Exhibit 4.2
eGAIN COMMUNICATIONS CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
TABLE OF CONTENTS
-----------------
Page
----
Section 1 Registration Rights.......................................... 1
1.1 Certain Definitions................................... 1
1.2 Requested Registration................................ 3
1.3 Company Registration.................................. 6
1.4 Expenses of Registration.............................. 7
1.5 Registration on Form S-3.............................. 7
1.6 Registration Procedures............................... 8
1.7 Indemnification....................................... 9
1.8 Information by Holder................................. 11
1.9 Limitations on Registration of Issues of Securities... 11
1.10 Rule 144 Reporting.................................... 11
1.11 Transfer or Assignment of Registration Rights......... 12
1.12 "Market Stand-Off" Agreement.......................... 12
1.13 Delay of Registration................................. 13
1.14 Termination of Registration Rights.................... 13
Section 2 Covenants of the Company..................................... 13
2.1 Financial Information................................. 13
2.2 Inspection............................................ 14
2.3 Right of First Offer.................................. 14
2.4 Chief Executive Officer............................... 16
2.5 Termination of Covenants.............................. 16
2.6 Stock Plan............................................ 16
2.7 Protective Provisions................................. 17
Section 3 Miscellaneous................................................ 17
3.1 Governing Law......................................... 17
3.2 Successors and Assigns................................ 17
3.3 Entire Agreement; Amendment; Waiver................... 17
3.4 Notices, etc.......................................... 17
3.5 Delays or Omissions................................... 18
3.6 Rights; Separability.................................. 18
3.7 Waiver of Right of First Offer........................ 18
3.8 Information Confidential.............................. 18
3.9 Titles and Subtitles.................................. 18
3.10 Counterparts.......................................... 18
3.11 Amendment of Investors' Rights Agreement.............. 18
3.12 Aggregation of Stock.................................. 19
*Exhibit A - List of Investors
-i-
eGAIN COMMUNICATIONS CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
THIS AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT (this "Agreement"),
is made and entered into as of April 30, 1999, by and among eGAIN COMMUNICATIONS
--------------------
CORPORATION, a Delaware corporation (the "Company"), those investors in the
-----------
Company listed on Exhibit A attached hereto (the "Investors"), and ▇▇▇▇▇▇▇▇ ▇▇▇
--------- ------------
and ▇▇▇▇▇▇ ▇▇▇▇▇ (the "Founders").
------------
RECITALS:
A. The Company has granted the holders of its Series A Preferred Stock
and warrants to purchase Series A Preferred Stock (the "Series A Holders"),
Series B Preferred Stock (the "Series B Holders") and Founders registration
rights and certain other rights under that certain Amended and Restated
Investors' Rights Agreement dated February 18, 1999 (the "Investors' Rights
Agreement").
B. The Company proposes to issue shares of its Series C Preferred Stock
to certain of the Investors (the "Series C Investors") pursuant to the terms of
that certain Agreement and Plan of Reorganization dated as of the date hereof,
by and among the Company, ECC Acquisition Corporation, Sitebridge Corporation,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and Chelsea M.C. LLC (the "Reorganization
Agreement").
C. The execution and delivery of this Agreement is a condition precedent
to the closing of the transactions contemplated by the Reorganization Agreement
and the issuance of Series C Preferred Stock pursuant thereto.
D. The Company, the Founders, the Series A Holders and the Series B
Holders intend that this Agreement replace and supercede the Investors' Rights
Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, the parties hereto agree as follows:
Section 1
---------
Registration Rights
-------------------
1.1 Certain Definitions. As used in this Agreement, the following terms
-------------------
shall have the meanings set forth below:
(a) "Closing" shall mean the date of the issuance of shares of the
Company's Series C Preferred Stock pursuant to the Reorganization Agreement.
(b) "Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
-1-
(c) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar successor federal statute and the rules and regulations
thereunder, all as the same shall be in effect from time to time.
(d) "Holder" shall mean any person or entity who holds Registrable
Securities and any holder of Registrable Securities to whom the registration
rights conferred by this Agreement have been transferred in compliance with
Section 1.11 hereof.
(e) "Initiating Holders" shall mean any Holder or Holders who in the
aggregate hold at least fifty percent (50%) of the outstanding Registrable
Securities.
(f) "Major Investor" shall mean a person or entity which, together with
its affiliates holds at least 120,000 shares (subject to appropriate adjustments
for stock splits, stock dividends, combinations and other recapitalizations) of
Series A Preferred Stock and/or Series B Preferred Stock (including shares
issuable upon conversion thereof). A Major Investor includes any general
partners and affiliates of a Major Investor (including in the case of a venture
capital fund, partners and funds affiliated with such fund).
(g) "Registrable Securities" shall mean (i) shares of Common Stock issued
to Investors or issued or issuable pursuant to the conversion of the Shares;
(ii) any Common Stock issued as a dividend or other distribution with respect to
or in exchange for or in replacement of the shares referenced in (i) above,
provided, however, that Registrable Securities shall not include any shares of
Common Stock which have previously been registered or which have been sold to
the public; and (iii) shares of Common Stock of the Company held by the Founders
("Founders Stock"); provided, however, that such Founders Stock shall not be
deemed "Registrable Securities" for purposes of Section 1.2 hereof.
(h) The terms "register," "registered" and "registration" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and applicable rules and regulations
thereunder, and the declaration or ordering of the effectiveness of such
registration statement.
(i) "Registration Expenses" shall mean all expenses incurred in effecting
any registration pursuant to this Agreement, including, without limitation, all
registration, qualification, and filing fees, printing expenses, escrow fees,
fees and disbursements of counsel for the Company, fees and disbursements of one
special counsel for the selling Holders, blue sky fees and expenses, accounting
fees and expenses of any regular or special audits incident to or required by
any such registration, but shall not include Selling Expenses and fees and
disbursements of additional counsel for the Holders. Registration expenses do
not include the compensation of regular employees of the Company, which shall be
paid in any event by the Company.
