EXHIBIT 4.1
SCIENT CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
FEBRUARY 16, 1999
TABLE OF CONTENTS
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Page
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1. Registration Rights......................................... 1
1.1 Definitions.......................................... 1
1.2 Request for Registration............................. 2
1.3 Company Registration................................. 4
1.4 Form S-3 Registration................................ 5
1.5 Obligations of the Company........................... 6
1.6 Information from Holder.............................. 7
1.7 Expenses of Registration............................. 7
1.8 Delay of Registration................................ 8
1.9 Indemnification...................................... 8
1.10 Reports Under Securities Exchange Act of 1934........ 10
1.11 Assignment of Registration Rights.................... 11
1.12 Limitations on Subsequent Registration Rights........ 11
1.13 "Market Stand-Off" Agreement......................... 11
1.14 Termination of Registration Rights................... 12
2. Covenants of the Company.................................... 12
2.1 Delivery of Financial Statements..................... 12
2.2 Inspection........................................... 13
2.3 Termination of Information and Inspection Covenants.. 13
2.4 Right of First Offer................................. 13
2.5 Right to Participate in Initial Public Offering...... 14
2.6 Board of Directors................................... 16
2.7 Termination of Certain Covenants..................... 16
3. Miscellaneous............................................... 16
3.1 Successors and Assigns............................... 16
3.2 Governing Law........................................ 17
3.3 Counterparts......................................... 17
3.4 Titles and Subtitles................................. 17
3.5 Notices.............................................. 17
3.6 Expenses............................................. 17
3.7 Entire Agreement: Amendments and Waivers............. 17
3.8 Severability......................................... 18
3.9 Aggregation of Stock................................. 18
3.10 Prior Agreement...................................... 18
Schedule A Schedule of Investors
Schedule B Schedule of Common Holders
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
THIS AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT is made as of
the 16/th/ day of February, 1999, by and among Scient Corporation, a California
corporation (the "Company"), the investors listed on Schedule A hereto, each of
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which is herein referred to as an "Investor" and certain holders of Common Stock
listed on Schedule B hereto, each of which is herein referred to as a "Common
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Holder."
RECITALS
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WHEREAS, the Company, certain of the Investors (the "Prior Investors")
and the Common Holder possess registration rights pursuant to that certain
Amended and Restated Investors' Rights Agreement dated June 8, 1998, as amended
on January 28, 1999, among the persons listed on the Schedule of Investors and
the Schedule of Common Holders attached thereto (the "Prior Agreement");
WHEREAS, in order to induce the Company, the Prior Investors and the
Common Holder to approve the issuance of shares of the Company's Series C
Preferred Stock and to induce certain of the Investors to purchase such shares
of Series C Preferred Stock pursuant to that certain Series C Preferred Stock
Purchase Agreement of even date herewith (the "Series C Financing"), the Prior
Investors and the Common Holder hereby agree to waive their rights under the
Prior Agreement, including, without limitation, their rights to participate in
the Series C Financing and their rights to prior written notice thereof, and the
Investors, the Common Holder and the Company hereby agree that this Agreement
shall govern the rights of the Investors and the Common Holder to cause the
Company to register shares of Common Stock issued or issuable to them and
certain other matters as set forth herein;
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Registration Rights. The Company covenants and agrees as
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follows:
1.1 Definitions. For purposes of this Section 1:
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(a) The term "Exchange Act" means the Securities Exchange
Act of 1934, as amended.
(b) The term "Form S-3" means such form under the Securities
Act as in effect on the date hereof or any registration form under the
Securities Act subsequently adopted by the SEC that permits inclusion or
incorporation of substantial information by reference to other documents filed
by the Company with the SEC.
(c) The term "Holder" means any person owning or having the
right to acquire Registrable Securities or any assignee thereof in accordance
with Section 1.11 hereof.
(d) The term "Founder" means ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any
transferee thereof, so long as such person holds a minimum of 1,500,000 shares
of Common
Stock of the Company (as adjusted for stock splits, stock dividends,
combinations and other recapitalizations).
(e) The term "Initial Offering" means the Company's first firm
commitment underwritten public offering of its Common Stock under the Securities
Act.
(f) The term "Major Investor" means (i) the Founder or (ii) any
Investor or transferee thereof, as long as such Founder, Investor or transferee
thereof holds at least 1,500,000 shares of Registrable Securities (as defined
below)(as adjusted for stock splits, stock dividends, combinations and other
recapitalizations). For purposes of this definition, Investor includes any
general partners and affiliates of such Investor.
(g) The term "register," "registered," and "registration" refer
to a registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act, and the declaration or
ordering of effectiveness of such registration statement or document.
(h) The term "Registrable Securities" means (i) the Common Stock
issuable or issued upon conversion of the Series A Preferred Stock, Series B
Preferred Stock or Series C Preferred Stock, (ii) the 6,803,332 shares of Common
Stock issued to the Common Holder, so long as such Common Holder holds a minimum
of 1,500,000 shares of Common Stock of the Company (as adjusted for stock
splits, stock dividends, combinations and other recapitalizations) and (iii) any
Common Stock of the Company issued as (or issuable upon the conversion or
exercise of any warrant, right or other security that is issued as) a dividend
or other distribution with respect to, or in exchange for, or in replacement of,
the shares referenced in (i) and (ii) above, excluding in all cases, however,
any Registrable Securities sold by a person in a transaction in which his rights
under this Section 1 are not assigned.
(i) The number of shares of Registrable Securities outstanding
shall be determined by the number of shares of Common Stock outstanding that
are, and the number of shares of Common Stock issuable pursuant to then
exercisable or convertible securities that are, Registrable Securities.
(j) The term "SEC" shall mean the Securities and Exchange
Commission.
(k) The term "Securities Act" means the Securities Act of 1933,
as amended.
