(a) hereof.
(d) On or following the Consummation Date, each Convertible Preferred
Holder shall surrender to the Company stock certificates representing all of the
shares of Convertible Preferred Stock held by it, duly endorsed for transfer to
the Company. Upon the surrender by a Convertible Preferred Holder to the
Company of such certificates formerly representing shares of Convertible
Preferred Stock, the Company shall promptly deliver to such holder (i)
certificates in such holder's name representing the number of whole shares of
Common Stock or Non-Voting Common Stock into which such holder's shares of
Convertible Preferred Stock shall have converted and (ii) cash in lieu of any
fraction of a share of Common Stock or Non-Voting Common Stock, in an amount
determined in accordance with Section 1(a) hereof. Such delivery shall be made
by mailing the certificates and checks in payment of cash in lieu of any
fractional shares to the Convertible Preferred Holders at their respective
addresses as set forth below their names on the signature pages hereto.
Section 2. Redemption and Exchange of Series C Redeemable Preferred
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Stock.
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(a) Upon the earlier of (i) the date of the closing of the sale by
the Company of shares covered by an over-allotment option granted to its
underwriters in connection with the Offering and
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(ii) the date that is 30 days after the Consummation Date (such earlier date the
"Redemption Date"), the Company shall redeem from each Redeemable Preferred
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Holder, at a redemption price per share equal to the Redemption Price (as
defined below) on such date, such number of its shares of Series C Redeemable
Preferred Stock as shall be equal to the product of (A) the total number of
shares of Series C Redeemable Preferred Stock held such holder and (B) a
fraction, the numerator of which is the Redemption Amount and the denominator of
which is the product of (x) the Redemption Price and (y) the aggregate number of
shares of outstanding Series C Redeemable Preferred Stock. No fractional shares
shall be redeemed. In the event that the foregoing calculation shall result in a
fractional share amount for any Redeemable Preferred Holder, the number of
shares of Series C Redeemable Preferred Stock to be redeemed from such holder
shall be rounded down to the next lesser whole number. Each Redeemable Preferred
Holder hereby waives any right such holder may have to receive notice of the
redemption of Series C Redeemable Preferred Stock contemplated by this Section
2(a).
For purposes of this Section 2, the following terms have the meanings
set forth below:
"Net Proceeds" means the aggregate net proceeds to the Company from the
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sale of shares in the Offering, including shares subject to the
underwriters' over-allotment option, after deducting underwriting discounts
and expenses.
"Redemption Amount" means the Net Proceeds less the amount of such proceeds
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used by the Company to repay in full all amounts outstanding under its
existing bank term loan; provided, however, that in no event shall the
Redemption Amount exceed $25 million.
"Redemption Price" means, with respect to any date, $100 plus the amount of
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accrued and unpaid dividends per share of Series C Redeemable Preferred
Stock as of that date.
(b) Upon the Redemption Date, all shares of Series C Redeemable Preferred
Stock to be redeemed at such time pursuant to Section 2(a) hereof shall cease to
exist and the holders thereof shall cease to have any rights with respect
thereto, except the right to receive the aggregate Redemption Price with respect
to such shares in accordance with the terms of this Agreement. On or following
the Redemption Date, each Redeemable Preferred Holder shall surrender to the
Company stock certificates representing all of the shares of Series C Redeemable
Preferred Stock held by it, duly endorsed for transfer to the Company. Upon the
surrender by a Redeemable Preferred Holder to the Company of such certificates
formerly representing such holder's shares of Series C Redeemable Preferred
Stock
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redeemed upon the Redemption Date, the Company shall promptly pay to such
holder an amount equal to (i) the product of (A) the number of such holder's
shares of Series C Redeemable Preferred Stock to be redeemed, as determined in
accordance with Section 2(a) hereof, and (B) the Redemption Price, less (ii) any
withholding required by law. Such payments shall be made by checks sent to the
Redeemable Preferred Holders at their respective addresses as set forth below
their names on the signature pages hereto.