(j) "Rule 144" shall mean Rule 144 as promulgated by the Commission under
the Securities Act, as such Rule may be amended from time to time, or any
similar successor rule that may be promulgated by the Commission.
-2-
(k) "Rule 145" shall mean Rule 145 as promulgated by the Commission under
the Securities Act, as such Rule may be amended from time to time, or any
similar successor rule that may be promulgated by the Commission.
(l) "Securities Act" shall mean the Securities Act of 1933, as amended, or
any similar successor federal statute and the rules and regulations thereunder,
all as the same shall be in effect from time to time.
(m) "Selling Expenses" shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities and fees and
disbursements of counsel for any Holder (other than the fees and disbursements
of counsel included in Registration Expenses).
(n) "Shares" shall mean the Company's Series A Preferred Stock, Series B
Preferred Stock and Series C Preferred Stock.
1.2 Requested Registration.
----------------------
(a) Request for Registration. If the Company shall receive from Initiating
------------------------
Holders at any time or times not earlier than the earlier of (i) June 1, 2003 or
(ii) six (6) months after the effective date of the first registration statement
filed by the Company covering an underwritten offering of any of its securities
to the general public, a written request that the Company effect any
registration with respect to all or a part of the Registrable Securities having
an aggregate offering price, net of underwriting discounts and expenses, the
aggregate gross proceeds of which (prior to deduction for underwriter's
discounts and expenses related to the issuance) exceed $10,000,000 the Company
will:
(i) promptly give written notice of the proposed registration to all
other Holders; and
(ii) as soon as practicable, use its best efforts to effect such
registration (including, without limitation, filing post-effective
amendments, appropriate qualifications under applicable blue sky or other
state securities laws, and appropriate compliance with the Securities Act)
and as would permit or facilitate the sale and distribution of all or such
portion of such Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any
Holder or Holders joining in such request as are specified in a written
request received by the Company within twenty (20) days after such written
notice from the Company is mailed or delivered.
The Company shall not be obligated to effect, or to take any action to
effect, any such registration pursuant to this Section 1.2:
(A) In any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in effecting
such registration, qualification, or compliance, unless the Company is
already subject
-3-
to service in such jurisdiction and except as may be required by the
Securities Act;
(B) After the Company has initiated two such registrations pursuant
to this Section 1.2(a) (counting for these purposes only registrations
which have been declared or ordered effective and pursuant to which
securities have been sold and registrations which have been withdrawn by
the Holders as to which the Holders have not elected to bear the
Registration Expenses pursuant to Section 1.4 hereof and would, absent such
election, have been required to bear such expenses); provided, however,
that if at the time of such withdrawal, the Investors have learned of a
material adverse change in the condition, business, or prospects of the
Company from that known to the Investors 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 Investors shall
not be required to pay any of such expenses and shall retain their rights
pursuant to Section 1.2.
(C) 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 Company-
initiated registration; provided that (i) the Company is actively employing
in good faith all reasonable efforts to cause such registration statement
to become effective and (ii) that such initial delay of registration
relating to a request of Initiating Holders pursuant to Section 1.2 shall
be deemed the one time delay allowed per demand registration as set forth
in Section 1.2(b);
(D) If the Initiating Holders propose to dispose of shares of
Registrable Securities which may be immediately registered on Form S-3
pursuant to a request made under Section 1.5 hereof;
(b) Subject to the foregoing clauses (A) through (D) (except in the case
of a request that is subject to Section 1.5(b), in which case (B) and (D) above
shall not apply), the Company shall file a registration statement covering the
Registrable Securities so requested to be registered as soon as practicable
after receipt of the request or requests of the Initiating Holders; provided,
however, that if (i) in the good faith judgment of the Board of Directors of the
Company, such registration would be seriously detrimental to the Company and the
Board of Directors of the Company concludes, as a result, that it is essential
to defer the filing of such registration statement at such time, and (ii) the
Company shall furnish to such 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 for such
registration statement to be filed in the near future and that it is, therefore,
essential to defer the filing of such registration statement, then the Company
shall have the right to defer such filing for the period during which such
disclosure would be seriously detrimental, provided that (except as provided in
clause (C) above) the Company may not defer the filing for a period of more than
one hundred eighty (180) days after receipt of the request of the Initiating
Holders, and, provided further, that the Company shall not defer its obligation
in this manner more than once in any twelve (12) month period.
-4-
The registration statement filed pursuant to the request of the Initiating
Holders may, subject to the provisions of Section 1.2(d) hereof, include other
securities of the Company, with respect to which registration rights have been
granted, and may include securities of the Company being sold for the account of
the Company.
(c) Underwriting. The right of any Holder to registration pursuant to
------------
Section 1.2 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 with respect to such participation and
inclusion) to the extent provided herein. A Holder may elect to include in such
underwriting all or a part of the Registrable Securities he holds.
(d) Procedures. If the Company shall request inclusion in any
----------
registration pursuant to Section 1.2 of securities being sold for its own
account, or if other persons shall request inclusion in any registration
pursuant to Section 1.2, the Initiating Holders shall, on behalf of all Holders,
offer to include such securities in the underwriting and may condition such
offer on their acceptance of the further applicable provisions of this Section 1
(including Section 1.12). The Company shall (together with all Holders and other
persons proposing to distribute their securities through such underwriting)
enter into an underwriting agreement in customary form with the representative
of the underwriter or underwriters selected for such underwriting by a majority
in interest of the Initiating Holders, which underwriters are reasonably
acceptable to the Company. Notwithstanding any other provision of this Section
1.2, if the representative of the underwriters advises the Initiating Holders in
writing that marketing factors require a limitation on the number of shares to
be underwritten, then the Initiating Holders shall so advise all Holders of
Registrable Securities which would otherwise be underwritten pursuant hereto,
and the number of shares of Registrable Securities that may be included in the
underwriting shall be allocated among all Holders thereof, including the
Initiating Holders, in proportion (as nearly as practicable) to the amount of
Registrable Securities of the Company owned by each Holder; provided, however,
that any such limitation or cut back shall first be applied to all shares
proposed to be sold in such underwriting other than for the account of the
Company which are not Registrable Securities and provided further that the
shares of Founders Stock or other securities, if any, proposed to be registered
shall be reduced prior to the exclusion of any other Registrable Securities in
such offering .
