EXHIBIT 4.2
SITESMITH, INC.
AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
JULY 20, 2000
TABLE OF CONTENTS
PAGE
A. Amendment and Restatement of Prior Rights Agreement; Waiver of Right of First Offer..1
1. Registration Rights..................................................................2
1.1 Definitions...................................................................2
1.2 Request for Registration......................................................3
1.3 Company Registration..........................................................4
1.4 Form S-3 Registration.........................................................5
1.5 Obligations of the Company....................................................6
1.6 Furnish Information...........................................................7
1.7 Expenses of Registration......................................................7
1.8 Underwriting Requirements.....................................................8
1.9 Delay of Registration.........................................................9
1.10 Indemnification...............................................................9
1.11 Reports Under Securities Exchange Act of 1934................................11
1.12 Restrictions of Transfer; Assignment of Registration Rights..................12
1.13 Limitations on Subsequent Registration Rights................................12
1.14 Market Stand-Off Agreement...................................................12
1.15 Termination of Registration Rights...........................................13
2. Covenants of the Company............................................................13
2.1 Delivery of Financial Statements.............................................13
2.2 Inspection...................................................................14
2.3 Right of First Offer.........................................................14
2.4 Key Man Life Insurance.......................................................15
2.5 IPO Allocation...............................................................16
2.6 Board of Directors Matters...................................................16
2.7 Proprietary Information Agreements...........................................16
2.8 Termination of Covenants.....................................................16
3. Miscellaneous.......................................................................16
3.1 Successors and Assigns.......................................................16
3.2 Amendments and Waivers.......................................................17
3.3 Notices......................................................................17
3.4 Severability.................................................................17
3.5 Governing Law................................................................17
3.6 Counterparts.................................................................17
3.7 Titles and Subtitles.........................................................17
3.8 Aggregation of Stock.........................................................17
i
SITESMITH, INC.
AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
This Amended and Restated Investors' Rights Agreement (the "AGREEMENT") is
made as of the 20th day of July, 2000, by and among SiteSmith, Inc., a Delaware
corporation (the "COMPANY"), the holders of the Company's Series A Preferred
Stock listed on EXHIBIT A hereto (the "Series A Holders"), the holders of Series
B Preferred Stock listed on EXHIBIT B hereto (the "Series B Holders"), and the
holders of Series C Preferred Stock listed on EXHIBIT C hereto (the "Series C
Holders"), each of which is herein referred to as an "INVESTOR," and the
individuals listed on EXHIBIT D hereto, each of whom is herein referred to as a
"FOUNDER".
RECITALS
A. The Company, the Founders, the Series A Holders and the Series B Holders
have previously entered into an Investors' Rights Agreement dated as of January
13, 2000 (the "PRIOR RIGHTS AGREEMENT"), pursuant to which the Company granted
the Founders and the Series A Holders and the Series B Holders certain rights.
B. The Company and the Investors have entered into a Series C Preferred
Stock Purchase Agreement (the "PURCHASE AGREEMENT") of even date herewith
pursuant to which the Company desires to sell to the Investors and the Investors
desire to purchase from the Company shares of the Company's Series C Preferred
Stock. A condition to the Investors' obligations under the Purchase Agreement is
that the Company, the Founders and the Investors enter into this Agreement in
order to provide the Investors with (i) certain rights to register shares of the
Company's Common Stock issuable upon conversion of the Series C Preferred Stock
held by the Investors, (ii) certain rights to receive or inspect information
pertaining to the Company, and (iii) a right of first offer with respect to
certain issuances by the Company of its securities. The Company, the Investors
and the Founders each desire to induce the Investors to purchase shares of
Series C Preferred Stock pursuant to the Purchase Agreement by agreeing to the
terms and conditions set forth herein.
C. The Company, the Founders, the Series A Holders, and the Series B
Holders each desire to amend and restate the Prior Rights Agreement to add the
Series C Holders as parties to this Agreement and make certain other changes.
AGREEMENT
The parties hereby agree as follows:
A. AMENDMENT AND RESTATEMENT OF PRIOR RIGHTS AGREEMENT; WAIVER OF RIGHT OF
FIRST OFFER. Effective and contingent upon execution of this Agreement by the
Company, the holders of a majority of the Registrable Securities held by the
Series A Holders and Series B Holders, as that term is defined in the Prior
Rights Agreement, not including the Founders Stock, as that term is defined in
the Prior Rights Agreement, and upon closing of the transactions
contemplated by the Purchase Agreement, the Prior Rights Agreement is hereby
amended and restated in its entirety to read as set forth in this Agreement, and
the Company, the Founders, and the Investors hereby agree to be bound by the
provisions hereof as the sole agreement of the Company, the Founders, and the
Investors with respect to registration rights of the Company's securities and
certain other rights, as set forth herein. To the extent that the Series A
Holders and Series B Holders have not purchased the full amount of shares of
Series C Preferred Stock that they were entitled to receive pursuant to Section
2.3 of the Prior Rights Agreement, they hereby waive the Right of First Offer,
including the notice requirements, set forth in the Prior Rights Agreement with
respect to the issuance of Series C Preferred Stock.
