Exhibit 10.15
EXECUTION COPY
PRINTCAFE, INC.
FIFTH AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
DECEMBER 31, 2001
TABLE OF CONTENTS
PAGE
1. REGISTRATION RIGHTS............................................2
1.1 Definitions....................................................2
1.2 Requested Registration.........................................3
1.3 Company Registration...........................................4
1.4 Form S-3 Registration..........................................4
1.5 Obligations of the Company.....................................5
1.6 Furnish Information............................................7
1.7 Expenses of Registration.......................................7
1.8 Underwriting Requirements......................................7
1.9 Delay of Registration..........................................8
1.10 Indemnification................................................8
1.11 Reports Under Securities Exchange Act of 1934.................10
1.12 Assignment of Registration Rights.............................11
1.13 Market-Standoff Agreement.....................................11
1.14 Termination of Registration Rights............................12
1.15 Investor Acts.................................................12
2. COVENANTS OF THE COMPANY......................................12
2.1 Canadian Securities Filings...................................12
2.2 Delivery of Financial Statements and Other Information........12
2.3 Inspection....................................................13
2.4 Termination of Covenants......................................14
2.5 Limitations on Subsequent Registration Rights.................14
3. MISCELLANEOUS.................................................14
3.1 Successors and Assigns........................................14
3.2 Amendments and Waivers........................................15
3.3 Notices.......................................................15
3.4 Severability..................................................15
3.5 Governing Law.................................................15
3.6 Counterparts..................................................15
3.7 Titles and Subtitles..........................................15
3.8 Aggregation of Stock..........................................15
3.9 Confidentiality...............................................16
3.10 Expenses......................................................16
3.11 Stock Splits..................................................16
3.12 Future Changes in Registration Requirements...................16
3.13 Entire Agreement..............................................16
3.14 Further Assurances............................................16
3.15 Injunctive Relief.............................................16
-i-
PRINTCAFE, INC.
FIFTH AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
This Fifth Amended and Restated Investors' Rights Agreement (this
"AGREEMENT") is made as of December 31, 2001 by and among printCafe, Inc., a
Delaware corporation (the "COMPANY"), Creo SRL, a Barbados restricted liability
society ("CREO"), as the holder of all of the Company's issued and outstanding
Series B Preferred Stock, the Series C Preferred Stock investors listed on
EXHIBIT B hereto (each, a "SERIES C INVESTOR" and, collectively, the "SERIES C
INVESTORS"), the Series D Preferred Stock investors listed on EXHIBIT C hereto
(each, a "SERIES D INVESTOR" and, collectively, the "SERIES D INVESTORS"), the
common stock investors listed on EXHIBIT D hereto (the "COMMON STOCK
INVESTORS"), the Series E-1 Preferred Stock investors listed on EXHIBIT E hereto
(each, a "SERIES E INVESTOR" and, collectively, the "SERIES E INVESTORS"), and
the Series F Preferred Stock Investors listed on EXHIBIT F hereto (each, a
"SERIES F INVESTOR" and collectively, the "SERIES F INVESTORS").
RECITALS
WHEREAS, the Company, Creo, the Series C Investors, the Common Stock
Investors, the Series D Investors, and the Series E Investors have previously
entered into that certain Fourth Amended and Restated Investors' Rights
Agreement dated as of October 30, 2000 (the "PRIOR RIGHTS AGREEMENT").
WHEREAS, the Company and the Series F Investors have entered into a
Stock Purchase Agreement of even date herewith (the "PURCHASE AGREEMENT"),
pursuant to which the Company desires to sell to such Investors, and such
Investors desire to purchase from the Company, and shares of the Company's
Series F Preferred Stock (collectively, the "SERIES F PREFERRED STOCK").
WHEREAS, a condition to the obligations of the Series F Investors under
the Purchase Agreement is that the Company and the Investors enter into this
Agreement in order to provide the Holders with (i) certain rights to register
Registrable Securities (as defined in Section 1 below) under the Securities Act
of 1933, as amended (the "SECURITIES ACT"), and (ii) certain rights to receive
or inspect information pertaining to the Company.
WHEREAS, the Company, Creo, the Series C Investors, the Common Stock
Investors, the Series D Investors and the Series E Investors each desire to
amend and restate the Prior Rights Agreement to add the Series F Investors as
parties to this Agreement and make certain other changes.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions hereinafter set forth, the parties hereto hereby agree as follows:
A. AMENDMENTS OF PRIOR RIGHTS AGREEMENT; WAIVER OF RIGHT OF FIRST
OFFER. Effective and contingent upon execution of this Agreement by the Company,
Creo, each of the
Series C Investors, each of the Series D Investors, each of the Series E
Investors and each of the Common Stock Investors, the Prior Rights Agreement is
hereby amended and restated in its entirety to read as set forth in this
Agreement, and the Company and the Holders hereby agree to be bound by the
provisions hereof as the sole agreement of the Company and the Holders with
respect to registration rights of the Registrable Securities and certain other
rights, as set forth herein. Each party to this Agreement that is a Major
Investor, as such term is defined in the Company's Certificate of Incorporation,
hereby waives its respective Right of First Offer, including the notice
requirements, set forth in the Company's Certificate of Incorporation with
respect to the issuance of the Series F Preferred Stock to the Series F
Investors.
