EXHIBIT 4.2
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
CACHEFLOW INC.
MAY 28, 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 Obligations of the Company................................. 4
1.5 Furnish Information........................................ 5
1.6 Expenses of Demand Registration............................ 5
1.7 Expenses of Company Registration........................... 6
1.8 Underwriting Requirements.................................. 6
1.9 Delay of Registration...................................... 7
1.10 Indemnification............................................ 7
1.11 Reports Under Securities Exchange Act of 1934.............. 9
1.12 Form S-3 Registration...................................... 9
1.13 Assignment of Registration Rights.......................... 10
1.14 "Market Stand-Off" Agreement Rights........................ 11
1.15 Termination of Registration Rights......................... 11
2. Covenants of the Company............................................ 11
2.1 Delivery of Financial Statements........................... 11
2.2 Inspection................................................. 12
2.3 Termination of Covenants................................... 13
2.4 Right of First Offer....................................... 13
2.5 Board of Directors......................................... 14
3. Additional Covenants................................................ 14
3.1 Employee and Other Stock Arrangements...................... 14
3.2 Internal Revenue Code (S)1202.............................. 14
3.3 Termination of Additional Covenants........................ 15
4. Miscellaneous....................................................... 15
4.1 Successors and Assigns..................................... 15
4.2 Governing Law.............................................. 15
4.3 Counterparts............................................... 15
4.4 Titles and Subtitles....................................... 15
4.5 Notices.................................................... 15
4.6 Expenses................................................... 15
4.7 Amendments and Waivers..................................... 16
4.8 Severability............................................... 16
4.9 Aggregation of Stock....................................... 16
4.10 Entire Agreement........................................... 16
4.11 Additional Parties......................................... 16
4.12 Prior Agreement............................................ 16
Schedule A Schedule of Investors
Schedule B Schedule of Founders
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
THIS AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT (this
"Agreement") is made as of May 28, 1999, by and among CacheFlow Inc., a Delaware
corporation (the "Company"), and the investors listed on Schedule A hereto, each
of which is herein referred to as an "Investor", and the founders listed on
Schedule B hereto, each of which is herein referred to as a "Founder."
RECITALS
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WHEREAS, certain of the Investors (the "Prior Investors") and certain
of the Founders possess registration rights and certain of the Investors possess
other investor rights granted pursuant to that certain Amended and Restated
Investors' Rights Agreement, dated December 24, 1997, among the Company, certain
of the Founders and the persons listed on the Schedule of Investors attached
thereto (the "Prior Agreement");
WHEREAS, certain of the Investors (the "Series C Investors") are
parties to that certain Series C Preferred Stock Purchase Agreement of even date
herewith (the "Series C Agreement") among the Company and the investors listed
on the Schedule of Investors attached thereto, pursuant to which the Series C
Investors are purchasing shares of the Company's Series C Preferred Stock;
WHEREAS, certain of the Investors have been granted warrants (the
"Warrants") to purchase shares of the Company's Preferred Stock and in
connection with granting such Warrants the Company agreed to make such Investors
parties to this Agreement;
WHEREAS, in order to induce the Company to enter into the Series C
Agreement and to induce the Series C Investors to invest funds in the Company
pursuant to the Series C Agreement, the Prior Investors and the Founders that
are parties to the Prior Agreement hereby agree to waive their rights under the
Prior Agreement, and the Investors, the Founders and the Company hereby agree
that this Agreement shall govern the rights of the Investors and the Founders to
cause the Company to register shares of Common Stock issued or issuable to such
persons, and certain other matters as set forth herein; and
WHEREAS, the Series C Investors and the Company have agreed, pursuant
to the Series C Agreement, to enter into this Agreement;
NOW, THEREFORE, in consideration of the promises, covenants, and
conditions set forth herein, the parties hereto 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 "Act" means the Securities Act of 1933, as amended.
(b) The term "Form S-3" means such form under the Act as in effect on
the date hereof or any registration form under the Act subsequently adopted by
the SEC that permits either (i) inclusion or incorporation of substantial
information by reference to other documents filed by the Company with the SEC or
(ii) such registration statement to become effective without review by 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 1.13 hereof.
(d) The term "1934 Act" shall mean the Securities Exchange Act of
1934, as amended.
(e) 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 Act, and the declaration or ordering of
effectiveness of such registration statement or document.
(f) The term "Registrable Securities" means: (i) the Common Stock
issuable or issued upon conversion of the Series A Preferred Stock, Series B
Preferred Stock and the Series C Preferred Stock; (ii) the shares of Common
Stock held by the Founders; provided, however, that such shares of Common Stock
shall not be deemed Registrable Securities and the Founders shall not be deemed
Holders for the purposes of Section 1.2, 1.12 and 4.7 (except as provided
therein); 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.
(g) The number of shares of "Registrable Securities then 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.
(h) The term "Rule 144" shall mean Rule 144 promulgated under the
Act.
(i) The term "SEC" shall mean the Securities and Exchange Commission.
