EXHIBIT 4.8
USWEB CORPORATION
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
___________________, 1997
TABLE OF CONTENTS
PAGE
SECTION 1 - Termination of Prior Agreements...................... 1
SECTION 2 - Registration Rights; Restrictions on Transferability. 2
2.1 Certain Definitions............................... 2
2.2 Restrictions...................................... 3
2.3 Restrictive Legend................................ 3
2.4 Notice of Proposed Transfers...................... 4
2.5 Requested Registration............................ 5
2.6 Company Registration.............................. 7
2.7 Registration on Form S-3.......................... 8
2.8 Limitations on Subsequent Registration Rights..... 8
2.9 Expenses of Registration.......................... 9
2.10 Registration Procedures........................... 9
2.11 Indemnification................................... 9
2.12 Information by Holder............................. 11
2.13 Rule 144 Reporting................................ 11
2.14 Transfer of Registration Rights................... 12
2.15 Market Standoff Agreement......................... 12
2.16 Termination of Rights............................. 12
SECTION 3 - Miscellaneous........................................ 13
3.1 Assignment........................................ 13
3.2 Third Parties..................................... 13
3.3 Governing Law..................................... 13
3.4 Counterparts...................................... 13
3.5 Notices........................................... 13
3.6 Severability...................................... 13
3.7 Amendment and Waiver.............................. 13
3.8 Rights of Holders................................. 14
3.9 Delays or Omissions............................... 14
3.10 Entire Agreement.................................. 14
3.11 Effective Time.................................... 14
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AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
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THIS AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT (the "Agreement") is
entered into as of ____________, 1997 by and between, USWeb Corporation, a
Delaware corporation (the "Company"), and the investors listed on Exhibit A
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hereto (the "Investors").
RECITALS
A. Pursuant to that certain Common Stock Purchase Agreement dated
_________, 1997 (the "Stock Purchase Agreement") by and among the Company, USWeb
Corporation, a Utah corporation ("USWeb Utah") and Intel Corporation, a Delaware
corporation ("Intel"), USWeb Utah has agreed to sell and Intel has agreed to
buy, in a closing simultaneous with the Company's initial public offering, that
number of shares of USWeb Utah's Common Stock, which stock will become the
Company's Common Stock upon completion of USWeb Utah's reincorporation into
Delaware, equal to ten million dollars ($10,000,000) divided by a price equal to
eighty percent (80%) of the price at which the Company's Common Stock is sold to
the public (the "Stock"), as set forth on the cover page of the Prospectus (as
defined in the Stock Purchase Agreement), in the firm commitment underwriting
(the "Initial Public Offering") pursuant to a registration statement originally
filed on September 30, 1997 (No. 333-36827) with the Securities and Exchange
Commission (the "SEC"). The number of shares of Stock shall be rounded down to
the nearest whole share as necessary.
B. The sale of the Stock to Intel (the "Sale") is contingent upon the
completion of the Company's initial public offering as contemplated by the
Registration Statement.
C. The parties to this Agreement desire this Agreement to be effective
simultaneous with the closing of the Sale and the Initial Public Offering.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties agree as follows:
SECTION 1
Termination of Prior Agreements
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As of the date of this agreement, the Amended and Restated Investor Rights
Agreement dated May 2, 1997 between the Company, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, and the investors
listed in Exhibit A of said document is hereby terminated and of no further
force.
SECTION 2
Registration Rights;
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Restrictions on Transferability
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2.1 Certain Definitions. As used in this Agreement, the following terms
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shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission or any
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other federal agency at the time administering the Securities Act.
"Conversion Shares" means the Common Stock issued or issuable upon
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conversion of the Preferred Shares.
"Holder" shall mean any person entering into this Agreement with the
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Company or holding Registrable Securities to whom the rights under this
Agreement have been transferred in accordance with Section 2.14 hereof.
"Initial Public Offering" shall mean the Company's first firmly
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underwritten public offering on Registration Statement Form S-1.
"Initiating Holders" shall mean the Investors or transferees of the
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Investors under Section 2.14 hereof who in the aggregate are Holders of not less
than fifty percent (50%) of the total voting power of the Registrable
Securities.
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.
"Preferred Shares" shall mean the Company's Series A Preferred Stock,
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Series B Preferred Stock, Series C Preferred Stock and shares of such securities
issued pursuant to the exercise of Series A and Series C Warrants.