1. REGISTRATION RIGHTS. The Company and the Holders covenant and agree
as follows:
1.1 DEFINITIONS. For purposes of this Section 1:
(a) "EXCLUDED REGISTRATION" means any registration (i) on Form
S-4 or Form S-8 promulgated under the Securities Act or any successor forms
thereto, (ii) in connection with an exchange offer or offering solely to the
Company's stockholders, (iii) on Form S-1 or Form S-3 or any successor forms
thereto solely in connection with mergers or acquisitions conducted or
contemplated by the Company or (iv) the IPO;
(b) "FORM S-3" means such form under the Securities Act as in
effect on the date hereof or any successor form under the Securities Act that
permits significant incorporation by reference of the Company's subsequent
public filings under the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT");
(c) "HOLDER" means any person owning or having the right to
acquire Registrable Securities or any assignee thereof in accordance with
Section 1.12 of this Agreement;
(d) "PREFERRED STOCK" means, collectively, the Company's
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock,
Series E-1 Preferred Stock, and Series F Preferred Stock, issued or issuable to
the Holders.
(e) "IPO" shall have the meaning assigned to such term in the
Company's Certificate of Incorporation.
(f) "REGISTER," "REGISTERED," and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act, and the declaration or
ordering of effectiveness of such registration statement or document;
(g) "REGISTRABLE SECURITIES" means (i) the shares of Common
Stock issued or issuable upon conversion of the Preferred Stock (including the
shares of Series F Preferred Stock issued or issuable upon the exercise of the
warrant issued to Iris Graphics, Inc. in connection with the transactions
contemplated by the Credit Agreement between the Company and Iris Graphics, Inc.
dated December 31, 2001), (ii) the Common Stock Investors' Shares, (iii) the
shares of Common Stock issued or issuable upon exercise of the Warrants issued
to Creo and
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Mellon Ventures II, L.P. ("MELLON") pursuant to the terms of that certain Note
Purchase Agreement, dated as of July 14, 2000, by and among Mellon, Creo and the
Company, (iv) the shares of Common Stock issued or issuable upon exercise of the
Warrants issued to Creo and Mellon pursuant to the terms of that certain Note
Purchase Agreement, dated as of September 27, 2001, (v) the shares of Common
Stock issued or issuable upon conversion of the shares of Series E-1 Preferred
Stock issued or issuable upon exercise of the Warrants issued to Creo and Mellon
pursuant to the terms of that certain Note Purchase Agreement, dated as of
November 28, 2001, and (vi) any other shares of Common Stock of the Company
issued as (or issuable upon the conversion or exercise of any warrant, right or
other security which is issued as) a dividend, stock split, recapitalization or
other similar event or distribution with respect to, or in exchange for or in
replacement of, the shares listed in clauses (i), (ii), (iii), (iv), or (v)
above; PROVIDED, HOWEVER, that the foregoing definition shall exclude in all
cases any Registrable Securities sold by a person in a transaction in which its
rights under this Agreement are not assigned. Notwithstanding the foregoing,
Common Stock or other securities shall only be treated as Registrable Securities
if and so long as they have not been (A) sold to or through a broker or dealer
or underwriter in a public distribution or a public securities transaction
(including, without limitation, pursuant to Rule 144 under the Securities Act),
or (B) sold in a transaction exempt from the registration and prospectus
delivery requirements of the Securities Act under Section 4(1) thereof so that
all transfer restrictions and restrictive legends with respect thereto, if any,
are removed upon the consummation of such sale;
(h) "REGISTRABLE SECURITIES THEN OUTSTANDING" shall be
determined by the number of shares of Common Stock outstanding which are, and
the number of shares of Common Stock issuable pursuant to then exercisable or
convertible securities which are, Registrable Securities;
(i) "SEC" means the Securities and Exchange Commission.