1.2 Request for Registration.
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(a) If the Company shall receive at any time after the earlier of (i)
December 19, 2002, or (ii) three (3) months after the effective date of the
first registration statement for a public offering of securities of the Company
(other than a registration statement relating either to the sale of securities
to employees of the Company pursuant to a stock option, stock purchase or
similar plan or a SEC Rule 145 transaction), a written request from the Holders
of a majority of the Registrable Securities then outstanding that the Company
file a registration statement under the Act covering the registration of at
least fifty percent (50%) of the Registrable Securities then outstanding (or
covering the registration of a lesser percent of such Registrable Securities if
the
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anticipated aggregate offering price, net of underwriting discounts and
commissions, would exceed $7,500,000), then the Company shall:
(i) within ten (10) days of the receipt thereof, give written
notice of such request to all Holders; and
(ii) effect as soon as practicable, and in any event within sixty
(60) days of the receipt of such request, the registration under the Act of all
Registrable Securities that the Holders request to be registered, subject to the
limitations of subsection 1.2(b), within twenty (20) days of the mailing of such
notice by the Company in accordance with Section 4.5.
(b) If the Holders initiating the registration request hereunder
("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 subsection 1.2(a) and the Company
shall include such information in the written notice referred to in subsection
1.2(a). The underwriter will be selected by the Company and shall be reasonably
acceptable to a majority in interest of the Initiating Holders. In such event,
the right of any Holder to include his 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
(together with the Company as provided in subsection 1.4(e)) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting. Notwithstanding any other provision of this
Section 1.2, if the underwriter advises the Initiating Holders in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then the Initiating Holders shall so advise all Holders of
Registrable Securities that would otherwise be underwritten pursuant hereto, and
the number of shares of Registrable Securities that may be included in the
underwriting shall be allocated among all Holders thereof, including the
Initiating Holders, in proportion (as nearly as practicable) to the amount of
Registrable Securities of the Company owned by each Holder; provided, however,
that the number of shares of Registrable Securities to be included in such
underwriting shall not be reduced unless all other securities are first entirely
excluded from the underwriting.
(c) Notwithstanding the foregoing, if the Company shall furnish to
Holders requesting a registration statement pursuant to this Section 1.2, a
certificate signed by the President 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 stockholders for such registration statement
to be filed and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer taking action
with respect to such filing for a period of not more than one hundred twenty
(120) days after receipt of the request of the Initiating Holders; provided,
however, that the Company may not utilize this right more than once in any
twelve (12) month period.
(d) In addition, the Company shall not be obligated to effect, or to
take any action to effect, any registration pursuant to this Section 1.2:
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(i) After the Company has effected two (2) registrations
pursuant to this Section 1.2 and such registrations have been declared or
ordered effective;
(ii) During the period starting with the date ninety (90) days
prior to the Company's good faith estimate of the date of filing of, and ending
on a date ninety (90) days after the effective date of, a registration subject
to Section 1.3 hereof; provided that the Company is actively employing in good
faith all reasonable efforts to cause such registration statement to become
effective; or
(iii) If the Initiating Holders propose to dispose of shares of
Registrable Securities that may be immediately registered on Form S-3 pursuant
to a request made pursuant to Section 1.12 below.
1.3 Company Registration. If (but without any obligation to do so)
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the Company proposes to register any of its stock or other securities under the
Act in connection with the public offering of such securities solely for cash
(other than a registration relating solely to the sale of securities to
participants in a Company stock plan, 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 4.5,
the Company shall, subject to the provisions of Section 1.8, cause to be
registered under the Act all of the Registrable Securities that each such Holder
has requested to be registered.
1.4 Obligations of the Company. Whenever required under this Section
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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 its best 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 one hundred twenty (120)
days or 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
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
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 its best 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. Each Holder participating
in such underwriting shall also enter into and perform its obligations under
such an agreement.
(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 Act of 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.
(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.
1.5 Furnish Information.
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(a) It shall be a condition precedent to the 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.
(b) The Company shall have no obligation with respect to any
registration requested pursuant to Section 1.2 or Section 1.12 if, due to the
operation of subsection 1.5(a), the number of shares or the anticipated
aggregate offering price of the Registrable Securities to be included in the
registration does not equal or exceed the number of shares or the anticipated
aggregate offering price required to originally trigger the Company's obligation
to initiate such registration as specified in subsection 1.2(a) or subsection
1.12(b)(2), whichever is applicable.
1.6 Expenses of Demand Registration. All expenses other than
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underwriting discounts and commissions incurred in connection with
registrations, filings or qualifications pursuant to Section 1.2, including
(without limitation) all registration, filing and qualification fees, printers'
and accounting fees, fees and disbursements of counsel for the Company and the
reasonable fees and disbursements of one counsel for the selling Holders shall
be borne by the Company; provided, however, that the Company shall not be
required to pay for any expenses of any registration proceeding begun pursuant
to Section 1.2 if the registration request is
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subsequently withdrawn at the request of the Holders of a majority of the
Registrable Securities to be registered (in which case all participating Holders
shall bear such expenses), unless the Holders of a majority of the Registrable
Securities agree to forfeit their right to one demand registration pursuant to
Section 1.2 or unless the registration request is withdrawn after a material
adverse change affecting the Company that was not known to the Holders at the
time of their request pursuant to Section 1.2.
1.7 Expenses of Company Registration. The Company shall bear and pay
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all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
pursuant to Section 1.3 for each Holder (which right may be assigned as provided
in Section 1.13), including (without limitation) all registration, filing, and
qualification fees, printers and accounting fees relating or apportionable
thereto and the fees and disbursements of one counsel for the selling Holders
selected by them, but excluding underwriting discounts and commissions relating
to Registrable Securities.