If a person who has requested inclusion in such registration as provided
above does not agree to the terms of any such underwriting, such person shall be
excluded therefrom by written notice from the Company, the underwriter or the
Initiating Holders. The securities so excluded shall also be withdrawn from
registration. Any Registrable Securities or other securities excluded shall also
be withdrawn from such registration. If shares are so withdrawn from the
registration and if the number of shares to be included in such registration was
previously reduced as a result of marketing factors pursuant to this Section
1.2(d), then the Company shall offer to all holders who have retained rights to
include securities in the registration the right to include additional
securities in the registration in an aggregate amount equal to the number of
shares so withdrawn.
-5-
1.3 Company Registration.
--------------------
(a) If the Company shall determine to register any of its securities
either for its own account or the account of a security holder or holders
exercising their respective demand registration rights (other than pursuant to
Section 1.2 or 1.5 hereof), other than a registration relating solely to
employee benefit plans, or a registration relating solely to a Rule 145
transaction, or a registration on any registration form that does not permit
secondary sales, the Company will:
(i) promptly give to each Holder written notice thereof; and
(ii) use its best efforts to include in such registration (and any
related qualification under blue sky laws or other compliance), except as
set forth in Section 1.3(b) below, and in any underwriting involved
therein, all the Registrable Securities specified in a written request or
requests, made by any Holder and received by the Company within twenty (20)
days after the written notice from the Company described in clause (i)
above is mailed or delivered by the Company. Such written request may
specify all or a part of a Holder's Registrable Securities.
(b) Underwriting. If the registration of which the Company gives notice is
------------
for a registered public offering involving an underwriting, the Company shall so
advise the Holders as a part of the written notice given pursuant to Section
1.3(a)(i). In such event, the right of any Holder to registration pursuant to
this Section 1.3 shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting to the extent provided herein. All Holders proposing to distribute
their securities through such underwriting shall (together with the Company and
the other holders of securities of the Company with registration rights to
participate therein distributing their securities through such underwriting)
enter into an underwriting agreement in customary form with the representative
of the underwriter or underwriters selected by the Company.
Notwithstanding any other provision of this Section 1.3, if the
representative of the underwriters advises the Company in writing that marketing
factors require a limitation on the number of shares to be underwritten, the
representative may (subject to the limitations set forth below) exclude all
Registrable Securities from, or limit the number of Registrable Securities to be
included in, the registration and underwriting, provided that the number of
Registrable Securities to be included in such underwriting shall not be reduced
unless all other securities proposed to be registered by shareholders of the
Company are first entirely excluded from the underwriting. If the registration
is the first Company-initiated registered offering of the Company's securities
to the general public, the Company may limit, to the extent so advised by the
underwriters, the amount of securities (including Registrable Securities) to be
included in the registration by the Company's shareholders (including the
Holders), and such securities shall be apportioned pro rata among the selling
shareholders according to the total amount of securities entitled to be included
therein owned by each selling stockholder, or the Company may exclude, to the
extent so advised by the underwriters, such underwritten securities entirely
from such registration; provided, however, that the number of Registrable
Securities to be included in such registration shall not be reduced unless all
other securities proposed to be registered are first
-6-
excluded from the underwriting. If such registration is the second or any
subsequent Company-initiated registered offering of the Company's securities to
the general public, the Company may limit, to the extent so advised by the
underwriters, the amount of securities to be included in the registration by the
Company's shareholders (including the Holders); provided, however, that the
aggregate value of Registrable Securities to be included in such registration
may not be so reduced to less than twenty-five percent (25%) of the total value
of all securities included in such registration, to be apportioned pro rata
among the holders of Registrable Securities according to the total amount of
securities entitled to be included therein owned by each holder of Registrable
Securities; provided, however, that the number of Registrable Securities to be
included in such registration shall not be reduced unless all other securities
proposed to be registered are first excluded from the underwriting. If any
person does not agree to the terms of any such underwriting, he shall be
excluded therefrom by written notice from the Company or the underwriter. Any
Registrable Securities or other securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration.
If shares are so withdrawn from the registration or if the number of shares
of Registrable Securities to be included in such registration was previously
reduced as a result of marketing factors, the Company shall then offer to all
persons who have retained the right to include securities in the registration
the right to include additional securities in the registration in an aggregate
amount equal to the number of shares so withdrawn.
1.4 Expenses of Registration. All Registration Expenses incurred in
------------------------
connection with any registration, qualification or compliance pursuant to
Sections 1.3 and 1.5 hereof, and the two registrations pursuant to Section 1.2
hereof and reasonable fees of one counsel for the selling shareholders shall be
borne by the Company; provided, however, that if the Holders bear the
Registration Expenses for any registration proceeding begun pursuant to Section
1.2 and subsequently withdrawn by the Holders registering shares therein, such
registration proceeding shall not be counted as a requested registration
pursuant to Section 1.2 hereof. All Selling Expenses relating to securities so
registered shall be borne by the holders of such securities pro rata on the
basis of the number of shares of securities so registered on their behalf.
1.5 Registration on Form S-3.
------------------------
(a) After its initial public offering, the Company shall use its best
efforts to qualify for registration on Form S-3 or any comparable or successor
form or forms. After the Company has qualified for the use of Form S-3, in
addition to the rights contained in the foregoing provisions of this Section 1,
the holders of at least thirty percent (30%) of Registrable Securities shall
have the right to request registrations on Form S-3 (such requests shall be in
writing and shall state the number of shares of Registrable Securities to be
disposed of and the intended methods of disposition of such shares by such
Holder or Holders), provided, however, that the Company shall not be obligated
to effect any such registration if (i) 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) on
Form S-3 at an aggregate price to the public of less than $1,000,000, or (ii) in
the event the Company shall furnish the certification described in paragraph
1.2(b)(ii) (but subject to the limitations set forth therein), or (iii) the
Company has, within the six (6) month period preceding the date of such
-7-
request already effected one registration on Form S-3 for the Holders pursuant
to this Section 1.5.