"Registration Expenses" shall mean all expenses incurred by the
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Company in complying with Sections 2.5, 2.6 and 2.7 hereof, including, without
limitation, all registration, qualification and filing fees, printing expenses,
escrow fees, fees and disbursements of counsel for the Company and one special
counsel for the Holders, blue sky fees and expenses, and 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 Company).
"Registrable Securities" means (a) the Stock, (b) the Conversion
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Shares, (c) all shares owned or controlled by a Founder and (d) any Common Stock
of the Company issued or issuable in respect of the Preferred Shares or
Conversion Shares or the Stock or other securities issued or issuable with
respect to the Preferred Shares or Conversion Shares or the Stock upon any stock
split,
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stock dividend, recapitalization, or similar event, or any Common Stock
otherwise issued or issuable with respect to the Preferred Shares or Conversion
Shares or the Stock; provided, however, that shares of Common Stock or other
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securities shall only be treated as Registrable Securities if and so long as
they have not been (x) sold to or through a broker or dealer or underwriter in a
public distribution or a public securities transaction, or (y) sold in a
transaction exempt from the registration and prospectus delivery requirements of
the Securities Act so that all transfer restrictions and restrictive legends
with respect thereto are removed upon the consummation of such sale.
"Restricted Securities" shall mean the securities of the Company
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required to bear the legend set forth in Section 2.3 hereof.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
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any similar or successor 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 all fees and disbursements of counsel for the Holders other than
one special counsel (as limited by Section 2.9).
"Series A Preferred Stock" shall mean the Company's $0.01 par value
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per share Series A Preferred Stock.
"Series B Preferred Stock" shall mean the Company's $0.01 par value
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per share Series B Preferred Stock.
"Series C Preferred Stock" shall mean the Company's $0.01 par value
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per share Series C Preferred Stock.
"Series A Warrant" shall mean the Company's warrants exercisable for
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160,000 shares of its Series A Preferred Stock.
"Series C Warrant" shall mean the Company's warrants exercisable for
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2,113,647 shares of its Series C Preferred Stock.
2.2 Restrictions. The Preferred Shares, the Conversion Shares and any
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Investor New Securities shall not be sold, assigned, transferred or pledged
except upon the conditions specified in this Agreement, which conditions are
intended to ensure compliance with the provisions of the Securities Act. The
Investors will cause any proposed purchaser, assignee, transferee or pledgee of
the Preferred Shares, the Conversion Shares and any Investor New Securities to
agree to take and hold such securities subject to the provisions and upon the
conditions specified in this Agreement
2.3 Restrictive Legend. Each certificate representing (a) the Preferred
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Shares, (b) the Conversion Shares and (c) any other securities issued in respect
of the securities referenced in
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clauses (a), (b) or (c) upon any stock split, stock dividend, recapitalization,
merger, consolidation or similar event, shall (unless otherwise permitted by the
provisions of Section 1.4 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 BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED. SUCH SHARES MAY NOT BE SOLD, TRANSFERRED OR PLEDGED
IN THE ABSENCE OF SUCH REGISTRATION OR 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."
"THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE TRANSFERRED ONLY
IN ACCORDANCE WITH THE TERMS OF AGREEMENTS AMONG THE COMPANY, CERTAIN
SHAREHOLDERS OF THE COMPANY AND THE ORIGINAL SHAREHOLDER, COPIES OF
WHICH ARE ON FILE WITH THE SECRETARY OF THE COMPANY."
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A VOTING
AGREEMENT BETWEEN THE COMPANY AND THE ORIGINAL SHAREHOLDER, A COPY OF
WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY, AND BY ACCEPTING
ANY INTEREST IN SUCH SHARES THE PERSON ACCEPTING SUCH INTEREST SHALL
BE DEEMED TO AGREE TO AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF
SAID VOTING AGREEMENT."
Each Holder consents to the Company making a notation on its records
and giving instructions to any transfer agent of the Restricted Securities in
order to implement the restrictions on transfer established in this Section 2.
2.4 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 2. Prior to any proposed sale,
assignment, transfer or pledge of any Restricted Securities, 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 (a) an unqualified written
opinion of legal counsel who shall, 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 (b) a "no action" letter from the
Commission to the
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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, or (c) any other evidence reasonably satisfactory to counsel to
the Company, 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. The Company will not require
such a legal opinion or "no action" letter (x) in any transaction in compliance
with Rule 144, (y) in any transaction in which an Investor which is a
corporation distributes Restricted Securities after six (6) months after the
purchase thereof solely to its majority owned subsidiaries or affiliates for no
consideration, or (z) in any transaction in which an Investor which is a
partnership distributes Restricted Securities after six (6) months after the
purchase thereof solely to partners thereof for no consideration;
provided that each transferee agrees in writing to be subject to the terms of
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this Section 2. 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 legends set forth in this
Section 2, 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 provisions of the
Securities Act or this Agreement.