1.2 Request for Registration.
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(a) Subject to the conditions of this Section 1.2, if the Company
shall receive at any time on the earlier of (i) three (3) years after the date
of this Agreement or (ii) three (3) months after the effective date of the
Initial Offering a written request from the holders of thirty percent (30%) or
more of the Registrable Securities (other than Registrable Securities held by
Common Holders) (the "Initiating Holders"), that the Company file a registration
statement under the Securities Act covering the registration of Registrable
Securities with an anticipated aggregate offering price, net of underwriting
discounts and
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commissions, of at least $7,500,000, then the Company shall, within twenty (20)
days of the receipt thereof, give written notice of such request to all Holders,
and subject to the limitations of this Section 1.2, use all reasonable efforts
to effect, as soon as practicable, the registration under the Securities Act of
all Registrable Securities that the Holders request to be registered in a
written request received by the Company within twenty (20) days of the mailing
of the Company's notice pursuant to this Section 1.2(a).
(b) If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request made pursuant to
this Section 1.2 and the Company shall include such information in the written
notice referred to in Section 1.2(a). In such event the right of any Holder to
include its Registrable Securities in such registration shall be conditioned
upon such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting (unless otherwise mutually
agreed by a majority in interest of the Initiating Holders and such Holder) to
the extent provided herein. All Holders proposing to distribute their securities
through such underwriting shall enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwriting by the Company (which underwriter or underwriters shall be
reasonably acceptable to a majority in interest of the Initiating Holders).
Notwithstanding any other provision of this Section 1.2, if the underwriter
advises the Company that marketing factors require a limitation of the number of
securities underwritten (including Registrable Securities), then the Company
shall so advise all Holders of Registrable Securities that would otherwise be
underwritten pursuant hereto, and the number of shares that may be included in
the underwriting shall be allocated to the Holders of such Registrable
Securities on a pro rata basis based on the number of Registrable Securities
held by all such Holders (including the Initiating Holders). Any Registrable
Securities excluded or withdrawn from such underwriting shall be withdrawn from
the registration.
(c) The Company shall not be required to effect a registration
pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company
would be required to execute a general consent to service of process in
effecting such registration, unless the Company is already subject to service in
such jurisdiction and may be required under the Securities Act; or
(ii) after the Company has effected two (2) registrations
pursuant to this Section 1.2, and such registrations have been declared or
ordered effective; or
(iii) during the period starting with the date sixty (60)
days prior to the Company's good faith estimate of the date of the filing of,
and ending on a date one hundred eighty (180) days following the effective date
of, a Company-initiated registration subject to Section 1.3 below, provided that
the Company is actively employing in good faith all reasonable efforts to cause
such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of
Registrable Securities that may be registered on Form S-3 pursuant to Section
1.4 hereof; or
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(v) if the Company shall furnish to Holders requesting a
registration statement pursuant to this Section 1.2, a certificate signed by the
Company's Chief Executive Officer or Chairman of the Board stating that in the
good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its shareholders for such registration
statement to be effected at such time, in which event the Company shall have the
right to defer such filing for a period of not more than one hundred twenty
(120) days after receipt of the request of the Initiating Holders, provided that
such right to delay a request shall be exercised by the Company not more than
once in any twelve (12)-month period.
1.3 Company Registration.
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(a) If (but without any obligation to do so) the Company proposes
to register (including for this purpose a registration effected by the Company
for shareholders other than the Holders) any of its stock or other securities
under the Securities Act in connection with the public offering of such
securities (other than a registration relating solely to the sale of securities
to participants in a Company stock plan, a registration relating to a corporate
reorganization or other transaction under Rule 145 of the Securities Act, a
registration on any form that does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of the Registrable Securities, or a registration in which the
only Common Stock being registered is Common Stock issuable upon conversion of
debt securities that are also being registered), the Company shall, at such
time, promptly give each Holder written notice of such registration. Upon the
written request of each Holder given within twenty (20) days after mailing of
such notice by the Company in accordance with Section 3.5(a), the Company shall,
subject to the provisions of Section 1.3(c), use all reasonable efforts to cause
to be registered under the Securities Act all of the Registrable Securities that
each such Holder has requested to be registered.
(b) Right to Terminate Registration. The Company shall have the
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right to terminate or withdraw any registration initiated by it under this
Section 1.3 prior to the effectiveness of such registration whether or not any
Holder has elected to include securities in such registration. The expenses of
such withdrawn registration shall be borne by the Company in accordance with
Section 1.7 hereof.
(c) Underwriting Requirements. In connection with any offering
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involving an underwriting of shares of the Company's capital stock, the Company
shall not be required under this Section 1.3 to include any of the Holders'
securities in such underwriting unless they accept the terms of the underwriting
as agreed upon between the Company and the underwriters selected by it (or by
other persons entitled to select the underwriters) and enter into an
underwriting agreement in customary form with an underwriter or underwriters
selected by the Company, and then only in such quantity as the underwriters
determine in their sole discretion will not jeopardize the success of the
offering by the Company. If the total amount of securities, including
Registrable Securities, requested by shareholders to be included in such
offering exceeds the amount of securities sold other than by the Company that
the underwriters determine in their sole discretion is compatible with the
success of the offering, then the Company shall be required to include in the
offering only that number of such securities, including Registrable Securities,
that the underwriters determine in their sole discretion will not
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jeopardize the success of the offering (the securities so included to be
apportioned pro rata among the selling Holders according to the total amount of
securities entitled to be included therein owned by each selling Holder or in
such other proportions as shall mutually be agreed to by such selling Holders),
but in no event shall (i) the amount of securities of the selling Holders
included in the offering be reduced below thirty percent (30%) of the total
amount of securities included in such offering, unless such offering is the
initial public offering of the Company's securities, in which case the selling
Holders may be excluded if the underwriters make the determination described
above, provided, however, that the amount of securities held by selling
Investors to be included in such offering shall not be reduced below thirty
percent (30%) of the total amount of securities included in such offering unless
no other shareholder's securities are included, or (ii) notwithstanding (i)
above, any shares being sold by a shareholder exercising a demand registration
right similar to that granted in Section 1.2 be excluded from such offering. For
purposes of the preceding parenthetical concerning apportionment, for any
selling shareholder that is a Holder of Registrable Securities and that is a
partnership or corporation, the partners, retired partners and shareholders of
such Holder, or the estates and family members of any such partners and retired
partners and any trusts for the benefit of any of the foregoing persons shall be
deemed to be a single "selling Holder," and any pro rata reduction with respect
to such "selling Holder" shall be based upon the aggregate amount of Registrable
Securities owned by all such related entities and individuals.
