Exhibit 99.6
Stockholder Agreement, dated as of November 9, 1998, among Parent, Purchaser and
certain stockholders of the Company.
STOCKHOLDER AGREEMENT
---------------------
STOCKHOLDER AGREEMENT, dated as of November 9,1998, among Select
Medical Corporation, a Delaware corporation ("Parent"), Select Medical of
Mechanicsburg, Inc., a Delaware corporation and a wholly owned subsidiary of
Parent ("Purchaser"), and the persons listed on Schedule A hereto (each a
"Stockholder" and, collectively, the "Stockholders").
WHEREAS, Parent, Purchaser and Intensiva HealthCare Corporation, a
Delaware corporation (the "Company"), propose to enter into an Agreement and
Plan of Merger dated as of the date hereof (as the same may be amended or
supplemented, the "Merger Agreement") providing for the making of a cash tender
offer (as such offer may be amended from time to time as permitted under the
Merger Agreement, the "Offer") by Purchaser for shares of Common Stock par value
$.001 per share, of the Company (the "Common Stock") and the merger of the
Company and Purchaser (the "Merger");
WHEREAS, each Stockholder is the beneficial owner of the shares of
Common Stock set forth opposite such Stockholder's name on Schedule A hereto;
such shares of Common Stock, as such shares may be adjusted by stock dividend,
stock split, recapitalization, combination or exchange of shares, merger,
consolidation, reorganization or other change or transaction of or by the
Company, together with shares of Common Stock that may be acquired after the
date hereof by such Stockholder, including shares of Common Stock issuable upon
the exercise of options or warrants to purchase Common Stock (as the same may be
adjusted as aforesaid), being collectively referred to herein as the "Shares" of
such Stockholder; and
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Purchaser have requested that the Stockholders enter into
this Agreement;
NOW, THEREFORE, to induce Parent and Purchaser to enter into, and in
consideration of their entering into, the Merger Agreement, and in consideration
of the premises and the representations, warranties and agreements contained
herein, the parties agree as follows:
1. Tender of Shares. Each Stockholder hereby severally and not jointly
----------------
agrees that such Stockholder shall tender into the Offer the Shares it owns as
of the date hereof, together with any Shares it may acquire prior to the
expiration of the Offer, and that it shall not withdraw any Shares so tendered
(it being understood that the obligation contained in this sentence is
unconditional, subject to Section 8).
2. Representations and Warranties of the Stockholders. Each Stockholder
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hereby, severally and not jointly, represents, warrants and covenants to Parent
and Purchaser as follows:
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(a) Authority. The Stockholder has all requisite power and authority to
execute and deliver this Agreement. The execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated hereby have
been duly authorized by the Stockholder. This Agreement has been duly executed
and delivered by the Stockholder and constitutes a valid and binding obligation
of the Stockholder enforceable against the Stockholder in accordance with its
terms.
(b) Noncontravention. Except for the expiration or termination of any
applicable waiting period under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act
of 1976, as amended (the "HSR Act"), neither the execution, delivery or
performance of this Agreement by the Stockholder nor the consummation by the
Stockholder of the transactions contemplated hereby will (i) require any filing
with, or permit, authorization, consent or approval of , any Governmental
Authority (as defined in the Merger Agreement), (ii) result in a violation or
breach of, or constitute (with or without due notice or lapse of time or both) a
default under, or give rise to any right of termination, amendment, cancellation
or acceleration under, or result in the creation of any Lien (as defined in the
Merger Agreement) upon any of the properties or assets of the Stockholder under,
any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, lease, license, permit, concession, franchise, contract, agreement or
other instrument or obligation (a "Contract") to which the Stockholder is a
party or by which the Stockholder or any of the Stockholder's properties or
assets, including the Stockholder's Shares, may be bound or (iii) violate any
law, rule, regulation, order, judgment or decree applicable to the Stockholder
or any of the Stockholder's properties or assets, including the Stockholder's
Shares, other than, in the case of clause (ii) above, such items that,
individually or in the aggregate, have not and could not reasonably be expected
to impair the ability of the Stockholder to perform its obligations under this
Agreement.
(c) The Shares. The Stockholder's Shares and the certificates
representing such Shares are now, and at all times during the term hereof will
be, held by such Stockholder, or by a nominee or custodian for the benefit of
such Stockholder, and the Stockholder is the lawful owner of and has good and
marketable title to such Shares, free and clear of any Liens, proxies, rights of
first refusal or offer, voting trusts or agreements, understandings or
arrangements or any other encumbrances whatsoever, except for any such Liens or
proxies arising hereunder.
