EXHIBIT 10.5
AMENDED AND RESTATED
REGISTRATION AND INFORMATION RIGHTS AGREEMENT
This Amended and Restated Registration and Information Rights Agreement
(the "Agreement") is made and entered into as of December 9, 1998 by and among
Vicinity Corporation, a California corporation (the "Company"), ▇▇▇▇ ▇▇▇▇▇▇,
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▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇ (the "Founders") and the
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investors named on Schedule I hereto (the "Investors").
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RECITALS
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WHEREAS, the Company, the Founders and certain of the Investors are parties
to that certain Registration and Information Rights Agreement made and entered
into as of December 12, 1996; and
WHEREAS, simultaneous with the execution and delivery of this Agreement the
Company is entering into that certain Series D Preferred Stock and Warrant
Purchase Agreement (the "Purchase Agreement"), pursuant to which the Company has
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agreed to issue and sell to certain of the Investors and such Investors have
agreed to purchase from the Company shares of the Company's Series D Preferred
Stock (the "Series D Preferred") and warrants exercisable for shares of the
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Company's Series E Preferred Stock ( the "Warrants").
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WHEREAS, in further consideration of the Company's issuance and sale and
the new Investors' purchase of the Series D Preferred and the Warrants, the
several parties hereto desire to enter into this Agreement. This Agreement
amends and restates the Registration and Information Rights Agreement dated as
of December 12, 1996 among the Company and the persons named therein, which
agreement in turn, superseded the Registration and Information Rights Agreement
dated as of June 4, 1996 among the Company and the persons named therein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the Company, the Founders, and the Investors agree as
follows:
Section 1 Certain Definitions.
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As used in this Agreement, the following terms shall have the following
respective meanings:
"Commission" shall mean the Securities and Exchange Commission or
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any other federal agency at the time administering the Securities Act.
"Common Stock" shall mean the Company's common stock, par value
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$0.001 per share.
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"Conversion Shares" shall mean the Common Stock issued or issuable
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upon conversion of the Preferred Stock.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
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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.
"Holders" shall mean (i) each Investor for so long such Investor
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holds Preferred Stock or Registrable Securities, (ii) each Founder for so long
as such Founder hold Registrable Securities, and (iii) any person holding
Registrable Securities to whom the rights under this Agreement have been
transferred in accordance with Section 5.9 hereof.
"Initiating Holders" shall mean Holders of not less than 40% of the
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Registrable Securities then held by all Holders.
"Preferred Stock" shall mean the Company's preferred stock, par
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value $0.001 per share.
The terms "register," "registered" and "registration" refer to a
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registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registrable Securities" shall mean (i) Common Stock held by the
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Founders free of any right of repurchase in favor of the Company, (ii) the
Conversion Shares, (iii) Common Stock held by Investors; and (iv) any Common
Stock of the Company issued or issuable in respect of the Preferred Stock or
Conversion Shares or other securities issued or issuable with respect to the
Preferred Stock or Conversion Shares upon any stock split, stock dividend,
recapitalization, or similar event, or any Common Stock otherwise issued or
issuable with respect to the Preferred Stock or Conversion Shares; provided,
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however, that shares of Common Stock or other securities shall only be treated
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as Registrable Securities if and so long as they have not (A) been sold to or
through a broker or dealer or underwriter in a public distribution or a public
securities transaction, (B) been 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 are removed upon the consummation of such sale, (C) been
transferred in a transaction pursuant to which the registration rights are not
also assigned in accordance with Section 5.9 hereof, or (D) become, along with
all other Shares, Conversion Shares or Common Stock held by the Holder thereof,
eligible for sale (without limitation on the amount of securities to be sold)
under Rule 144 of the Securities Act (or any similar or successor rule) within a
ninety (90) day period.
"Registration Expenses" shall mean all expenses, except as
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otherwise stated below, incurred by the Company in complying with Sections 5.1,
5.2 and 5.3 hereof including, without limitation, all registration,
qualification and filing fees, printing expenses, escrow fees, fees and
disbursements of counsel for the Company, blue sky fees and expenses, the
expense of any special audits incident to or required by any such registration
(but excluding the compensation of regular employees of the Company which shall
be paid in any event by the
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Company) and the reasonable fees and disbursements of one counsel for all
Holders as appointed by the Holders (other than the Founders), but excluding the
Selling Expenses.
"Restricted Securities" shall mean the securities of the Company
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required to bear the legend set forth in Section 3 hereof.
"Securities Act" shall mean the Securities Act of 1933, as amended,
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and the rules and regulations promulgated thereunder or any similar federal
statute and the rules and regulations of the Commission thereunder, all as the
same shall be in effect at the time.
"Selling Expenses" shall mean all underwriting discounts, selling
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commissions and stock transfer taxes applicable to the securities registered by
the Holders and, except as set forth under "Registration Expenses", all fees and
disbursements of counsel for any Holder.
"Shares" shall mean any shares of capital stock of the Company or
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any securities of the Company convertible into or exchangeable for such capital
stock .
Section 2. Restrictions on Transferability. No Founder or Investor shall
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sell, assign, transfer or pledge any Shares except upon the conditions specified
in this Agreement, which conditions are intended to ensure compliance with the
provisions of the Securities Act. Each Founder and each Investor will cause any
proposed purchaser, assignee, transferee or pledgee of any Shares held by such
Founder or Investor to agree to take and hold such Shares subject to the
provisions and upon the conditions specified in this Agreement.