1.2 REQUESTED REGISTRATION. If the Company shall receive a written
request from the Holders of (i) at least a majority of the shares of Common
Stock issued or issuable upon conversion of the Series B Preferred Stock then
outstanding (voting together as a single class), (ii) at least a majority of the
shares of Common Stock issued or issuable upon conversion of the Series C
Preferred Stock and Series D Preferred Stock then outstanding (voting together
as a single class), (iii) at least a majority of the shares of Common Stock
issued or issuable upon conversion of the Series E-1 Preferred Stock then
outstanding (voting together as a single class), or (iv) at least a majority of
the shares of Common Stock issued or issuable upon conversion of the Series F
Preferred stock then outstanding (voting together as a single class), that the
Company file a registration statement under the Securities Act covering the
registration of Registrable Securities having an aggregate market value of not
less than $10,000,000, then the Company shall promptly, and in no event more
than ten (10) days following receipt of such request, give written notice of
such request to all other Holders and shall, subject to the provisions of
Section 1.8, use its best efforts to effect as soon as practicable, and in any
event within sixty (60) days of the receipt of such request, the registration
under the Securities Act of all Registrable Securities which the Holders request
to be registered within fifteen (15) days of the mailing of such notice by the
Company in accordance with Section 3.3. Notwithstanding the foregoing, the
Company shall not be obligated to effect a registration statement under this
Section 1.2:
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(a) prior to the date that is six months after the Company's
IPO;
(b) after the Company has effected two registration statements
pursuant to this Section 1.2 and such registration statements have been declared
or ordered effective and have remained effective until the earlier of (A) 120
days after the date of effectiveness, and (B) the date all Registrable
Securities registered thereunder have been sold; PROVIDED, HOWEVER, that if the
Company has withdrawn or abandoned such registration due to the fraud, material
misstatement or omission of a material fact of a Holder participating in such
registration, such withdrawn or abandoned registration shall count as one of the
two registration statements the Company is obligated to effect under this
Section 1.2;
(c) if the Company shall furnish to the Holders a certificate
signed by the Chief Executive Officer or President of the Company stating that,
in the good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its stockholders for such registration
statement to be effected at such time, in which event the Company shall have the
right to defer the filing of such registration statement for a period of not
more than 90 days after receipt of the request of the Holder or Holders under
this Section 1.2, PROVIDED, HOWEVER, that the Company shall not exercise such
right (or the equivalent right set forth in Section 1.4(b)) more than once in
any six (6) month period; or
(d) during the period starting sixty (60) days prior to the
Company's good faith estimate of the date of filing of, and ending on a date
ninety (90) days after the effective date of any registration subject to Section
1.3 hereof, PROVIDED, HOWEVER, that the Company is actively employing in good
faith all reasonable efforts to cause such registration statement to become
effective.
1.3 COMPANY REGISTRATION. If (but without any obligation to do so) the
Company proposes to register (including for this purpose a registration effected
by the Company for stockholders other than the Holders) any of its securities
under the Securities Act in connection with the public offering of such
securities other than in connection with an Excluded Registration, the Company
shall, at such time, promptly give each Holder written notice of such
registration. Upon the written request of each Holder given within fifteen (15)
days after mailing of such notice by the Company in accordance with Section 3.3,
the Company shall, subject to the provisions of Section 1.8, use its best
efforts to register under the Securities Act all of the Registrable Securities
that each such Holder has requested to be registered by including such
Registrable Securities in the Company registration statement filed pursuant to
this Section 1.3. The Company shall have the right to terminate or withdraw any
registration initiated by it under this Section 1.3 prior to the effectiveness
of such registration, whether or not any Holder has elected to include
Registrable Securities in such registration. The expenses of such withdrawn
registration shall be borne by the Company in accordance with Section 1.7.
1.4 FORM S-3 REGISTRATION. If the Company shall receive from any Holder
or Holders of not less than five percent (5%) of the Registrable Securities then
outstanding a written request or requests that the Company effect a registration
on Form S-3 or its successor form and any related qualification or compliance
with respect to all or a part of the Registrable Securities owned by such Holder
or Holders (a "FORM S-3 Registration"), the Company will:
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(a) promptly, and in no event more than five (5) business days
following receipt of such request, give written notice of the proposed
registration, and any related qualification or compliance, to all other Holders;
and
(b) as soon as practicable, use its best efforts to effect
such registration and all such qualifications and compliances as may be so
requested and as would permit or facilitate the sale and distribution of all or
such portion of such Holder's or Holders' Registrable Securities as are
specified in such request, together with all or such portion of the Registrable
Securities of any other Holder or Holders joining in such request as are
specified in a written request given within ten (10) days after receipt of such
written notice from the Company; PROVIDED, HOWEVER, that the Company shall not
be obligated to effect any such registration, qualification or compliance
pursuant to this Section 1.4: (i) if Form S-3 is not available for such offering
by the Holders; (ii) if the Holders, together with the holders of any other
securities of the Company entitled to participate in such registration, propose
to sell Registrable Securities and such other securities (if any) at an
aggregate price to the public (net of any underwriters' discounts or
commissions) of less than $1,000,000; (iii) if the Company shall furnish to the
Holders a certificate signed by the Chief Executive Officer or President of the
Company stating that, in the good faith judgment of the Board of Directors of
the Company, it would be seriously detrimental to the Company and its
stockholders for such Form S-3 Registration to be effected at such time, in
which event the Company shall have the right to defer the filing of such Form
S-3 Registration for a period of not more than 90 days after receipt of the
request of the Holder or Holders under this Section 1.4, PROVIDED, HOWEVER, that
the Company shall not exercise such right (or the equivalent rights set forth in
Section 1.2(d)) more than once in any six (6) month period; (iv) if the Company
has, within the twelve (12) month period preceding the date of such request,
already effected two Form S-3 Registrations for the Holders pursuant to this
Section 1.4 and such Form S-3 Registrations have been declared or ordered
effective and have remained effective until the earlier of (A) 120 days after
the date of effectiveness, and (B) the date all Registrable Securities
registered thereunder have been sold; PROVIDED, HOWEVER, that if the Company has
withdrawn or abandoned such Form S-3 Registration due to the fraud, material
misstatement or omission of a material fact of a Holder participating in such
Form S-3 Registration, such withdrawn or abandoned registration shall count as
one of the two Form S-3 Registrations the Company is obligated to effect under
this Section 1.4 in any 12 month period; or (v) in any particular jurisdiction
in which the Company would be required to qualify to do business or to execute a
general consent to service of process in effecting such registration,
qualification or compliance.