The Stockholder represents, warrants and agrees that Schedule A annexed
hereto sets forth all of the Shares of which the Stockholder or its affiliates
(as defined under the Securities Exchange Act of 1934, as amended) are the
record or beneficial owner and that the Stockholder and its affiliates are on
the date hereof the lawful owners of the number of Shares set forth in Schedule
A beside the name of the Stockholder or such other person.
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Neither the Stockholder nor any of its affiliates, own or hold any
rights to acquire any additional shares of the capital stock of the Company (by
exercise of stock options, warrants or otherwise) or any interest therein or any
voting rights with respect to any additional Shares. The Stockholder, together
with other persons who are signatories to this Stockholder Agreement, has sole
voting power and sole power to issue instructions with respect to the matters
set forth herein, sole power of disposition, sole power of conversion, sole
power to demand appraisal rights and sole power to engage in the actions set
forth herein, in each case with respect to the Shares set forth on Schedule A
hereto beside the name of the Stockholder.
(d) Brokers. Except for Xxxxxxxxxxx Xxxxxxx & Co., Inc., which is
-------
financial advisor to the Company, no broker, investment banker, financial
advisor or other person is entitled to any broker's, finder's, financial
advisor's or other similar fee or commission in connection with the transactions
contemplated by this Agreement based upon arrangements made by or on behalf of
the Stockholder.
(e) Merger Agreement. The Stockholder understands and acknowledges that
----------------
Parent is entering into, and causing Purchaser to enter into, the Merger
Agreement in reliance upon the Stockholder's execution and delivery of this
Agreement.
3. Representations and Warranties of Parent and Purchaser. Parent and
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Purchaser hereby represent and warrant to the Stockholders as follows:
(a) Authority. Each of Parent and Purchaser has the requisite
---------
corporate power and authority to execute and deliver this Agreement and
to consummate the transactions contemplated hereby. The execution,
delivery and performance of this Agreement by Parent and Purchaser and
the consummation of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of Parent and
Purchaser. This Agreement has been duly executed and delivered by
Parent and Purchaser and constitutes a valid and binding obligation of
Parent and Purchaser enforceable in accordance with its terms.
(b) Securities Act. The Shares will be acquired in compliance
--------------
with, and Purchaser will not offer to sell or otherwise dispose of any
Shares so acquired by it in violation of the registration requirements
of the Securities Act of 1933, as amended.
4. Covenants of the Stockholders. Each Stockholder, severally and not
-----------------------------
jointly, agrees as follows:
(a) The Stockholder shall not, except as contemplated by the
terms of this Agreement, (i) sell, transfer, pledge, assign or
otherwise dispose of, or enter into any Contract, option or other
arrangement (including any profit sharing arrangement) or
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understanding with respect to the sale, transfer, pledge, assignment or
other disposition of, the Shares to any person other than Purchaser or
Purchaser's designee, (ii) enter into any voting arrangement, whether
by proxy, voting agreement, voting trust, power-of-attorney or
otherwise, with respect to the Shares or (iii) take any other action
that would in any way restrict, limit or interfere with the performance
of Stockholder's obligations hereunder or the transactions contemplated
hereby or which would otherwise diminish the benefits of this Agreement
to Parent and Purchaser.
(b) Subject to Section 11 hereof, until the Merger is consummated or
the Merger Agreement is terminated, the Stockholder shall not, nor
shall the Stockholder permit any of its affiliates or any investment
banker, financial advisor, attorney, accountant or other representative
or agent of the Stockholder or such Stockholder's affiliates to,
directly or indirectly (i) solicit, initiate or encourage (including by
way of furnishing information), or take any other action designed or
reasonably likely to facilitate, any inquiries or the making of any
proposal which constitutes, or may reasonably be expected to lead to,
any Acquisition Proposal (as defined in the Merger Agreement) or (ii)
participate in any discussions or negotiations regarding any
Acquisition Proposal. Without limiting the foregoing, it is understood
that any violation of the restrictions set forth in the preceding
sentence by an investment banker, financial advisor, attorney,
accountant or other representative or agent of the Stockholder shall be
deemed to be a violation of this Section 4(b) by the Stockholder.