1. REGISTRATION RIGHTS. The Company and the Investors covenant and agree as
follows:
1.1 DEFINITIONS. For purposes of this Section 1:
(a) The terms "REGISTER," "REGISTERED," and "REGISTRATION" refer
to a registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act of 1933, as amended (the
"SECURITIES ACT"), and the declaration or ordering of effectiveness of such
registration statement or document;
(b) The term "REGISTRABLE SECURITIES" means (i) Series A
Preferred Stock, Series B Preferred Stock and Series C Preferred Stock (together
the "Preferred Stock") or the shares of Common Stock issuable or issued upon
conversion of the Preferred Stock and (ii) the shares of Common Stock issued to
the Founders (the "FOUNDERS' STOCK"), PROVIDED, HOWEVER, that for the purposes
of Section 1.2, 1.4 or 1.13 the Founders' Stock shall not be deemed Registrable
Securities and the Founders shall not be deemed Holders, and (iii) any other
shares of Common Stock of the Company issued as (or issuable upon the conversion
or exercise of any warrant, right or other security which is issued as) a
dividend or other distribution with respect to, or in exchange for or in
replacement of, the shares listed in (i) and (ii); PROVIDED, HOWEVER, that the
foregoing definition shall exclude in all cases any Registrable Securities sold
by a person in a transaction in which his or her rights under this Agreement are
not assigned. Notwithstanding the foregoing, Common Stock or other securities
shall only be treated as Registrable Securities if and so long as they have not
been (A) sold to or through a broker or dealer or underwriter in a public
distribution or a public securities transaction, or (B) sold in a transaction
exempt from the registration and prospectus delivery requirements of the
Securities Act under Section 4(1) thereof so that all transfer restrictions, and
restrictive legends with respect thereto, if any, are removed upon the
consummation of such sale;
(c) The number of shares of "REGISTRABLE SECURITIES THEN
OUTSTANDING" shall be determined by the number of shares of Common Stock
outstanding which are, and the number of shares of Common Stock issuable
pursuant to then exercisable or convertible securities which are, Registrable
Securities;
(d) The term "HOLDER" means any person owning or having the right
to acquire Registrable Securities or any assignee thereof in accordance with
Section 1.12 of this Agreement;
-2-
(e) The term "FORM S-3" means such form under the Securities Act
as in effect on the date hereof or any successor form under the Securities Act
that permits significant incorporation by reference of the Company's subsequent
public filings under the Securities Exchange Act of 1934;
(f) The term "SEC" means the Securities and Exchange Commission;
and
(g) The term "QUALIFIED IPO" means a firm commitment underwritten
public offering by the Company of shares of its Common Stock pursuant to a
registration statement on Form S-1 under the Securities Act, the public offering
price of which is not less than $11.30 per share (appropriately adjusted for any
stock split, dividend, combination or other recapitalization) and which results
in aggregate net proceeds of $35,000,000.
1.2 REQUEST FOR REGISTRATION.
(a) If the Company shall receive at any time after the earlier of
(i) July __, 2004, or (ii) six (6) 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 an SEC Rule 145 transaction), a written request from the Holders of
least twenty percent (20%) of the Registrable Securities then outstanding that
the Company file a registration statement under the Securities Act covering the
registration of Registrable Securities with an anticipated aggregate offering
price of at least $5,000,000, then the Company shall, within ten (10) days of
the receipt thereof, give written notice of such request to all Holders and
shall, subject to the limitations of subsection 1.2(b), use its best efforts to
effect as soon as practicable, and in any event within 60 days of the receipt of
such request, the registration under the Securities Act of all Registrable
Securities which the Holders request to be registered within twenty (20) days of
the mailing of such notice by the Company in accordance with Section 3.3.
(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 this Section 1.2 and the Company
shall include such information in the written notice referred to in subsection
1.2(a). The underwriter will be selected by a majority in interest of the
Initiating Holders and shall be reasonably acceptable to the Company. 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 1.5(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 which would otherwise be underwritten
-3-
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 such filing
for a period of not more than 90 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-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:
(i) After the Company has effected two (2) registration
pursuant to this Section 1.2 and such registration has been declared or ordered
effective;
(ii) During the period starting with the date sixty (60)
days prior to the Company's good faith estimate of the date of filing of, and
ending on a date one hundred eighty (180) 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 1.4 below.
1.3 COMPANY REGISTRATION. If (but without any obligation to do so) the
Company proposes to register (including for this purpose a registration effected
by the Company for stockholders other than the Holders) any of its stock under
the Securities 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 or a transaction covered by
Rule 145 under the Securities Act, a registration in which the only stock being
registered is Common Stock issuable upon conversion of debt securities which are
also being registered, or any registration on any form which 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), the
Company shall, at such time, promptly give each Holder written notice of such
registration. Upon the written request of each Holder given within twenty (20)
days after mailing of such notice by the Company in accordance with Section 3.3,
the Company shall, subject to the provisions of Section 1.8, cause to be
registered under the Securities Act all of the Registrable Securities that each
such Holder has requested to be registered.
-4-
1.4 FORM S-3 REGISTRATION. Following its initial public offering of
securities under the Securities Act, the Company shall use its best efforts to
qualify for registration on Form S-3 or any comparable or successor form. In
case the Company shall receive from any Holder or Holders of not less than ten
percent (10%) of the Registrable Securities then outstanding 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 15
days after receipt of such written notice from the Company; PROVIDED, HOWEVER,
that the Company shall not be obligated to effect any such registration,
qualification or compliance, pursuant to this Section 1.4: (i) if Form S-3 is
not available for such offering by the Holders; (ii) if the Holders, together
with the holders of any other securities of the Company entitled to inclusion in
such registration, propose to sell Registrable Securities and such other
securities (if any) at an aggregate price to the public (net of any
underwriters' discounts or commissions) of less than $1,000,000; (iii) if the
Company shall furnish to the Holders a certificate signed by the 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 90 days after receipt of
the request of the Holder or Holders under this Section 1.4; PROVIDED, HOWEVER,
that the Company shall not utilize this right more than once in any twelve month
period; (iv) if the Company has, within the twenty-four (24) month period
preceding the date of such request, already effected two registrations on Form
S-3 for the Holders pursuant to this Section 1.4; (v) in any particular
jurisdiction in which the Company would be required to qualify to do business or
to execute a general consent to service of process in effecting such
registration, qualification or compliance unless the Company is already subject
to service of process in any such jurisdiction; or (vi) during the period ending
one hundred eighty (180) days after the effective date of a registration
statement subject to Section 1.3.
(c) Subject to the foregoing, the Company shall file a
registration statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request or requests of the Holders. Registrations effected pursuant to this
Section 1.4 shall not be counted as demands for registration or registrations
effected pursuant to Sections 1.2 or 1.3, respectively.
1.5 OBLIGATIONS OF THE COMPANY. Whenever required under this Section 1
to effect the registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
-5-
(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 up to one hundred twenty (120) days. The
Company shall not be required to file, cause to become effective or maintain the
effectiveness of any registration statement that contemplates a distribution of
securities on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act.
(b) Prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement so long as the registration statement is effective.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them.
(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, unless the Company is
already subject to service in such jurisdiction.
(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 Securities 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, such obligation to continue so long as the registration statement is
effective.
(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.