Section 3. Restrictive Legend. Each certificate representing the Shares
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shall (unless otherwise permitted by the provisions of Section 4 below) be
stamped or otherwise imprinted with a legend in substantially the following form
(in addition to any legend required under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION UNLESS THE COMPANY RECEIVES AN OPINION OF
COUNSEL REASONABLY ACCEPTABLE TO IT STATING THAT SUCH SALE OR TRANSFER IS
EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SAID
ACT. COPIES OF THE AGREEMENTS COVERING THE PURCHASE OF THESE SHARES AND
RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST
MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE
CORPORATION AT THE PRINCIPAL EXECUTIVE OFFICES OF THE CORPORATION.
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Each Holder consents to the Company making a notation on its records and
giving instructions to any transfer agent of the Preferred Stock or the Common
Stock in order to implement the restrictions on transfer established in this
Agreement.
Section 4. Notice of Proposed Transfers. The holder of each certificate
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representing Restricted Securities by acceptance thereof agrees to comply in all
respects with the provisions of this Section 4. Prior to any proposed sale,
assignment, transfer or pledge of any Restricted Securities (other than (i) a
transfer not involving a change in beneficial ownership, (ii) in transactions
involving the distribution without consideration of Restricted Securities by any
Investor to any of its partners, or retired partners, to the estate of any of
its partners or retired partners, or liquidating trust for the benefit of any
its partners, (iii) in transactions involving the transfer without consideration
of Restricted Securities by an Investor during his or her lifetime by way of
gift or on death by will or intestacy, (iv) in transactions in compliance with
Rule 144, or (v) to any investment fund or other entity controlled or managed by
an affiliate of an Investor), unless there is in effect a registration statement
under the Securities Act covering the proposed transfer, the holder thereof
shall give written notice to the Company of such holder's intention to effect
such transfer, sale, assignment or pledge. Each such notice shall describe the
manner and circumstances of the proposed transfer, sale, assignment or pledge in
sufficient detail, and shall be accompanied, at such holder's expense, by either
(i) an unqualified written opinion of legal counsel who shall be, and whose
legal opinion shall be, reasonably satisfactory to the Company addressed to the
Company, to the effect that the proposed transfer of the Restricted Securities
may be effected without registration under the Securities Act, or (ii) a "no
action" letter from the Commission to the effect that the transfer of such
securities without registration will not result in a recommendation by the staff
of the Commission that action be taken with respect thereto, whereupon the
holder of such Restricted Securities shall be entitled to transfer such
Restricted Securities in accordance with the terms of the notice delivered by
the holder to the Company. Each certificate evidencing the Restricted Securities
transferred as above provided shall bear, except if such transfer is made
pursuant to Rule 144, the appropriate restrictive legend set forth in Section 3
above, except that such certificate shall not bear such restrictive legend if,
in the opinion of counsel for such holder and the Company, such legend is not
required in order to establish compliance with any provision of the Securities
Act.
Section 5. Registration.
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5.1. Requested Registration.
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(a) Request for Registration. In case the Company shall receive
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from the Initiating Holders a written request with respect to the Registrable
Securities held by such Initiating Holders that the Company effect any
registration, qualification or compliance with an anticipated aggregate offering
price, net of underwriting discounts and commissions, of Five Million Dollars
($5,000,000), the Company will:
(i) promptly give written notice of the proposed registration,
qualification or compliance to all other Holders; and
(ii) as soon as practicable, use its reasonable best efforts to
effect such
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registration, qualification or compliance (including, without limitation,
appropriate qualification under applicable blue sky or other state securities
laws and appropriate compliance with applicable regulations issued under the
Securities Act and any other governmental requirements or regulations) as may be
so requested 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 20 days after receipt of such written notice from the
Company.
(b) Notwithstanding the foregoing, the Company shall not be
obligated to take any action pursuant to this Section 5.1:
(i) in any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in effecting such
registration, qualification or compliance, unless the Company is already subject
to service in such jurisdiction and except as may be required by the Securities
Act;
(ii) prior to the earlier to occur of: (x) February 1, 2001 and (y)
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six months after the effective date of the Company's first registered public
offering of shares of its Common Stock;
(iii) during the period starting with the date sixty (60) days
prior to the Company's estimated date of filing of, and ending on the date six
(6) months immediately following the effective date of, any registration
statement pertaining to securities of the Company (other than a registration of
securities in a Rule 145 transaction or with respect to an employee benefit
plan), provided that the Company is actively employing in good faith all
reasonable efforts to cause such registration statement to become effective;
(iv) if the Company has effected one such registration pursuant to
this subparagraph 5.1(a) in the preceding twelve months, and such registration
has been declared or ordered effective and remains effective until the earlier
to occur of (x) 90 days or (y) the sale of all the securities offered pursuant
to each such registration;
(v) if the Company shall furnish to such Initiating Holders a
certificate signed by the President of the Company stating that in the good
faith judgment of the Board of Directors it would be seriously detrimental to
the Company or its shareholders for a registration statement to be filed in the
near future, then the Company's obligation to use its best efforts to register,
qualify or comply under this Section 5.1 shall be deferred for a period not to
exceed 120 days from the date of receipt of written request from the Initiating
Holders, provided that the Company may not exercise this deferral right for more
than once in any twelve month period;
(vi) if such registration, qualification or compliance is proposed
to be part of a firm commitment underwritten public offering with underwriters
not reasonably acceptable to the Company.
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Subject to the foregoing clauses (i) through (vi), 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. The Company may include in such registration (and
related qualification under blue sky laws or other compliance), and in any
underwriting involved therein, (i) authorized but unissued shares of Common
Stock or shares of Common Stock held by the Company or (ii) shares of Common
Stock held by holders other than the Holders of Registrable Securities but only
to the extent that such inclusion will not diminish the number of securities
included by the Holders of Registrable Securities who have requested their
securities to be included in such registration.