(c) Subject to the foregoing, the Company shall file a
registration statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request or requests of the Holders.
1.5 OBLIGATIONS OF THE COMPANY. Whenever required under this Section 1
to effect the registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its best efforts to cause
such registration statement to become effective and, upon the request of the
Holders of a majority of the Registrable Securities
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registered thereunder, keep such registration statement effective for up to one
hundred twenty (120) days.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement for up to one hundred twenty
(120) days.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request (and in such quantities as they reasonably request) in order
to facilitate the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders; PROVIDED, HOWEVER, that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering effected
pursuant to Section 1.2 or 1.3, enter into and perform its obligations under an
underwriting agreement, in usual and customary form, with the managing
underwriter or underwriters of such offering. Each Holder participating in such
underwriting shall also enter into and perform its obligations under such an
agreement.
(f) Notify each Holder of Registrable Securities covered by
such registration statement (i) when such registration statement, or any
post-effective amendment thereto, shall have become effective, (ii) of the
receipt of any comments from the SEC, (iii) of the issuance by the SEC or any
other federal or state governmental authority of any stop order suspending the
effectiveness of such registration statement of the initiation of proceedings
for that purpose, and (iv) at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, such obligation to continue for one hundred twenty (120) days.
(g) Cause all such Registrable Securities registered pursuant
hereto to be listed on each securities exchange or automated quotation system on
which similar securities issued by the Company are then listed or quoted.
(h) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
(i) Use its best efforts to furnish, at the request of any
Holder requesting registration of Registrable Securities pursuant to this
Section 1, on the date that such
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Registrable Securities are delivered to the underwriters for sale in connection
with a registration pursuant to this Section 1, if such securities are being
sold through underwriters or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective, (i) an opinion, dated such date, of the counsel
representing the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities and (ii) a letter, dated such date, from
the independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and to the Holders requesting registration of Registrable Securities.
1.6 FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 1 with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be required to effect the registration of such Holder's Registrable
Securities. The Company shall have no obligation with respect to any
registration requested pursuant to Section 1.2 or Section 1.4 of this Agreement
if, as a result of the application of the preceding sentence, the number of
shares or the anticipated aggregate offering price of the Registrable Securities
to be included in the registration does not equal or exceed the number of shares
or the anticipated aggregate offering price required to originally trigger the
Company's obligation to initiate such registration as specified in Section 1.2
or Section 1.4, whichever is applicable.
1.7 EXPENSES OF REGISTRATION. All expenses other than underwriting
discounts and commissions incurred in connection with registrations, filings or
qualifications of Registrable Securities pursuant to this Section 1 for each
Holder, including, without limitation, all registration, filing, and
qualification fees, printers' and accounting fees, fees and disbursements of
counsel for the Company and the reasonable fees and disbursements of one counsel
for the selling Holder or Holders selected by them with the approval of the
Company, which approval shall not be unreasonably withheld, shall be borne by
the Company. The Company shall pay all expenses in connection with any
registration initiated pursuant to Section 1 which is withdrawn, delayed or
abandoned at the request of the Company or the Holders participating in such
registration, except if such withdrawal, delay or abandonment is caused by the
fraud, material misstatement or omission of a material fact by a Holder
participating in such registration, in which case, the Holder whose fraud,
material misstatement or omission of a material fact caused the withdrawal,
delay or abandonment of such registration statement shall pay all of the
foregoing expenses related to such registration statement.
1.8 UNDERWRITING REQUIREMENTS. If the registration of which the Company
gives notice under Section 1.3 is for a registered public offering involving an
underwriting, then the Company shall so advise the Holders as part of the
written notice given pursuant to Section 1.3. In such event, the Company shall
not be required under Section 1.3 to include any of the Holders' securities in
such underwriting unless they accept the terms of the underwriting as agreed
upon between the Company and the underwriters selected by it (or by other
persons entitled to select the underwriters), and then only in such quantity as
the underwriters determine in their sole discretion will not jeopardize the
success of the offering by the Company. If the total amount of securities,
including Registrable Securities, requested by stockholders to be included in
such offering exceeds the amount of securities sold other than by the Company
that the underwriters determine
7
in their sole discretion is compatible with the success of the offering, then
the Company shall be required to include in the offering only that number of
such securities, including Registrable Securities, which the underwriters
determine in their sole discretion will not jeopardize the success of the
offering (the securities so included to be allocated, first, to the Company,
second, pro rata among the Holders requesting inclusion in such registration
and, if the Holders were able to sell all Registrable Securities that they
desired to sell, third, pro rata among the remaining selling stockholders
according to the total amount of securities entitled to be included therein
owned by each selling stockholder or in such other proportions as shall mutually
be agreed to by such selling stockholders). No such reduction shall reduce the
amount of securities of the selling Holders included in such registration below
twenty percent (20%) of the total amount of securities included in such
registration. 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 holder to the nearest 100 shares. If the Holder or holder disapproves
of the terms of any such underwritten offering, such person may elect to
withdraw therefrom by written notice to the Company and the underwriters. Any
securities excluded or withdrawn from such underwritten offering shall be
excluded and withdrawn from such registration and, in the case of withdrawn
shares, shall not be transferred in a public distribution prior to 180 days
after the effective date of the registration statement relating thereto, or such
shorter period of time as the underwriters may require. For purposes of the
preceding parenthetical concerning apportionment, for any selling stockholder
which is a holder of Registrable Securities and which is a partnership or
corporation, the partners, retired partners and stockholders of such holder, or
the estates and family members of any such partners and retired partners and any
trusts for the benefit of any of the foregoing persons shall be deemed to be a
single "SELLING STOCKHOLDER," and any pro-rata reduction with respect to such
"selling stockholder" shall be based upon the aggregate amount of shares
carrying registration rights owned by all entities and individuals included in
such "selling stockholder," as defined in this sentence.