-6-
(i) Use its best efforts to furnish, at the request of any Holder
requesting registration of Registrable Securities pursuant to this Section 1, on
the date that such Registrable Securities are delivered to the underwriters for
sale in connection with a registration pursuant to this Section 1, if such
securities are being sold through underwriters, or, if such securities are not
being sold through underwriters, on the date that the registration statement
with respect to such securities becomes effective, (i) an opinion, dated such
date, of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to underwriters in
an underwritten public offering, addressed to the underwriters, if any, and to
the Holders requesting registration of Registrable Securities and (ii) a letter
dated such date, from the independent certified public accountants of the
Company, in form and substance as is customarily given by independent certified
public accountants to underwriters in an underwritten public offering, addressed
to the underwriters, if any, and to the Holders requesting registration of
Registrable Securities.
1.6 FURNISH INFORMATION. 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. The Company shall have no obligation with respect to any
registration requested pursuant to Section 1.2 or Section 1.4 of this Agreement
if, as a result of the application of the preceding sentence, 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 1.4(b)(ii), whichever is applicable.
1.7 EXPENSES OF REGISTRATION.
(a) DEMAND REGISTRATION. All expenses other than 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 selected by them with the
approval of the Company, which approval shall not be unreasonably withheld,
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 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 of the demand registrations available under Section 1.2;
provided further, however, that if at the time of such withdrawal, the Holders
have learned of a material adverse change in the condition, business, or
prospects of the Company from that known to the Holders at the time of their
request and have withdrawn the request with reasonable promptness following
disclosure by the Company of such material adverse change, then the Holders
shall not be required to pay any of such expenses and shall not forfeit any
rights under Section 1.2.
-7-
(b) COMPANY REGISTRATION. All expenses other than underwriting
discounts and commissions incurred in connection with registrations, filings or
qualifications of Registrable Securities pursuant to Section 1.3 for each
Holder, 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 Holder or Holders selected by them with the approval of the
Company, which approval shall not be unreasonably withheld, shall be borne by
the Company.
(c) REGISTRATION ON FORM S-3. All expenses other than
underwriting discounts and commissions incurred in connection with a
registration requested pursuant to Section 1.4, including (without limitation)
all registration, filing, qualification, printers' and accounting fees and the
reasonable fees and disbursements of one counsel for the selling Holder or
Holders selected by them with the approval of the Company, which approval shall
not be unreasonably withheld, and counsel for the Company shall be borne by the
Company.
1.8 UNDERWRITING REQUIREMENTS. In connection with any offering
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, which the underwriters determine in their sole
discretion will not jeopardize the success of the offering (the securities so
included to be apportioned pro rata among the selling stockholders according to
the total amount of securities entitled to be included therein owned by each
selling stockholder or in such other proportions as shall mutually be agreed to
by such selling stockholders) but in no event shall (i) the amount of securities
of the selling Holders included in the offering be reduced below thirty percent
(30%) of the total amount of securities included in such offering, unless such
offering is a Qualified IPO of the Company's securities, in which case, the
selling stockholders (including the selling Holders) may be excluded if the
underwriters make the determination described above and no other stockholder's
securities are included or (ii) any securities held by a Founder or any other
stockholder be included if any securities held by any selling Holder are
excluded. For purposes of the preceding parenthetical concerning apportionment,
for any selling stockholder which is a holder of Registrable Securities and
which 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 carrying registration rights owned by all
entities and individuals included in such "selling stockholder," as defined in
this sentence.
-8-
1.9 DELAY OF REGISTRATION. No Holder shall have any right to obtain 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
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, its officers, directors, controlling
shareholders, partners, any underwriter (as defined in the Securities Act) for
such Holder and each person, if any, who controls such Holder or underwriter
within the meaning of the Securities Act or the Securities Exchange Act of 1934,
as amended (the "EXCHANGE ACT"), against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject under the
Securities Act, the Exchange Act or 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 Securities Act, the Exchange Act, any state
securities law or any rule or regulation promulgated under the Securities Act,
the Exchange Act or any state securities law; and the Company will pay to each
such Holder, its officers, directors, controlling shareholders, partners, each
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 to any
Holder, any of its officer, directors, controlling shareholders, partners, any
underwriter or controlling person for any such loss, claim, damage, liability,
or action to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by any such Holder, any
such officer, director, controlling shareholder, partner, or any such
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 Securities 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 Securities Act, the Exchange 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
-9-
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; 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 net proceeds from the offering received by such Holder,
except in the case of willful fraud 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 which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the reasonable 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; PROVIDED, that in no event shall any contribution by a Holder
under this Subsection 1.10(d) exceed the net proceeds from the offering received
by such Holder, except in the case of willful fraud by such Holder. 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.
-10-
(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.
1.11 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view to
making available to tthe Holders the benefits of Rule 144 promulgated under the
Securities Act and any other rule or regulation of the SEC that may at any time
permit a Holder to sell securities of the Company to the public without
registration or pursuant to a registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in SEC Rule 144, at all times after ninety (90) days
after the effective date of the first registration statement filed by the
Company for the offering of its securities to the general public so long as the
Company remains subject to the periodic reporting requirements under Sections 13
or 15(d) of the Exchange Act;
(b) take such action, including the voluntary registration of its
Common Stock under Section 12 of the Exchange 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 Securities Act and the Exchange 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 SEC Rule 144 (at
any time after ninety (90) days after the effective date of the first
registration statement filed by the Company), the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements), or that it qualifies as a registrant whose securities may be
resold pursuant to Form S-3 (at any time after it so qualifies), (ii) a copy of
the most recent annual or quarterly report of the Company and such other reports
and documents so filed by the Company, and (iii) such other information as may
be reasonably requested in availing any Holder of any rule or regulation of the
SEC which permits the selling of any such securities without registration or
pursuant to such form.
1.12 RESTRICTIONS OF TRANSFER; ASSIGNMENT OF REGISTRATION RIGHTS. No
Holder may transfer any Registrable Securities without prior written consent of
the Company, which consent shall not be unreasonably withheld; provided that
such restriction on transfer does not apply to transfers by Major Investors or
to affiliates or upon liquidation of an investment partnership. The rights to
cause the Company to register Registrable Securities pursuant to this
-11-
Section 1 may be assigned (but only with all related obligations) by a Holder to
a transferee or assignee of at least 100,000 shares of such securities, PROVIDED
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;
and PROVIDED, FURTHER, that such assignment shall be effective only if
immediately following such transfer the further disposition of such securities
by the transferee or assignee is restricted under the Securities Act. 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) or by Affiliates, as defined in Regulation D of the Securities Act
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 Section 1.