(b) If a request complying with the requirements of Section 1.5(a) hereof
is delivered to the Company, the provisions of Sections 1.2(a)(i) and (ii) and
Section 1.2(b) hereof shall apply to such registration. If the registration is
for an underwritten offering, the provisions of Sections 1.2(c) and 1.2(d)
hereof shall apply to such registration. Notwithstanding the foregoing
provisions of this Section 1.5, Registrable Securities held by the Founders
shall not be counted for purposes of requesting a registration on Form S-3;
however, if such a registration is requested all Registrable Securities,
including those held by Founders, are entitled to inclusion in such registration
and provided further that any limitation or cutback in the number of shares
proposed to be registered shall be applied to shares of Registrable Securities
held by Founders prior to any limitation or cutback on shares of Registrable
Securities held by other Holders.
1.6 Registration Procedures. In the case of each registration effected by
-----------------------
the Company pursuant to Section 1, the Company will keep each Holder advised in
writing as to the initiation of each registration and as to the completion
thereof. At its expense, the Company will use its best efforts to:
(a) Keep such registration effective for a period of one hundred twenty
(120) days or until the Holder or Holders have completed the distribution
described in the registration statement relating thereto, whichever first
occurs; provided, however, that (i) such one hundred twenty (120) day period
shall be extended for a period of time equal to the period the Holder refrains
from selling any securities included in such registration at the request of an
underwriter of Common Stock (or other securities) of the Company; and (ii) in
the case of any registration of Registrable Securities on Form S-3 which are
intended to be offered on a continuous or delayed basis, such one hundred twenty
(120) day period shall be extended, if necessary, to keep the registration
statement effective until all such Registrable Securities are sold, provided
that Rule 415, or any successor rule under the Securities Act, permits an
offering on a continuous or delayed basis, and provided further that applicable
rules under the Securities Act governing the obligation to file a post-effective
amendment permit, in lieu of filing a post-effective amendment that (A) includes
any prospectus required by section 10(a)(3) of the Securities Act or (B)
reflects facts or events representing a material or fundamental change in the
information set forth in the registration statement, the incorporation by
reference of information required to be included in (A) and (B) above to be
contained in periodic reports filed pursuant to section 13 or 15(d) of the
Exchange Act in the registration statement;
(b) Prepare and file with the Commission such amendments and supplements
to such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement;
(c) Furnish such number of prospectuses and other documents incident
thereto, including any amendment of or supplement to the prospectus, as a Holder
from time to time may reasonably request;
-8-
(d) Notify each seller 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 or incomplete in the light of the
circumstances then existing, and at the request of any such seller, prepare and
furnish to such seller a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such shares, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading or
incomplete in the light of the circumstances then existing;
(e) 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;
(f) Provide a transfer agent and registrar for all Registrable Securities
registered pursuant to such registration statement and a CUSIP number for all
such Registrable Securities, in each case not later than the effective date of
such registration; and
(g) In connection with any underwritten offering pursuant to a
registration statement filed pursuant to Section 1.2 hereof, the Company will
enter into an underwriting agreement reasonably necessary to effect the offer
and sale of Common Stock, provided such underwriting agreement contains
customary underwriting provisions and provided further that if the underwriter
so requests the underwriting agreement will contain customary contribution
provisions.
1.7 Indemnification.
---------------
(a) The Company will indemnify each Holder, each of its officers,
directors and partners, legal counsel, and accountants and each person
controlling such Holder within the meaning of section 15 of the Securities Act,
with respect to which registration, qualification, or compliance has been
effected pursuant to this Section 1, and each underwriter, if any, and each
person who controls within the meaning of section 15 of the Securities Act any
underwriter, against all expenses, claims, losses, damages, and liabilities (or
actions, proceedings, or settlements in respect thereof) arising out of or based
on any untrue statement (or alleged untrue statement) of a material fact
contained in any prospectus, offering circular, or other document (including any
related registration statement, notification, or the like) incident to any such
registration, qualification, or compliance, or based on any 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 any violation by the
Company of the Securities Act or any rule or regulation thereunder applicable to
the Company and relating to action or inaction required of the Company in
connection with any such registration, qualification, or compliance, and will
reimburse each such Holder, each of its officers, directors, partners, legal
counsel, and accountants and each person controlling such Holder, each such
underwriter, and each person who controls any such underwriter, as incurred, for
any legal and any other expenses reasonably incurred in connection with
investigating and defending or settling any such claim, loss, damage, liability,
or action, provided that the Company will not be liable in any such case to the
extent that any such claim,
-9-
loss, damage, liability, or expense arises out of or is based on any untrue
statement or omission based upon written information furnished to the Company by
such Holder or underwriter and stated to be specifically for use therein. It is
agreed that the indemnity agreement contained in this Section 1.7(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 has not been unreasonably withheld).
(b) Each Holder will, if Registrable Securities held by him are included
in the securities as to which such registration, qualification, or compliance is
being effected, indemnify, to the extent of the net proceeds from the sale of
Registrable Securities by such Holder in the registration, qualification or
compliance (provided that such limitation shall not apply in the case of fraud
or gross negligence by the Holder in providing information to the Company for
use by the Company in the preparation of such registration, qualification or
compliance) the Company, each of its directors, officers, partners, legal
counsel, and accountants and each underwriter, if any, of the Company's
securities covered by such a registration statement, each person who controls
the Company or such underwriter within the meaning of section 15 of the
Securities Act, and each other such Holder, and each of their officers,
directors, and partners, and each person controlling such Holder, against all
claims, losses, damages and liabilities (or actions in respect thereof) arising
out of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in any such registration statement, prospectus, offering
circular, or other document, or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse the Company and such
Holders, directors, officers, partners, legal counsel, and accountants, persons,
underwriters, or control persons, as incurred, for any legal and any other
expenses reasonably incurred in connection with investigating or defending any
such claim, loss, damage, liability, or action, in each case to the extent, but
only to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular, or other document in reliance upon and in
conformity with written information furnished to the Company by such Holder and
stated to be specifically for use therein provided, however, that the
obligations of such Holder hereunder shall not apply to amounts paid in
settlement of any such claims, losses, damages, or liabilities (or actions in
respect thereof) if such settlement is effected without the consent of such
Holder (which consent shall not be unreasonably withheld).