2.5 Requested Registration.
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(a) Request for Registration. In case the Company shall receive from
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Initiating Holders a written request that the Company effect any registration,
qualification or compliance with respect to the Registrable Securities, 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 best efforts to effect
such registration, qualification or compliance (including, without limitation,
the execution of an undertaking to file post-effective amendments, 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 twenty (20) days after receipt of the written notice from
the Company;
provided, however, that the Company shall not be obligated to take any action to
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effect any such registration, qualification or compliance pursuant to this
Section 2.5:
(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 to service in such jurisdiction and except as may be required by
the Securities Act;
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(B) Prior to January 1, 2001;
(C) After the Company has effected two (2) such
registrations pursuant to this subparagraph 2.5(a), each such registration has
been declared or ordered effective and the securities offered pursuant to each
such registration have been sold; or
(D) If the anticipated gross proceeds to be received by such
Holders are less than $10,000,000.
Subject to the foregoing clauses (A) through (D), 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.
(b) Underwriting. In the event that a registration pursuant to
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Section 2.5 is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as part of the notice given pursuant to
Section 2.5(a)(i). The right of any Holder to registration pursuant to Section
2.5 shall be conditioned upon such Holder's participation in the underwriting
arrangements required by this Section 2.5 and the inclusion of such Holder's
Registrable Securities in the underwriting, to the extent requested and 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 (which managing underwriter shall
be reasonably acceptable to the Company). Notwithstanding any other provision
of this Section 2.5, 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 thereof 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. 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 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 ninety (90) days (one hundred eighty (180) days in
the case of the Company's Initial Public Offering) after the date of the final
prospectus used in such public offering.
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2.6 Company Registration.
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(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 securities, either for its own
account or the account of a security holder other than (i) a registration
relating solely to employee benefit plans, or (ii) a registration relating
solely to a Commission Rule 145 transaction, 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, but only to the extent that such inclusion will not
diminish the number of securities included by the Company or by holders of the
Company's securities who have demanded such registration.
(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 2.6(a)(i). In such event, the right of any Holder to
registration pursuant to Section 2.6 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of 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 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 (or by the
holders who have demanded such registration, as the case may be).
Notwithstanding any other provision of this Section 2.6, if the managing
underwriter deter mines in its sole discretion that marketing factors require a
limitation of the number of shares to be underwritten, the managing underwriter
may limit the number of Registrable Securities to be included in the
registration and underwriting, on a pro rata basis based on the total number of
securities (including, without limitation, Registrable Securities owned by each
participating Holder) entitled to be included in such registration; but in no
event shall (i) the amount of securities of the participating Holders included
in the offering be reduced below 30% of the total amount of securities included
in such offering, unless such offering is the initial public offering of the
Company's securities, in which case the participating Holders may be excluded if
the managing underwriter makes the determination described above and no other
shareholder's securities are included or (ii) notwithstanding (i) above, any
shares being sold by a Holder exercising a registration right pursuant to
Section 2.5 hereof be excluded from such offering except in accordance with the
terms of Section 2.5(b) hereof. 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 or other holder to the nearest 100
shares. If any Holder or other holder disapproves of the terms of any such
underwriting, he or she 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, and shall not be
transferred in a public distribution prior to ninety
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(90) days (one hundred eighty (180) days in the case of the Company's Initial
Public Offering) after the date of the final prospectus included in the
registration statement relating thereto.
(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 2.6
prior to the effectiveness of such registration, whether or not any Holder has
elected to include securities in such registration.
2.7 Registration on Form S-3.
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(a) If any Holder or Holders of Registrable Securities requests 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, net of
underwriting discounts and commissions, 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. 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, the execution of an
undertaking to file post-effective amendments, 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 twenty (20) days after receipt of written notice from the Company. The
substantive provisions of Section 2.5(b) shall be applicable to each
registration initiated under this Section 2.7.
(b) Notwithstanding the foregoing, the Company shall not be obligated
to take any action pursuant to this Section 2.7: (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; or (ii) if 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, 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 one hundred twenty (120) days from the
receipt of the request to file such registration by such Holder or Holders.
