EXHIBIT 10.8
AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND
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CO-SALE AGREEMENT
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This AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
(the "Agreement") is made as of December 30, 1998, by and among Flycast
Communications Corporation, a California corporation (the "Company"); the
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persons listed on the Schedule of Investors attached hereto as Schedule A (the
"Investors") and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Miles
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▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the "Founders").
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1. Certain of the Investors are parties to that certain Series C
Preferred Stock Purchase Agreement of even date herewith between the Company and
such Investors (the "Purchase Agreement");
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2. The execution of this Agreement by the parties hereto is a
condition to the closing of the transactions contemplated by the Purchase
Agreement;
3. The Company and each Founder have entered into a Common Stock
Purchase Agreement with respect to the purchase of shares of Common Stock by the
Founder from the Company, which agreement provides for a right of first refusal
of the Company with respect to certain transfers of the Common Stock by the
Founder.
4. The parties hereto desire to have this Agreement govern certain
transfers of shares of the Company by the Founders;
5. Certain of the Investors that are holders of the Company's Series
A and Series B Preferred Stock (the "Existing Investors") also desire to amend
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that certain Right of First Refusal and Co-Sale Agreement (the "Prior
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Agreement") dated as of July 11, 1997, by and among the Company, certain of the
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Founders and the Existing Investors and restate it in its entirety with this
Agreement.
The parties agree as follows:
1. Definitions.
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(a) "Stock" shall mean shares of the Company's Common Stock or
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Preferred Stock now owned or subsequently acquired by the Founders.
(b) "Preferred Stock" shall mean the Company's outstanding Series
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A, Series B and Series C Preferred Stock.
(c) "Common Stock" shall mean the Company's Common Stock,
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including (i) shares of Common Stock issued or issuable upon conversion of the
Company's outstanding Preferred Stock, (ii) shares of Common Stock issuable upon
exercise of outstanding options and (iii) shares of Common Stock issuable upon
conversion of any outstanding convertible securities.
2. Sales by Founder.
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(a) Notice of Sales; Assignment of Company Right of First
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Refusal.
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(i) If a Founder (the "Selling Founder") proposes to sell or
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transfer any shares in a transaction or series of related transactions whereby
the Company would have a right of first refusal on such sale or transfer
pursuant to the Common Stock Purchase Agreement between the Selling Founder and
the Company, then the Selling Founder shall promptly give written notice (the
"Notice") to the Company and the Investors at least thirty (30) days prior to
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the closing of such sale or transfer. The Notice shall describe in reasonable
detail the proposed sale or transfer including, without limitation, the number
of shares of Stock to be sold or transferred, the nature of such sale or
transfer, the consideration to be paid, and the name and address of each
prospective purchaser or transferee.
(ii) In the event that the Company declines to exercise in
full its right of first refusal set forth in the Selling Founder's Common Stock
Purchase Agreement with the Company in connection with the proposed transfer by
the Founder, the Company will provide each Investor with notice of such
determination at least fifteen (15) days prior to the end of the period in which
the right of first refusal expires under such Founder's Common Stock Purchase
Agreement. Each Investor shall then have the right, exercisable by notice prior
to the end of such period, to exercise such right of first refusal as the
Company's assignee on a pro rata basis (based upon the number of shares of
Common Stock held by such Investor relative to the aggregate number of shares of
Common Stock held by all Investors); provided that if fewer than all Investors
elect to participate, the Stock that would otherwise be allocated to non-
participating Investors shall be allocated to each participating Investor in a
manner such that each participating Investor is entitled to purchase at least
such Investor's pro rata portion of such unallocated Stock (based upon the
number of Common Stock held by all participating Investors) or such different
number of shares as the participating Investors shall mutually agree. The
Company agrees to assign its right of first refusal as applicable pursuant to
this Section 2(a) and the Founders hereby grant their consent for such
assignment. Upon expiration or exercise of the right of first refusal, the
Company will provide notice to all Investors as to whether or not the right of
first refusal has been exercised by the Company or the Investors.