(c) Underwriting. In the event of a registration pursuant to Section
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5.1, the Company shall advise the Holders as part of the notice given pursuant
to Section 5. 1(a)(i) that the right of any Holder to registration pursuant to
Section 5.1 shall be conditioned upon such Holder's participation in the
underwriting arrangements required by this Section 5.1, and the inclusion of
such Holder's Registrable Securities in the underwriting to the extent requested
shall be limited to the extent provided herein.
The Company shall (together with all Holders proposing to distribute their
securities through such underwriting) enter into an underwriting agreement in
customary form with the managing underwriter selected for such underwriting by a
majority in interest of the Initiating Holders, but subject to the Company's
reasonable approval. Notwithstanding any other provision of this Section 5.1, if
the managing underwriter advises the Initiating Holders in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then the Company shall so advise all holders of Registrable
Securities and the number of shares of Registrable Securities that may be
included in the registration and underwriting shall be allocated among all
Holders desiring to participate in such registration and underwriting in
proportion, as nearly as practicable, to the respective amounts of Registrable
Securities held by all such Holders at the time of filing the registration
statement. No Registrable Securities excluded from the underwriting by reason of
the underwriter's marketing limitation shall be included in such registration.
To facilitate the allocation of shares in accordance with the above provisions,
the Company or the underwriters may round the number of shares allocated to any
Holder to the nearest 100 shares.
If any Holder of Registrable Securities disapproves of the terms of the
underwriting, such person may elect to withdraw therefrom by written notice to
the Company, the managing underwriter and the Initiating Holders. The
Registrable Securities and/or other securities so withdrawn shall also be
withdrawn from registration, and such Registrable Securities shall not be
transferred in a public distribution prior to 180 days after the effective date
of such registration, or such other shorter period of time as the underwriters
may require.
5.2. Company Registration.
(a) Notice of Registration. If at any time or from time to time the
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Company shall determine to register any of its equity securities, either for its
own account or the account of a security holder or holders, other than (i) a
registration relating solely to employee benefit plans,
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(ii) a registration relating solely to a Rule 145 transaction, or (iii) a
registration in which the only equity security being registered is capital stock
issuable upon conversion of convertible (or exchange of exchangeable) debt
securities which are also being registered, the Company will:
(i) promptly give to each Holder written notice thereof; and
(ii) include in such registration (and any related qualification
under blue sky laws or other compliance), and in any underwriting involved
therein, all the Registrable Securities specified in a written request or
requests, made within twenty (20) days after receipt of such written notice from
the Company, by any Holder.
(b) Underwriting. If the registration of which the Company gives
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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 5.2(a)(i). In such event, the right of any Holder to
registration pursuant to Section 5.2 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of Registrable Securities
in the underwriting shall be limited to the extent provided herein.
All Holders proposing to distribute their securities through such
underwriting shall (together with the Company and the other holders distributing
their securities through such underwriting) enter into an underwriting agreement
in customary form with the managing underwriter selected for such underwriting
by the Company. Notwithstanding any other provision of this Section 5.2, if the
managing underwriter determines that marketing factors require a limitation of
the number of shares to be underwritten, the managing underwriter may limit the
Registrable Securities to be included in such registration (i) in the case of
the Company's initial public offering, to zero, and (ii) in the case of any
other offering, to an amount not less than 25% of the total number of securities
to be included in such registration and underwriting; provided that in each such
case, no shares held by any Holder other than a Founder shall be so excluded
from such registration until all shares held by the Founders are excluded from
such registration. The Company shall so advise all Holders and other holders
distributing their securities through such underwriting and the number of shares
of Registrable Securities that may be included in the registration and
underwriting shall be allocated among all the Holders desiring to participate in
such registration and underwriting in proportion, as nearly as practicable, to
the respective amounts of Registrable Securities held by such Holders at the
time of filing the Registration Statement. To facilitate the allocation of
shares in accordance with the above provisions, the Company may round the number
of shares allocated to any Holder or other holder to the nearest 100 shares.
If any of the Holders disapproves of the terms of any such underwriting,
such Holder may elect to withdraw therefrom by written notice to the Company and
the managing underwriter. Any securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration.
(c) Right to Terminate Registration. The Company shall have the right
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to terminate or withdraw any registration initiated by it under this Section 5.2
prior to the effectiveness of such registration whether or not any Holder has
elected to include Registrable
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Securities in such registration.
5.3. Registration on Form S-3.
(a) If any of the Holders request that the Company file a registration
statement on Form S-3 (or any successor form to Form S-3) for a public offering
of shares of the Registrable Securities the reasonably anticipated aggregate
price to the public of which would exceed $1,000,000, and the Company is a
registrant entitled to use Form S-3 to register the Registrable Securities for
such an offering, the Company shall use its best efforts to cause such
Registrable Securities to be registered for the offering on such form and to
cause such Registrable Securities to be qualified in such jurisdictions as such
Holder or Holders may reasonably request. The Company shall inform other Holders
of the proposed registration and offer them the opportunity to participate. In
the event the registration is proposed to be part of a firm commitment
underwritten public offering, the substantive provisions of Section 5.1(c) shall
be applicable to each such registration initiated under this Section 5.3.