(c) Each party entitled to indemnification under this Section 1.7 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 1, to the extent such
failure is not prejudicial. No Indemnifying Party, in the defense of any such
claim or litigation, shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any
-10-
settlement that does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation. Each Indemnified Party shall
furnish such information regarding itself or the claim in question as an
Indemnifying Party may reasonably request in writing and as shall be reasonably
required in connection with defense of such claim and litigation resulting
therefrom.
(d) If the indemnification provided for in this Section 1.7 is held by a
court of competent jurisdiction to be unavailable to an Indemnified Party with
respect to any loss, liability, claim, damage, or expense referred to therein,
then the Indemnifying Party, in lieu of indemnifying such Indemnified Party
hereunder, shall contribute to the amount paid or payable by such Indemnified
Party as a result of such loss, liability, claim, damage, or expense in such
proportion as is appropriate to reflect the relative fault of the Indemnifying
Party on the one hand and of the Indemnified Party on the other in connection
with the statements or omissions that resulted in such loss, liability, claim,
damage, or expense as well as any other relevant equitable considerations. The
relative fault of the Indemnifying Party and of the Indemnified Party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the Indemnifying Party or by the Indemnified
Party and the parties' relative intent, knowledge, access to information, and
opportunity to correct or prevent such statement or omission.
(e) Notwithstanding the foregoing, to the extent that the provisions on
indemnification and contribution contained in the underwriting agreement entered
into in connection with the underwritten public offering are in conflict with
the foregoing provisions, the provisions in the underwriting agreement shall
control.
1.8 Information by Holder. Each Holder of Registrable Securities shall
---------------------
furnish to the Company such information regarding such Holder and the
distribution proposed by such Holder as the Company may reasonably request in
writing and as shall be reasonably required in connection with any registration,
qualification, or compliance referred to in this Section 1.
1.9 Limitations on Registration of Issues of Securities. From and after
---------------------------------------------------
the date of this Agreement, the Company shall not, without the prior written
consent of a majority in interest of the Holders, enter into any agreement with
any holder or prospective holder of any securities of the Company giving such
holder or prospective holder any registration rights the terms of which are more
favorable than the registration rights granted to the Holders hereunder.
1.10 Rule 144 Reporting. With a view to making available the benefits of
------------------
certain rules and regulations of the Commission that may permit the sale of the
Restricted Securities to the public without registration, the Company agrees to
use its best efforts to:
(a) Make and keep public information regarding the Company available as
those terms are understood and defined in Rule 144 under the Securities Act, at
all times from and after ninety (90) days following the effective date of the
first registration under the Securities Act filed by the Company for an offering
of its securities to the general public;
-11-
(b) File with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act
at any time after it has become subject to such reporting requirements;
(c) So long as a Holder owns any Restricted Securities, furnish to the
Holder forthwith upon written request a written statement by the Company as to
its compliance with the reporting requirements of Rule 144 (at any time from and
after ninety (90) days following the effective date of the first registration
statement filed by the Company for an offering of its securities to the general
public), and of the Securities Act and the Exchange Act (at any time after it
has become subject to such reporting requirements), a copy of the most recent
annual or quarterly report of the Company, and such other reports and documents
so filed as a Holder may reasonably request in availing itself of any rule or
regulation of the Commission allowing a Holder to sell any such securities
without registration;
(d) 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.
1.11 Transfer or Assignment of Registration Rights. The rights to cause the
---------------------------------------------
Company to register securities granted to a Holder by the Company under this
Section 1 may be transferred or assigned by a Holder only to a transferee or
assignee of not less than 100,000 shares of Registrable Securities or all
Registrable Securities held by such transferor if the amount is less than
100,000 shares of Registrable Securities (as presently constituted and subject
to subsequent adjustments for stock splits, stock dividends, reverse stock
splits, and the like), provided that the Company is given written notice at the
time of or within a reasonable time after such transfer or assignment, stating
the name and address of the transferee or assignee and identifying the
securities with respect to which such registration rights are being transferred
or assigned, and, provided further, that the transferee or assignee of such
rights assumes the obligations of such Holder under this Section 1. The
foregoing 100,000 share limitation shall not apply, however, to transfers by a
Holder to shareholders, partners, retired partners or affiliates (including in
the case of a venture capital fund partners and funds affiliated with such fund)
of the transferring Holder (including spouses and ancestors, lineal descendants,
and siblings of such partners or spouses who acquire Registrable Securities by
gift, will or intestate succession) if all such transferees or assignees appoint
a single representative as their attorney in fact for the purpose of receiving
any notices and exercising their rights under this Section 1.
1.12 "Market Stand-Off" Agreement. If requested by the Company and an
----------------------------
underwriter of Common Stock (or other securities) of the Company, a Holder shall
not sell (including, without limitation, any short sale) or otherwise transfer
or dispose of any Common Stock (or other securities) of the Company held by such
Holder (other than those included in the registration) during the one hundred
eighty (180) day period following the effective date of a registration statement
of the Company filed under the Securities Act, provided that:
-12-
(a) such one hundred eighty (180) day "market stand-off" agreement shall
only apply to the first such registration statement of the Company, including
securities to be sold on its behalf to the public in an underwritten offering;
and
(b) all officers and directors of the Company enter into similar
agreements.