2.8 Limitations on Subsequent Registration Rights. From and after the
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date hereof, the Company shall not, without the consent of the holders of at
least 50% of the voting power of the Conversion Shares, enter into any agreement
granting any holder or prospective holder of any securities of the Company
registration rights with respect to such securities unless (a) such new
registration rights, including market standoff obligations, are on a pari passu
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basis with those rights
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of the Holders hereunder or (b) such new registration rights, including market
standoff obligations, are subordinate to the registration rights granted Holders
in Sections 2.5, 2.6 and 2.7 hereof.
2.9 Expenses of Registration. All Registration Expenses incurred in
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connection with the first registration pursuant to Section 2.5 and any
registration pursuant to Sections 2.6 and 2.7 shall be borne by the Company. If
a registration proceeding is begun upon the request of Initiating Holders
pursuant to Section 2.5, but such request is subsequently withdrawn, then the
Holders of Registrable Securities to have been registered may either: (i) bear
all Registration Expenses of such proceeding, pro rata on the basis of the
number of shares to have been registered, in which case the Company shall be
deemed not to have effected a registration pursuant to subparagraph 2.5(a)
hereof; or (ii) require the Company to bear all Registration Expenses of such
proceeding, in which case the Company shall be deemed to have effected a
registration pursuant to subparagraph 2.5(a) hereof. Notwithstanding the
foregoing, however, if at the time of the withdrawal, the Holders have learned
of a material adverse change in the condition, business or prospects of the
Company from that known to the Holders at the time of their request, of which
the Company had knowledge at the time of the request, then the Holders shall not
be required to pay any of said Registration Expenses. In such case, the Company
shall be deemed not to have effected a registration pursuant to subparagraph
2.5(a) of this Agreement. Unless otherwise stated, all Selling Expenses
relating to securities registered on behalf of the Holders shall be borne by the
Holders of the registered securities included in such registration pro rata on
the basis of the number of shares so registered.
2.10 Registration Procedures. In the case of each registration,
-----------------------
qualification or compliance effected by the Company pursuant to this Section 2,
the Company will keep each Holder 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 ninety (90) days or until
the distribution described in the registration statement has been completed; and
(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.
2.11 Indemnification.
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(a) The Company will indemnify each Holder, each of its officers and
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 Section 2, 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,
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losses, damages or 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 light of the circumstances in
which they were made, not misleading, or any violation by the Company of any
rule or regulation promulgated under the Securities Act, the Securities Exchange
Act of 1934, as amended (the "Exchange Act") or any state securities laws
applicable to the Company in connection with any such registration,
qualification or compliance, and the Company will reimburse each such Holder,
each of its officers and directors, 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 in connection with
investigating, preparing or defending any such claim, loss, damage, liability or
action, as such expenses are incurred, provided that the Company will not be
liable in any such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any untrue statement or
omission or alleged untrue statement or omission, made in reliance upon and in
conformity with written information furnished to the Company by an instrument
duly executed by such Holder, controlling person or 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 and directors and each person
controlling such Holder within the meaning of Section 15 of the Securities Act,
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, in light of the circumstances in which
they were made, not misleading, and will reimburse the Company, such Holders,
such directors, officers, persons, underwriters or control persons for any legal
or any other expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action, as such expenses
are incurred, 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 an instrument duly executed by such Holder and stated to be
specifically for use therein; provided further that in no event shall any
indemnity under this Section 2.11(b) exceed the gross proceeds from the offering
received by such Holder.
(c) Each party entitled to indemnification under this Section 2.11
(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
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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; provided, however, that an
Indemnified Party (together with all other Indemnified Parties which may be
represented without conflict by one counsel) shall have the right to retain one
separate counsel, with the fees and expenses to be paid by the Indemnifying
Party, if representation of such Indemnified Party by the counsel retained by
the Indemnifying Party would be inappropriate due to actual or potential
differing interests between such Indemnified Party and any other party
represented by such counsel in such proceeding. The failure of any Indemnified
Party to give notice as provided herein shall not relieve the Indemnifying Party
of its obligations under this Section 2 unless the failure to give such notice
is materially prejudicial to an Indemnifying Party's ability to defend such
action. 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 of such claim or
litigation.
2.12 Information by Holder. 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
reasonably request in writing and as shall be required in connection with any
registration, qualification or compliance referred to in this Section 2.