(b) Notwithstanding the foregoing, the Company shall not be obligated
to take any action pursuant to this Section 5.3:
(i) in any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in effecting such
registration, qualification or compliance, unless the Company is already subject
to service in such jurisdiction and except as may be required by the Securities
Act;
(ii) if the Company has effected one such registration pursuant to
subparagraph 5.3(a) above in the preceding six months, such registration having
been declared or ordered effective and remained effective until the earlier to
occur of (x) 90 days or (y) the sale of all the securities offered pursuant to
each such registration,
(iii) if the Company, within ten (10) days of the receipt of the
request of the Initiating Holders, gives notice of its bona fide intention to
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effect the filing of a registration statement with the Commission within ninety
(90) days of receipt of such request (other than with respect to a registration
statement relating to a Rule 145 transaction, an offering solely to employees,
or any other registration which is not appropriate for the registration of
Registrable Securities);
(iv) during the period starting with the date sixty (60) days prior
to the Company's estimated date of filing of, and ending on the date six (6)
months immediately following, the effective date of any registration statement
pertaining to securities of the Company (other than a registration of securities
in a Rule 145 transaction or with respect to an offering solely to employees, or
any other registration which is not appropriate for the registration of
Registrable Securities), provided that the Company is actively employing in good
faith all reasonable efforts to cause such registration statement to become
effective; or
(v) if the Company shall furnish to such Holder or Holders a
certificate signed by the President of the Company stating that in the good
faith judgment of the Board of
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Directors it would be seriously detrimental to the Company or its shareholders
for registration statements to be filed in the near future, then the Company's
obligation to use its best efforts to file a registration statement shall be
deferred for a period not to exceed 120 days from the receipt of the request to
file such registration by such Holder or Holders, provided that the Company may
not exercise this deferral right more than once in any twelve month period.
5.4. Expenses of Registration. The Registration Expenses incurred in
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connection with (i) one registration per twelve month period pursuant to Section
5.1, (ii) all registrations pursuant to Section 5.2, and (iii) all registrations
pursuant to Section 5.3 shall be borne by the Company; provided that the Company
shall not be required to pay the Registration Expenses of any registration
proceeding begun pursuant to Section 5.1, the request of which has been
subsequently withdrawn by the Holders of a majority of the Registrable
Securities to be registered. In such case, (i) the Holders of Registrable
Securities to have been registered shall bear all such Registration Expenses
pro rata on the basis of the number of shares to have been registered, and (ii)
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the Company shall be deemed not to have effected a registration pursuant to
subparagraph 5.1(b) of this Agreement. Notwithstanding the foregoing, 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
Initiating 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 the Registration
Expenses and shall be entitled to such numbers of registrations pursuant to
Section 5.1, 5.2 and 5.3 as if such requested and subsequently withdrawn
registration had never been requested.
Unless otherwise stated, all Selling Expenses relating to securities
registered on behalf of the Holders and all other unspecified registration
expenses shall be borne by the Holders of such securities pro rata on the basis
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of the number of shares so registered.
5.5. Registration Procedures. In the case of each registration,
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qualification or compliance effected by the Company pursuant to this Agreement,
the Company will keep each of the Holders advised in writing as to the
initiation of each registration, qualification and compliance and as to the
completion thereof. At its expense the Company will:
(a) prepare and file with the Commission a registration statement
with respect to such securities and use its best efforts to cause such
registration statement to become and remain effective for at least one hundred
twenty (120) days or until the distribution described in the registration
statement has been completed, whichever first occurs;
(b) furnish to the Holders participating in such registration and to
the underwriters of the securities being registered such reasonable number of
copies of the registration statement, preliminary prospectus, final prospectus
and such other documents as such underwriters may reasonably request in order to
facilitate the public offering of such securities.
(c) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective and
current and to comply with the
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provisions of the Securities Act with respect to the sale of or other
disposition of all Registrable Securities covered by such registration statement
including such amendments and supplements as may be necessary to reflect the
intended method of disposition of the prospective seller or sellers of such
Registrable Securities but for no longer than one hundred twenty (120) days
subsequent to the effective date of such registration in the case of a
registration statement on Form S-1 or any similar form of registration statement
required to set forth substantially identical information) provided, however
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that (i) such period shall be extended for a period of time equal to the period
the underwriter recommends that all the Holders refrain from selling the
securities included in such registration due to marketing conditions or other
conditions which adversely affect the offer and sale of such securities; and
(ii) in the case of any registration of Registrable Securities on Form S-3 which
is intended to be offered on a continuous or delayed basis such period shall be
extended, if necessary, to keep the registration statement effective until all
such Registrable Securities are sold, provided that Rule 415 permits an offering
on a continuous or delayed basis, and provided further that applicable rules
under the Securities Act governing the obligation to file post-effective
amendment permit, in lieu of filing a post-effective amendment that (x) includes
any prospectus required by Section 10(a)(3) of the Securities Act or (y)
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 (x) and (y) above to be
contained in periodic reports filed pursuant to Section 13 or 15(d) of the
Exchange Act in the registration statement.
(d) Furnish to each prospective seller of Registrable Securities such
number of copies of prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other
documents, as such seller may reasonably request in order to facilitate the
public sale or other disposition of the Registrable Securities of such seller.
(e) 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 if 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.
(f) Cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange or approved for quotation on
any inter-dealer quotation system on which similar securities issued by the
Company are then listed or quoted.
(g) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant to such registration statement and a CUSIP number
of all such Registrable Securities in each case not later than the effective
date of such registration.
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(h) Otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering the
period of at least twelve months, but not more than eighteen months, beginning
with the first month after the effective date of the Registration Statement,
which earnings statement shall satisfy the provisions of section 11(a) of the
Securities Act.
(i) 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 seller of Registrable Securities hereby agrees that, after receipt of
telegraphic or written notice from the Company to suspend sales to permit the
Company to correct or update a registration statement or prospectus, it will not
(until further notice) effect sales of Shares covered by any such registration
statement.