The obligations described in this Section 1.12 shall not apply to a
registration relating solely to employee benefit plans on Form S-1 or Form S-8
or similar forms that may be promulgated in the future, or a registration
relating solely to a Commission Rule 145 transaction on Form S-4 or similar
forms that may be promulgated in the future. The Company may impose stop-
transfer instructions with respect to the shares (or securities) subject to the
foregoing restriction until the end of such applicable one hundred eighty (180)
or one hundred twenty (120) day period.
1.13 Delay of Registration. No Holder shall have any right to take any
---------------------
action to restrain, enjoin, or otherwise delay any registration as the result of
any controversy that might arise with respect to the interpretation or
implementation of this Section 1.
1.14 Termination of Registration Rights. The right of any Holder to request
----------------------------------
registration or inclusion in any registration pursuant to Section 1.2, 1.3 or
1.5 shall terminate after the earlier of (i) five (5) years following the
closing of the first Company-initiated registered public offering of Common
Stock of the Company, 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 any ninety (90) day period.
Section 2
---------
Covenants of the Company
------------------------
The Company hereby covenants and agrees, so long as any Holder owns any
Registrable Shares, as follows:
2.1 Financial Information.
---------------------
(a) The Company will furnish the following reports to each Holder:
As soon as practicable after the end of each fiscal year of the Company,
and in any event within one hundred twenty (120) days thereafter, an audited
consolidated balance sheet of the Company and its subsidiaries, if any, as at
the end of such fiscal year, and audited consolidated statements of income and
cash flows of the Company and its subsidiaries, if any, for such year, 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 and certified by independent public
accountants of recognized national standing selected by the Company.
(b) The Company shall deliver to each Major Investor and to each Holder of
at least 120,000 shares of Series C Preferred Stock (including shares of Common
Stock issued upon
-13-
conversion thereof) 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 forty-five (45) days thereafter, an unaudited consolidated
balance sheet of the Company and its subsidiaries, if any, as of the end of each
such quarterly period, and unaudited consolidated statements of income of the
Company and its subsidiaries for such period and for the current fiscal year to
date, prepared in accordance with generally accepted accounting principles
consistently applied, subject to changes resulting from normal year-end audit
adjustments, all in reasonable detail and certified by the principal financial
or accounting officer of the Company, except that such financial statements need
not contain the notes required by generally accepted accounting principles.
(c) The Company shall deliver to each Major Investor within thirty (30)
days of the end of each month, an unaudited income statement and balance sheet
for and as of the end of such month, in reasonable detail.
2.2 Inspection. The Company shall permit each Major Investor, at such
----------
Investor's expense, to visit and inspect the Company's properties, to examine
its books of account and records and to discuss the Company's affairs, finances
and accounts with its officers, all at such reasonable times as may be requested
by such Major 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, unless such Major Investor enters into a confidentiality agreement
in form and substance satisfactory to the Company.
2.3 Right of First Offer. The Company hereby grants to each Major Investor
--------------------
and to each Founder the right of first offer to purchase a pro rata share of New
Securities (as defined in this Section 2.3) which the Company may, from time to
time, propose to sell and issue. A Major Investor's pro rata share, for purposes
of this right of first offer, is the ratio of the number of shares of Common
Stock owned by such Major Investor immediately prior to the issuance of New
Securities, assuming full conversion of the Shares and exercise of any option or
warrant held by such Major Investor to the total number of shares of Common
Stock outstanding immediately prior to the issuance of New Securities, assuming
full conversion of the Shares and exercise of all outstanding rights, options
and warrants to acquire Common Stock of the Company. This right of first offer
shall be subject to the following provisions:
(a) "New Securities" shall mean any capital stock (including Common Stock
and/or Preferred Stock) of the Company whether now authorized or not, and
rights, options or warrants to purchase such capital stock, and securities of
any type whatsoever that are, or may become, convertible into capital stock;
provided that the term "New Securities" does not include (i) securities
purchased under the Series A Preferred Stock Purchase Agreement dated as of June
25, 1998 or Series B Preferred Stock Purchase Agreement dated as of December 24,
1998 and amended as of February 18, 1999; (ii) securities issued pursuant to the
Reorganization Agreement; (iii) securities issued upon conversion of the Shares;
(iii) securities issued pursuant to the acquisition of another business entity
or business segment of any such entity by the Company by merger, purchase of
substantially all the assets or other reorganization whereby the Company will
own more than fifty percent (50%) of the voting power of such business entity or
business segment of any such entity; (iv) any borrowings, direct or indirect,
from financial
-14-
institutions or other persons by the Company, whether or not presently
authorized, including any type of loan or payment evidenced by any type of debt
instrument, provided such borrowings do not have any equity features including
warrants, options or other rights to purchase capital stock and are not
convertible into capital stock of the Company; (v) securities issued to
employees, consultants, officers or directors of the Company pursuant to any
stock option, stock purchase or stock bonus plan, agreement or arrangement
approved by the Board of Directors; (vi) securities issued to a corporate
partner or to lessors, vendors, customers, suppliers, original equipment
manufacturers or other persons in similar commercial situations with the Company
if such issuance is approved by the Board of Directors; (vii) securities issued
to financial institutions in connection with obtaining lease or loan financing,
whether issued to a lessor, guarantor or other person; (viii) securities issued
in a public offering pursuant to a registration under the Securities Act which
would trigger an automatic conversion of the Series A Preferred Stock, Series B
Preferred Stock and Series C Preferred Stock into Common Stock pursuant to the
Company's Amended and Restated Certificate of Incorporation; (ix) securities
issued in connection with any stock split, stock dividend or recapitalization of
the Company; and (x) any right, option or warrant to acquire any security
convertible into the securities excluded from the definition of New Securities
pursuant to subsections (i) through (ix) above.
(b) In the event the Company proposes to undertake an issuance of New
Securities, it shall give each Major Investor written notice of its intention,
describing the type of New Securities, and their price and the general terms
upon which the Company proposes to issue the same. Each Major Investor shall
have fifteen (15) days after any such notice is mailed or delivered to agree to
purchase such Major Investor's pro rata share of such New Securities for the
price and upon the terms specified in the notice by giving written notice to the
Company and stating therein the quantity of New Securities to be purchased.