(c) At any meeting of stockholders of the Company called to vote
upon the Merger and the Merger Agreement or at any adjournment thereof
or in any other circumstances upon which a vote, consent or other
approval (including by written consent) with respect to the Merger and
the Merger Agreement is sought, the Stockholder shall vote (or cause to
be voted) the Stockholder's Shares in favor of the Merger, the adoption
by the Company of the Merger Agreement and the approval of the other
transactions contemplated by the Merger Agreement. At any meeting of
stockholders of the Company or at any adjournment thereof or in any
other circumstances upon which the Stockholder's vote, consent or other
approval is sought, the Stockholder shall vote (or cause to be voted)
the Stockholder's Shares against (i) any merger agreement or merger
(other than the Merger Agreement and the Merger), consolidation,
combination, sale of substantial assets, reorganization,
recapitalization, dissolution, liquidation or winding up of or by the
Company or any other Acquisition Proposal (collectively, "Alternative
Transactions") or (ii) any amendment of the Company's certificate of
incorporation or bylaws or other proposal or transaction involving the
Company or any of its subsidiaries, which amendment or other proposal
or transaction would in any manner impede, frustrate, prevent or
nullify the Offer, the Merger, the Merger Agreement or any of the other
transactions contemplated by the Merger Agreement (collectively,
"Frustrating Transactions").
(d) The Stockholder shall not enter into any agreement or
understanding
Page 4
with any person or entity to vote or give instructions in any manner
inconsistent with subsection (c). Stockholder hereby irrevocably and
unconditionally waives, and agrees to cause any company, trust or other
person or entity controlled by the Stockholder to waive and agrees to
prevent the exercise of, any rights of appraisal, any dissenters'
rights and any similar rights relating to the Merger or any related
transaction that Stockholder or any other person may have by virtue of
the ownership of any outstanding shares of Common Stock beneficially
owned by the Stockholder, or over which the Stockholder has voting
power or control, directly or indirectly (including any Shares
beneficial ownership of which is acquired by the Stockholder after the
date hereof).
5. Grant of Irrevocable Proxy; Appointment of Proxy.
-------------------------------------------------
(a) Each Stockholder hereby irrevocably grants to, and
appoints, Xxxxxxx X. Xxxxxx and any other individual who shall
hereafter be designated by Parent, and each of them individually, such
Stockholder's proxy and attorney-in-fact (with full power of
substitution), for and in the name, place and stead of such
Stockholder, to vote such Stockholder's Shares, or grant a consent or
approval in respect of such Shares, at any meeting of stockholders of
the Company or at any adjournment thereof or in any other circumstances
upon which their vote, consent or other approval is sought, in favor of
the Merger, the adoption by the Company of the Merger Agreement and the
approval of the terms thereof and each of the other transactions
contemplated by the Merger Agreement and against any Alternative
Transaction or Frustrating Transaction.
(b) Each Stockholder represents that any proxies heretofore given in
respect of such Stockholder's Shares are not irrevocable, and that any
such proxies are hereby revoked. The Stockholder agrees that if
requested by Purchaser, the Stockholder will not attend or vote any
Shares beneficially owned by the Stockholder at any annual or special
meeting of stockholders or execute any written consent of stockholders.
(c) Each Stockholder hereby affirms that the irrevocable proxy set
forth in this Section 5 is given in connection with the execution of
the Merger Agreement and that such irrevocable proxy is given to secure
the performance of the duties of such Stockholder under this Agreement.
Such Stockholder hereby further affirms that the irrevocable proxy is
coupled with an interest and may under no circumstances be revoked,
subject to Section 8. Such Stockholder hereby ratifies and confirms all
that such irrevocable proxy may lawfully do or cause to be done by
virtue hereof. Such irrevocable proxy is executed and intended to be
irrevocable in accordance with the provisions of the General
Corporation Law of the State of Delaware. Each Stockholder hereby
affirms such irrevocable proxy shall be valid until the termination of
this Agreement pursuant to Section 8.
6. Further Assurances. Each Stockholder will, from time to time,
------------------
execute and
Page 5
deliver, or cause to be executed and delivered, such additional or further
transfers, assignments, endorsements, consents and other instruments as Parent
or Purchaser may reasonably request for the purpose of effectively carrying out
the transactions contemplated by this Agreement and to vest the power to vote
such Stockholder's Shares as contemplated by Section 5. Parent and Purchaser
jointly and severally agree to use reasonable efforts to take, or cause to be
taken, all actions necessary to comply promptly with all legal requirements that
may be imposed with respect to the transactions contemplated by this Agreement
(including any applicable legal requirements of the HSR Act).