1.13 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and after the
date of this Agreement, the Company shall not, without the prior written consent
of the Holders of a majority of the outstanding Registrable Securities, enter
into any agreement with any holder or prospective holder of any securities of
the Company which would allow such holder or prospective holder (a) to include
such securities in any registration filed under Sections 1.2 or 1.3 hereof,
unless under the terms of such agreement, such holder or prospective holder may
include such securities in any such registration only to the extent that the
inclusion of his securities will not reduce the amount of the Registrable
Securities of the Holders which is included or (b) to make a demand registration
which could result in such registration statement being declared effective prior
to the earlier of either of the dates set forth in subsection 1.2(a) or within
one hundred twenty (120) days of the effective date of any registration effected
pursuant to Section 1.2.
1.14 "MARKET STAND-OFF" AGREEMENT.
(a) MARKET-STANDOFF PERIOD; AGREEMENT. In connection with the
initial public offering of the Company's securities and upon request of the
Company or the underwriters managing such offering of the Company's securities,
each Holder agrees not to sell, make any short sale of, loan, grant any option
for the purchase of, or otherwise dispose of any securities of the Company
(other than those included in the registration) without the prior written
consent of the Company or such underwriters, as the case may be, for such period
of time (not to exceed 180 days) from the effective date of such registration as
may be requested by the Company or such managing underwriters and to execute an
agreement reflecting the foregoing as may be requested by the underwriters at
the time of the Company's initial public offering.
(b) LIMITATIONS. The obligations described in Section 1.14(a)
shall apply only if all officers, directors, and 1% shareholders of the Company
have entered into identical agreements, and such agreement includes a provision
which provides the Series C Preferred Stock holders will be treated on pari
passu basis as all other parties to such agreement in the event of any early
releases or terminations of any such agreement, and shall not apply to a
-12-
registration relating solely to employee benefit plans, or to a registration
relating solely to a transaction pursuant to Rule 145 under the Securities Act.
(c) STOP-TRANSFER INSTRUCTIONS. In order to enforce the foregoing
covenants, the Company may impose stop-transfer instructions with respect to the
securities of each Holder (and the securities of every other person subject to
the restrictions in Section 1.14(a)).
(d) TRANSFEREES BOUND. Each Holder agrees that prior to the
Company's initial public offering it will not transfer securities of the Company
unless each transferee agrees in writing to be bound by all of the provisions of
this Section 1.14 , PROVIDED that this Section 1.14(d) shall not apply to
transfers pursuant to a registration statement or transfers after the
twelve-month anniversary of the effective date of the Company's initial
registration statement subject to this Section 1.14.
1.15 TERMINATION OF REGISTRATION RIGHTS. No Holder shall be entitled
to exercise any right provided for in this Section 1 after the earlier of (i)
five (5) years following the consummation of a Qualified IPO, or (ii) such time
as Rule 144 or another similar exemption under the Securities Act is available
for the sale of all of such Holder's shares during a three (3)-month period
without registration.
2. COVENANTS OF THE COMPANY.
2.1 DELIVERY OF FINANCIAL STATEMENTS. The Company shall deliver to
each Holder of at least 500,000 shares of Registrable Securities (other than a
Holder reasonably deemed by the Company to be a competitor of the Company):
(a) as soon as practicable after the end of each fiscal year of
the Company, and in any event within 90 days thereafter, a balance sheet of the
Company, as at the end of such fiscal year, and a statement of income and a
statement of case flows of the Company, for such year, all prepared in
accordance with generally accepted accounting principles consistently applied
and setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail. Such financial statements will be
accompanied by a report and opinion thereon by a "Big 5" independent public
accountant selected by the Company's Board of Directors.
(b) as soon as practicable after the end of the first, second and
third quarterly accounting periods in each fiscal year of the Company, and in
any event within 45 days thereafter, a balance sheet of the Company as of the
end of each such quarterly period, and a statement of income and a statement of
cash flows of the Company for such period and for the current fiscal year to
date, prepared in accordance with generally accepted accounting principles, with
the exception that no notes need be attached to such statements and year-end
audit adjustments may not have been made.
(c) as soon as practicable, but in any event thirty (30) days
prior to the end of each fiscal year, an annual budget and business plan for the
next fiscal year, prepared on a
-13-
monthly basis, which includes both operational and strategic plans, and, as soon
as prepared, any other budgets or revised budgets prepared by the Company.
2.2 INSPECTION. The Company shall permit each Holder of at least
500,000 shares of Registrable Securities (except for a Holder reasonably deemed
by the Company to be a competitor of the Company), at such Holder'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 which it reasonably considers
to be a trade secret or similar confidential information.
2.3 RIGHT OF FIRST OFFER. Subject to the terms and conditions
specified in this Section 2.3, the Company hereby grants to each Major Investor
(as hereinafter defined) a right of first offer with respect to future sales by
the Company of its Shares (as hereinafter defined). For purposes of this Section
2.3, a "MAJOR INVESTOR" shall mean any person who together with its Affiliates
holds at least 500,000 shares of the Series A Preferred Stock and/or Series B
Preferred Stock and/or Series C Preferred Stock (or the Common Stock issued upon
conversion thereof). For purposes of this Section 2.3, Major Investor includes
any general partners and affiliates of a Major Investor. A Major Investor who
chooses to exercise the right of first offer may designate as purchasers under
such right itself or its partners or 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 Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice by certified mail
("NOTICE") to the Major 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) Within 15 calendar days after delivery of the Notice, the
Major Investor may elect to purchase or obtain, at the price and on the terms
specified in the Notice, up to the number of such Shares which equals the
proportion that the number of shares of Common Stock of the Company issued and
held, or issuable upon conversion and exercise of all convertible or exercisable
securities then held, by such Major Investor bears to the total number of shares
of Common Stock of the Company issued and held, or issuable upon conversion and
exercise of all convertible or exercisable securities then held by all Major
Investors. Such purchase shall be completed at the same closing as that of any
third party purchasers or at an additional closing thereunder as soon as
practicable.
(c) The Company may, during the 45-day period following the
expiration of the period provided in subsection 2.3(b) hereof, offer the
remaining unsubscribed portion of the Shares to any person or persons at a price
not less than, and upon terms no more
-14-
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 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 Major Investors in accordance herewith.