5.6. Indemnification.
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(a) The Company will indemnify each Holder of securities, each of its
officers, directors and partners, 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
Agreement, and each underwriter, if any, and each person who controls any
underwriter within the meaning of Section 15 of the Securities Act, against all
expenses, claims, losses, damages and liabilities (or actions in respect
thereof), including any of the foregoing incurred in settlement of any
litigation, (commenced or threatened), arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other document, or any
amendment or supplement thereto, 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, in the light of the circumstances under which they were
made, not misleading, and will reimburse each such Holder, each of its officers,
directors, and partners, and each person controlling such Holder, each such
underwriter and each person who controls any such underwriter, for any legal and
any other expenses reasonably incurred, as such expenses are incurred, in
connection with investigating, preparing or defending any such claim, loss,
damage, liability or action, provided, however, that the foregoing indemnity
agreement is subject to the condition that, insofar as it relates to any such
untrue statement, alleged untrue statement, omission or alleged omission made in
a preliminary prospectus on file with the Commission at the time the
registration statement becomes effective or the amended prospectus filed with
the Commission pursuant to Rule 424(b) (the "Final Prospectus"), such indemnity
agreement shall not inure to the benefit of: (1) any Holder, (i) if there is no
underwriter, and a copy of the Final Prospectus was not furnished to the person
asserting the loss, liability, claim or damage at or prior to the time such
action is required by the Securities Act and the Final Prospectus would have
cured the defect giving rise to the loss, liability, claim or damage (to the
extent that such Holder was obligated by law to provide a copy of the Final
Prospectus to such person), or (ii) to the extent that such untrue statement,
alleged untrue statement, omission or
11
alleged omission is made in reliance upon and in conformity with written
information furnished to the Company by an instrument duly executed by such
Holder and stated to be specifically for use therein; or (2) any underwriter,
(i) if a copy of the Final Prospectus was not furnished to the person asserting
the loss, liability, claim or damage at or prior to the time such action is
required by the Securities Act and the Final Prospectus would have cured the
defect giving rise to the loss, liability, claim or damage, or (ii) to the
extent that such untrue statement, alleged untrue statement, omission or alleged
omission is made in reliance on and in conformity with written information
furnished to the Company by an instrument duly executed by such underwriter and
stated to be specifically for use therein.
(b) Each Holder will, if Registrable Securities held by such Holder
are included in the securities as to which such registration, qualification or
compliance is being effected, indemnify the Company, each of its directors and
officers, 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, each of its officers, directors, and partners, and each
person controlling such Holder within the meaning of Section 15 of the
Securities Act, against all expenses, claims, losses, damages and liabilities
(or actions in respect thereof), including any of the foregoing incurred in
settlement of any litigation (commenced or threatened), 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 amendment or supplement thereto, incident to such
registration, qualification or compliance, or any omission (or alleged omission)
to state therein a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, and will reimburse the Company, such Holders, such
directors, officers, persons, underwriters or control persons for any legal and
any other expenses reasonably incurred, as such expenses are 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 specifically for use therein.
Notwithstanding the foregoing, the liability of each Holder under this
subsection 5.6(b) shall be limited in an amount equal to the net proceeds
received by such Holder from the sale of shares in such registration, unless
such liability arises out of or is based on willful misconduct by such Holder.
(c) Each party entitled to indemnification under this Section 5.6
(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 any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, 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
12
Indemnifying Party of its obligations under this Agreement, unless the failure
to give such notice is materially prejudicial to an Indemnifying Party's ability
to defend such action, and provided further that the Indemnifying Party shall
not assume the defense for matters as to which there is a conflict of interest
or separate and different defenses. 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 settlement which 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.
(d) If the indemnification provided for in this Section 5.6 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.
5.7. Information by Holders. The Holder or Holders of Registrable
----------------------
Securities included in any registration shall furnish to the Company such
information regarding such Holder or Holders, the Registrable Securities held by
them and the distribution proposed by such Holder or Holders as the Company may
request in writing and as shall be required in connection with any registration,
qualification or compliance referred to in this Agreement.
5.8. Rule 144 Reporting. With a view to making available the benefits of
------------------
certain rules and regulations of the Commission which may at any time permit the
sale of the Restricted Securities to the public without registration, after such
time as a public market exists for the Common Stock of the Company, the Company
agrees to use all reasonable efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all times during
normal business hours after the effective date that the Company becomes subject
to the reporting requirements of the Securities Act or the Exchange Act.
(b) File with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the Securities
Exchange Act of 1934, as amended (at any time after it has become subject to
such reporting requirements); and
(c) So long as any of the Holders owns any Restricted Securities, to
furnish to such Holders forthwith upon request a written statement by the
Company as to its compliance with the reporting requirements of said Rule 144
(at any time after 90 days after the effective
13
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
Securities Exchange Act of 1934 (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 of the Company and other
information in the possession of or reasonably obtainable by the Company as such
Holders may reasonably request in availing themselves of any rule or regulation
of the Commission allowing the Holders to sell any such securities without
registration
5.9. Transfer of Registration Rights. The rights to cause the Company to
-------------------------------
register securities granted to the Holders under Sections 5.1, 5.2 and 5.3 may
be assigned to a transferee or assignee in connection with any transfer or
assignment of Registrable Securities by an Investor or Founder only if such
transferee or assignee, as appropriate, acquires at least 250,000 shares (as
adjusted for stock splits, stock dividends, recapitalizations and the like) of
the Company's Common Stock, Preferred Stock or Conversion Shares, provided
written notice thereof is promptly given to the Company and the transferee
agrees to be bound by the provisions of this Agreement. Notwithstanding the
foregoing, the rights to cause the Company to register securities may be
assigned, without restriction as to minimum shareholdings, to any investment
fund or other entity controlled or managed by an affiliate of a Holder, or any
constituent partner or retired partner of a Holder which is a partnership, or an
affiliate of a Holder which is a corporation, a family member or trust for the
benefit of a Holder who is an individual, or a liquidating trust for the benefit
of any of its partners, provided written notice thereof is promptly given to the
Company and the transferee agrees to be bound by the provisions of this
Agreement.