2.13 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 its best 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 after
the effective date that the Company becomes subject to the reporting
requirements of 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 Exchange Act
(at any time after it has become subject to such reporting requirements); and
(c) So long as an Investor owns any Restricted Securities, to furnish
to the Investor 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 ninety (90) days after 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 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 of the Company and other
information in the possession of or reasonably
-12-
obtainable by the Company as an Investor may reasonably request in availing
itself of any rule or regulation of the Commission allowing an Investor to sell
any such securities without registration.
2.14 Transfer of Registration Rights. The rights to cause the Company
-------------------------------
to register securities granted Investors under Sections 2.5, 2.6 and 2.7 may be
assigned to a transferee or assignee reasonably acceptable to the Company in
connection with any transfer or assignment of Registrable Securities by an
Investor (together with any affiliate); provided that (a) such transfer may
--------
otherwise be effected in accordance with applicable securities laws; (b) written
notice of such assignment is given to the Company; (c) the Registrable
Securities to be assigned or transferred represent (1) at least one percent (1%)
of the outstanding capital stock of the Company on the date of transfer or (2)
all of the Registrable Securities owned or controlled by the transferring
Holder; and (d) the transferee executes a written agreement to be bound by the
terms of this Agreement.
2.15 Market Standoff Agreement. Each Holder, except Intel Corporation
-------------------------
(whose market standoff obligations are contained in the Stock Purchase
Agreement), agrees in connection with any registration of the Company's
securities (other than a registration of securities in a Rule 145 transaction or
with respect to an employee benefit plan) that, upon request of the Company or
the underwriters managing any underwritten offering of the Company's securities,
not to sell, make any short sale of, loan, grant any option for the purchase of,
pledge, hypothecate or otherwise directly or indirectly dispose of any
Registrable Securities (other than those included in the registration) or other
capital stock of the Company or securities exchangeable or convertible into
capital stock of the Company 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 (ninety (90) days in any public offering
subsequent to the Initial Public Offering) from the date of the final prospectus
used in such registration) as may be requested by the Company or such managing
underwriters; provided, that the officers and directors of the Company who own
--------
stock of the Company also agree to such restrictions. The certificates for the
Preferred Shares shall contain, for so long as such market standoff provision
remains in place, a legend in substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER INCLUDING A MARKET STANDOFF AGREEMENT BETWEEN THE
COMPANY AND THE ORIGINAL SHAREHOLDER THAT PROHIBITS SALE OR TRANSFER OF
SUCH SHARES FOR A PERIOD OF UP TO 180 DAYS FOLLOWING THE DATE OF THE FINAL
PROSPECTUS FOR THE PUBLIC OFFERING OF THE ISSUER'S COMMON STOCK. THIS
AGREEMENT IS BINDING UPON TRANSFEREES. A COPY OF THE AGREEMENT IS ON FILE
WITH THE SECRETARY OF THE ISSUER.
2.16 Termination of Rights. The rights of any particular Holder to
---------------------
cause the Company to register Registrable Securities under Sections 2.5, 2.6 and
2.7 shall terminate with respect to such Holder on the earlier of (i) the date
when all of such Holder's Registrable Securities may be sold pursuant to Rule
144(k) or similar or successor Rule and (ii) the date five (5) years after the
effective date of the Company's Initial Public Offering.
-12-
SECTION 3
Miscellaneous
-------------
3.1 Assignment. Except as otherwise provided herein, the terms and
----------
conditions of this Agreement shall inure to the benefit of and be binding upon
the respective successors and assigns of the parties hereto.
3.2 Third Parties. Nothing in this Agreement, express or implied, is
-------------
intended to confer upon any party, other than the parties hereto, and their
respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
herein.
3.3 Governing Law. This Agreement shall be governed by and construed
-------------
under the laws of the State of Delaware as applied to agreements entered into
and performed in the State of Delaware solely by residents thereof.
3.4 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
3.5 Notices. Any notice required or permitted by this Agreement shall be
-------
in writing and shall be sent by facsimile transmission or by prepaid registered
or certified mail, return receipt requested, addressed to the other party and
such party's legal counsel at the address shown below or at such other address
of which such party gives notice hereunder. Such notice shall be deemed to have
been given three (3) days after deposit in the mail, postage prepaid, if sent by
mail and on the next business day if sent by facsimile transmission.