1.9 DELAY OF REGISTRATION. No Holder shall have any right to obtain or
seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 1.
1.10 INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under this Section 1:
(a) The Company will indemnify and hold harmless each Holder,
any underwriter (as defined in the Securities Act) for such Holder, each of its
officers, directors, partners and members, and each person, if any, who controls
such Holder or underwriter within the meaning of the Securities Act or the
Exchange Act against any losses, claims, damages, or liabilities (joint or
several) to which they may become subject under the Securities Act, the Exchange
Act or other federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based upon any
of the following statements, omissions or violations (collectively a
"VIOLATION"): (i) any untrue statement or alleged untrue statement of a material
fact contained in such registration statement, including any preliminary
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prospectus or final prospectus contained therein or any amendments or
supplements thereto, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the statements
therein not misleading, or (iii) any violation or alleged violation by the
Company of the Securities Act, the Exchange Act, any state securities law or any
rule or regulation promulgated under the Securities Act, the Exchange Act or any
state securities law; and the Company will pay to each such Holder, underwriter
or controlling person, as incurred, any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability, or action; PROVIDED, HOWEVER, that the indemnity
agreement contained in this subsection 1.10(a) shall not apply to amounts paid
in settlement of any such loss, claim, damage, liability, or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld), nor shall the Company be liable to any Holder,
underwriter or controlling person for any such loss, claim, damage, liability,
or action to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by any such Holder,
underwriter or controlling person.
(b) Each selling Holder will, if Registrable Securities held
by such Holder are included in the registration which is the subject of any
losses, claims, damages or liabilities arising out of or relating to a
Violation, indemnify and hold harmless the Company, each of its directors, each
of its officers who has signed the registration statement, each person, if any,
who controls the Company within the meaning of the Securities Act, any
underwriter, any other Holder selling securities in such registration statement
and any controlling person of any such underwriter or other Holder, against any
losses, claims, damages, or liabilities (joint or several) to which any of the
foregoing persons may become subject, under the Securities Act, the Exchange Act
or other federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereto) arise out of or are based upon such
Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished by such Holder expressly for use in connection with such registration;
and each such Holder will pay, as incurred, any legal or other expenses
reasonably incurred by any person indemnified pursuant to this subsection
1.10(b), in connection with investigating or defending any such loss, claim,
damage, liability, or action; PROVIDED, HOWEVER, that the indemnity agreement
contained in this subsection 1.10(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder, which consent shall
not be unreasonably withheld; PROVIDED, FURTHER, that in no event shall any
indemnity under this subsection 1.10(b) exceed the net proceeds from the
offering received by such Holder, except in the case of willful fraud by such
Holder.
(c) Promptly after receipt by an indemnified party under this
Section 1.10 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 1.10, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in and, to the extent the
indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; PROVIDED, HOWEVER, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate
9
counsel, with the reasonable fees and expenses to be paid by the indemnifying
party, if representation of such indemnified party by the counsel retained by
the indemnifying party would be inappropriate due to actual or potential
differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time of the commencement of
any such action, if materially prejudicial to its ability to defend such action,
shall relieve such indemnifying party of any liability to the indemnified party
under this Section 1.10, but the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 1.10.
(d) If the indemnification provided for in this Section 1.10
is held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage or expense referred to
herein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage or expense as well as any other relevant equitable
considerations; PROVIDED, HOWEVER, that in no event shall any contribution by a
Holder under this Subsection 1.10(d) exceed the net proceeds from the offering
received by such Holder, except in the case of willful fraud by such Holder. The
relative fault of the indemnifying party and of the indemnified party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the indemnifying party or by the indemnified
party and the parties' relative intent, knowledge, access to information, and
opportunity to correct or prevent such statement or omission.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
(f) The obligations of the Company and the Holders under this
Section 1.10 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and otherwise.