If any Holder or holder disapproves of the terms of any such
underwriting, he may elect to withdraw therefrom by written notice to the
Company and the managing underwriter. Any securities excluded or withdrawn from
such underwriting shall be withdrawn from such registration, and shall not be
transferred in a public distribution prior to 180 days after the effective date
of the registration statement relating thereto, or such other shorter period of
time as the underwriters may require.
1.4 Form S-3 Registration. In case the Company shall receive
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from the holders of thirty percent (30%) or more of the Registrable Securities
(other than Registrable Securities held by Common Holders) or from the Founder a
written request or requests that the Company effect a registration on Form S-3
and any related qualification or compliance with respect to all or a part of the
Registrable Securities owned by such Holders, the Company shall:
(a) promptly give written notice of the proposed registration,
and any related qualification or compliance, to all other Holders; and
(b) use all reasonable efforts to effect, as soon as
practicable, such registration and all such qualifications and compliances as
may be so requested and as would permit or facilitate the sale and distribution
of all or such portion of such Holders' Registrable Securities as are specified
in such request, together with all or such portion of the Registrable Securities
of any other Holders joining in such request as are specified in a written
request given within fifteen (15) days after receipt of such written notice from
the Company, provided, however, that the Company shall not be obligated to
effect any such registration, qualification or compliance, pursuant to this
section 1.4:
(i) if Form S-3 is not available for such offering by the
Holders;
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(ii) if the Holders, together with the holders of any
other securities of the Company entitled to inclusion in such registration,
propose to sell Registrable Securities and such other securities (if any) at an
aggregate price to the public (net of any underwriters' discounts or
commissions) of less than $1,000,000;
(iii) if the Company shall furnish to the Holders a
certificate signed by the Chief Executive Officer or Chairman of the Board of
the Company stating that in the good faith judgment of the Board of Directors of
the Company, it would be seriously detrimental to the Company and its
shareholders for such Form S-3 Registration to be effected at such time, in
which event the Company shall have the right to defer the filing of the Form S-3
registration statement for a period of not more than one hundred twenty (120)
days after receipt of the request of the Holder or Holders under this Section
1.4; provided, however, that the Company shall not utilize this right more than
once in any twelve month period;
(iv) if the Company has, within the twelve (12) month
period preceding the date of such request, already effected one registration on
Form S-3 for the Holders pursuant to this Section 1.4; or
(v) in any particular jurisdiction in which the Company
would be required to qualify to do business or to execute a general consent to
service of process in effecting such registration, qualification or compliance.
(c) Subject to the foregoing, the Company shall file a
registration statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request or requests of the Holders. Registrations effected pursuant to this
Section 1.4 shall not be counted as requests for registration effected pursuant
to Sections 1.2.
1.5 Obligations of the Company. Whenever required under this
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Section 1 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use all reasonable efforts to cause
such registration statement to become effective, and, upon the request of the
Holders of a majority of the Registrable Securities registered thereunder, keep
such registration statement effective for a period of up to ninety (90) days or,
if earlier, until the distribution contemplated in the Registration Statement
has been completed;
(b) prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement;
(c) furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them;
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(d) use all reasonable efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions;
(e) in the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering;
(f) notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act or the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing;
(g) cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange on which similar securities
issued by the Company are then listed; and
(h) provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
1.6 Information from Holder. It shall be a condition precedent to the
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obligations of the Company to take any action pursuant to this Section 1 with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be required to effect the registration of such Holder's Registrable
Securities.
1.7 Expenses of Registration. All expenses other than underwriting
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discounts and commissions incurred in connection with registrations, filings or
qualifications pursuant to Sections 1.2, 1.3 and 1.4, including (without
limitation) all registration, filing and qualification fees, printers' and
accounting fees, fees and disbursements of counsel for the Company shall be
borne by the Company. Notwithstanding the foregoing, the Company shall not be
required to pay for any expenses of any registration proceeding begun pursuant
to Section 1.2 or Section 1.4 if the registration request is subsequently
withdrawn at the request of the Holders of a majority of the Registrable
Securities to be registered for reasons other than a material adverse change in
the business or financial condition of the Company occurring prior to the
effectiveness of such registration statement (in which case all participating
Holders shall bear such expenses pro rata based upon the number of Registrable
Securities that were to be requested in the withdrawn registration), unless, in
the case of a registration requested under Section 1.2, the Holders of a
majority of the Registrable Securities agree to forfeit their right to one
demand registration pursuant to Section 1.2.
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1.8 Delay of Registration. No Holder shall have any right to obtain
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or seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 1.