(d) The right of first offer in this paragraph 2.3 shall not be
applicable (i) to the issuance or sale of up to 15,500,000 shares (or such
greater number as is unanimously approved by the Board of Directors) of Common
Stock (or options therefor) to employees, consultants and directors, pursuant to
plans or agreements approved by the Board of Directors for the primary purpose
of soliciting or retaining their services, (ii) to or after consummation of a
Qualified IPO, (iii) to the issuance of securities pursuant to the conversion or
exercise of convertible or exercisable securities, (iv) to 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, the terms of which are approved by the Board of Directors,
(v) to the issuance of securities to third party financial institutions or
lessors in connection with commercial credit arrangements, equipment financings,
or similar transactions which are approved by the Board of Directors the primary
purpose of which, in each case, is not equity financing, or (vi) to the issuance
or sale of the Series C Preferred Stock. In addition to the foregoing, the right
of first offer in this paragraph 2.3 shall not be applicable with respect to any
Major Investor and any subsequent securities issuance, if (i) at the time of
such subsequent securities issuance, the Major Investor is not an "accredited
investor," as that term is then defined in Rule 501(a) under the Securities Act
and such subsequent securities issuance is otherwise being offered only to
accredited investors, or (ii) such subsequent securities issuance if sold to a
Major Investor would violate the Securities Act of 1933 (as amended).
2.4 KEY MAN LIFE INSURANCE. The Company will use its best efforts to
maintain term life insurance of at least $1.0 million on the life of the
Company's Chief Executive Officer, with the Company as the named beneficiary.
Such policy shall be renewable unless determined otherwise by the holders of at
least a majority of the Registrable Securities.
2.5 IPO ALLOCATION. In the event of a bona fide, firm commitment
underwritten initial public offering of the capital stock of the Company (the
"IPO"), the Company shall, or shall require that the managing underwriters of
the IPO, establish a directed share program (the "Program") in connection with
the IPO. The Program shall consist of at least that number of shares of capital
stock (the "Program Shares") equal to two and one half percent (2.5%) of the
shares offered in the IPO (exclusive of shares subject to any overallotment
option on behalf of the underwriters). The Investors shall have the option, but
not the obligation, to direct the allocation of 2.5% of the Program Shares, or
to purchase all or any portion of the Program Shares at the initial price to
public set forth on the cover page of the final prospectus distributed in
connection with the IPO.
2.6 BOARD OF DIRECTORS MATTERS. The Company will hold meetings of the
Board of Directors at 4-6 week intervals until the Board of Directors determines
otherwise. The Board of Directors shall approve capital expenditures of greater
than $50,000 in a single expenditure or in aggregate of $250,000 in a
twelve-month period. The Board shall establish
-15-
audit and compensation committees at an appropriate time after the Closing. The
Board shall have the right to advise and consent in any subsequent hiring of any
officers of the Company. Dell Ventures L.P., a Purchaser, shall enter into the
Company's standard Management Rights Letter, pursuant to which Dell will be
entitled to attend all Board meetings and, subject to confidentiality
requirements, receive all information and documentation provided to board
members.
2.7 PROPRIETARY INFORMATION AGREEMENTS. The Company shall maintain a
policy of having each employee and consultant execute an Employee Proprietary
Information Agreement in substantially the form provided to the Purchasers, and
shall cause all current and future officers, employees and consultants to
execute such an agreement.
2.8 TERMINATION OF COVENANTS.
(a) The covenants set forth in Sections 2.1 through 2.4 and
Section 2.6 shall terminate as to each Holder and be of no further force or
effect immediately prior to the consummation of a Qualified IPO.
(b) The covenants set forth in Sections 2.1 and 2.2 shall
terminate as to each Holder and be of no further force or effect when the
Company first becomes subject to the periodic reporting requirements of Sections
13 or 15(d) of the Exchange Act, if this occurs earlier than the events
described in Section 2.8(a) above.
3. MISCELLANEOUS.
3.1 SUCCESSORS AND ASSIGNS. Except as otherwise provided in this
Agreement, the terms and conditions of this Agreement shall inure to the benefit
of and be binding upon the respective permitted successors and assigns of the
parties (including transferees of any of the Series A Preferred Stock and Series
B Preferred Stock and Series C Preferred Stock or any Common Stock issued upon
conversion thereof). Nothing in this Agreement, express or implied, is intended
to confer upon any party other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations, or liabilities under
or by reason of this Agreement, except as expressly provided in this Agreement.
3.2 AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended
or waived only with the written consent of the Company and the holders of a
majority of the Registrable Securities then outstanding, not including the
Founders' Stock; provided that if such amendment has the effect of affecting the
Founders' Stock (i) in a manner different than securities issued to the
Investors and (ii) in a manner adverse to the interests of the holders of the
Founders' Stock, then such amendment shall require the consent of the holder or
holders of a majority of the Founders' Stock. Notwithstanding the foregoing, any
amendment or waiver of this Section 3.2, and any amendment or waiver that is
proposed in circumstances other than in connection with an equity financing of
the Company, must also be approved by at least 66 2/3% of the Series C Holders.
Any amendment or waiver effected in accordance with this paragraph shall be
binding upon each party to the Agreement, whether or not such party has signed
such amendment or waiver, each future holder of all such Registrable Securities,
and the Company.
-16-
3.3 NOTICES. Unless otherwise provided, any notice required or
permitted by this Agreement shall be in writing and shall be deemed sufficient
upon delivery, when delivered personally or by overnight courier or sent by
telegram or fax, or forty-eight (48) hours after being deposited in the U.S.
mail, as certified or registered mail, with postage prepaid, and addressed to
the party to be notified at such party's address or fax number as set forth on
EXHIBIT A hereto or as subsequently modified by written notice.
3.4 SEVERABILITY. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, the parties agree to renegotiate such
provision in good faith. In the event that the parties cannot reach a mutually
agreeable and enforceable replacement for such provision, then (a) such
provision shall be excluded from this Agreement, (b) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (c) the
balance of the Agreement shall be enforceable in accordance with its terms.
3.5 GOVERNING LAW. This Agreement and all acts and transactions
pursuant hereto shall be governed, construed and interpreted in accordance with
the laws of the State of California, without giving effect to principles of
conflicts of laws.
3.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
3.7 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.