(c) Upon the Redemption Date, each Redeemable Preferred Holder shall
exchange with the Company such holder's shares of Series C Redeemable Preferred
Stock not redeemed on such date for that number of shares of Common Stock as
shall be equal to (i) the product of (A) such number of shares of Series C
Redeemable Preferred Stock held by such holder immediately following the
redemption contemplated by Section 2(c) hereof and (B) the Redemption Price on
such date, divided by (ii) the Offering Price. No fractional shares shall be
issued in such exchange. In the event that the foregoing calculation shall
result in a fractional share amount for any Redeemable Preferred Holder, the
number of shares of Common Stock to be issued shall be rounded down to the next
lesser whole number and such holder shall be entitled to receive in lieu of such
fraction cash from the Company in an amount equal to the product of such
fraction and the Offering Price.
(d) Upon the Redemption Date, all outstanding shares of Series C
Redeemable Preferred Stock not redeemed on such date shall cease to exist and
the holders thereof shall cease to have any rights with respect thereto, except
the right to receive (i) shares of Common Stock in accordance with the terms of
this Agreement and (ii) cash in lieu of any fraction of a share of Common Stock
in accordance with Section 2(c) hereof. Upon the surrender by a Redeemable
Preferred Holder of certificates formerly representing all such holder's shares
of Series C Redeemable Preferred Stock exchanged hereunder, the Company shall
promptly deliver to such holder (i) certificates in such holder's name
representing the requisite whole number of shares of Common Stock and (ii) cash
in lieu of any fraction of a share of Common Stock, in each case, as determined
in accordance with Section 2(c) hereof. Such delivery shall be made by mailing
the certificates and checks in payment of cash in lieu of any fractional shares
to the Redeemable Preferred Holders at their respective addresses as set forth
below their names on the signature pages hereto.
Section 3. Waiver of Registration Rights.
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(a) Subject to Section 3(b), each Registration Rights Holder hereby
irrevocably waives any rights such holder may
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have pursuant to the Stockholders Agreement (i) to written notice of the
Offering and (ii) to include any Registrable Securities (as defined in the
Stockholders Agreement) held by such holder in the proposed registration and
underwriting relating to the Offering. Such waiver shall not constitute a waiver
of any other rights of the Registration Rights Holders under the Stockholders
Agreement. The Company acknowledges that shares of Common Stock issuable to the
Registration Rights Holders upon (A) the conversion of shares of Series A
Convertible Preferred Stock hereunder, (B) the conversion of shares of Non-
Voting Stock issuable upon the conversion of shares of Series B Convertible
Preferred Stock hereunder and (C) the exchange of shares of Series C Redeemable
Preferred Stock hereunder are Registrable Securities for the purposes of the
Stockholders Agreement.
(b) The waiver in Section 3(b) shall expire if the Consummation Date
shall not have occurred on or before December 31, 1996.
Section 4. Representations and Warranties.
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(a) The Company represents and warrants to the Investors as follows:
(i) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(ii) The Board of Directors of the Company has authorized the
execution, delivery and performance of this Agreement and each of the
transactions contemplated hereby. Any consents of third parties that may be
required to be obtained by the Company for the execution, delivery or
performance of the transactions contemplated hereby have been obtained.
(iii) This Agreement constitutes the valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms.
(iv) As of the date hereof, the Company's authorized, issued and
outstanding capital stock consists of the following: 30,000,000 shares of
Common Stock authorized, of which 679,270 shares are issued and outstanding;
4,000,000 shares of Non-Voting Common Stock authorized, of which 426,777 are
issued and outstanding; 1,200,000 shares of Series A Convertible Preferred Stock
authorized, of which 744,652 shares are issued and outstanding; 3,500,000 shares
of Series B Convertible
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Preferred Stock authorized, of which 2,127,838 shares are issued and
outstanding; 600,000 shares of Series C Redeemable Preferred Stock, of which
299,459 shares are issued and outstanding; and 1,000,000 shares of Preferred
Stock, par value $.01 per share, authorized, no shares of which are issued and
outstanding. An additional 669,100 shares of Common Stock are reserved for
future issuance upon the exercise of options under the Company's 1996 Stock
Option Plan. All outstanding shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid and nonassessable, and
were not issued in violation of any preemptive or similar rights.