(b) Co-Sale Right. To the extent that the right of first refusal
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under Section 2(a) or the Founders Common Stock Purchase Agreement is not
exercised by the Company, each Investor shall have the right, exercisable upon
written notice to the Selling Founder within fifteen (15) days after receipt of
the notice indicating whether or not the right of first refusal has been
exercised by the Company or the Investors, to participate in such sale of Stock
on the same terms and conditions, whether to the Investors pursuant to Section
2(a)(ii) or to individuals or entities that are not Investors. To the extent
one or more of the Investors exercises such right of participation in accordance
with the terms and conditions set forth below, the number of shares of Stock
that the Selling Founder may sell in the transaction shall be correspondingly
reduced. The co-sale right of each Investor shall be subject to the following
terms and conditions:
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(i) Each Investor may sell all or any part of that number
of shares of Common Stock held by such Investor that is equal to the product
obtained by multiplying (x) the aggregate number of shares of Stock covered by
the Notice and not being purchased by the Company pursuant to Section 2(a) by
(y) a fraction, the numerator of which is the number of Common Stock owned by
the Investor at the time of the sale or transfer and the denominator of which is
the combined number of shares of Common Stock of the Company at the time owned
by all Investors and the Selling Founder.
(ii) Each Investor shall effect its participation in the
sale by promptly delivering to the Selling Founder for transfer to the
prospective purchaser one or more certificates, properly endorsed for transfer,
which represent:
(A) the type and number of shares of Common Stock which
such Investor elects to sell; or
(B) that number of shares of Preferred Stock which is
at such time convertible into the number of shares of Common Stock that such
Investor elects to sell; provided, however, that if the prospective purchaser
objects to the delivery of Preferred Stock in lieu of Common Stock, such
Investor shall convert such Preferred Stock into Common Stock and deliver Common
Stock as provided in Section 2(b)(ii)(A) above. The Company agrees to make any
such conversion concurrent with the actual transfer of such shares to the
purchaser.
(c) The stock certificate or certificates that the Investor
delivers to the Selling Founder pursuant to Section 2(b) shall be transferred to
the prospective purchaser in consummation of the sale of the Stock pursuant to
the terms and conditions specified in the Notice, and the Selling Founder shall
concurrently therewith remit to such Investor that portion of the sale proceeds
to which such Investor is entitled by reason of its participation in such sale.
To the extent that any prospective purchaser or purchasers prohibits such
assignment or otherwise refuses to purchase shares or other securities from an
Investor exercising its rights of co-sale hereunder, the Selling Founder shall
not sell to such prospective purchaser or purchasers any Stock unless and until,
simultaneously with such sale, the Selling Founder shall purchase such shares or
other securities from such Investor upon the substantially similar terms as for
the purchase of stock by such prospective purchaser.
(d) The exercise or non-exercise of the rights of the Investors
hereunder to participate in one or more sales of Stock made by any of the
Founders shall not adversely affect the Investors' rights to participate in
subsequent sales of Stock subject to Section 2(a).
(e) To the extent the Investors do not elect to participate in the
sale of Stock subject to the Notice, the Selling Founder may conclude a transfer
of the Stock covered by the Notice and not elected to be purchased by the
Investors on terms and conditions subject to the terms of the Selling Founder's
Common Stock Purchase Agreement. Any subsequent transfer of any Stock by the
Selling Founder shall again be subject to the right of first refusal right of
the Company and the Investors (as applicable) and the co-sale right of the
Investors.
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3. Exempt Transfers. Notwithstanding the foregoing, the right of
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first refusal and the co-sale rights of the Investors shall not apply to any
transfer of Stock that is not subject to the Company's Right of First Refusal
under the Common Stock Purchase Agreements with the Founders. This Agreement
shall in no manner limit the right of the Company to repurchase securities from
a Founder at cost pursuant to any Stock Purchase Agreement between the Company
and such Founder.
4. Prohibited Transfers.
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(a) In the event any of the Founders should sell any Stock in
contravention of the right of first refusal and the co-sale rights of the
Investors under this agreement (a "Prohibited Transfer"), the Investors, in
addition to such other remedies as may be available at law, in equity or
hereunder, shall have the put option provided below, and such Founder (the
"Transferring Founder") shall be bound by the applicable provisions of such
option.
(b) In the event of a Prohibited Transfer, each Investor shall
have the right to sell to the Transferring Founder the type and number of shares
of Stock equal to the number of shares each Investor would have been entitled to
transfer to the purchaser under Section 2(b) hereof had the Prohibited Transfer
been effected pursuant to and in compliance with the terms hereof. Such sale
shall be made on the following terms and conditions:
(i) The price per share at which the shares are to be sold
to the Transferring Founder shall be equal to the price per share paid by the
purchaser to the Transferring Founder in the Prohibited Transfer. The
Transferring Founder shall also reimburse each Investor for any and all fees and
expenses, including legal fees and expenses, incurred pursuant to the exercise
or the attempted exercise of the Investor's rights under Section 2.
(ii) Within ninety (90) days after the later of the dates
on which the Investor (A) received notice of the Prohibited Transfer or (B)
otherwise become aware of the Prohibited Transfer, the Investor shall, if
exercising the option created hereby, deliver to the Transferring Founder the
certificate or certificates representing shares to be sold, each certificate to
be properly endorsed for transfer.