1.11 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view to
making available to the Holders the benefits of Rule 144 promulgated under the
Securities Act and any other rule or regulation of the SEC that may at any time
permit a Holder to sell securities of the Company to the public without
registration, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in SEC Rule 144, at all times after the effective
date of the first registration statement filed by the Company for the offering
of its securities;
10
(b) take such action, including the voluntary registration of
its Common Stock under Section 12 of the Exchange Act, as is necessary to enable
the Holders to utilize Form S-3 and any similar or successor forms for the sale
of their Registrable Securities;
(c) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and
(d) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of SEC Rule 144 (at
any time after ninety (90) days after the effective date of the first
registration statement filed by the Company), the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements), or that it qualifies as a registrant whose securities may be
resold pursuant to Form S-3 (at any time after it so qualifies), (ii) a copy of
the most recent annual or quarterly report of the Company and such other reports
and documents so filed by the Company, and (iii) such other information as may
be reasonably requested in availing any Holder of any rule or regulation of the
SEC which permits the selling of any such securities without registration or
pursuant to such form.
1.12 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the Company
to register Registrable Securities pursuant to this Section 1 may be assigned
(but only with all related obligations) by a Holder to an affiliate or partner
of such Holder or a transferee or assignee of at least 100,000 of such Holder's
Registrable Securities (or all of such Holder's Registrable Securities if such
Holder holds less than 100,000 Registrable Securities); PROVIDED, HOWEVER, the
Company is, within a reasonable time after such transfer, furnished with written
notice of the name and address of such affiliate, partner, transferee or
assignee and the securities with respect to which such registration rights are
being assigned; and PROVIDED, FURTHER, that such assignment shall be effective
only if immediately following such transfer the further disposition of such
securities by the affiliate, partner, transferee or assignee is restricted under
the Securities Act. For the purposes of determining the number of shares of
Registrable Securities held by a transferee or assignee, the holdings of
transferees and assignees of a partnership who are partners or retired partners
of such partnership (including spouses and ancestors, lineal descendants and
siblings of such partners or spouses who acquire Registrable Securities by gift,
will or intestate succession) shall be aggregated together and with the
partnership; PROVIDED, HOWEVER, that all assignees and transferees who would not
qualify individually for assignment of registration rights shall have a single
attorney-in-fact for the purpose of exercising any rights, receiving notices or
taking any action under Section 1.
1.13 MARKET-STANDOFF AGREEMENT.
(a) MARKET-STANDOFF PERIOD; AGREEMENT. In connection with an
IPO and upon request of the Company or the underwriters managing such offering
of the Company's securities (the "MANAGING Underwriters"), each Holder agrees
not to sell, make any short sale of, loan, grant any option for the purchase of,
or otherwise dispose of any Registrable Securities of the Company (the
"RESTRICTED STOCK") without the prior written consent of the Company or the
Managing Underwriters, as the case may be, for such period of time (not to
exceed 180 days) from the effective date of such registration as may be
requested by the Company or the Managing Underwriters and to execute an
agreement reflecting the foregoing as may be
11
requested by the Managing Underwriters at the time of the Company's IPO (the
"UNDERWRITER'S LOCKUP AGREEMENT").
(b) LIMITATIONS. The obligations described in Section 1.13(a)
shall apply only if all executive officers, directors and one percent (1%)
stockholders of the Company and any other persons having registration rights
enter into similar agreements. If the Managing Underwriters agree to waive or
release any of the restrictions set forth in the Underwriter's Lockup Agreement,
such waiver or release must apply, on a pro rata basis, to all holders of
Registrable Securities.
(c) STOP-TRANSFER INSTRUCTIONS. In order to enforce the
foregoing covenants, the Company may impose stop-transfer instructions with
respect to the securities of each Holder (and the securities of every other
person subject to the restrictions in Section 1.13(a)).
(d) TRANSFEREES BOUND. Each Holder agrees that it will not
transfer Registrable Securities of the Company unless each transferee agrees in
writing to be bound by all of the provisions of this Section 1.13.
1.14 TERMINATION OF REGISTRATION RIGHTS. No Holder shall be entitled to
exercise any right provided for in this Section 1 if Rule 144 or another similar
exemption under the Securities Act is available for the sale of all of such
Holder's shares during a three (3) month period without registration and without
compliance with the manner of sale restrictions of Rule 144(f), except for such
Holder's rights set forth in Section 1.3 hereof if such Holder is the record
owner of Registrable Securities representing more than two percent (2%) of the
capital stock of the Company (on a fully diluted, as converted to Common Stock
basis).
1.15 INVESTOR ACTS. Whenever under this Section 1 the Holders are
registering Registrable Securities pursuant to any registration statement, the
Holder agrees to (i) timely provide to the Company, at its request, such
information and materials as it may reasonably request in order to effect the
registration of such Registrable Securities and (ii) convert all shares of
Preferred Stock, Class B Common Stock and Class C Common Stock included in any
registration statement to shares of Class A Common Stock, such conversion to be
effective at the closing of such offering pursuant to such registration
statement.
2. COVENANTS OF THE COMPANY.
2.1 CANADIAN SECURITIES FILINGS. Whenever required under Section 1.2 or
Section 1.3 to effect the registration of any Registrable Securities or
otherwise whenever the Company undertakes any public offering of its securities,
the Company shall, as soon as reasonably practicable after the filing of any
registration statement, prepare and file in British Columbia, Canada a
preliminary and final prospectus in accordance with the Securities Act (British
Columbia), as amended, to do all things reasonably necessary or desirable as and
when required by law to obtain a receipt therefor from the British Columbia
Securities Commission in order to obtain reporting issuer status in British
Columbia.