(v) The shares of Common Stock to be issued hereunder in exchange for
shares of Series C Redeemable Preferred Stock, and the shares of Common Stock
and Non-Voting Common Stock issuable upon conversion of the shares of
Convertible Preferred Stock, when delivered for the applicable consideration,
will be duly authorized, validly issued, fully paid and nonassessable shares of
the Company, and free of any preemptive or similar rights.
(b) Each of the Investors severally represents and warrants to the
Company as follows:
(i) The execution, delivery and performance of this Agreement have
been duly authorized and all consents of third parties that may be required to
be obtained by such person for the consummation of the transactions contemplated
hereby have been obtained.
(ii) This Agreement constitutes the valid and binding obligation of
such person and is enforceable against such person in accordance with its terms.
(iii) Such person has been furnished with a copy of the registration
statement of the Company on Form S-1 relating to the Offering, as filed with the
Securities and Exchange Commission on August 20, 1996, which registration
statement contains material information concerning the Company.
(c) Each of the Convertible Preferred Holders and Redeemable Preferred
Holders severally represents and warrants to the Company as follows:
(i) The shares of Common Stock or Non-Voting Common Stock, as
applicable, are being acquired for such person's own account for investment and
not with a view towards the resale, transfer or distribution thereof, nor with
any present intention of distributing such securities. Except with respect to
security
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interests granted to Warburg or to the Company by certain Convertible
Preferred Holders and Redeemable Preferred Holders, no other person has any
right with respect to or interest in the Common Stock or Non-Voting Common
Stock, as applicable, being acquired by such person, nor has such person agreed
to give any person any such interest or right in the future.
(ii) Such person understands that the shares of Common Stock or Non-
Voting Common Stock, as applicable, being acquired in connection herewith have
not been registered under the Securities Act, nor qualified under any state
securities laws, and that they are being offered and sold pursuant to an
exemption from such registration and qualification based in part upon the
representations contained herein.
(iii) Such person has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of the
investment(s) contemplated by this Agreement and is able to bear the economic
risk of investment in the Company (including a complete loss of investment).
(iv) Such person understands that absent registration under the
Securities Act and qualification under applicable state securities laws, the
shares of Common Stock or Non-Voting Common Stock, as applicable, may not be
transferred without an opinion of counsel reasonably satisfactory to the Company
stating that an exemption from such registration and qualification is available,
and such person must otherwise bear the economic risk of this investment
indefinitely unless such person's securities are registered pursuant to the
Securities Act and qualified under applicable state securities laws or an
exemption from qualification is available.
(v) The social security number or employer identification number set
forth under such person's name on the signature pages hereto is true and
correct.
Section 5. Covenants.
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(a) Each of the Convertible Preferred Holders and Redeemable Preferred
Holders severally covenants that such person will not sell or otherwise transfer
the shares acquired hereunder except pursuant to an effective registration under
the Securities Act or in a transaction which qualifies as an exempt transaction
under the Securities Act and the rules and regulations promulgated thereunder
and any applicable state securities laws.
(b) In addition to any legends required under the Stockholders Agreement,
the certificates evidencing the shares of Common Stock and Non-Voting Common
Stock issued hereunder and the shares of Common Stock issuable upon the
conversion of such
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shares of Non-Voting Common Stock shall bear the following legend:
"The securities evidenced hereby have not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), and may not be
transferred except pursuant to an effective registration under the
Securities Act or in a transaction which, in the opinion of counsel
reasonably satisfactory to the Company, qualifies as an exempt transaction
under the Securities Act and the rules and regulations promulgated
thereunder."
(c) Each of the Redeemable Preferred Holders acknowledges and understands
that (i) the determination of the relative number of shares of Series C
Redeemable Preferred Stock to be redeemed as opposed to exchanged hereunder
depends upon the amount required for the Company to repay in full its bank term
loan, the amount of Net Proceeds and the amount of accrued and unpaid dividends
on the Series C Redeemable Preferred Stock at the Redemption Date and (ii) the
amount of Net Proceeds in turn will depend upon the total number of shares sold
in the Offering, the Offering price, the size of the underwriting discounts and
the amount of Offering expenses.