(iii) The Transferring Founder shall, upon receipt of the
certificate or certificates for the shares to be sold by an Investor, pursuant
to this Section 4(b)(iii), pay the aggregate purchase price therefor and the
amount of reimbursable fees and expenses, as specified in Section 4(b)(i), in
cash or by other means acceptable to the Stockholder.
(iv) Notwithstanding the foregoing, any attempt by a
Founder to transfer Stock in violation of Section 2 hereof shall be void and the
Company agrees it will not effect such a transfer nor will it treat any alleged
transferee as the holder of such shares without the written consent of at least
a majority-in-interest of the Common Stock held by the Investors.
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5. Legend.
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(a) Each certificate representing shares of Stock now or
hereafter owned by a Founder or issued to any person in connection with a
transfer pursuant to Section 3(a) hereof shall be endorsed with the following
legend:
"THE SALE, PLEDGE, HYPOTHECATION OR TRANSFER OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE
TERMS AND CONDITIONS OF A CERTAIN RIGHT OF FIRST REFUSAL AND
CO-SALE AGREEMENT BY AND BETWEEN THE STOCKHOLDER, THE
CORPORATION AND CERTAIN HOLDERS OF STOCK OF THE CORPORATION.
COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN
REQUEST TO THE SECRETARY OF THE CORPORATION."
(b) Each Founder agrees that the Company may instruct its
transfer agent to impose transfer restrictions on the shares represented by
certificates bearing the legend referred to in Section 5(a) above to enforce the
provisions of this Agreement and the Company agrees to promptly do so. The
legend shall be removed upon termination of this Agreement.
6. Miscellaneous.
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(a) Governing Law. This Agreement shall be governed by and
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construed under the laws of the State of California as applied to agreements
among California residents, made and to be performed entirely within the State
of California.
(b) Amendment; Termination of Prior Agreement. Any provision may
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be amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only by the
written consent of (i) as to the Company, only by the Company, (ii) as to the
Investors, by persons or entities holding more than at least two-thirds (2/3) of
the Common Stock, issued or issuable, held by the Investors and their assignees
pursuant to Section 6.3 hereof; provided, however, that any Investor may waive
any of its rights hereunder without obtaining the consent of any other Investor;
(iii) as to a Founder, by such Founder or his respective assignee, pursuant to
Section 6(c) hereof. Any amendment or waiver effected in accordance with clauses
(i), (ii) and (iii) of this Section shall be binding upon each Investor, its
successors and assigns, the Company and the Founder. Notwithstanding the
foregoing, the provisions of Section 2(b)(ii) may be waived only with the
unanimous consent of the Board of Directors. Notwithstanding the foregoing, in
the event that the Board of Directors of the Company approves the addition of an
individual as a Founder, such individual may be added as a party to this
Agreement, considered a Founder and become subject to the provisions of this
Agreement by executing a signature page. The Company, the Existing Investors
constituting a majority in interest of the Common Stock, issued and issuable,
held by the Investors and their assignees (as defined in the Prior Agreement)
now outstanding, and the Founders, agree that the Prior Agreement has been
amended and restated in its entirety by this Agreement.
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(c) Assignment of Rights. This Agreement and the rights and
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obligations of the parties hereunder shall inure to the benefit of, and be
binding upon, their respective successors, assigns and legal representatives.
Notwithstanding the foregoing, the rights of the Investors hereunder are only
assignable (i) by each of such Investors to any other Investor or (ii) to an
assignee or transferee who acquires all of the Common Stock purchased by a
Investor.
(d) Term. This Agreement shall terminate upon the earlier of (i)
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the closing of a firm commitment underwritten public offering pursuant to an
effective registration statement on Form S-1 under the Securities Act, covering
the offer and sale of the Company's Common Stock with a per share price to the
public of $8.00 per share (adjusted for stock splits, dividends,
recapitalizations and the like) and aggregate cash proceeds to the Corporation
of $15,000,000 (net of underwriting discounts and commissions), (ii) a sale of
all or substantially all of the assets of the Company, or a merger or
consolidation of the Company, unless the Company's shareholders of record as
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constituted immediately prior to such acquisition or sale will, immediately
after such acquisition or sale (by virtue of securities issued as consideration
for the Company's acquisition or sale or otherwise) hold at least 50% of the
voting power of the surviving or acquiring entity in approximately the same
relative percentages after such acquisition or sale as before such acquisition
or sale, (iii) such time as the Investors hold and aggregate of less than
1,000,000 shares of Common Stock and (iv) the execution by the Company of a
general assignment for the benefit of creditors or the appointment of a receiver
or trustee to take possession of the property and assets of the Company.