1.9 Indemnification. In the event any Registrable Securities are
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included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Holder, the partners or officers, directors and
shareholders of each Holder, legal counsel and accountants for each Holder, any
underwriter (as defined in the Securities Act) for such Holder and each person,
if any, who controls such Holder or underwriter within the meaning of the
Securities Act or the Exchange Act, against any losses, claims, damages or
liabilities (joint or several) to which they may become subject under the
Securities Act, the Exchange Act or any state securities laws, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereof) arise
out of or are based upon any of the following statements, omissions or
violations (collectively a "Violation"): (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, (ii) 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 (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state
securities laws or any rule or regulation promulgated under the Securities Act,
the Exchange Act or any state securities laws; and the Company will reimburse
each such Holder or controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
indemnity agreement contained in this subsection l.9(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld), nor shall the Company be liable in any such
case for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation that occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by an instrument duly executed by any such Holder or
controlling person; provided further, however, that the foregoing indemnity
agreement with respect to any preliminary prospectus shall not inure to the
benefit of any Holder or any person controlling such Holder, from whom the
person asserting any such losses, claims, damages or liabilities purchased
shares in the offering, if a copy of the prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by such Holder or person controlling such Holder
to such person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the shares to such person, and if the
prospectus (as so amended or supplemented) would have cured the defect giving
rise to such loss, claim, damage or liability.
(b) To the extent permitted by law, each selling Holder will,
severally and not jointly, indemnify and hold harmless the Company, each of its
directors, each of its officers who has signed the registration statement, each
person, if any, who controls the Company within the meaning of the Securities
Act, legal counsel and accountants for the
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Company, any underwriter, any other Holder selling securities in such
registration statement and any controlling person of any such underwriter or
other Holder, against any losses, claims, damages or liabilities to which any of
the foregoing persons may become subject, under the Securities Act, the Exchange
Act or any state securities laws, insofar as such losses, claims, damages or
liabilities (or actions in respect thereto) arise out of or are based upon any
Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished by such Holder expressly for use in connection with such registration;
and each such Holder will reimburse any person intended to be indemnified
pursuant to this subsection l.9(b), for any legal or other expenses reasonably
incurred by such person in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that the indemnity
agreement contained in this subsection l.9(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder (which consent shall
not be unreasonably withheld), provided that in no event shall any indemnity
under this subsection l.9(b) exceed the net proceeds from the offering received
by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 1.9 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 1.9, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties that may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
1.9, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 1.9.
(d) If the indemnification provided for in this Section 1.9 is held by
a court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, liability, claim, damage or expense referred to herein,
then the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such loss, liability, claim, damage or expense 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 that resulted in such loss, liability, claim,
damage or expense, 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 to state a material fact
relates to information supplied by the indemnifying party or by the indemnified
party and the parties' relative intent,
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knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
(f) The obligations of the Company and Holders under this Section
1.9 shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 1, and otherwise.
1.10 Reports Under Securities Exchange Act of 1934. With a view to
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making available to the Holders the benefits of Rule 144 promulgated under the
Securities Act and any other rule or regulation of the SEC that may at any time
permit a Holder to sell securities of the Company to the public without
registration or pursuant to a registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in SEC Rule 144, at all times after ninety (90) days
after the effective date of the Initial Offering;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and
(c) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of SEC Rule 144 (at
any time after ninety (90) days after the effective date of the first
registration statement filed by the Company), the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements), or that it qualifies as a registrant whose securities may be
resold pursuant to Form S-3 (at any time after it so qualifies), (ii) a copy of
the most recent annual or quarterly report of the Company and such other reports
and documents so filed by the Company, and (iii) such other information as may
be reasonably requested in availing any Holder of any rule or regulation of the
SEC that permits the selling of any such securities without registration or
pursuant to such form.
1.11 Assignment of Registration Rights. The rights to cause the
---------------------------------
Company to register Registrable Securities pursuant to this Section 1 may be
assigned (but only with all related obligations) by a Holder to a transferee or
assignee of such securities that: (i) is a subsidiary, parent, partner, limited
partner, retired partner or shareholder of a Holder; (ii) is a Holder's family
member or trust for the benefit of an individual Holder; (iii) is a shareholder
of any Holder that is a corporation; (iv) is a member of any Holder that is a
limited liability company; (v) is an employee of any Holder; (vi) after such
assignment or transfer, holds at least 46,082 shares of Series C Preferred Stock
(subject to appropriate adjustment for stock splits, stock dividends,
combinations and other recapitalizations); or (vii) after such assignment or
transfer, holds at least 200,000 shares of Registrable Securities (subject to
appropriate adjustment
10
for stock splits, stock dividends, combinations and other recapitalizations); or
(vii) after such assignment or transfer, holds at least 200,000 shares of
Registrable Securities (subject to appropriate adjustment for stock splits,
stock dividends, combinations and other recapitalizations); provided: (a) the
Company is, within a reasonable time after such transfer, furnished with written
notice of the name and address of such transferee or assignee and the securities
with respect to which such registration rights are being assigned; (b) such
transferee or assignee agrees in writing to be bound by and subject to the terms
and conditions of this Agreement, including without limitation the provisions of
Section 1.13 below; and (c) such assignment shall be effective only if
immediately following such transfer the further disposition of such securities
by the transferee or assignee is restricted under the Securities Act.
1.12 Limitations on Subsequent Registration Rights. From and
---------------------------------------------
after the date of this Agreement, the Company shall not, without the prior
written consent of the holders of a majority of the Registrable Securities held
by the Investors, enter into any agreement with any holder or prospective holder
of any securities of the Company that would allow such holder or prospective
holder to obtain rights similar to those contained in this Article 1 which would
be superior to those of Investors.