3.6 Severability. If one or more provisions of this Agreement are held to
------------
be unenforceable under applicable law, portions of such provisions, or such
provisions in their entirety, to the extent necessary, shall be severed from
this Agreement, and the balance of this Agreement shall be enforceable in
accordance with its terms.
3.7 Amendment and Waiver. Any provision of this Agreement may be amended
--------------------
or waived with the written consent of the Company and the Holders of at least a
majority of the outstanding shares of the Registrable Securities. Any amendment
or waiver effected in accordance with this paragraph shall be binding upon each
Holder of Registrable Securities and the Company; provided, however, that no
-------- -------
such amendment shall be effective with respect to any Holder if such amendment
materially adversely affects any of the rights granted pursuant to the Agreement
to such Holder (the "Uniquely Affected Holder") in a manner different from the
manner in which such amendment affects all other Holders, unless such amendment
is consented to in writing by the Uniquely Affected Holder. If such Holder does
not so consent, then the amendment shall be effective as to all Holders other
than the Uniquely Affected Holder. In addition, the Company may waive
performance of any obligation owing to it, as to some or all of the Holders of
Registrable
-13-
Securities, or agree to accept alternatives to such performance, without
obtaining the consent of any Holder of Registrable Securities. In the event that
an underwriting agreement is entered into between the Company and any Holder,
and such underwriting agreement contains terms differing from this Agreement, as
to any such Holder the terms of such underwriting agreement shall govern.
3.8 Rights of Holders. Each Holder of Registrable Securities shall have
-----------------
the right to exercise or refrain from exercising any right or rights that such
Holder may have by reason of this Agreement, including, without limitation, the
right to consent to the waiver or modification of any obligation under this
Agreement, and such Holder shall not incur any liability to any other holder of
any securities of the Company as a result of exercising or refraining from
exercising any such right or rights.
3.9 Delays or Omissions. No delay or omission to exercise any right,
-------------------
power or remedy accruing to any party to this Agreement, upon any breach or
default of the other party, shall impair any such right, power or remedy of such
non-breaching party 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 theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any party of any breach or default under this
Agreement, or any waiver on the part of any party 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.
3.10 Entire Agreement. This Agreement constitutes the full and entire
----------------
understanding and agreement between the parties with regard to the rights set
forth herein. Without in any manner limiting the foregoing, the parties hereto
agree that this Agreement supersedes and replaces the Prior Agreement, and that
the Prior Agreement shall hereafter have no further force or effect.
3.11 Effective Time. this Agreement shall be effective simultaneous with
--------------
the closing of the Sale and the Initial Public Offering.
-14-
IN WITNESS WHEREOF, the parties have executed this Investor Rights
Agreement as of this _________ day of November, 1997.
USWEB CORPORATION
Signature:
------------------------------
Name:
-----------------------------------
Title:
----------------------------------
"INVESTOR"
----------------------------------------
Name:
-----------------------------------
(Please print or type)
Signature:
------------------------------
Its:
------------------------------------
[SIGNATURE PAGE TO AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
EXHIBIT A
SCHEDULE OF INVESTORS
Investor Legal Counsel
-------- -------------
21st Century Communications Partners, ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Frome & ▇▇▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
21st Century Communications T-E Partners, ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Frome & ▇▇▇▇▇▇▇▇▇▇ LLP
▇.▇. ▇▇▇ ▇▇▇▇, G.T. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
21st Century Communications Foreign Partners, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Frome & ▇▇▇▇▇▇▇▇▇▇ LLP
L.P. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ Partners ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Frome & ▇▇▇▇▇▇▇▇▇▇ LLP
▇.▇. ▇▇▇ ▇▇▇▇, G.T. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Foreign Partners ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Frome & ▇▇▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
South Ferry No. 2 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Frome & ▇▇▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attractor Investment Management, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Investor Legal Counsel
-------- -------------
Trend Micro Incorporated
Tokyo Head Office
Saisyo Building, 3F
▇-▇-▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇-▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Crosspoint Venture Partners ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
The ▇▇▇▇▇▇ Group ▇▇▇▇▇▇▇, Phleger & ▇▇▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
c/▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Softven No. 2 Investment Enterprise Partnership ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
c/o SOFTBANK Holdings Inc. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇. ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
WS Investment Company 96A
c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Investor Legal Counsel
-------- -------------
WS Investment Company 97A
c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Intel Corporation ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Venture Law Group
Mail Stop SC4-210 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Treasurer
with copies to the General Counsel
at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Mail Stop ▇▇▇-▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