1.8 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 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 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 stockholders 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 jeopardize the success of the offering; provided, however, that in the
event of such a limitation by the underwriters (i) no securities held by the
Company's security holders, other than the Holders, shall be included in such
registration unless all shares requested to be included by Holders are included,
(ii) if the securities to be included by Holders are limited, then each Holder
shall be entitled to include in such registration its pro rata share (which
shall be the proportion that the number of shares requested to be included by a
Holder bears to the total number of shares requested to be included by all
Holders) of the securities to be included in such registration for the account
of Holders, and (iii) in no event shall (A) the amount of securities of the
selling Holders included in the offering be reduced below twenty-five percent
(25%) 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 stockholders may be excluded if the underwriters make the
determination described above and no other stockholder's securities are included
or (B) notwithstanding (A) above, any shares being sold by a stockholder
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 stockholder that is a holder of
Registrable Securities and that is a partnership or corporation, the partners,
retired partners and stockholders 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
stockholder," and any pro-rata reduction with respect to such "selling
stockholder" shall be based upon the aggregate amount of shares
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carrying registration rights owned by all entities and individuals included in
such "selling stockholder," as defined in this sentence.
1.9 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.
1.10 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, any underwriter (as defined in the Act) for such
Holder, and each person, if any, who controls such Holder or underwriter within
the meaning of the Act or the 1934 Act, against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject under the Act,
the 1934 Act or other federal or state law, 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 Act, the 1934 Act, any state securities law or
any rule or regulation promulgated under the Act, the 1934 Act or any state
securities law; and the Company will pay to each such Holder, underwriter or
controlling person, as incurred, 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 1.10(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 any such Holder, underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder will
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 Act, 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 (joint or several) to which any of the foregoing persons
may become subject under the Act, the 1934 Act or other federal or state law,
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 pay, as
incurred, any legal or other expenses reasonably incurred by any person intended
to be indemnified pursuant to this subsection 1.10(b) in connection with
investigating or defending any such loss, claim, damage, liability or action;
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provided, however, that the indemnity agreement contained in this subsection
1.10(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 1.10(b) exceed the gross
proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this Section
1.10 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 1.10, 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
1.10, 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 1.10.
(d) If the indemnification provided for in this Section 1.10 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
therein, 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,
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 1.10
shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 1, and otherwise.
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1.11 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 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 Rule 144, at all times after the effective date of the
first registration statement filed by the Company for the offering of its
securities to the general public;
(b) take such action, including the voluntary registration of its
Common Stock under Section 12 of the 1934 Act, as is necessary to enable the
Holders to utilize Form S-3 for the sale of their Registrable Securities, such
action to be taken as soon as practicable after the end of the fiscal year in
which the first registration statement filed by the Company for the offering of
its securities to the general public is declared effective;
(c) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the 1934 Act; and
(d) 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 Rule 144 (at any time after
ninety (90) days after the effective date of the first registration statement
filed by the Company), the Act and the 1934 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.
1.12 Form S-3 Registration. In case the Company shall receive from
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any Holder or Holders 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 Holder or
Holders, the Company will:
(a) promptly give written notice of the proposed registration, and
any related qualification or compliance, to all other Holders; and
(b) as soon as practicable, effect 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 Holder's or
Holders' Registrable Securities as are specified in such request, together with
all or such portion of the Registrable Securities of any other Holder or 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 1.12: (1) if
Form S-3 is not available for such offering by the Holders; (2) 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
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any) at an aggregate price to the public (net of any underwriters' discounts or
commissions) of less than $1,000,000; (3) if the Company shall furnish to the
Holders a certificate signed by the President 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 stockholders 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 1.12; provided, however,
that the Company shall not utilize this right more than once in any twelve (12)
month period; (4) if the Company has, within the twelve (12) month period
preceding the date of such request, already effected one (1) registration on
Form S-3 for the Holders pursuant to this Section 1.12; or (5) 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. All expenses incurred in connection with a registration
requested pursuant to Section 1.12, including (without limitation) all
registration, filing, qualification, printer's and accounting fees and the
reasonable fees and disbursements of counsel for the selling Holder or Holders
and counsel for the Company and including any underwriters' discounts or
commissions associated with Registrable Securities, shall be borne pro rata by
the Holder or Holders participating in the Form S-3 Registration. Registrations
effected pursuant to this Section 1.12 shall not be counted as demands for
registration or registrations effected pursuant to Sections 1.2 or 1.3,
respectively.
1.13 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 who, after such assignment or transfer, holds at
least 50,000 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 1.14 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 Act.
For the purposes of determining the number of shares of Registrable Securities
held by a transferee or assignee, the holdings of transferees and assignees of a
partnership who are partners or retired partners of such partnership (including
spouses and ancestors, lineal descendants and siblings of such partners or
spouses who acquire Registrable Securities by gift, will or intestate
succession) shall be aggregated together and with the partnership; provided that
all assignees and transferees who would not qualify individually for assignment
of registration rights shall have a single attorney-in-fact for the purpose of
exercising any rights, receiving notices or taking any action under this Section
1.