(e) Ownership. Each Founder represents and warrants, severally but
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not jointly, that he is the sole legal and beneficial owner of the shares of
stock subject to this Agreement and that no other person has any interest (other
than a community property interest) in such shares.
(f) Notices. All notices required or permitted hereunder shall be in
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writing and shall be deemed effectively given upon personal delivery to the
party to be notified or five (5) days after deposit in the United States mail,
by registered or certified mail, postage prepaid and properly addressed to the
party to be notified as set forth 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 hereto.
(g) Severability. In the event one or more of the provisions of this
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Agreement should, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Agreement, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein.
(h) Attorney Fees. In the event that any dispute among the parties
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to this Agreement should result in litigation, the prevailing party in such
dispute shall be entitled to recover from the losing party all fees, costs and
expenses of enforcing any right of such prevailing party under or with respect
to this Agreement, including without limitation, such
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reasonable fees and expenses of attorneys and accountants, which shall include,
without limitation, all fees, costs and expenses of appeals.
(i) Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(j) Stock Split. All references to numbers of shares in this
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Agreement shall be appropriately adjusted to reflect any stock dividend, split,
combination or other recapitalization of shares by the Company occurring after
the date of this Agreement.
(k) Aggregation of Stock. All shares of Common Stock held or
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acquired by affiliated entities or persons shall be aggregated together for the
purpose of determining the availability of any rights under this Agreement.
[REST OF PAGE LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties have executed this Amended and
Restated Right of First Refusal and Co-Sale Agreement as of the date first above
written.
COMPANY:
FLYCAST COMMUNICATIONS
CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇; ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTORS:
BESSEMER VENTURE PARTNERS IV
LP
By: Deer IV & Co. LLC
Its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager
BESSEMER VENTURE INVESTORS LP
By: Deer IV & Co. LLC
Its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager
Address: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO AMENDED AND RESTATED RIGHT OF
FIRST REFUSAL AND CO-SALE AGREEMENT
▇▇▇▇▇▇▇ RIVER PARTNERSHIP
VIII, A LIMITED PARTNERSHIP
By: ▇▇▇▇▇▇▇ River VIII GP Limited
Partnership, General Partner
By: /s/
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General Partner
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INTELLIGENT MEDIA VENTURES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Attorney in Fact
Address: ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇
▇. ▇. ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
PACIFIC TELESIS GROUP
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Executive Vice President, Chief Financial
Officer
Address: Pacific Telesis Group
▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: General Attorney, M & A Legal
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
Address: H3D Entertainment
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ & SONS, CUSTODIAN
FBO ▇▇▇▇▇ ▇. ▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ & SONS, CUSTODIAN
FBO ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Address: ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, #▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO AMENDED
AND RESTATED RIGHT OF FIRST
REFUSAL AND CO-SALE
AGREEMENT
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▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: c/▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇.▇., ▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO AMENDED
AND RESTATED RIGHT OF FIRST
REFUSAL AND CO-SALE
AGREEMENT
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▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO AMENDED
AND RESTATED RIGHT OF FIRST
REFUSAL AND CO-SALE
AGREEMENT
▇▇▇▇ ▇▇▇▇▇ & SONS, CUSTODIAN
FBO ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO AMENDED
AND RESTATED RIGHT OF FIRST
REFUSAL AND CO-SALE
AGREEMENT
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Address: c/o Venture Law Group
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO AMENDED
AND RESTATED RIGHT OF FIRST
REFUSAL AND CO-SALE
AGREEMENT
VLG INVESTMENTS 1997
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: General Partner
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Print Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
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SIGNATURE PAGE TO AMENDED
AND RESTATED RIGHT OF FIRST
REFUSAL AND CO-SALE
AGREEMENT
FOUNDERS:
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Miles ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇
SIGNATURE PAGE TO AMENDED
AND RESTATED RIGHT OF FIRST
REFUSAL AND CO-SALE
AGREEMENT
WESTERN INVESTMENTS CAPITAL, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Title: Managing Member
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Print Name: ▇▇▇▇▇ ▇▇▇▇▇
-----------
SIGNATURE PAGE TO AMENDED
AND RESTATED RIGHT OF FIRST
REFUSAL AND CO-SALE
AGREEMENT
/s/
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
BRIMSTONE ISLAND CO. L.P.