(c) In the event the Major Investors fail to exercise fully the right of
first refusal within such fifteen (15) day period, the Company shall have ninety
(90) days thereafter to sell or enter into an agreement (pursuant to which the
sale of New Securities covered thereby shall be closed, if at all, within sixty
(60) days from the date of such agreement) to sell the New Securities respecting
which the Major Investors' right of first refusal option set forth in this
Section 2.3 was not exercised, at a price and upon terms no more favorable to
the purchasers thereof than specified in the Company's notice to Major Investors
pursuant to Section 2.3(b). In the event the Company has not sold within such
ninety (90) day period or entered into an agreement to sell the New Securities
in accordance with the foregoing within sixty (60) days from the date of such
agreement, the Company shall not thereafter issue or sell any New Securities,
without first again offering such securities to the Holders in the manner
provided in Section 2.3(b) above.
(d) The right of first offer granted under this Agreement shall expire
upon, and shall not be applicable to, the first sale of Common Stock of the
Company to the public effected pursuant to a registration statement filed with,
and declared effective by, the Securities and Exchange Commission (the
"Commission") under the Securities Act, which such registration would trigger an
automatic conversion of the Series A Preferred Stock and Series B Preferred
Stock and Series C Preferred Stock into Common Stock pursuant to the Company's
Amended and Restated Certificate of Incorporation.
-15-
(e) The right of first refusal set forth in this Section 2.3 may not be
assigned or transferred, except that (i) such right is assignable by each Major
Investor to any wholly owned subsidiary or parent of, or to any corporation or
entity, or any partner, former partner, general partner, limited partner, or
related partnership that is, within the meaning of the Securities Act,
controlling, controlled by or under common control with, any such Major
Investor, and (ii) such right is assignable between and among any of the Major
Investors.
(f) Upon the execution of this Agreement, Section 6 of the Company's Stock
Purchase Agreements with each of ▇▇▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇, each dated
December 16, 1997, is of no further force and effect and shall be superseded by
the provision of this Section 2.3.
2.4 Chief Executive Officer. The appointment of a new Chief Executive
-----------------------
Officer of the Company at any time after the date of this Agreement, in addition
to requiring the approval of the Company's Board of Directors, shall require the
approval of the director selected by the holders of the Company's Series A
Preferred Stock pursuant to the Company's Amended and Restated Certificate of
Incorporation.
2.5 Termination of Covenants. The covenants set forth in Sections 2.1,
------------------------
2.2, 2.4, 2.6 and 2.7 shall terminate and be of no further force or effect when
the sale of securities pursuant to a registration statement filed by the Company
under the Securities Act in connection with the firm commitment underwritten
offering of its securities to the general public is consummated or when the
Company first becomes subject to the periodic reporting requirements of section
13 or 15(d) of the Exchange Act, whichever event shall first occur .
2.6 Stock Plan. Except (i) as otherwise determined by the consent of the
----------
Board of Directors including the director elected by the holders of the Series A
Preferred Stock pursuant to the Amended and Restated Certificate of
Incorporation and (ii) with respect to those options which were originally
options to purchase the capital stock of Sitebridge Corporation and assumed by
the Company pursuant to the Reorganization Agreement:
(a) the Company will not issue shares or options to purchase shares of
Common Stock beyond the 2,750,000 shares of Common Stock reserved for issuance
under the Company's 1998 Stock Plan;
(b) such shares will vest at the rate of twenty-five percent (25%) of the
shares after one (1) year from the first anniversary of the vesting commencement
date and 1/48 of the shares shall vest each month thereafter;
(c) such shares issued under the Stock Plan may not be transferred prior
to vesting, and the Company shall have a right of first refusal prior to an
Initial Public Offering with respect to the sale of all such shares that have
vested (subject to customary exclusions for transfers to trusts and family
members);
(d) in the event that an employee is terminated by the Company, the
Company shall have a right to repurchase at cost any unvested shares of Common
Stock issued under the Stock Plan held by such employee; and
-16-
(e) such shares issued under the Stock Plan shall not be transferable for
one hundred eighty (180) days following the effective date of an Initial Public
Offering.
2.7 Protective Provisions. Without the unanimous consent of the Board of
---------------------
Directors, the Company shall not:
(a) amend or repeal any provisions of, or add any provision to, the
Company's Certificate of Incorporation or Bylaws, if such action would alter or
change materially and adversely the preferences, rights, privileges or powers
of, or the restrictions provided for the benefit of, the Series A Preferred
Stock, Series B Preferred Stock or Series C Preferred Stock; or
(b) increase or decrease the authorized number of shares of Series A
Preferred Stock, Series B Preferred Stock or Series C Preferred Stock.
Section 3
---------
Miscellaneous
-------------
3.1 Governing Law. This Agreement shall be governed in all respects by the
-------------
laws of the State of California, as if entered into by and between California
residents exclusively for performance entirely within California.
3.2 Successors and Assigns. Except as otherwise expressly provided herein,
----------------------
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
3.3 Entire Agreement; Amendment; Waiver. This Agreement (including the
-----------------------------------
Exhibits hereto) constitutes the full and entire understanding and agreement
between the parties with regard to the subjects hereof and thereof. Neither this
Agreement nor any term hereof may be amended, waived, discharged or terminated,
except by a written instrument signed by the Company and the holders of at least
a majority of the Shares (including Common Stock issued upon conversion of the
Shares) not resold to the public in a registered offering under the Securities
Act and any such amendment, waiver, discharge or termination shall be binding on
all the Holders, but in no event shall the obligation of any Holder hereunder be
materially increased, except upon the written consent of such Holder.