1.13 "Market Stand-Off" Agreement. Each Holder hereby agrees
---------------------------
that it will not, without the prior written consent of the managing underwriter,
during the period commencing on the date of the final prospectus relating to the
Company's Initial Offering and ending on the date specified by the Company and
the managing underwriter (such period not to exceed one hundred eighty (l80)
days) (a) lend, offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, or otherwise transfer or dispose of, directly or
indirectly, any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock (whether such shares or any such
securities are then owned by the Holder or are thereafter acquired), or (b)
enter into any swap or other arrangement that transfers to another, in whole or
in part, any of the economic consequences of ownership of the Common Stock,
whether any such transaction described in clause (a) or (b) above is to be
settled by delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing provisions of this Section 1.13 shall only be
applicable to the Holders if all officers, directors and greater than one
percent (1%) shareholders of the Company enter into similar agreements. With
respect to the Amerindo Holders (as defined below), this Section 1.13 shall not
apply to any shares of the Company's Common Stock acquired by such a holder in
the Initial Offering or any shares of the Company's Common Stock acquired by
such a holder after the Initial Offering provided that such shares are not
otherwise subject to a lock-up agreement with the Company or the managing
underwriter; provided, however, that each Amerindo Holder hereby agrees to be
bound by any resale restriction on shares of the Company's Common Stock acquired
by such holder in the Initial Offering that is required by the NASD. The
underwriters in connection with the Company's initial public offering are
intended third party beneficiaries of this Section 1.13 and shall have the
right, power and authority to enforce the provisions hereof as though they were
a party hereto.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Registrable Securities of each
Holder (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period.
11
1.14 Termination of Registration Rights. No Holder shall be
----------------------------------
entitled to exercise any right provided for in this Section 1 after four (4)
years following the consummation of the Initial Offering or, as to any Holder,
such earlier time at which all Registrable Securities held by such Holder (and
any affiliate of the Holder with whom such Holder must aggregate its sales under
Rule 144 of the Securities Act ("Rule 144")) can be sold in any three (3)-month
period without registration in compliance with Rule 144 of the Securities Act.
2. Covenants of the Company.
------------------------
2.1 Delivery of Financial Statements. The Company shall deliver
--------------------------------
to each Major Investor:
(a) as soon as practicable, but in any event within ninety
(90) days after the end of each fiscal year of the Company, an income statement
for such fiscal year, a balance sheet of the Company and statement of
shareholder's equity as of the end of such year, and a statement of cash flows
for such year, such year-end financial reports to be in reasonable detail,
prepared in accordance with generally accepted accounting principles ("GAAP"),
and audited and certified by independent public accountants of nationally
recognized standing selected by the Company;
(b) as soon as practicable, but in any event within forty-
five (45) days after the end of each of the first three (3) quarters of each
fiscal year of the Company, an unaudited income statement, statement of cash
flows for such fiscal quarter and an unaudited balance sheet as of the end of
such fiscal quarter;
(c) within thirty (30) days of the end of each month, an
unaudited income statement and statement of cash flows and balance sheet for and
as of the end of such month, in reasonable detail; and
(d) as soon as practicable, but in any event at least thirty
(30) days prior to the end of each fiscal year, a budget and business plan for
the next fiscal year, prepared on a monthly basis, including balance sheets,
income statements and statements of cash flows for such months and, as soon as
prepared, any other budgets or revised budgets prepared by the Company.
2.2 Inspection. The Company shall permit each Major Investor,
----------
at such Major Investor's expense, to visit and inspect the Company's properties,
to examine its books of account and records and to discuss the Company's
affairs, finances and accounts with its officers, all at such reasonable times
as may be requested by the Major Investor; provided, however, that the Company
shall not be obligated pursuant to this Section 2.2 to provide access to any
information that it reasonably considers to be a trade secret or similar
confidential information.
2.3 Termination of Information and Inspection Covenants. The
---------------------------------------------------
covenants set forth in Sections 2.1 and 2.2 shall terminate and be of no further
force or effect upon the closing of the Initial Offering or when the Company
first becomes subject to the periodic reporting requirements of Sections 12(g)
or 15(d) of the Exchange Act, whichever event shall first occur.
12
2.4 Right of First Offer. Subject to the terms and conditions
--------------------
specified in this Section 2.4, the Company hereby grants to each Investor and
the Founder, subject to a minimum holding requirement of 2,000,000 shares of
Common Stock of the Company on an as-converted basis (as adjusted for stock
splits, stock dividends, combinations and other recapitalizations) or 92,165
shares of Series C Preferred Stock of the Company on an as-converted basis (as
adjusted for stock splits, stock dividends, combinations and other
recapitalizations) (any Investor or Founder meeting either such minimum holding
requirement shall hereinafter be referred to as an "Eligible Investor"), a right
of first offer with respect to future sales by the Company of its Shares (as
hereinafter defined). An Eligible Investor shall be entitled to apportion the
right of first offer hereby granted it among itself and its partners and
affiliates in such proportions as it deems appropriate.
Each time the Company proposes to offer any shares of, or securities
convertible into or exchangeable or exercisable for any shares of, any class of
its capital stock ("Shares"), the Company shall first make an offering of such
Shares to each Eligible Investor in accordance with the following provisions.
(a) The Company shall deliver a notice in accordance with Section
3.5(a) ("Notice") to the Eligible Investors stating (i) its bona fide intention
to offer such Shares, (ii) the number of such Shares to be offered, and (iii)
the price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company, within
twenty (20) calendar days after receipt of the Notice, each Eligible Investor
may elect to purchase or obtain, at the price and on the terms specified in the
Notice, up to that portion of such Shares that equals the proportion that the
number of shares of Registrable Securities then held, by such Eligible Investor
bears to the total number of shares of Common Stock of the Company then
outstanding (assuming full conversion of all convertible securities).