7. Assignment. Neither this Agreement nor any of the rights, interests
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or obligations hereunder shall be assigned by any of the parties without the
prior written consent of the other parties, except that Purchaser may assign, in
its sole discretion, any or all of its rights, interests and obligations
hereunder to Parent or to any direct or indirect wholly owned subsidiary of
Parent. Subject to the preceding sentence, this Agreement will be binding upon,
inure to the benefit of and be enforceable by, the parties and their respective
successors and assigns. Each Stockholder agrees that this Agreement and the
obligations of such Stockholder hereunder shall attach to such Stockholder's
Shares and shall be binding upon any person or entity to which legal or
beneficial ownership of such Shares shall pass, whether by operation of law or
otherwise, including such Stockholder's heirs, guardians, administrators or
successors.
8. Termination. This Agreement, and all rights and obligations of the
-----------
parties hereunder, shall terminate upon the earliest of (a) the day after the
Shares are accepted for payment pursuant to the Offer; (b) the day after the
Merger is consummated; (c) May 31, 1999; (d) upon the termination of the Merger
Agreement; or (e) at any time the per share purchase price in the Offer is
reduced below $9.625.
9. Stop Transfer. The Company agrees with, and covenants to, Parent
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and Purchaser that the Company shall not register the transfer of any
certificate representing any Stockholder's Shares unless such transfer is made
in accordance with the terms of this Agreement.
10. General Provisions.
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(a) Expenses. All costs and expenses incurred in connection
--------
with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such expense.
(b) Amendments. This Agreement may not be amended except by an
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instrument in writing signed by each of the parties hereto.
(c) Notice. All notices and other communications hereunder
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shall be in writing and shall be deemed given if delivered personally,
telecopied (which is
Page 6
confirmed), sent by overnight courier (providing proof of delivery) or
mailed by registered or certified mail (return receipt requested) to
the parties at the following addresses (or at such other address for a
party as shall be specified by like notice):
(i) if to Parent or Purchaser, to:
Select Medical Corporation
0000 Xxxxxxxxxx Xxxx
X.X. Xxx 0000
Xxxxxxxxxxxxx, XX 00000
with a copy to:
Dechert Price & Xxxxxx
4000 Xxxx Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: Xxxxx X. Nassau, Esq.
Telecopier No.: (000) 000-0000
and
(ii) if to a Stockholder, to the address set forth under
the name of such Stockholder on Schedule A hereto
with a copy to:
Suelthaus & Xxxxx, P.C.
0000 Xxxxxxx Xxxx., 00xx Xxxxx
Xx. Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopier No.: (000) 000-0000
(d) Interpretation. When a reference is made in this
--------------
Agreement to a Section, such reference shall be to a Section of this
Agreement unless otherwise indicated. The headings contained in this
Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement. Wherever the words
"include", "includes" or "including" are used in this Agreement, they
shall be deemed to be followed by the words "without limitation." Words
in the singular include the plural, and words in the plural include the
singular.
(e) Counterparts. This Agreement may be executed in
------------
multiple counterparts, and by the different parties hereto in separate
counterparts, each of which
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when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
(f) Entire Agreement; No Third-Party Beneficiaries. This
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Agreement (including the documents and instruments referred to herein)
(i) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the parties
with respect to the subject matter hereof and (ii) is not intended to
confer upon any person other than the parties hereto any rights or
remedies hereunder.
(g) Governing Law. This Agreement shall be governed by, and
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construed in accordance with, the Laws of the State of Delaware,
regardless of the laws that might otherwise govern under applicable
principles of conflict of law.
(h) Amendment. This Agreement may not be modified, amended,
---------
altered or supplemented, except upon the execution and delivery of a
written agreement by the parties hereto.
(i) Publicity. Except as otherwise required by law, court
---------
process or the rules of a national securities exchange or the Nasdaq
National Market or as contemplated or provided in the Merger Agreement,
for so long as this Agreement is in effect, no Stockholder shall issue
or cause the publication of any press release or other public
announcement with respect to the transactions contemplated by this
Agreement or the Merger Agreement without the consent of Parent, which
consent shall not be unreasonably withheld.
11. Stockholder Capacity. No person executing this Agreement makes
--------------------
any agreement or understanding herein in his or her capacity as a director or
officer of the Company or any subsidiary of the Company. Each Stockholder signs
solely in his or her capacity as the beneficial owner of such Stockholder's
Shares and nothing herein shall limit or affect any actions taken by a
Stockholder in his or her capacity as an officer or director of the Company or
any subsidiary of the Company to the extent specifically permitted by the Merger
Agreement.