10
1.14 "Market Stand-Off" Agreement Rights. Each Investor and Founder
-----------------------------------
hereby agrees that, during the period of duration specified by the Company and
an underwriter of Common Stock or other securities of the Company, following the
effective date of a registration statement of the Company filed under the Act,
it shall not, to the extent requested by the Company and such underwriter,
directly or indirectly sell, offer to sell, contract to sell (including, without
limitation, any short sale), grant any option to purchase or otherwise transfer
or dispose of (other than to donees who agree to be similarly bound) any
Registrable Securities or other securities (excluding securities acquired in any
registered offering (other than shares acquired through a directed share program
if the underwriters of such offering require that shares acquired in such
program be subject to a lock-up agreement) or after such offering in the public
market in a broker transaction)) of the Company held by it at any time during
such period, except Common Stock included in such registration; provided,
however, that:
(a) such agreement shall be applicable only to the first such
registration statement of the Company that covers Common Stock (or other
securities) to be sold on its behalf to the public in an underwritten offering;
(b) all officers and directors of the Company and all holders of at
least one percent (1%) of the aggregate voting power of the Company enter into
similar agreements; and
(c) such market stand-off time period shall not exceed one hundred
eighty (180) days.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the securities of each Investor and
Founder (and the shares or securities of every other person subject to the
foregoing restriction) subject to this Section 1.14 until the end of such
period.
1.15 Termination of Registration Rights. No Holder shall be entitled
----------------------------------
to exercise any right provided for in this Section 1 after three (3) years
following the consummation of the sale of securities pursuant to a registration
statement filed by the Company under the Act in connection with the initial firm
commitment underwritten offering of its securities to the general public or, as
to any Holder, such earlier time at which all Registrable Securities held by
such Holder (aggregated with all affiliates of such Holder) can be sold in any
three (3) month period without registration in compliance with Rule 144 of the
Act so long the Company is a reporting company under the 1934 Act.
2. Covenants of the Company.
------------------------
2.1 Delivery of Financial Statements. The Company shall deliver to
--------------------------------
each 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 stockholder'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;
11
(b) so long as such Investor holds at least 350,000 shares of
Preferred Stock (either in the form of Series A Preferred Stock, Series B
Preferred Stock or Series C Preferred Stock or Common Stock issued upon
conversion thereof, and as adjusted for subsequent stock splits, recombinations
or reclassifications), 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 and a statement of
stockholder's equity as of the end of such fiscal quarter;
(c) so long as such Investor holds at least 350,000 shares of
Preferred Stock (either in the form of Series A Preferred Stock, Series B
Preferred Stock or Series C Preferred Stock or Common Stock issued upon
conversion thereof, and as adjusted for subsequent stock splits, recombinations
or reclassifications), 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;
(d) so long as such Investor holds at least 350,000 shares of
Preferred Stock (either in the form of Series A Preferred Stock, Series B
Preferred Stock or Series C Preferred Stock or Common Stock issued upon
conversion thereof, and as adjusted for subsequent stock splits, recombinations
or reclassifications), as soon as practicable, but in any event thirty (30) days
prior to the end of each fiscal year, a budget for the next fiscal year,
prepared on a monthly basis, including balance sheets and statements of cash
flows, for such months, and, as soon as prepared, any other budgets or revised
budgets prepared by the Company; and
(e) with respect to the financial statements called for in
subsections (b) and (c) of this Section 2.1, an instrument executed by the Chief
Financial Officer or President of the Company certifying that such financials
were prepared in accordance with GAAP consistently applied with prior practice
for earlier periods (with the exception of footnotes that may be required by
GAAP) and fairly present the financial condition of the Company and its results
of operation for the period specified, subject to year-end audit adjustment.
2.2 Inspection. The Company shall permit such Investor, at such
----------
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 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 Covenants. The covenants set forth in Section
------------------------
2.1, Section 2.2, Section 2.4 and Section 2.5 shall terminate as to the
Investors and the Founders and be of no further force or effect when the sale of
securities pursuant to a registration statement filed by the Company under the
Act in connection with the firm commitment underwritten offering of its
securities to the general public is consummated or when the Company first
becomes subject to the periodic reporting requirements of Sections 12(g) or
15(d) of the 1934 Act, whichever event shall first occur.
12
2.4 Right of First Offer. Subject to the terms and conditions
--------------------
specified in this paragraph 2.4, the Company hereby grants to each Investor a
right of first offer with respect to future sales by the Company of its Shares
(as hereinafter defined). An 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 exercisable for, any shares of any class of its capital
stock ("Shares"), the Company shall first make an offering of such Shares to
each Investor in accordance with the following provisions:
(a) The Company shall deliver a notice by certified mail ("Notice")
to the 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, if any,
upon which it proposes to offer such Shares.
(b) By written notification received by the Company, within twenty
(20) calendar days after giving of the Notice, the 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 Common Stock then held by such Investor (assuming full conversion, exercise
and exchange of all convertible, exercisable or exchangeable securities held by
such Investor) bears to the total number of shares of Common Stock of the
Company then outstanding (assuming full conversion, exercise and exchange of all
convertible, exercisable or exchangeable securities).
(c) If all Shares that 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 sixty (60) 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 Investors in accordance herewith.
(d) The right of first offer in this paragraph 2.4 shall not be
applicable (i) to the issuance or sale of shares of Common Stock (or options
therefor) to employees or directors of or consultants to the Company for the
primary purpose of soliciting or retaining their services, (ii) to or after
consummation of a bona fide, firmly underwritten public offering of shares of
Common Stock, registered under the Act pursuant to a registration statement on
Form S-1 or SB-2, with aggregate proceeds to the Company of at least
$20,000,000, (iii) the issuance of securities pursuant to the conversion,
exercise or exchange of convertible, exercisable or exchangeable securities,
provided such securities were issued prior to the creation of or in compliance
with this Right of First Offer, (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, (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 are
for other than primarily equity financing purposes, or (vi) to the sale
13
and issuance of shares of Series A Preferred Stock, Series B Preferred Stock or
Series C Preferred Stock of the Company.