(d) Pending the closings of the transactions contemplated hereby, unless
the Company determines not to effect the Offering, the Company will not, without
the prior written consent of the other parties hereto, take any action which
would result in any of the representations or warranties contained in this
Agreement not being true at and as of the time immediately after such action, or
result in any of the covenants contained in the Agreement becoming incapable of
performance, the Company will promptly advise such parties of any action or
event of which it becomes aware which has the effect of making incorrect any of
such representations or warranties or which has the effect of rendering any of
such covenants incapable of performance. Pending the closing of the
transactions contemplated hereby, unless the Company determines not to effect
the Offering, the Company shall not issue any shares of capital stock of the
Company except pursuant to this Agreement, in connection with the Offering or in
connection with the exercise of outstanding stock options or the conversion of
outstanding securities convertible into shares of capital stock of the Company,
and the Convertible Preferred Holders and Redeemable Preferred Holders shall not
transfer any shares of Convertible Preferred Stock or Series C Redeemable
Preferred Stock, as applicable, other than transfers by such holders to the
Company or, in the case of a holder who is a natural person, to a trust for the
benefit of the holder's immediate family; provided, that such trust agrees in
writing to be bound by the terms of this Agreement.
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(e) Each of the parties shall execute such documents and other papers and
take such further actions as may be reasonably required or desirable to carry
out the provisions hereof and the transactions contemplated hereby.
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Section 6. Termination.
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This Agreement shall terminate at the close of business on December 31,
1996 if the Consummation Date shall not have occurred on or before such date.
Section 7. Notices.
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All notices or other communications required or permitted to be given
hereunder or necessary in connection herewith shall be in writing and shall be
deemed to have been duly delivered upon delivery, if delivered personally, upon
the transmission thereof, if sent by facsimile transmission, on the second
business day after delivery to an air courier company for express delivery, or
on the seventh business day after mailing, if mailed, postage prepaid,
registered or certified mail. Such notices shall be delivered to the address
set forth opposite such party's name on the signature pages hereto, or such
other address as such party shall have furnished to the other parties hereto.
Section 8. Miscellaneous.
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(a) This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware without regard to choice of law principles
thereof.
(b) The headings of the sections of this Agreement are for convenience
only and shall not be deemed to constitute a part of this Agreement.
(c) This Agreement constitutes the entire understanding of the parties
hereto and supersedes all prior agreements or understandings among the parties
relating to the subject matter hereof. This Agreement may be amended, and the
observance of any term of this Agreement may be waived, with (and only with) the
written consent of all parties hereto, except that Section 1 hereof may be
amended, and the observance of any provision in such section may be waived, by
Convertible Preferred Holders holding a majority of the aggregate outstanding
shares of Convertible Preferred Stock.
(d) This Agreement may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed an original, and such
counterparts together shall constitute only one instrument.
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IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of
the date first set forth above.
XOMED SURGICAL PRODUCTS, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
Address: 0000 Xxxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
WARBURG, XXXXXX INVESTORS, L.P.
By: Warburg, Xxxxxx & Co.,
General Partner
By: /s/ Xxxxxxxxx X. Xxxxxxxxxx
---------------------------------
Name: Xxxxxxxxx X. Xxxxxxxxxx
Title:
Address:
FEIN:
ACCEL IV L.P.
By: Accel IV Associates L.P.
Its General Partner
By: /s/ Xxxx X. Xxxxxxxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxxxxxxx
Title:
Address:
FEIN:
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ACCEL INVESTORS '94 L.P.
By: /s/ Xxxx X. Xxxxxxxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxxxxxxx
Title:
Address:
FEIN:
ACCEL KEIRETSU L.P.
By: Accel Partners & Co., Inc.