5.10. Termination of Registration Rights. The rights granted pursuant to
----------------------------------
Sections 5.1, 5.2 and 5.3 of this Agreement shall terminate on the five (5) year
anniversary of the Company's initial public offering pursuant to an effective
registration statement under the Securities Act, or as to any Holder at such
time as the Company has registered its shares of Common Stock under the
Securities Exchange Act of 1934, as amended, and such Holder is able to sell all
such Registrable Securities as are held by such Holder under Rule 144
promulgated under the Securities Act within a 90-day period.
Section 6. Financial Information.
---------------------
6.1. The Company will provide the following reports to each Investor for
so long as such Investor continues to hold at least 250,000 shares of Preferred
Stock or Conversion Shares (as adjusted for stock splits, stock dividends,
recapitalizations and the like):
(a) as soon as practicable after the end of each fiscal year, and
in any event within 90 days thereafter, consolidated balance sheets of the
Company and its subsidiaries, if any, as of the end of such fiscal year, and
consolidated statements of operations and consolidated statements of cash flows
and shareholders' equity of the Company and its subsidiaries, if any, for such
year, prepared in accordance with generally accepted accounting principles and
setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail and audited by independent public
accountants of national standing selected by the Company, and a capitalization
table in reasonable detail for such fiscal year;
14
(b) at the time of delivery of each annual financial statement
pursuant to paragraph (a) above, a certificate executed by the Chief Financial
Officer of the Company stating that such officer has caused this Agreement and
the Related Agreements (as defined in the Purchase Agreement) to be reviewed and
that such officer has no knowledge of any default by the Company in the
performance or observance of any of the provisions of this Agreement or the
Related Agreements or, if such officer has such knowledge, specifying such
default and the nature thereof;
(c) as soon as practicable after the end of each calendar month, and
in any event within 30 days thereafter, a consolidated balance sheet of the
Company and its subsidiaries, if any, as of the end of each such month, and
consolidated statements of operations, consolidated statements of cash flows of
the Company and its subsidiaries for such period and for the current fiscal year
to date, including a comparison between the actual financial statements and the
projected figures according to the operating budget referenced in paragraph (g)
below;
(d) promptly following receipt by the Company, each audit response
letter, accountant's management letter and other written report submitted to the
Company by its independent public accountants in connection with an annual or
interim audit of the books of the Company or any of its subsidiaries;
(e) promptly after the commencement thereof, notice of all actions,
suits, claim proceedings, investigations and inquiries of the type described in
Section 2.6 of the Stock Purchase Agreement that could materially or adversely
affect the Company or any of its subsidiaries, if any;
(f) promptly upon sending, making available or filing the same, all
press releases, reports and financial statements that the company sends or makes
available to its stockholders or directors or files with the Commission;
(g) as soon as practicable following the submission to and approval
by the Board of Directors of the Company and in any event at least 30 days prior
to the end of a given fiscal year, an annual operating budget and plan for the
succeeding fiscal year for the Company in the form approved by the Board of
Directors;
(h) prior to each regularly scheduled meeting of the Board of
Directors or, if not otherwise delivered, on a quarterly basis, a management
narrative report explaining all significant variances from forecasts and all
significant current developments in staffing, marketing, sales and operations;
and
(i) promptly, from time to time, such other information regarding the
business, prospects, financial condition, operations, property or affairs of the
Company and its subsidiaries as such Investor reasonably may request.
The Company reserves the right to exclude from any such information or material
to be provided to the Investors any material or portions thereof if the Company
believes it reasonably necessary to protect highly confidential proprietary
information or upon advice of its counsel that such
15
exclusion is reasonably necessary to preserve the attorney-client privilege.
6.2. The rights granted pursuant to this Section 6 may be assigned to a
transferee or assignee in connection with any transfer or assignment of
Registrable Securities by a Investor only if such transferee or assignee, as
appropriate, acquires at least 250,000 shares (as adjusted for stock splits,
stock dividends, recapitalizations and the like) of the Company's Preferred
Stock or Conversion Shares, provided written notice thereof is promptly given to
the Company. Notwithstanding the foregoing, the rights granted pursuant to
Section 6 may be assigned to any investment fund or other entity controlled or
managed by an affiliate of a Holder, or any constituent partner or retired
partner of a Holder which is a partnership, or an affiliate of a Holder which is
a corporation, a family member or trust for the benefit of a Holder who is an
individual, or liquidating trust for the benefit of any of its partners,
provided written notice thereof is promptly given to the Company.
6.3. Each of the Investors acknowledges and agrees that any information
obtained pursuant to this Section 6 which may be considered "inside" non-public
information will not be utilized by any Investor in connection with purchases or
sales of the Company's securities except in compliance with applicable state and
federal securities laws.
6.4. The covenants set forth in this Section 6 shall terminate and be of
no further force or effect upon the consummation of a firm commitment
underwritten public offering or at such time as the Company is required to file
reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934,
as amended, whichever shall occur first.