2.5 Board of Directors.
------------------
With respect to those two (2) members of the Company's Board of
Directors that the Restated Certificate of Incorporation provides are to be
elected by the holders of Common Stock, the Founders 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 (1) the Chief Executive Officer of the
Company (or, if there is no Chief Executive Officer of the Company, the
President), and (2) a person designated by the holders of at least a majority of
the Common Stock.
3. Additional Covenants.
--------------------
3.1 Employee and Other Stock Arrangements. Except as otherwise
-------------------------------------
approved by the Company's Board of Directors, all equity securities sold to
employees, consultants or other service providers of the Company henceforth
shall be subject to a market stand-off provision, right of first refusal (in
favor of the Company) and vesting in accordance with the following vesting
schedule: twenty five percent (25%) of such stock shall vest after one year of
service with the Company and the remainder of such stock shall vest in equal
monthly installments over the proceeding thirty-six (36) months.
3.2 Internal Revenue Code (S)1202. The Company shall furnish to each
-----------------------------
Investor and shall make such filings with the Internal Revenue Service, as shall
from time to time be required pursuant to Section 1202(d)(1) of the Code. In
addition, within ten (10) days after any Investor has delivered to the Company a
written request therefor, the Company shall deliver to such Investor a
certificate informing the Investor whether such Investor's interest in the
Company constitutes "qualified small business stock" as defined in Section 1202
of the Code. The Company's obligation to furnish this certificate pursuant to
this Section 3.2 shall continue notwithstanding the fact that a class of the
Company's stock may be traded on an established securities market. In addition,
the Company agrees that it will not make any purchases of its stock within the
meaning of and which would exceed the limitation contained in Section
1202(c)(3)(B) of the Code until May 31, 2000, unless such purchases have been
consented to by holders of a majority of the Series A Preferred Stock, Series B
Preferred Stock and Series C Preferred Stock (voting together as a single class
and not as separate series, and on an as-converted basis) or are required by
contractual obligations entered into prior to the Closing. Any such information
provided to the Investors under this Section 3.2 shall not be disclosed by any
Investor to any party except as required and solely in order for such Investor
to claim any benefits under Section 1202 of the Code.
3.3 Termination of Additional Covenants. The covenant set forth in
-----------------------------------
Section 3.1 shall terminate and be of no further force or effect when the sale
of securities pursuant to a registration statement filed by the Company under
the Act in connection with the firm commitment underwritten offering of its
securities to the general public is consummated or when the Company first
becomes subject to the periodic reporting requirements of Sections 12(g) or
15(d) of the 1934 Act, whichever event shall first occur.
14
4. Miscellaneous.
-------------
4.1 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.
4.2 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.
4.3 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.
4.4 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.
4.5 Notices. 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 or nationally recognized overnight
courier service or three days after 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.
4.6 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.
4.7 Amendments and Waivers. 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 then outstanding; provided, however,
that in the event such amendment or waiver adversely affects the rights and/or
obligations of the Founders under this Agreement in a different manner than the
other Holders, such amendment or waiver shall also require the written consent
of a majority of the Common Stock held by the Founders then employed by the
Company. Any amendment or waiver effected in accordance with this paragraph
shall be binding upon each holder of any Registrable Securities then
outstanding, each future holder of all such Registrable Securities, and the
Company.
15
4.8 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.
4.9 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.
4.10 Entire Agreement. This Agreement (including the Exhibits hereto,
----------------
if any) constitutes the full and entire understanding and agreement between the
parties with regard to the subjects hereof and thereof.
4.11 Additional Parties. In the event of a subsequent closing with an
------------------
investor as provided for in Section 1.3 of the Series C Agreement, such investor
shall become a party to this Agreement as an "Investor" upon receipt from such
investor of a fully executed signature page.
4.12 Prior Agreement. The Prior Agreement is hereby superseded in its
---------------
entirety and shall be of no further force or effect.
16
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
CACHEFLOW INC.
By: _____________________________________
βββββ βββββββ
President and Chief Executive Officer
Address: βββ βββββββ ββββββ
βββββββββ, ββββββββββ βββββ
SIGNATURE PAGE TO CACHEFLOW INC.
AMENDMENT AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS:
TCV III (GP)
a Delaware General Partnership
By: Technology Crossover Management III, L.L.C.,
Its: General Partner
By: __________________________________
ββββββ β. ββββββ
Chief Financial Officer
TCV III, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management III, L.L.C.,
Its: General Partner
By: __________________________________
ββββββ β. ββββββ
Chief Financial Officer
TCV III (Q), L.P.
a Delaware Limited Partnership
By: Technology Crossover Management III, L.L.C.,
Its: General Partner
By: __________________________________
ββββββ β. ββββββ
Chief Financial Officer
TCV III Strategic Partners, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management III, L.L.C.,
Its: General Partner
By: __________________________________
ββββββ β. ββββββ
Chief Financial Officer
Address: ββ ββββ ββββββ, βββββ βββ
ββββββββ, ββ βββββ
Attention: ββββββ β. ββββββ
SIGNATURE PAGE TO CACHEFLOW INC.