12. Enforcement. The parties agree that irreparable damage would
-----------
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any federal court located in the
State of Delaware or in any Delaware state court, this being in addition to any
other remedy to which they are entitled at law or in equity. Stockholder further
agrees to waive any requirement for the securing or posting of any bond in
connection with the obtaining of any such injunctive or other equitable relief.
The provisions of this paragraph are without
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prejudice to any other rights that either party hereto may have against the
other party hereto for any failure to perform its obligations under this
Stockholder Agreement. In addition, each of the parties hereto (i) consents to
submit such party to the personal jurisdiction of any Federal court located in
the State of Delaware or any Delaware state court in the event any dispute
arises out of this Agreement or any of the transactions contemplated hereby,
(ii) agrees that such party will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court, (iii)
agrees that such party will not bring any action relating to this Agreement or
any of the transactions contemplated hereby in any court other than a Federal
court located in the state of Delaware or a Delaware state court and (iv) waives
any right to trial by jury with respect to any claim or proceeding related to or
arising out of this Agreement or any of the transactions contemplated hereby.
The parties irrevocably and unconditionally waive any objection to the laying of
venue of any action, suit or proceeding arising out of this Agreement or the
transactions contemplated hereby in the courts of the State of Delaware or of
the United States of America located in the State of Delaware, and hereby
further irrevocably and unconditionally waive and agree not to plead or claim in
any such court that any such action, suit or proceeding brought in any such
court has been brought in an inconvenient forum.
IN WITNESS WHEREOF, each of Parent and Purchaser has caused this
Agreement to be signed by its officer or director thereunto duly authorized and
each Stockholder has signed this Agreement, all as of the date first written
above.
PARENT: SELECT MEDICAL CORPORATION
By: /s/ XXXXX X. XXXXXXXX
-------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chief Executive Officer
PURCHASER: SELECT MEDICAL OF MECHANICSBURG,
INC.
By: /s/ XXXXX X. XXXXXXXX
-------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Director
STOCKHOLDERS:
/s/ Xxxxxxx X. Xxxxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxxxx
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/s/ Xxxxx X. Xxxxx
----------------------------
Xxxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxx
----------------------------
Xxxxxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxxx
----------------------------
Xxxxxxx X. Xxxxxx, M.D.
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxxx
/s/ Xxxxx X. Xxxxxx
----------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxxxxx
----------------------------
Xxxxx X. Xxxxxxxxx, M.D.
THREE ARCH PARTNERS, L.P.
By /s/ XXXXXXX X. XXXXXX
------------------------------
By Three Arch Management, L.P.,
Its General Partner
By Xxxxxxx X. Xxxxxx, M.D.
THREE ARCH ASSOCIATES, L.P.
By /s/ XXXXXXX X. XXXXXX
----------------------------
By Three Arch Management, L.P.,
Its General Partner
By Xxxxxxx X. Xxxxxx, M.D.
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SIERRA VENTURES IV, L.P.,
By S.V. Associates IV, L.P.,
Its General Partner
By /s/ XXXXX XXXXXXX
----------------------------
SIERRA VENTURES IV
INTERNATIONAL,L.P.
By S.V. Associates IV, L.P.,
Its General Partner
By /s/ XXXXX XXXXXXX
----------------------------
/s/ Xxxx X. Xxxxx
------------------------------
Xxxx X. Xxxxx
/s/ Xxxx X. Xxxxx
------------------------------
Xxxx X. Xxxxx
ACKNOWLEDGED AND AGREED
TO AS TO SECTION 9:
INTENSIVA HEALTHCARE CORPORATION
By /s/ Xxxxx X. Xxxxx
-------------------------
Name: Xxxxx X. Xxxxx
Title: President
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Schedule A
Stockholder Shares Options
Xxxxxxx X. Xxxxxxxxx 14,098 10,000
Xxxxx X. Xxxxx 279,287 33,000
Xxxxxxx X. Xxxxx 10,000 31,000
Xxxxxxx X. Xxxxxx, M.D. None 10,000
Xxxxxxx X. Xxxxxxxx None 37,500
Xxxxx X. Xxxxxx 474,087 10,000
Xxxxx X. Xxxxxxxxx, M.D. 17,000 10,000
Three Arch Partners, L.P. 680,042 None
Three Arch Associates, L.P. 153,239 None
Sierra Ventures IV, L.P. 960,319 None
Sierra Ventures IV 38,425 None
International, L.P.
Xxxx X. Xxxxx 326,287 33,000
Xxxx X. Xxxxx 62,883 94,917
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