Section 7. Reserve for Conversion Shares. The Company shall at all times
-----------------------------
reserve and keep available out if its authorized but unissued shares of Common
Stock, for the purpose of affecting the conversion of the Preferred Shares and
otherwise complying with the terms of this Agreement, such number of its duly
authorized shares of Common Stock as shall be sufficient to effect the
conversion of the Preferred Shares from time to time outstanding or otherwise to
comply with the terms of this Agreement. If at any time the number of authorized
but unissued shares of Common Stock shall not be sufficient to effect the
conversion of the Preferred Shares or otherwise to comply with the terms of this
Agreement, the Company will forthwith take such corporate action as may be
necessary to increase its authorized but unissued shares of Common Stock to such
number of shares as shall be sufficient for such purposes. The Company will
obtain any authorization, consent, approval or other action by or make any
filing with any court or administrative body that may be required under
applicable state securities laws in connection with the issuance of shares of
Common Stock upon conversion of the Preferred Shares.
Section 8. Inspection, Consultation and Advice. The Company shall permit
-----------------------------------
and cause each of its subsidiaries (if any) to permit each Investor and such
persons as it may designate, who are reasonably acceptable to the Company, at
such Investor's expense, to visit and inspect any of the properties of the
Company and its subsidiaries, examine their books and take copies and extracts
therefrom, discuss the affairs, finances and accounts of the Company and its
subsidiaries with their officers, employees and public accountant (and the
Company hereby authorizes said accountants to discuss with such Investor and
such designees such affairs,
16
finances, and accounts), and consult with and advise the management of the
Company and its subsidiaries as to their affairs, finances and accounts, all at
reasonable times and upon reasonable notice The Company, acting through its
Board of Directors, shall be entitled to exclude such designees from access to
material or meeting or portion thereof, if the Company believes upon advice of
counsel that such exclusion is reasonably necessary to preserve the attorney-
client privilege, to protect highly confidential proprietary information or for
other similar reasons.
Section 9. Transactions with Affiliates. Except for transactions
----------------------------
contemplated by this Agreement or as otherwise approved by the Board of
Directors, neither the Company nor any of its subsidiaries shall enter into any
transaction with any director, officer, employee or holder of more than 5% of
the outstanding capital stock of any class or series of capital stock of the
Company or any of its subsidiaries, member of the family of any such person, or
any corporation, partnership, trust or other entity in which any person, or
member of the family of any such person, is a director, officer, trustee,
partner or holder of more than 5% of the outstanding capital stock thereof,
except for transactions on customary terms related to such person's employment.
Section 10. Expenses of Directors. The Company shall promptly reimburse
---------------------
in full, each director of the Company who is not an employee of the Company and
who was elected as a director solely or in part by the holders of Series A
Convertible Preferred Stock, for all of his reasonable out-of-pocket expenses
incurred as a result of travel to and from each meeting of the Board of
Directors of the Company or any Committee thereof.
Section 11. Standoff Agreement. In connection with any public offering of
------------------
the Company's securities in connection with an effective registration statement
under the Securities Act, each Holder agrees, upon the request of the Company or
the underwriters managing any underwritten offering of the Company's securities,
not to: (1) offer, pledge, sell, contract to sell, sell any option or contract
to purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, or otherwise transfer or dispose of, directly or
indirectly, any shares of Common Stock of the Company or any securities
convertible into or exercisable or exchangeable for Common Stock of the Company
(whether such shares or any such securities are now owned by the Holder or are
hereafter acquired); or (2) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of
ownership of the Common Stock of the Company, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery of Common
Stock or such other securities, in cash or otherwise (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 one
hundred eighty (180) days (or such lesser period as officers or directors are so
restricted with respect to the transfer of shares of capital stock of the
Company held by them) after the effective date of the registration statement
relating thereto. Each of the Investors and each Holder agrees that the Company
may instruct its transfer agent to place stop-transfer notations in its records
to enforce the provisions of this Section 7.
Section 12. Additional Parties. The parties hereto agree that additional
------------------
holders of securities of the Company may, with the consent only of the Company,
be added as parties to this Agreement with respect to any or all securities of
the Company held by them, and shall
17
thereupon be deemed for all purposes "Investors" hereunder; provided, however,
that from and after the date of this Agreement, the Company shall not without
the prior written consent of each Investor, enter into any agreement with any
holder or prospective holder of any securities of the Company providing for the
grant to such holder of rights superior to those granted herein. Any such
additional party shall execute a counter-part of this Agreement, and upon
execution by such additional party and by the Company, shall be considered a
Investor for purposes of this Agreement.
Section 13. Amendment. Any provision of this Agreement may be amended or
---------
the observance thereof may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of the Company, the Holders of two-thirds of the Registrable Securities;
provided that, subject to the provisions of Section 8 hereof; no such amendment
shall impose or increase any liability or obligation or impair any right of a
Holder without the consent of such Holder. Any amendment or waiver effected in
accordance with this Section 9 shall be binding upon each Holder of Registrable
Securities at the time outstanding (including securities into which such
securities are convertible), each future holder of all such securities, and the
Company.
Section 14. Governing Law. This Agreement and the legal relations between
-------------
the parties arising hereunder shall be governed by and interpreted in accordance
with the laws of the State of California as applied to agreements among
California residents entered into and to be performed entirely within
California.
Section 15. Entire Agreement. This Agreement constitutes the full and
----------------
entire understanding and agreement between the parties regarding the matters set
forth herein. 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.