AMENDMENT AND RESTATED INVESTORS' RIGHTS AGREEMENT
U.S. Venture Partners V, L.P.
USVP V International, L.P.
2180 Associates Fund V, L.P.
USVP V Entrepreneur Partners, L.P.
By Presidio Management Group V, L.L.C.
Its General Partner
By: _________________________________________
Address: ββββ ββββ ββββ ββββ, βββββ βββ
βββββ ββββ, ββββββββββ βββββ
SIGNATURE PAGE TO CACHEFLOW INC.
AMENDMENT AND RESTATED INVESTORS' RIGHTS AGREEMENT
BENCHMARK CAPITAL PARTNERS, L.P.
By: BENCHMARK CAPITAL MANAGEMENT
CO., L.L.C.
Its General Partner
By: _________________________________
Member
BENCHMARK FOUNDERS' FUND, L.P.
By: BENCHMARK CAPITAL MANAGEMENT
CO., L.L.C.
Its General Partner
By: _________________________________
Member
Address: ββββ ββββ ββββ ββββ, βββββ βββ
βββββ ββββ, ββββββββββ βββββ
SIGNATURE PAGE TO CACHEFLOW INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
K-H INVESTORS (1996-B), L.P.
By: _________________________________
Print Name: _________________________
Title: ______________________________
Address: c/β βββββ Capital Management
βββ βββββββ ββββββ βββββ, βββββ βββ
βββββββ βββββ, ββββββββββ βββββ
SIGNATURE PAGE TO CACHEFLOW INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
βββββ VENTURES - CACHEFLOW III, L.P.
By: ___________________________________
Print Name: ___________________________
Title: ________________________________
Address: c/β βββββ Capital Management
βββ βββββββ ββββββ βββββ, βββββ βββ
βββββββ βββββ, ββββββββββ βββββ
SIGNATURE PAGE TO CACHEFLOW INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
K-H INVESTORS (1998-A), L.P.
By: ___________________________________
Print Name: ___________________________
Title: ________________________________
Address: c/β βββββ Capital Management
βββ βββββββ ββββββ βββββ, βββββ βββ
βββββββ βββββ, ββββββββββ βββββ
SIGNATURE PAGE TO CACHEFLOW INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
βββββ βββββββ βββββ TRUST
DATED 10/30/89
By: _________________________________
Print Name: _________________________
Title: ______________________________
Address: c/β βββββ Capital Management
βββ βββββββ ββββββ βββββ, βββββ βββ
βββββββ βββββ, ββββββββββ βββββ
SIGNATURE PAGE TO CACHEFLOW INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
_____________________________________
βββββ β. βββββ
Address: c/β βββββ Capital Management, Inc.
βββ βββββββ ββββββ βββββ, βββββ βββ
βββββββ βββββ, ββββββββββ βββββ
SIGNATURE PAGE TO CACHEFLOW INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
______________________________________
ββββββββ β. βββββ
Address: c/β βββββ Capital Management
βββ βββββββ ββββββ βββββ, βββββ βββ
βββββββ βββββ, ββββββββββ βββββ
SIGNATURE PAGE TO CACHEFLOW INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
_________________________________
βββββ βββββββ
Address: c/o CacheFlow Inc.
βββ βββββββ ββββββ
βββββββββ, ββββββββββ βββββ
SIGNATURE PAGE TO CACHEFLOW INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
____________________________________
ββββββ β. ββββββββββ
Address: 18109 βββ/ββ/ ββββββ β.β.
βββββββββββ, ββββββββββ βββββ
SIGNATURE PAGE TO CACHEFLOW INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
ββββββ β. βββββ LIVING TRUST DTD
12/7/89
________________________________________
ββββββ β. βββββ, Trustee
Address: ββββ ββββββ ββββ
ββββββ βββββ, ββββββββββ βββββ
SIGNATURE PAGE TO CACHEFLOW INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
F βββββ ββββ & βββββ β ββββ Trust
U/T/A DTD 10/17/91
______________________________________
βββββ βββββ ββββ, Trustee
Address: β.β. βββ ββββ
βββ βββββ, ββββββββββ βββββ-ββββ
SIGNATURE PAGE TO CACHEFLOW INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
_____________________________________
R. ββββββββ βββββ
Address: βββ βββββββββ ββββββ
ββββ ββββ, ββββββββββ βββββ
SIGNATURE PAGE TO CACHEFLOW INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
___________________________________
ββββ β. ββββββββ
Address: βββ ββββββ βββββ
βββββββ ββββββ, ββββββββββ βββββ
SIGNATURE PAGE TO CACHEFLOW INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
_________________________________
βββββββ β. βββββββ
Address: βββ ββββββ ββββ
βββ βββββ, ββββββββββ βββββ
SIGNATURE PAGE TO CACHEFLOW INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
____________________________
ββββ ββββββββββ
Address: 3328 ββ/ββ/ ββ
ββββββββ, ββββββββββ βββββ
SIGNATURE PAGE TO CACHEFLOW INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
__________________________
ββββ ββββββββ
Address: ββββ βββββββββ βββ β.β.