3.8 AGGREGATION OF STOCK. All shares of the Preferred Stock 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.
[Signature Page Follows]
-17-
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Investors' Rights Agreement with the intent and agreement that the same
shall be effective as of the day and year first above written.
COMPANY: SITESMITH, INC.
Address: ββββ βββββ ββββ.
βββββ βββββ, ββ βββββ
/s/ ββββ ββββ
-------------------------------------------
By: ββββ ββββ
Title: President
SIGNATURE PAGE TO
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS:
DELL VENTURES, L.P.
By: Dell Gen. P. Corp.
Its: General Partner
By: /s/ βββββββ β. ββββββ
---------------------------------------
Name:
-------------------------------------
Title: Director
------------------------------------
SIGNATURE PAGE TO
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS:
COMMUNICATIONS VENTURES III, L.P.
By: Its General Partner, ComVen III, LLC
By: /s/ βββββ β. ββββββββ
--------------------------------------
Print Name: βββββ β. ββββββββ
Title: Member
COMMUNICATIONS VENTURES III CEO &
ENTREPRENEURS' FUND, L.P.
By: Its General Partner, ComVen III, LLC
By: /s/ βββββ β. ββββββββ
--------------------------------------
Print Name: βββββ β. ββββββββ
Title: Member
COMVENTURES IV, L.P.
By: Its General Partner, ComVen IV, LLC
By: /s/ βββββ β. ββββββββ
--------------------------------------
Print Name: βββββ β. ββββββββ
Title: Member
COMVENTURES IV CEO FUND, L.P.
By: Its General Partner, ComVen IV, LLC
By: /s/ βββββ β. ββββββββ
--------------------------------------
Print Name: βββββ β. ββββββββ
Title: Member
SIGNATURE PAGE TO
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
COMVENTURES IV ENTREPRENEURS' FUND, L.P.
By: Its General Partner, ComVen IV, LLC
By: /s/ βββββ β. ββββββββ
--------------------------------------
Print Name: βββββ β. ββββββββ
Title: Member
Address: βββ ββββββββ ββββββ
ββββ ββββ, ββ βββββ
Attn: βββββ βββββββ
Facsimile:
-------------------------------
SIGNATURE PAGE TO
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS:
BEDROCK CAPITAL PARTNERS I, L.P.
By: BEDROCK GENERAL PARTNER I, LLC
By: /s/ βββββ βββββ
---------------------------------------
Print Name:
-------------------------------
Title: Managing Member
VBW EMPLOYEE BEDROCK FUND, L.P.
By: BEDROCK GENERAL PARTNER I, LLC
By: /s/ βββββ βββββ
---------------------------------------
Print Name:
-------------------------------
Title: Managing Member
CREDIT SUISSE FIRST BOSTON BEDROCK FUND,
L.P.
By: BEDROCK GENERAL PARTNER I, LLC
Title: Its Attorney in Fact
By: /s/ βββββ βββββ
---------------------------------------
Print Name:
-------------------------------
Title: Managing Member
Address: βββ ββββββ βββββ, βββ. ββββ
ββββββ, ββ βββββ
Attn: ββββββ βββββ
Facsimile:
--------------------------------
SIGNATURE PAGE TO
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS:
βββββ, ββββ & βββββ VENTURE
ASSOCIATES V, L.L.C.
By: WPG VC Fund Adviser II, L.L.C., Fund
Investment Advisory Member
By: /s/ ββββ βββββββ
---------------------------------------
ββββ β. βββββββ, Managing Member
βββββ, ββββ & βββββ VENTURE
ASSOCIATES V-A, L.L.C.
By: WPG VC Fund Adviser II, L.L.C., Fund
Investment Advisory Member
By: /s/ ββββ βββββββ
---------------------------------------
ββββ β. βββββββ, Managing Member
βββββ, ββββ & βββββ VENTURE
ASSOCIATES V CAYMAN, L.P.
By: WPG VC Fund Adviser II, L.L.C., Fund
Investment Advisory Partner
By: /s/ ββββ βββββββ
---------------------------------------
ββββ β. βββββββ, Managing Member
WPG INFORMATION SCIENCES ENTREPRENEUR
FUND II, L.L.C.
By: WPG VC Fund Adviser II, L.L.C., Fund
Investment Advisory Member
By: /s/ ββββ βββββββ
---------------------------------------
ββββ β. βββββββ, Managing Member
SIGNATURE PAGE TO
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
WPG INFORMATION SCIENCES ENTREPRENEUR
FUND II-A, L.L.C.
By: WPG VC Fund Adviser II, L.L.C., Fund
Investment Advisory Member
By: /s/ ββββ βββββββ
---------------------------------------
ββββ β. βββββββ, Managing Member
Address: ββββ β. βββββββ
βββββ, ββββ & βββββ, LLC
βββ ββββββββββ ββββββ, βββββ ββββ
βββ βββββββββ, ββ βββββ
Facsimile: (βββ) βββ-ββββ
SIGNATURE PAGE TO
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS:
ββββββββ & STRUGGLES, INC.
By: /s/ ββββββ β. ββββββββ
---------------------------------------
Name: ββββββ β. ββββββββ
Its: Chief Financial Officer
Address: Sears Tower
βββ β. ββββββ βββββ, βββββ ββββ
βββββββ, ββ βββββ-ββββ
Fax No. (βββ) βββ-ββββ
SIGNATURE PAGE TO
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS:
COMDISCO, INC.
By: /s/ Comdisco, Inc.
---------------------------------------
Name:
-------------------------------------
Its:
--------------------------------------
Address: Attn: Venture Group
ββββ βββββ βββββ ββββ
ββββββββ, ββ βββββ
Fax No.
------------------------
SIGNATURE PAGE TO
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS:
/s/ ββββββ β. ββββββββ, ββ.
------------------------------------------
ββββββ β. ββββββββ, ββ.
Address: β ββββββββ ββββ ββββ
ββββββββ, ββ βββββ
Fax No.: (βββ) βββ-ββββ
SIGNATURE PAGE TO
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS:
By:
---------------------------------------
Print Name:
-------------------------------
Title:
------------------------------------
Address:
---------------------------
---------------------------
SIGNATURE PAGE TO
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
EXHIBIT A
SERIES A HOLDERS
NAME/ADDRESS
VBW Employee Bedrock Fund
βββββ Prown ββββββ Asset Management, LLC
βββ ββββββ βββββ
ββββββ βββββββββββββ βββββ
Credit Suisse First Boston Bedrock Fund
βββββ Prown ββββββ Asset Management, LLC
βββ ββββββ βββββ
ββββββ βββββββββββββ βββββ
Communications Ventures III, L.P.