Section 16. Notices. Etc. All notices and other communications required
------------
or permitted hereunder shall be in writing and shall be deemed effectively given
upon personal delivery to the party to be notified or three (3) days after
deposit with the United States mail, by registered or certified mail, postage
prepaid, addressed (a) if to a Investor, at the address of such Investor set
forth on Schedule I hereto, as it may be amended from time to time, or at such
other address as the Investor shall have furnished to the Company in writing in
accordance with this Section 16, (b) if to a Founder, at the address of such
Founder as it appears on the books and records of the Company, (c) if to any
other Holder, at such address as such Holder shall have furnished the Company in
writing in accordance with this Section 16, or, until any such holder so
furnishes an address to the Company, then to and at the address of the last
holder thereof who has so furnished an address to the Company, (d) if to the
Company, at its principal office, with a copy addressed to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, to the attention of ▇▇▇▇▇
▇▇▇▇▇▇, or (e) if to Oak Investment Partners VIII, L.P., with a copy addressed
to ▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, to the attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
Section 17. Counterparts. This Agreement may be executed in any number of
------------
18
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
* * * * *
19
IN WITNESS WHEREOF, the undersigned or each of their respective duly
authorized officers or representatives have set their hands hereunto effective
upon the date first written above.
"COMPANY"
VICINITY CORPORATION
By: _______________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: President
Signature Page to Vicinity Corporation
Amended and Restated to Registration and Information Rights Agreement
"FOUNDERS"
________________________________________
▇▇▇▇ ▇▇▇▇▇▇
________________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇
________________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇
________________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇
Signature Page to Vicinity Corporation
Amended and Restated to Registration and Information Rights Agreement
"INVESTORS"
CMG @ VENTURES I, LLC
By: ____________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: General Partner
▇▇▇▇ ▇▇▇▇▇▇▇ SEPARATE PROPERTY
TRUST dated FEBRUARY 16, 1996
By: ____________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Trustee
WS INVESTMENT COMPANY 96A
By: ____________________________________
Name:
Title:
WSGR RETIREMENT PLAN U/A DTD
02/01/78 FBO ▇▇▇▇▇ ▇. ▇▇▇▇▇
By: ____________________________________
Name:
Title:
________________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇
Signature Page to Vicinity Corporation
Amended and Restated to Registration and Information Rights Agreement
________________________________________
▇▇▇▇ ▇▇▇▇▇▇▇
________________________________________
▇▇▇ ▇▇▇▇▇▇▇
________________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇
21ST CENTURY INTERNET FUND, L.P.
By: ____________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: General Partner
ENCOMPASS GROUP, INC.
By: ____________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: General Partner
OAK INVESTMENT PARTNERS VIII, L.P.
By: ____________________________________
Name:
Title:
Signature Page to Vicinity Corporation
Amended and Restated to Registration and Information Rights Agreement
OAK VIII AFFILIATES FUND,
LIMITED PARTNERSHIP
By: ____________________________________
Name:
Title:
________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇
________________________________________
▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Signature Page to Vicinity Corporation
Amended and Restated to Registration and Information Rights Agreement
SCHEDULE I
Shares of Company Stock Currently Held
--------------------------------------
Founders Common Stock
-------- ------------
▇▇▇▇ ▇▇▇▇▇▇ 705,000
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ 187,500
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ 770,000
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ 548,334
▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Type of
Investors Number of Shareholding
--------- --------- ------------
Shares
------
CMG @ Ventures 275,512 Common Stock
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ 1,852,000 Series A Preferred
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 1,875,000 Series B Preferred
1,222,000 Series C Preferred
▇▇▇▇ ▇▇▇▇▇▇▇ Separate Property Trust 67,600 Common Stock
dated February 16, 1996
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
WS Investment Company 96a 18,750 Series B Preferred
c/o Wilson, Sonsini, ▇▇▇▇▇▇▇▇
& ▇▇▇▇▇▇, Professional Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
WSGR Retirement Plan U/A Dtd 02/01/78 9,375 Series B Preferred
FBO ▇▇▇▇▇ ▇. ▇▇▇▇▇
c/o Wilson, Sonsini, ▇▇▇▇▇▇▇▇
& ▇▇▇▇▇▇, Professional Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇ 3,125 Series B Preferred
c/o Wilson, Sonsini, ▇▇▇▇▇▇▇▇
& ▇▇▇▇▇▇, Professional Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ 3,125 Series B Preferred
c/o Wilson, Sonsini, ▇▇▇▇▇▇▇▇
& ▇▇▇▇▇▇, Professional Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ 3,125 Series B Preferred
c/o Wilson, Sonsini, ▇▇▇▇▇▇▇▇
& ▇▇▇▇▇▇, Professional Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Type of
Investors Number of Shareholding
--------- --------- ------------
Shares
------
▇▇▇▇▇ ▇▇▇▇▇▇▇ 6,250 Series B Preferred
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
21st Century Internet Fund, L.P. 1,750,000 Series C Preferred
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Encompass Group, Inc. 332,000 Series C Preferred
▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Oak Investment Partners VIII, L.P. 981,000 Common Stock
One ▇▇▇▇▇▇ Island 2,256,901 Series D Preferred
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 934,286 Series E Preferred subject
Tel: ▇▇▇-▇▇▇-▇▇▇▇ to exercise of warrants
Fax: ▇▇▇-▇▇▇-▇▇▇▇ therefor
Oak VIII Affiliates Fund, L.P. 19,000 Common Stock
One ▇▇▇▇▇▇ Island 43,712 Series D Preferred
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 18,095 Series E Preferred subject
Tel: ▇▇▇-▇▇▇-▇▇▇▇ to exercise of warrants
Fax: ▇▇▇-▇▇▇-▇▇▇▇ therefor
▇▇▇▇▇▇ ▇. ▇▇▇ 11,905 Series E Preferred
Oak Investment Partners
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 47,619 Series E Preferred
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