ββββββββ, ββββββββββ βββββ
SIGNATURE PAGE TO CACHEFLOW INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
___________________________________
βββββ βββββββ
Address: βββββ β.β. ββ/ββ/ ββββββ
ββββββββ, ββββββββββ βββββ
SIGNATURE PAGE TO CACHEFLOW INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
____________________________________
βββββ βββββ
Address: βββββ β.β. β/ββ/ ββββββ
ββββ ββββββββ βββββ
ββββββββ, ββββββββββ βββββ
SIGNATURE PAGE TO CACHEFLOW INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
________________________________
ββββββ ββββ
Address: βββ βββ βββ βββββ
βββ βββββ, ββββββββββ βββββ
SIGNATURE PAGE TO CACHEFLOW INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
G & H Partners
By: _____________________________________________
Partner
Address: β/β βββββββββ βββββββ ββββββ ββββββββββ ββββββββ
& βββββββββ, LLP
βββ ββββββββββββ βββββ
βββββ ββββ, ββββββββββ βββββ
SIGNATURE PAGE TO CACHEFLOW INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
______________________________
ββββ βββββββ
Address: βββ ββββββββ ββββββ
ββββ ββββ, ββββββββββ βββββ
SIGNATURE PAGE TO CACHEFLOW INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
_________________________________
βββ βββββ
_________________________________
βββββ βββββ
Address: βββ ββββ βββββββββ βββββ
ββββ ββββ, ββββββββββ βββββ
SIGNATURE PAGE TO CACHEFLOW INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
ββββββ INVESTMENTS LLC
By: ______________________________
Title: ___________________________
Address: βββββ βββββββ ββββββ
ββββββββ, ββββββββββ βββββ
SIGNATURE PAGE TO CACHEFLOW INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
βββββββ Revocable Trust under Agreement
dated June 11, 1997, as amended
By: _____________________________________
Title: __________________________________
Address: βββββ βββββββ ββββββ
ββββββββ, ββββββββββ βββββ
SIGNATURE PAGE TO CACHEFLOW INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
The ββββββββ Family Trust
By: _____________________________________
Title: __________________________________
Address: ββββ ββββ ββββ ββββ, βββββ βββ
βββββ ββββ, ββββββββββ βββββ
SIGNATURE PAGE TO CACHEFLOW INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
____________________________________
βββββ Silver
Address: βββ βββββββββ βββββββ
βββββ ββββ, ββββββββββ βββββ
SIGNATURE PAGE TO CACHEFLOW INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
ββββββ βββββββββββ, ββ. Separate Property Trust
By: ___________________________________________
ββββββ βββββββββββ, ββ., Trustee
Address: βββ ββββββ ββββ
P. O. Box 1499
ββββ, ββββββββ βββββ
SIGNATURE PAGE TO CACHEFLOW INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
_________________________________
βββββ ββββ
Address: ββββ βββββββ ββββ βββββ
βββ βββββ, ββββββββββ βββββ
SIGNATURE PAGE TO CACHEFLOW INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
_______________________________________
βββββ ββββββββ
Address: βββββ β.β. ββ/ββ/ βββββ
ββββββββ, ββββββββββ βββββ
SIGNATURE PAGE TO CACHEFLOW INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
βββββββ Venture Partners, L.L.C.
By: ________________________________
βββββ β. ββββββ, Manager
Address: 11 βββββββ βββββββββ ββββββ βββββ
βββββ βββ
ββββββββββββ, ββββββββ βββββ-ββββ
SIGNATURE PAGE TO CACHEFLOW INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
AN "INVESTOR" ONLY FOR PURPOSES OF SECTION 1 AND
SECTION 2.1 OF THIS AGREEMENT, AND SPECIFICALLY
NOT FOR ANY OTHER SECTION OF THIS AGREEMENT:
---
SERVICE CO LLC
By: _____________________________________________
Name: ___________________________________________
Title: __________________________________________
Address: _____________________________________
_____________________________________
_____________________________________
SIGNATURE PAGE TO CACHEFLOW INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
_____________________________________________
(Name of Investor as it should appear on the
Series C Preferred Stock Certificate)
By: _________________________________________
Print Name: _________________________________
Title: ______________________________________
Address: _____________________________________________
_____________________________________________
Telephone: ____________________________________________
Facsimile: ___________________________________________
PLEASE PROVIDE ALL OF THE ABOVE-REQUESTED INFORMATION
-----------------------------------------------------
SIGNATURE PAGE TO CACHEFLOW INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
FOUNDERS:
______________________________________
ββββββ β. ββββββββββ
Address: 18109 βββ/ββ/ ββββββ β.β.
βββββββββββ, ββββββββββ βββββ
SIGNATURE PAGE TO CACHEFLOW INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
_____________________________________
βββββββ β. βββββββ
Address: βββ ββββββ ββββ
βββ βββββ, ββββββββββ βββββ
SIGNATURE PAGE TO CACHEFLOW INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
_________________________________
βββββββ ββββ
Address: βββββ βββββββββ ββ/ββ/ βββββ
ββββββββ, ββββββββββ βββββ
SIGNATURE PAGE TO CACHEFLOW INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
______________________________________
βββββ βββββββ
Address: c/o CacheFlow Inc.
βββ βββββββ ββββββ
βββββββββ, ββββββββββ βββββ
SIGNATURE PAGE TO CACHEFLOW INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
SCHEDULE A
----------
Schedule of Investors
INVESTORS:
---------
TCV III (GP)
TCV III, L.P.
TCV III (Q), L.P.