2.2 DELIVERY OF FINANCIAL STATEMENTS AND OTHER INFORMATION. The Company
shall deliver to each Holder of at least 100,000 shares of Registrable
Securities (other
12
than a Holder reasonably deemed by the Company to be a competitor of the
Company, which for this purpose shall not include any of the initial Holders who
are signatories to this Agreement or affiliates of such initial Holders):
(a) as soon as practicable, but in any event within ninety
(90) days after the end of each fiscal year of the Company, an income statement
for such fiscal year, a balance sheet of the Company and statement of
stockholder's equity as of the end of such year, and a statement of cash flows
for such year, such year-end financial reports to be in reasonable detail,
prepared in accordance with generally accepted accounting principles ("GAAP"),
and audited and certified by an independent public accounting firm of nationally
recognized standing selected by the Company;
(b) as soon as practicable, but in any event within thirty
(30) days after the end of each of the first three (3) quarters of each fiscal
year of the Company, an unaudited operating statement, statement of cash flows
and balance sheet as of the end of such fiscal quarter;
(c) as soon as practicable, but in any event thirty (30) days
prior to the end of each fiscal year, a budget and business plan for the next
fiscal year, prepared on a monthly basis, and, as soon as prepared, any other
budgets or revised budgets prepared by the Company as well as financial and
operating statements compared to such budget; and
(d) with respect to the financial statements called for in
subsections (a) and (b) of this Section 2.2, an instrument executed by the Chief
Financial Officer or President of the Company and certifying that such
financials were prepared in accordance with GAAP consistently applied with prior
practice for earlier periods (with the exception of footnotes that may be
required by GAAP) and fairly present the financial condition of the Company and
its results of operation for the period specified, subject to year-end audit
adjustment, provided that the foregoing shall not restrict the right of the
Company to change its accounting principles consistent with GAAP, if the Board
of Directors determines that it is in the best interest of the Company to do so
and such change is approved in writing by the Company's independent public
accountants; and
(e) as soon as practicable, copies of any material press
releases issued by the Company, notice of the filing of any registration
statement with respect to the Company's equity securities, notice of issuance of
the Company's equity securities (other than pursuant to the exercise of options
or warrants therefor), and notice of the occurrence of any other material
corporate events.
2.3 INSPECTION. The Company shall permit each Holder of at least
100,000 shares of Registrable Securities (except for a Holder reasonably deemed
by the Company to be a competitor of the Company, which for this purpose shall
not include any of the initial Holders who are signatories to this Agreement or
affiliates of such initial Holders), at such Holder's expense, to visit and
inspect the Company's properties, to examine its books of account and records
and to discuss the Company's affairs, finances and accounts with its officers,
all at such reasonable times as may be requested by the Holder; PROVIDED,
HOWEVER, that any Holder or employee, agent or representative of such Holder, as
the case may be, agrees to hold all
13
information confidential on the terms set forth in Section 3.9 hereof; PROVIDED,
FURTHER, that the Company shall not be obligated pursuant to this Section 2.3 to
provide access to (a) any information which it reasonably considers to be a
trade secret or similar confidential information, or (b) any information which
it deems in good faith would adversely affect the attorney-client privilege.
2.4 TERMINATION OF COVENANTS.
(a) The covenants set forth in Sections 2.2 and Section 2.3
shall terminate as to each Holder and be of no further force or effect
immediately prior to the consummation of a IPO.
(b) The covenants set forth in Sections 2.2 and 2.3 shall
terminate as to each Holder and be of no further force or effect when the
Company first becomes subject to the periodic reporting requirements of Sections
13 or 15(d) of the Exchange Act, if this occurs earlier than the events
described in Section 2.4(a) above.
2.5 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and after the
date of this Agreement, the Company shall not, without the prior written consent
of (a) holders of at least a majority of the then outstanding shares of Series B
Preferred Stock, voting together as a single class, (b) holders of at least a
majority of the then outstanding shares of Series C Preferred Stock, voting
together as a single class, (c) holders of at least a majority of the then
outstanding shares of Series D Preferred Stock, voting together as a single
class, (d) holders of at least eighty-one percent (81%) of the then outstanding
shares of Series E-1 Preferred Stock, voting together as a single class, and (f)
holders of at least seventy-five percent (75%) of the then outstanding shares of
Series F Preferred Stock, voting together as a single class, enter into any
agreement with any holder or prospective holder of any securities of the Company
that would allow such holder or prospective holder (i) to include such
securities in any registration filed under this Agreement, unless under the
terms of such agreement, such holder or prospective holder may include such
securities in any such registration only to the extent that the inclusion of his
securities will not reduce the amount of Registrable Securities of the Holders
which is included or would materially affect the marketability of the offering
as determined by the managing underwriter or (ii) to have registration rights
superior to or otherwise more favorable than, or which limit in any material
respect, the registration rights of the Holders set forth in this Agreement.