3.4 Notices, etc. Any notice required or permitted to be given to a party
------------
pursuant to the provisions of this Agreement shall be in writing and shall be
effective and deemed given to such party under this Agreement on the earliest of
the following: (i) the date of personal delivery; (ii) two (2) business days
after transmission by facsimile, addressed to the other party at its facsimile
number, with confirmation of transmission; (iii) four (4) business days after
deposit with a return receipt express courier for United States deliveries; or
(iv) three (3) business days after deposit in the United States mail by
registered or certified mail (return receipt requested) for United States
deliveries. All notices not delivered personally or by facsimile will be sent
with postage and/or other charges prepaid and properly addressed to the party to
be notified at the address on file with the Company or, in the case of the
Company, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such
other address as such other party may designate
-17-
by ten (10) days advance written notice to the other parties hereto. Notices to
the Company will be marked "Attention: President."
3.5 Delays or Omissions. No delay or omission to exercise any right, power
-------------------
or remedy accruing to any Holder, upon any breach or default of the Company
under this Agreement shall impair any such right, power or remedy of such Holder
nor shall it be construed to be a waiver of any such breach or default, or an
acquiescence therein, or of or in any similar breach or default thereafter
occurring; nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default therefore or thereafter occurring. Any
waiver, permit, consent or approval of any kind or character on the part of any
Holder of any breach or default under this Agreement or any waiver on the part
of any Holder of any provisions or conditions of this Agreement must be made in
writing and shall be effective only to the extent specifically set forth in such
writing. All remedies, either under this Agreement or by law or otherwise
afforded to any Holder, shall be cumulative and not alternative.
3.6 Rights; Separability. Unless otherwise expressly provided herein, each
--------------------
Holder's rights hereunder are several rights, not rights jointly held with any
of the other Holders. In case any provision of this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
3.7 Waiver of Right of First Offer. Each Investor holding a right of first
------------------------------
offer to purchase new securities of the Company pursuant to Section 2.3 of the
Investors' Rights Agreement, by its execution of this Agreement, hereby waives
any rights it may have pursuant to such section to purchase shares of Series C
Preferred Stock by reason of the Company's issuance of 1,728,844 shares of
Series C Preferred Stock pursuant to the Reorganization Agreement.
3.8 Information Confidential. Each Holder acknowledges that the
------------------------
information received by them pursuant hereto may be confidential and for its use
only, and it will not use such confidential information in violation of the
Exchange Act or reproduce, disclose or disseminate such information to any other
person (other than its employees or agents having a need to know the contents of
such information, and its attorneys), except in connection with the exercise of
rights under this Agreement, unless the Company has made such information
available to the public generally or such Holder is required to disclose such
information by a governmental body.
3.9 Titles and Subtitles. The titles of the paragraphs and subparagraphs
--------------------
of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
3.10 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
3.11 Amendment of Investors' Rights Agreement. Upon the Closing, all of the
----------------------------------------
provisions of the Investors' Rights Agreement shall be null and void and
superseded by the rights and obligations set forth in this Agreement. This
Agreement constitutes the full and entire understanding and agreement between
the parties with regard to the subject matter hereof, and no
-18-
party shall be liable or bound to any other party in any manner by any
warranties, representations or covenants relating to such subject matter, except
as specifically set forth herein.
3.12 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.
IN WITNESS WHEREOF, the parties hereto have executed this Investors' Rights
Agreement effective as of the day and year first above written.
COMPANY
-------
eGAIN COMMUNICATIONS CORPORATION
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇
-------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇
Chief Executive Officer
-19-
INVESTORS
---------
FW VENTURES I, L.P.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Title VP, GP
----------------------------
Counterpart Signature Page to eGain Communication Corporation Investors Rights
Agreement
-20-
CHARTER VENTURES III, LLC
By__________________________________
Title_______________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇ INVESTMENT
PARTNERSHIP NO. 5 L.P.
By__________________________________
Title_______________________________
____________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. & ▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
TRUSTEES OF THE ▇▇▇▇▇▇▇▇ REVOCABLE
TRUST DATED JANUARY 14, 1994
By__________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee
By__________________________________
▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee
Counterpart Signature Page to eGain Communication Corporation Investors Rights
Agreement
-21-
_____________________________________
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_____________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
_____________________________________
▇▇▇▇ ▇▇▇▇▇
PM&S VENTURE FUND II, LLC
By___________________________________
Title________________________________
_____________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
____________________________________
▇▇▇▇▇ del ▇▇▇▇▇
IMPERIAL BANK
By___________________________________
Title________________________________
Counterpart Signature Page to eGain Communication Corporation Investors Rights
Agreement
-22-
PHOENIX LEASING INCORPORATED
By__________________________________
Title_______________________________
____________________________________
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
INCENTIVE INVESTMENT
By__________________________________
Title_______________________________
____________________________________
▇▇▇▇ ▇▇▇▇▇▇
Counterpart Signature Page to eGain Communication Corporation Investors Rights
Agreement
-23-
____________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇
____________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
WINDCREST PARTNERS
By__________________________________
Title_______________________________
▇▇ ▇▇▇▇▇ STREET CORP.
By__________________________________
Title_______________________________
____________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇
____________________________________
▇▇▇▇▇ ▇▇▇▇
Counterpart Signature Page to eGain Communication Corporation Investors Rights
Agreement
-24-
____________________________________
▇▇▇▇▇ ▇▇▇▇▇▇
____________________________________
▇▇▇▇▇ ▇▇▇▇▇▇
____________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
____________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
____________________________________
▇▇▇▇ ▇▇▇▇▇▇▇
____________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
____________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇
____________________________________
Key ▇▇▇▇▇▇▇
Counterpart Signature Page to eGain Communication Corporation Investors Rights
Agreement
-25-
____________________________________
▇▇▇ ▇▇▇▇▇▇▇
____________________________________
▇▇▇▇ ▇▇▇▇
_____________________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
_____________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇
_____________________________________
▇▇▇▇▇▇ ▇▇▇▇▇
_____________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
WINDCREST PARTNERS
By___________________________________
Title________________________________
Counterpart Signature Page to eGain Communication Corporation Investors Rights
Agreement
-26-
____________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
____________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
LINKS VENTURES, LLC
By__________________________________
Title_______________________________
FOUNDERS
--------
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇
------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇
Counterpart Signature Page to eGain Communication Corporation Investors Rights
Agreement
-27-