Its General Partner
By: /s/ Xxxx X. Xxxxxxxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxxxxxxx
Title:
Address:
FEIN:
XXXXXX X. XXXXXXXXX PARTNERS
By: /s/ Xxxx X. Xxxxxxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxxxxxx
Title:
Address:
FEIN:
PROSPER PARTNERS
By: /s/ Xxxx X. Xxxxxxxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxxxxxxx
Title:
Address:
FEIN:
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0165831.04
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VERTICAL FUND ASSOCIATES, L.P.
By: The Vertical Group, L.P.
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
______________________________
Name: Xxxxxxx X. Xxxxxx
Title:
Address:
FEIN:
/s/ Xxxx X. Xxxxx
__________________________________
Xxxx X. Xxxxx
Address:
SSN:
/s/ Xxxxxxx Xxxxxxxxxx
__________________________________
Xxxxxxx Xxxxxxxxxx
Address:
SSN:
/s/ Xxxxxx X. Xxxxxxx
__________________________________
Xxxxxx X. Xxxxxxx
Address:
SSN:
/s/ Xxxxxxx X. Xxxxxx
__________________________________
Xxxxxxx X. Xxxxxx
Address:
SSN:
/s/ Xxxxxx X. Xxxxxx
__________________________________
Xxxxxx X. Xxxxxx
Address:
SSN:
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FIRST UNION CAPITAL PARTNERS
By: /s/ Xxxxx Xxxxxx
________________________________
Name: Xxxxx Xxxxxx
Title:
Address:
FEIN:
/s/ Xxxxx X. Xxxxxx
____________________________________
Xxxxx X. Xxxxxx
Address:
SSN:
/s/ Xxxx X. Xxxxxx
____________________________________
Xxxx X. Xxxxxx
Address:
SSN:
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/s/ Xxxxxx X. Xxxxxx
____________________________________
Xxxxxx X. Xxxxxx
Address:
SSN:
/s/ F. Xxxxx Xxxx
____________________________________
F. Xxxxx Xxxx
Address:
SSN:
/s/ Xxxxxx X. Xxxxxx
____________________________________
Xxxxxx X. Xxxxxx
Address:
SSN:
/s/ Xxxxxx Xxxxx
_______________________________
Xxxxxx Xxxxx
Address:
SSN:
/s/ Xxxxx Xxxxx
_______________________________
Xxxxx Xxxxx
Address:
SSN:
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Schedule A
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Convertible Shares of Series A Shares of Series B
Preferred Holder Preferred Stock Preferred Stock
---------------- ------------------ ------------------
Warburg 2,127,838
Accel IV 259,880
Accel Investors '94 10,497
Accel Keiretsu 5,391
Xxxxxxxxx 6,242
Prosper 1,702
Vertical 56,742
First Union 156,000
Xxxxx Xxxxxx 135,089
Xxxx Xxxxxx 4,507
Xxxxxx Xxxxxx 5,373
Bays 77,888
Xxxxxx 11,143
Xxxxx 5,679
Xxxxxxxx 2,840
Grant 5,679
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Schedule B
----------
Shares of Series C
Redeemable Preferred Holder Redeemable Preferred
----------------------------- --------------------
Warburg 233,091
Accel IV 18,956
Accel Investors '94 765
Accel Keiretsu 394
Xxxxxxxxx 455
Prosper 124
Vertical 11,323
Xxxxxxxxxx 3,494
Xxxxxxx 1,354
First Union 11,388
Xxxxx Xxxxxx 9,662
Xxxx Xxxxxx 329
Xxx Xxxxxx 392
Bays 5,686
Xxxxxx 813
Xxxxx 413
Xxxxxxxx 207
Grant 413
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Schedule C
----------
Registration Rights Holders
-----------------------------
Warburg
Accel IV
Accel Investors '94
Accel Keiretsu
Xxxxxxxxx
Xxxxxxx
Vertical
Xxxxx
Xxxxxxxxxx
Xxxxxxx
Xxxxxx
Xxxxxx
First Union
Xxxxx Xxxxxx
Xxxx Xxxxxx
Xxx Xxxxxx
Bays
Xxxxxx
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