By: /s/
-----------------------------------
Name:
Its:
/s/
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Neill ▇. ▇▇▇▇▇▇▇▇▇▇
/s/
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/
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G. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/
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AND RESTATED RIGHT OF FIRST
REFUSAL AND CO-SALE
AGREEMENT
GABRIELI FAMILY FOUNDATION
By: /s/
-----------------------------------
Name:
---------------------------------
Its:
----------------------------------
/s/
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/
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/s/
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/s/
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/s/
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/s/
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SIGNATURE PAGE TO AMENDED
AND RESTATED RIGHT OF FIRST
REFUSAL AND CO-SALE
AGREEMENT
/s/
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▇▇▇▇ ▇. ▇▇▇▇
/s/
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/
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/s/
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/s/
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/s/
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ 1994 FAMILY PARTNERSHIP, L.P.
By: /s/
-----------------------------------
Name:
---------------------------------
Its:
---------------------------------
SIGNATURE PAGE TO AMENDED
AND RESTATED RIGHT OF FIRST
REFUSAL AND CO-SALE
AGREEMENT
/s/
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/
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▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇▇▇
/s/
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ 1994 FAMILY PARTNERSHIP, L.P.
By: /s/
-----------------------------------
Name:
---------------------------------
Its:
---------------------------------
BVP IV SPECIAL SITUATIONS L.P.
By:
Name:
Its:
Address: c/o Bessemer Partners IV L.P.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO AMENDED
AND RESTATED RIGHT OF FIRST
REFUSAL AND CO-SALE
AGREEMENT
ST. ▇▇▇▇ VENTURE CAPITAL IV, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Partner
ST. ▇▇▇▇ VENTURE CAPITAL AFFILIATES FUND I,
LLC
By: St. ▇▇▇▇ Venture Capital, Inc.
Its: Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice
President
Address: St. ▇▇▇▇ Venture Capital
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ 1940
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO AMENDED
AND RESTATED RIGHT OF FIRST
REFUSAL AND CO-SALE
AGREEMENT
COMDISCO, INC.
By: /s/
Name:
Title:
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
SIGNATURE PAGE TO AMENDED
AND RESTATED RIGHT OF FIRST
REFUSAL AND CO-SALE
AGREEMENT
BESSEC VENTURES IV L.P.
By: Deer IV & Co. LLC, It's General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager
SIGNATURE PAGE TO AMENDED
AND RESTATED RIGHT OF FIRST
REFUSAL AND CO-SALE
AGREEMENT
INTELLIGENT MEDIA VENTURES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
____________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Attorney in Fact
Address: ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
______________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Address: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
By: ______________________________
Address:
Facsimile:
▇▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
__________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Address: ▇▇▇ ▇. ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇/▇▇/ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ABS EMPLOYEE VENTURE FUND, LP
By: /s/
Name:______________________________
Title:_____________________________
Address:
Facsimile:
U.S. DEVELOPMENT CAPITAL
INVESTMENT COMPANY
By: /s/
____________________________________
Name:
Title:
Address:
SCHEDULE A
----------
INVESTORS
INVESTOR
Bessemer Venture Partners IV LP
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Bessemer Venture Investors LP
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ River Partnership VIII
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
H3D Entertainment
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, #▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
c/▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇.▇., ▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SECOND CLOSING - ADDITIONAL INVESTORS
-------------------------------------
SECOND CLOSING - BESSEMER INVESTORS
INVESTOR
--------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Brimstone Island Co. ▇.▇.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
G. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Gabrieli Family Foundation
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ 1994 Family Partnership, L.P.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ 1994 Family Partnership, L.P.
Bessemer Venture Partners IV L.P.
BVP IV Special Situations L.P.
Address: c/o Bessemer Partners IV L.P.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
SECOND CLOSING - FRIENDS OF THE COMPANY:
----------------------------------------
INVESTOR
--------
VLG Investments 1997
Address: c/o Venture Law Group
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
UMB, N.A., as Trustee For ▇▇▇▇▇▇▇, Phleger &
▇▇▇▇▇▇▇▇ Savings Trust FBO ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn. ▇▇▇▇▇ Longrace
THIRD CLOSING - ADDITIONAL CORPORATE INVESTORS
----------------------------------------------
AND FRIENDS OF THE COMPANY
--------------------------
St. ▇▇▇▇ Venture Capital IV, LLC
St. ▇▇▇▇ Venture Capital Affiliates Fund I, LLC
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
COMDISCO CLOSING:
-----------------
Comdisco, Inc.
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
SERIES C CLOSINGS--ADDITIONAL INVESTORS
---------------------------------------
Intelligent Media Ventures, Inc.
Address: ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Pacific Telesis Group
Address: ▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Attorney, M&A
Legal
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
Address: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