TCV III Strategic Partners, L.P.
c/o ββββββ β. ββββββ
Technology Crossover Ventures
ββ ββββ ββββββ, βββββ βββ
ββββββββ, ββ βββββ
U.S. Venture Partners V, L.P.
USVP V International, L.P.
2180 Associates Fund V, L.P.
USVP V Entrepreneur Partners, L.P.
ββββ ββββ ββββ ββββ, βββββ βββ
βββββ ββββ, ββββββββββ βββββ
Benchmark Capital Partners, L.P.
Benchmark Founders' Fund, L.P.
ββββ ββββ ββββ ββββ, βββββ βββ
βββββ ββββ, ββββββββββ βββββ
K-H Investors (1996-B), L.P.
K-H Investors (1998-A), β.β.
βββββ Capital Management, Inc.
βββ βββββββ ββββββ βββββ, βββββ βββ
βββββββ βββββ, ββββββββββ βββββ
ββββββ β. βββββ Living Trust DTD 12/7/89,
ββββββ β. βββββ Trustee
ββββββ βββββ Clients
ββββ ββββββ ββββ
ββββββ βββββ, ββββββββββ βββββ
βββββ β. βββββ
c/β βββββ Capital Management, Inc.
βββ βββββββ ββββββ βββββ, βββββ βββ
βββββββ βββββ, ββββββββββ βββββ
S-1
INVESTORS:
---------
ββββββββ β. βββββ
c/β βββββ Capital Management, Inc.
βββ βββββββ ββββββ βββββ, βββββ βββ
βββββββ βββββ, ββββββββββ βββββ
ββββββ β. ββββββββββ
18109 βββ/ββ/ ββββββ β.β.
βββββββββββ, ββββββββββ βββββ
F βββββ ββββ & βββββ β ββββ Trust
U/T/A DTD 10/17/91
β.β. βββ ββββ
βββ βββββ, ββββββββββ βββββ-ββββ
R. ββββββββ βββββ
βββ βββββββββ ββββββ
ββββ ββββ, ββββββββββ βββββ
ββββ β. ββββββββ
βββ ββββββ βββββ
βββββββ ββββββ, ββββββββββ βββββ
βββββββ β. βββββββ
βββ ββββββ ββββ
βββ βββββ, ββββββββββ βββββ
βββββββ ββββββββββ
ββββ ββ/ββ/ ββ
ββββββββ, ββββββββββ βββββ
ββββ ββββββββ
ββββ βββββββββ βββ β.β.
ββββββββ, ββββββββββ βββββ
βββββ βββββββ
ββββ ββ/ββ/ ββββββ, βββββββββ
βββββββ, ββββββββββ βββββ
βββββ βββββ
βββββ β.β. β/ββ/ ββββββ, βββββ ββββ
ββββββββ, ββββββββββ βββββ-ββββ
ββββββ ββββ
βββ βββ βββ βββββ
βββ βββββ, ββββββββββ βββββ
S-2
INVESTORS:
---------
G & H Partners
β/β βββββββββ βββββββ ββββββ ββββββββββ
ββββββββ & βββββββββ, LLP
βββ ββββββββββββ βββββ
βββββ ββββ, ββββββββββ βββββ
ββββ βββββββ
βββ ββββββββ ββββββ
ββββ ββββ, ββββββββββ βββββ
βββ βββββ and βββββ βββββ
βββ ββββ βββββββββ βββββ
ββββ ββββ, ββββββββββ βββββ
βββββββ Revocable Trust under Agreement
dated June 11, 1997, as amended
ββββββ Investments LLC
βββββ βββββββ ββββββ
ββββββββ, ββββββββββ βββββ
The ββββββββ Family Trust
ββββ ββββ ββββ ββββ, βββββ βββ
βββββ ββββ, ββββββββββ βββββ
βββββ Silver
βββ βββββββββ βββββββ
βββββ ββββ, ββββββββββ βββββ
ββββββ βββββββββββ, ββ. Separate Property Trust
c/o ββββββ βββββββββββ, ββ., Trustee
βββ ββββββ ββββ
β.β. βββ ββββ
ββββ, ββββββββ βββββ
βββββ ββββ
ββββ βββββββ ββββ βββββ
βββ βββββ, ββββββββββ βββββ
βββββ ββββββββ
βββββ β.β. ββ/ββ/ βββββ
ββββββββ, ββββββββββ βββββ
S-3
INVESTORS:
---------
βββββββ Venture Partners, L.L.C.
c/o βββββ β. ββββββ, Manager
11 βββββββ βββββββββ ββββββ βββββ, βββββ βββ
ββββββββββββ, ββββββββ βββββ-ββββ
Service Co LLC
(An "Investor" only for purposes of Section 1 and Section 2.1 of this Agreement,
and specifically not for any other sections of this Agreement)
____________________________
____________________________
____________________________
S-4
SCHEDULE B
----------
Schedule of Founders
Name and Address
----------------
ββββββ β. ββββββββββ
18109 βββ/ββ/ ββββββ β.β.
βββββββββββ, ββββββββββ βββββ
βββββββ β. βββββββ
βββ ββββββ ββββ
βββ βββββ, ββββββββββ βββββ
βββββββ ββββ
βββββ βββββββββ ββ/ββ/ βββββ
ββββββββ, ββββββββββ βββββ
βββββ βββββββ
c/o CacheFlow Inc.
βββ βββββββ ββββββ
βββββββββ, ββββββββββ βββββ
S-5