(c) If all Shares that Eligible Investors are entitled to obtain
pursuant to subsection 2.4(b) are not elected to be obtained as provided in
subsection 2.4(b) hereof, the Company may, during the ninety (90) day period
following the expiration of the period provided in subsection 2.4(b) hereof,
offer the remaining unsubscribed portion of such Shares to any person or persons
at a price not less than, and upon terms no more favorable to the offeree than
those specified in the Notice. If the Company does not enter into an agreement
for the sale of the Shares within such period, or if such agreement is not
consummated within ninety (90) days of the execution thereof, the right provided
hereunder shall be deemed to be revived and such Shares shall not be offered
unless first reoffered to the Eligible Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be
applicable to (i) the issuance or sale of up to 17,000,000 shares of Common
Stock (or options therefor) to employees, directors and consultants for the
primary purpose of soliciting or retaining their services; (ii) the issuance of
securities pursuant to a bona fide, firmly underwritten public offering of
shares of Common Stock, registered under the Securities Act, provided that the
Company had a good faith expectation at the time of the initial filing of the
registration statement for such offering that the offering price would be at
least $12.70 per share (appropriately
13
adjusted for any stock split, dividend, combination or other recapitalization)
and the offering would result in proceeds to the Company of at least $15,000,000
in the aggregate; (iii) the issuance of securities pursuant to the conversion or
exercise of convertible or exercisable securities; (iv) the issuance of
securities in connection with a bona fide business acquisition of or by the
Company, whether by merger, consolidation, sale of assets, sale or exchange of
stock or otherwise; or (v) the issuance of stock, warrants or other securities
or rights to persons or entities with which the Company has business
relationships provided such issuances (A) are for other than primarily equity
financing purposes and (B) are approved by two-thirds of the members of the
Company's Board of Directors.
2.5 Right to Participate in Initial Public Offering. Subject to
-----------------------------------------------
the terms and conditions specified in this Section 2.5, the Company hereby
grants to each Investor that holds at least 50,000 shares (as adjusted for stock
splits, stock dividends, combinations and other recapitalizations) of the
Company's Series C Preferred Stock (a "Series C Investor") a right to purchase a
portion of the shares of Common Stock to be issued in the Initial Offering (such
Investor's "IPO Pro-Rata Portion").
In connection with the Initial Offering, the Company shall use all
reasonable efforts to require that the managing underwriter of the Initial
Offering make an offering of the shares of its Common Stock to be sold in such
offering, (excluding any shares sold in any over-allotment option) (the "IPO
Shares") to each Series C Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section
3.5(a) ("IPO Notice") to the Series C Investors stating (i) its bona fide
intention to consummate the Initial Offering, (ii) the number of IPO Shares
proposed to be offered and (iii) the proposed price range upon which the IPO
Shares will be offered. In the event of a change in the price range, the
Company shall promptly deliver notice in accordance with Section 3.5(b) to each
Series C Investor of such change (the "Price Change Notice").
(b) By written notification received by the Company, within ten
(10) days after receipt of the IPO Notice and subject to the limitations of the
following sentence, each Series C Investor may elect to purchase, at the gross
price per share negotiated by the Company with the underwriters as reflected on
the final prospectus (the "Gross IPO Price Per Share"), its IPO Pro-Rata Portion
of the IPO Shares, which shall equal that portion of the IPO Shares that equals
the proportion that the number of shares of Series C Preferred Stock then held
by such Investor (on an as converted to Common Stock basis) bears to the total
number of shares of Common Stock of the Company then outstanding (assuming full
conversion and exercise of all convertible or exercisable securities).
Notwithstanding the foregoing sentence, the IPO Pro-Rata Portions of the IPO
Shares to be purchased by Series C Investors may be partially or completely cut
back to the extent deemed necessary to the success of the Initial Offering by
the managing underwriter thereof in its opinion, as confirmed in writing to the
Series C Investors not less than two (2) business days prior to the effective
date of the registration statement covering the IPO Shares. The failure by a
Series C Investor to notify the Company within ten (10) days of receipt of the
IPO Notice of its election to purchase IPO Shares shall terminate such Series C
Investors rights pursuant to this Section 2.5, unless the Initial Offering is
not completed within one hundred eighty (180) days of the IPO Notice.
14
(c) The Company shall promptly, in writing, inform each Series C
Investor that is identified as an Amerindo Investor on Exhibit A hereto (each an
"Amerindo Investor" and collectively, the "Amerindo Investors") and that has
elected to purchase its IPO Pro-Rata Portion of the IPO Shares (a "Fully-
Exercising IPO Investor") of any other Amerindo Investors' failure to do
likewise. During the five (5) day period commencing after such information is
given, each Fully-Exercising IPO Investor may elect to purchase that portion of
the IPO Shares for which Amerindo Investors were entitled to subscribe but which
were not subscribed for by the Amerindo Investors (the "Unsubscribed IPO
Shares") that is equal to the proportion that the number of shares of Common
Stock of the Company issued and held, or issuable upon conversion of Series C
Preferred Stock then held, by such Fully-Exercising IPO Investor bears to the
total number of shares of Common Stock of the Company issued and held, or
issuable upon conversion of the Series C Preferred Stock then held, by all
Fully-Exercising IPO Investors who wish to purchase any of the Unsubscribed IPO
Shares.
(d) The rights set forth in this Section 2.5 shall only be
applicable to the Initial Offering. The right of each Series C Investor to
purchase its IPO Pro-Rata Portion of the IPO Shares pursuant to subsections
2.5(b) or (c) may only be waived with respect to a given Series C Investor by
such Series C Investor.
(e) By written notification received by the Company within
twenty-four hours after delivery of the Price Change Notice to Series C
Investors (or such shorter period of time as may be requested by the Company or
the Company's underwriters, such period of time to be no shorter than four
hours), a Series C Investor may elect to decrease the number of IPO Shares for
which such Series C Investor had elected to purchase or, if the Price Change
Notice relates to an increase in the number of IPO Shares, a Fully-Exercising
IPO Investor may increase the number of IPO Shares for which such Fully-
Exercising IPO Investor had elected to purchase; provided however, the total
number of IPO Shares available for purchase by the Series C Investors shall at
all times be subject to the provisions contained in subsection (b) regarding
underwriter cut-back and the percentage of IPO Shares available to the Series C
Investors. Any IPO Shares that become available for purchase by Series C
Investors pursuant to this Section 2.5(e) shall be allocated among the Series C
Investors in accordance with the provisions of subsections (b) and (c) of this
Section 2.5; provided, however, that the required time periods for Series C
Investors to respond to Price Change Notices shall be determined with regard to
this subsection (e) and provided, further, however, the provisions of subsection
2.5(c) shall not be applied with respect to any increase in IPO Shares effected
within five (5) business days of the Company's good faith estimate of the
effective date of its registration statement for the Initial Offering.