βββ ββββββββ ββββββ, βββββ βββ
ββββ ββββ, ββ βββββ
Communications Ventures III CEO &
Entrepreneur's Fund, L.P.
βββ ββββββββ ββββββ, βββββ βββ
ββββ ββββ, ββ βββββ
βββ βββββββββ
βββ ββββββ ββββ βββββ
βββ βββββ, ββ βββββ
βββββ βββββ
ββββ βββββ βββββ ββ
βββββββ, ββ βββββ
βββββββ ββββββββ
βββ β. ββ ββββββ #βββ
ββββββββ ββββ, ββ βββββ
β. β. βββββββββ
P. O. βββ βββββ
ββββββββ, ββ βββββ
ββββ ββββββββ
ββ ββββ βββ
βββ βββββββββ, ββ βββββ
ββββ ββββββββ
βββ βββββ ββββ
βββββββ, ββ βββββ
Pensco Pension Services, Inc.
Custodian FBO ββββββ ββββ, βββ
Attn: βββ ββββββ
βββ ββββββββ βββββ
ββββ, ββ βββββ
ββββββ β. ββββββ
ββββ βββββββ βββββ
ββββββββ ββββ, ββ βββββ
R. ββββ ββββ
βββ βββ βββββ ββββ
ββββββ ββββββ, ββ βββββ
βββββ βββββββ
βββββ βββββββ ββββ
ββββββ, ββ βββββ
βββ βββββββ, ββ.
ββββ ββββββ ββββββ βββ. #βββ
βββ βββββββββ, ββ βββββ
βββββ βββββββ, Sr.
β.β. βββ ββ
ββββββββ, ββ βββββ
βββ βββββββ
ββββ βββββββ ββββ
βββ ββββ, ββ βββββ
ββββββ ββββ
βββ βββββββ βββ
ββββ βββββ, ββ βββββ
ββββ βββββββ
Bay Partners
βββββ β. ββ ββββ ββββ. βββββ βββ
βββββββββ, ββ βββββ-ββββ
βββββ ββββββ
Seattle, WA
βββββββ ββββββ
Seattle, WA
VLG Investments 1999
ββββ ββββ ββββ ββββ
βββββ ββββ, ββ βββββ
βββββββ β. ββββ
c/o Venture Law Group
ββββ ββββ ββββ ββββ
βββββ ββββ, ββ βββββ
βββββ β. βββ
c/o Venture Law Group
ββββ ββββ ββββ ββββ
βββββ ββββ, ββ βββββ
βββββββ β. ββββββββ
c/o Venture Law Group
ββββ ββββ ββββ ββββ
βββββ ββββ, ββ βββββ
βββββ ββ
Bedrock Capital Partners
βββ ββββββββ βββββ
βββ βββββββββ, ββ βββββ
EXHIBIT B
SERIES B HOLDERS
NAME/ADDRESS
Bedrock Capital Partners I, LP
βββ ββββββ βββββ, βββββ ββββ
ββββββ βββββββββββββ βββββ
VBW Employee Bedrock Fund
βββ ββββββ βββββ, βββββ ββββ
ββββββ βββββββββββββ βββββ
Credit Suisse First Boston Bedrock Fund
βββ ββββββ βββββ, βββββ ββββ
ββββββ βββββββββββββ βββββ
Communications Ventures III, L.P.
βββ ββββββββ ββββββ, βββββ βββ
ββββ ββββ, ββ βββββ
Communications Ventures III CEO &
Entrepreneur's Fund, L.P.
βββ ββββββββ ββββββ, βββββ βββ
ββββ ββββ, ββ βββββ
βββββ, ββββ & βββββ Venture Associates V,
L.L.C.
βββ ββββββββββ ββββββ, βββββ ββββ
βββ βββββββββ, ββ βββββ
βββββ, ββββ & βββββ Venture Associates V-A,
L.L.C.
βββ ββββββββββ ββββββ, βββββ ββββ
βββ βββββββββ, ββ βββββ
βββββ, ββββ & βββββ Venture Associates V
Cayman, L.P.
βββ ββββββββββ ββββββ, βββββ ββββ
βββ βββββββββ, ββ βββββ
βββββ ββββββ
ββββ ββββββ ββββββ
ββββββββββ, ββ
βββ ββββ
ββββ βββββββββ βββ.
βββ ββββ, ββ βββββ
βββββ βββββββ
βββ ββββ ββββ βββ#βββ
βββ ββββ, ββ βββββ
βββββ βββββββ
ββββ βββββββ ββ., #βββ
βββββββββ, ββ βββββ
ββββββββ ββββββ
Akamai
ββββββββββ ββββββ
βββββββββ, ββ βββββ
βββββ β. ββββββββ
βββ βββββββββββ ββββ
βββ ββββ, ββ βββββ
ββββ βββββββ
ββββ ββββββββ βββββ
#ββββ
βββββββββ, ββ βββββ
βββββ ββββββββ
ββββ βββββββ βββ
βββ ββββ, ββ βββββ
ββββββ βββββββ
βββ βββββββ ββ.
βββββββββ, βββββββββββ βββββ
βββββ βββββββ
ββββ ββββ ββββββ ββ
ββββββ ββββββ, ββ βββββ
ββββββ β. βββββ
βββββ βββββ βββ ββ
ββββββββ, ββ βββββ
βββββ ββββββ
Keynote Systems
ββββ ββββββ βββββ
βββ βββββ, ββ βββββ
ββββββββ ββββββββ
ββββ βββββββ ββββββ
ββββ ββββ, ββ βββββ
ββββ ββββββ
ββββ ββββββββ βββ
ββββββββ βββββββ, ββ βββββ
βββββββ βββββββ
βββ βββββββ βββββ
ββββ ββββ, ββ βββββ
βββ ββββββ
ββββ - ββββ ββββββ ββ
ββββββ ββββββ, ββ βββββ
βββ βββββ
ββββ βββββββ βββββ
βββββββββ, ββ βββββ
βββ ββββ
ββββ βββββββ ββββββ #βββ
βββ βββββββββ, ββ βββββ
βββββββ βββββ
Exodus Communications
ββββ βββββββ βββββββ ββββ.