(f) Series C Investors purchasing IPO Shares pursuant to this
Section 2.5 shall comply with all requirements and procedures required by the
managing underwriter of the Initial Offering of purchasers participating in a
directed share program, if any, or of purchasers in the Initial Offering
generally.
2.6 Board of Directors.
------------------
(a) With respect to those two (2) members of the Company's Board
of Directors that the Company's Amended and Restated Articles (the "Restated
Articles")
15
provide are to be elected by the holders of Series A Preferred Stock (the
"Series A Board Members"), the Investors hereby agree to vote all of their
shares of Common Stock issuable or issued upon conversion of the Series A
Preferred Stock and Series B Preferred Stock now owned or hereafter acquired in
favor of the election of one designee of each of Benchmark Capital ("Benchmark")
----
and Sequoia Capital ("Sequoia," and collectively with Benchmark, the "Venture
Investors").
(b) With respect to those two (2) members of the Company's Board
of Directors that the Restated Articles provide are to be elected by the holders
of Common Stock (the "Common Board Members"), the Common Holders and the
Investors hereby agree to vote all of their shares of Common Stock now owned or
hereafter acquired in favor of the election of (i) ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and (ii) the
then current Chief Executive Officer (the "CEO") of the Company (other than ▇▇▇▇
▇▇▇▇▇▇▇▇▇), provided, this director position shall remain vacant if such CEO
position becomes vacant hereafter.
(c) With respect to any additional members of the Company's Board
of Directors that the Restated Articles provide are to be elected by the holders
of all of the outstanding capital stock of the Company (the "Additional
Members"), the Common Holders and the Investors agree to vote all of their
shares of Common Stock, Series A Preferred Stock and Series B Preferred Stock
now owned or hereafter acquired in favor of the election of a designee mutually
agreed upon by the Investors and the Common Holders.
2.7 Termination of Certain Covenants. The covenants set forth
--------------------------------
in Sections 2.4, 2.5 and 2.7 shall terminate and be of no further force or
effect upon the closing of the Initial Offering.
3. Miscellaneous.
-------------
3.1 Successors and Assigns. Except as otherwise provided
----------------------
herein, the terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective successors and assigns of the parties
(including transferees of any shares of Registrable Securities). Nothing in
this Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
3.2 Governing Law. This Agreement shall be governed by and
-------------
construed under the laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely within
California.
3.3 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
3.4 Titles and Subtitles. The titles and subtitles used in this
--------------------
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
16
3.5 Notices.
-------
(a) Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or upon
delivery by confirmed facsimile transmission, nationally recognized overnight
courier service, or upon deposit with the United States Post Office, by
registered or certified mail, postage prepaid and addressed to the party to be
notified at the address indicated for such party on the signature page hereof,
or at such other address as such party may designate by ten (10) days' advance
written notice to the other parties.
(b) A Price Change Notice shall be given in writing and
shall be deemed effectively given upon personal delivery to the party to be
notified or upon confirmation of facsimile transmission or upon delivery by a
nationally recognized overnight courier service when addressed to the party to
be notified at the facsimile number or address indicated for such party on the
signature page hereof, or at such facsimile number or other address as such
party may designate by ten (10) days' advance written notice to the other
parties.
3.6 Expenses. If any action at law or in equity is necessary to
--------
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
3.7 Entire Agreement: Amendments and Waivers. This Agreement
----------------------------------------
(including the Exhibits hereto, if any) constitutes the full and entire
understanding and agreement among the parties with regard to the subjects hereof
and thereof. Except as otherwise set forth in Section 2.5, any term of this
Agreement may be amended and the observance of any term of this Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders of
a majority of the Registrable Securities; provided, however, that in the event
that such amendment or waiver adversely affects the obligations and/or rights of
the Common Holders in a different manner than the other Holders, such amendment
or waiver shall also require the written consent of the holders of a majority in
interest of the Common Holders; provided further, in the event that such
amendment or waiver adversely affects the obligations and/or rights of a given
Holder in a different manner than the other Holders (it being understood that,
without limiting the foregoing, different Holders shall not be affected
differently because of proportional differences that arise out of differences in
the original issue price for the Registrable Securities held by such Holder or
the number of shares of Registrable Securities held by such Holder), such
amendment or waiver shall also require the written consent of such adversely
affected Holder. Any amendment or waiver effected in accordance with this
Section shall be binding upon each holder of any Registrable Securities each
future holder of all such Registrable Securities, and the Company.
3.8 Severability. If one or more provisions of this Agreement
------------
are held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
17
3.9 Aggregation of Stock. All shares of Registrable Securities
--------------------
held or acquired by affiliated entities or persons shall be aggregated together
for the purpose of determining the availability of any rights under this
Agreement.
3.10 Prior Agreement. The Prior Agreement is hereby superseded
---------------
in its entirety and shall be of no further force or effect.
18
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
COMPANY:
SCIENT CORPORATION
By:________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Chief Financial Officer
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO SCIENT CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
19
INVESTORS:
BENCHMARK CAPITAL PARTNERS II, L.P.
as nominee for
Benchmark Capital Partners, II, L.P.
Benchmark Founders Fund II, L.P.
Benchmark Founders Fund II-A, L.P.
Benchmark Members' Fund, L.P.
By: Benchmark Capital Management Co. II, L.L.C.,
its general partner
By:______________________________________________
Managing Member
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone:_________________________________________________
Facsimile:_________________________________________________
SIGNATURE PAGE TO SCIENT CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
20
INVESTORS (CONTINUED):
SEQUOIA CAPITAL VII
a California Limited Partnership
SEQUOIA TECHNOLOGY PARTNERS VII
a California Limited Partnership
SQP 1997
SEQUOIA 1997
SEQUOIA INTERNATIONAL PARTNERS
By: SC VII-A Management, LLC
a California Limited Liability Company,
its General Partner
By:______________________________________
Print Name:______________________________
Title:___________________________________
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: _________________________________________
Facsimile: _________________________________________
SIGNATURE PAGE TO SCIENT CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHT AGREEMENT
INVESTORS (CONTINUED):
SC VIII MANAGEMENT, LLC,
a Delaware limited liability company
By:___________________________________
Managing Member
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO SCIENT CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHT AGREEMENT
INVESTORS (CONTINUED):
STANFORD UNIVERSITY
By:____________________________________
Print Name:____________________________
Title:_________________________________
Address: ______________________________________
______________________________________
______________________________________
Telephone: ______________________________________
Facsimile: ______________________________________
SIGNATURE PAGE TO SCIENT CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHT AGREEMENT
INVESTORS (CONTINUED):
________________________________________
▇▇▇▇ ▇▇▇▇▇
Address: ________________________________________
________________________________________
________________________________________
Telephone: ________________________________________
Facsimile: ________________________________________
SIGNATURE PAGE TO SCIENT CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHT AGREEMENT
INVESTORS (CONTINUED):
________________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address:
________________________________________
________________________________________
________________________________________
Telephone: ________________________________________
Facsimile: ________________________________________
SIGNATURE PAGE TO SCIENT CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHT AGREEMENT
INVESTORS (CONTINUED):
SMALLCAP WORLD FUND INC.
By:_________________________________
Title:______________________________
Address: Smallcap World Fund Inc.
c/o Capital Research and Management Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇
Telephone: _____________________________________
Facsimile: _____________________________________
SIGNATURE PAGE TO SCIENT CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHT AGREEMENT
INVESTORS (CONTINUED):
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
EQUITY FUNDING, INC.
By:___________________________________
Title:________________________________
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ______________________________________
Facsimile: ______________________________________
SIGNATURE PAGE TO SCIENT CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHT AGREEMENT
INVESTORS (CONTINUED):
____________________________________
▇▇▇▇▇ ▇▇▇▇▇▇
Address: c/o Scient Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO SCIENT CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHT AGREEMENT
INVESTORS (CONTINUED):
_________________________________
▇▇▇▇▇▇▇ ▇▇▇
Address: c/o Scient Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO SCIENT CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHT AGREEMENT
INVESTORS (CONTINUED):
___________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Address: c/o Scient Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO SCIENT CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHT AGREEMENT
INVESTORS (CONTINUED):
___________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Address: c/o Scient Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO SCIENT CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS (CONTINUED):
___________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address: c/o Scient Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO SCIENT CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS (CONTINUED):
_____________________________________
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Address: c/o Scient Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO SCIENT CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS (CONTINUED):
__________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
SIGNATURE PAGE TO SCIENT CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS (CONTINUED):
____________________________________
▇▇▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO SCIENT CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS (CONTINUED):
_____________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Address: c/o Scient Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO SCIENT CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS (CONTINUED):
___________________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Address: c/o Scient Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO SCIENT CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS (CONTINUED):
____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO SCIENT CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS (CONTINUED):
___________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: ___________________________________
___________________________________
___________________________________
SIGNATURE PAGE TO SCIENT CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS (CONTINUED):
PALANTIR PARTNERS L.P.
By: Palantir Associates L.P.
Its General Partner
By: Palantir Capital Partners Inc.
Its General Partner
By: ___________________________________
▇▇▇▇▇ ▇▇▇▇▇▇
President
Address: ▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO SCIENT CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS (CONTINUED):
PIVOTAL PARTNERS, L.P.
By:___________________________________
Name:_________________________________
Title:________________________________
Address: ______________________________________
______________________________________
______________________________________
SIGNATURE PAGE TO SCIENT CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS (CONTINUED):
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 1995 TRUST
By:_________________________________
Name:_______________________________
Title:______________________________
Address: ____________________________________
____________________________________
____________________________________
SIGNATURE PAGE TO SCIENT CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS (CONTINUED):
____________________________________
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
SIGNATURE PAGE TO SCIENT CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS (CONTINUED):
____________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
SIGNATURE PAGE TO SCIENT CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS (CONTINUED):
____________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
SIGNATURE PAGE TO SCIENT CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS (CONTINUED):
____________________________________
▇▇▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO SCIENT CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS (CONTINUED):
____________________________________
By:_________________________________
Title:______________________________
Address: ____________________________________
____________________________________
____________________________________
Telephone: ____________________________________
Facsimile: ____________________________________
SIGNATURE PAGE TO SCIENT CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
COMMON HOLDER:
____________________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Address: ____________________________________
____________________________________
____________________________________
Telephone: ____________________________________
Facsimile: ____________________________________
SIGNATURE PAGE TO SCIENT CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
SCHEDULE A
----------
SCHEDULE OF INVESTORS
BENCHMARK CAPITAL PARTNERS II, L.P. ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
as nominee for
Benchmark Capital Partners, II, L.P. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Benchmark Founders Fund II, L.P.
Benchmark Founders Fund II-A, L.P. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Benchmark Members' Fund, L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Sequoia Capital VII
Sequoia Technology Partners VII Palantir Capital
SQP 1997
Sequoia 1997 ATGF II*
Sequoia International Partners
SC VIII Management, LLC Pivotal Partners, L.P.*
Stanford University ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 1995 Trust*
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇*
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Delaware Charter Guarantee and Trust
Custodian ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇
Rollover*
Smallcap World Fund Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇*
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Equity
Funding, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇*
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇*
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇*
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇*
▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇ Investments 1999
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
____________________
* Entities and individuals marked with an asterisk (*) are "Amerindo
Investors".
SCHEDULE B
----------
SCHEDULE OF COMMON HOLDERS
▇▇▇▇ ▇▇▇▇▇▇▇▇▇