βββββ βββββ, ββ βββββ
βββββββββββ β.ββββββββ
ββββ ββββββββββ ββββββ
βββ βββββββββ, ββ βββββ
βββββββββ ββββββ
β.β. βββ βββ
βββββββββ ββ βββββ
βββββββ β. & ββββββββ β. βββββ 1990 Family
Trust
ββββ βββββ
ββββ ββββββββββ ββββ
βββββββββββ, ββ βββββ
βββββ ββββββ
Radware Inc.
βββ βββββββββ ββ.
ββββββ, ββ βββββ
ββββ βββ
ββ βββββββ ββ.
ββββββ, ββ βββββ
ββββ βββββ
βββββ βββββ ββββ ββββ
ββββββββ, ββ βββββ
ββββ ββββββ
βββ ββββββββ βββββ
βββββ ββββ, ββ βββββ
ββββββ ββββββ
βββ ββββ ββββ ββββββ
βββββββββ βββ
βββ ββββ, ββ βββββ
βββββ ββββ
ββββ βββββββ ββ. #β
βββ βββββββββ, ββ βββββ
βββββ βββββββ
βββ ββββββ βββββ
βββββ ββββ, ββ βββββ
ββββ β. ββββββββ
ββ βββββββββββ ββββ
ββββββββββ, ββ βββββ
ββββββ ββ
βββ ββββββ βββ. #ββ
ββββ ββββ, ββ βββββ
ββββββ ββββ
βββββ ββββββ ββββ.
βββββββββ, ββ βββββ
ββββ βββββββββ
ββββ βββββ ββββββ
βββ βββββββββ, ββ βββββ
βββ βββββββ
ββββ ββββββββ, βββ. #βββ
βββ ββββ, ββ βββββ
ββββββ β. ββββββ
Universal Access, Inc.
βββ β. βββββββββ βββββ
βββββ ββββ
βββββββ, ββ βββββ
βββββββ β. βββββ
Universal Access, Inc.
βββ β. βββββββββ βββββ
βββββ ββββ
βββββββ, ββ βββββ
βββ βββββββ
βββββ ββ ββββ ββ.
ββββββββ, ββ βββββ
βββ β. ββββββββ
Exodus Communications
ββββ βββββββ βββββββ ββββ.
βββββ βββββ, ββ βββββ
βββββ β. ββββββββ
ββββ ββββββ ββββββ
βββ ββββ, ββ βββββ
Marger, βββββββ & ββββββββ, P.C. 401(k) PS
Plan & Trust
βββββ ββββββ
ββββ β.β. βββββ βββββ
ββββββββ, ββ βββββ
ββββ Dwigins
ββββ ββββββββ ββββ
ββββββββ, ββ βββββ
βββββ ββββ
ββββ βββββββ βββββββ ββββ
βββββ βββββ, ββ βββββ
βββ βββββββββ
βββ βββββ βββββ
ββββ ββββ, ββ βββββ
EXHIBIT C
SERIES C INVESTORS
TOTAL
NAME/ADDRESS NO. OF SHARES INVESTMENT
Dell Ventures, L.P. 1,769,912 $10,000,002.80
Mail Stop ββββ
βββ ββββ βββ
βββββ ββββ, ββ βββββ
Bedrock Capital Partners I, LP 873,155 $4,933,325.75
βββ ββββββ βββββ, βββββ ββββ
ββββββ βββββββββββββ βββββ
VBW Employee Bedrock Fund 30,462 $172,110.30
βββ ββββββ βββββ, βββββ ββββ
ββββββ βββββββββββββ βββββ
Credit Suisse First Boston Bedrock Fund 36,584 $206,699.60
βββ ββββββ βββββ, βββββ ββββ
ββββββ βββββββββββββ βββββ
Communications Ventures III, L.P. 421,408 $2,380,955.20
βββ ββββββββ ββββββ, βββββ βββ
ββββ ββββ, ββ βββββ
Communications Ventures III CEO & Entrepreneurs' 21,070 $119,045.50
Fund, L.P.
βββ ββββββββ ββββββ, βββββ βββ
ββββ ββββ, ββ βββββ
ComVentures IV, L.P. 455,963 $2,576,190.95
βββ ββββββββ ββββββ, βββββ βββ
ββββ ββββ, ββ βββββ
ComVentures IV CEO Fund, L.P. 35,304 $199,467.60
βββ ββββββββ ββββββ, βββββ βββ
ββββ ββββ, ββ βββββ
Com Ventures IV Entrepreneurs' Fund, L.P. 6,455 $36,470.75
βββ ββββββββ ββββββ, βββββ βββ
ββββ ββββ, ββ βββββ
βββββ, ββββ & βββββ Venture Associates V, L.L.C. 625,407 $3,533,549.55
βββ ββββββββββ ββββββ, βββββ ββββ
βββ βββββββββ, ββ βββββ
βββββ, ββββ & βββββ Venture Associates V-A, 5,266 $29,752.90
L.L.C.
βββ ββββββββββ ββββββ, βββββ ββββ
βββ βββββββββ, ββ βββββ
βββββ, ββββ & βββββ Venture Associates V Cayman, 128,768 $727,539.20
L.P.
βββ ββββββββββ ββββββ, βββββ ββββ
βββ βββββββββ, ββ βββββ
WPG Information Sciences Entrepreneur Fund II, 9,294 $52,511.10
L.L.C.
βββ ββββββββββ ββββββ, βββββ ββββ
βββ βββββββββ, ββ βββββ
WPG Information Sciences Entrepreneur Fund II-A, 5,731 $32,380.15
L.L.C.
βββ ββββββββββ ββββββ, βββββ ββββ
βββ βββββββββ, ββ βββββ
ββββββββ & Struggles, Inc. 75,000 $423,750.00
Attn: ββββββ β. ββββββββ, CFO
Sears Tower
βββ β. ββββββ βββββ, βββββ ββββ
βββββββ, ββ βββββ-ββββ
Comdisco, Inc. 176,991 $999,999.15
ββββ β. ββββββββ, ββ. 36,000 $203,400.00
β ββββββββ ββββ ββββ
ββββββββ, ββ βββββ
TOTAL 4,712,770 $26,627,150.50
EXHIBIT D
FOUNDERS
ββββ ββββ
ββββββ ββββ
βββ βββββββββ