3. MISCELLANEOUS.
3.1 SUCCESSORS AND ASSIGNS. Except as otherwise provided in this
Agreement, the terms and conditions of this Agreement shall inure to the benefit
of and be binding upon the respective permitted successors and assigns of the
parties (including permitted transferees of any of the Holders). Nothing in this
Agreement, express or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
14
3.2 AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended
or waived only with the written consent of (a) the Company, (b) the holders of a
majority of the then outstanding shares of Series B Preferred Stock, voting
together as a single class, (c) the holders of a majority of the then
outstanding shares of Series C Preferred Stock, voting together as a single
class, (d) the holders of a majority of the then outstanding shares of Series D
Preferred Stock, voting together as a single class, (e) the holders of at least
eighty-one percent (81%) of the then outstanding shares of Series E-1 Preferred
Stock, voting together as a single class, and (f) holders of at least
seventy-five percent (75%) of the then outstanding shares of Series F Preferred
Stock, voting together as a single class. In addition to the consent required by
the preceding sentence, Section 1.13 hereof may be amended or waived only with
the written consent of any holder of Registrable Securities that is an
investment company under the Investment Company Act of 1940, as amended. Any
amendment or waiver effected in accordance with this Section 3.2 shall be
binding upon each party to the Agreement, whether or not such party has signed
such amendment or waiver, each future holder of all such Registrable Securities,
and the Company.
3.3 NOTICES. Unless otherwise provided, any notice required or
permitted by this Agreement shall be in writing and shall be deemed sufficient
upon delivery, when delivered personally or by overnight courier or sent by
telegram or fax, or five (5) days after being deposited in the U.S. mail, as
certified or registered mail, with postage prepaid, and addressed to the party
to be notified at such party's address or fax number as set forth on the
signature page hereto with respect to notices to the Company or the exhibits
hereto with respect to notices to the Holders or, in each case, as subsequently
modified by written notice.
3.4 SEVERABILITY. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, the parties agree to renegotiate such
provision in good faith. In the event that the parties cannot reach a mutually
agreeable and enforceable replacement for such provision, then (a) such
provision shall be excluded from this Agreement, (b) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (c) the
balance of the Agreement shall be enforceable in accordance with its terms.
3.5 GOVERNING LAW. This Agreement and all acts and transactions
pursuant hereto shall be governed, construed and interpreted in accordance with
the laws of the State of Delaware, without giving effect to principles of
conflicts of laws.
3.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
3.7 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
3.8 AGGREGATION OF STOCK. All shares of Registrable Securities held or
acquired by affiliated entities or persons shall be aggregated together for the
purpose of determining the availability of any rights under this Agreement.
15
3.9 CONFIDENTIALITY. Each Holder agrees that it will keep confidential
and will not disclose or divulge any confidential, proprietary, secret or
non-public information which such Holder may obtain from the Company pursuant to
financial statements, reports and other materials submitted by the Company to
such Holder pursuant to this Agreement, or pursuant to visitation or inspection
rights granted hereunder, unless such information is known, or until such
information becomes known, to the public; PROVIDED, HOWEVER, that a Holder may
disclose such information (i) on a confidential basis to its attorneys,
accountants, consultants and other professionals to the extent necessary to
obtain their services in connection with its investment in the Company, (ii) to
any prospective purchaser of any Registrable Securities from such Holder as long
as such prospective purchaser agrees in writing to be bound by the provisions of
this Section 3.9, (iii) on a confidential basis to any affiliate or partner of
such Holder or (iv) as required by applicable law. Notwithstanding the
foregoing, any Holder may disclose summary financial information and a narrative
description of the Company's business to partners or potential partners of such
Holder.
3.10 EXPENSES. If any action at law or in equity is necessary to
enforce the terms of this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees, costs and necessary disbursements in addition to any
other relief to which such party may be entitled.
3.11 STOCK SPLITS. All references to numbers of shares in this
Agreement shall be appropriately adjusted to reflect any stock divided, split,
combination or other recapitalization of shares by the Company occurring after
the date of this Agreement.
3.12 FUTURE CHANGES IN REGISTRATION REQUIREMENTS. In the event the
registration requirements under the Securities Act are eliminated to accommodate
a "company registration" or similar approach, this Agreement shall be deemed to
be amended to the extent necessary to reflect such changes and the intent of the
parties hereto with respect to the benefits and obligations of the parties, and
in such connection, the Company shall use reasonable efforts to provide the
Holders, pursuant to Section 1.3, of Registrable Securities equivalent benefits
to those provided under this Agreement.
3.13 ENTIRE AGREEMENT. This Agreement and the other Transaction
Documents (as defined in the Purchase Agreement) constitute the entire agreement
between the Company and the Investors relative to the subject matter hereof and
thereof. Any previous agreement or negotiations between the Company and the
Investors concerning the subject matter hereof is superseded by this Agreement
and the Transaction Documents except for any agreements relating to
confidentiality.
3.14 FURTHER ASSURANCES. Each party hereto agrees to execute and
deliver all such further instruments and documents and take all such other
actions as another party may reasonably request in order to carry out the intent
and purposes of this Agreement.
3.15 INJUNCTIVE RELIEF. Each of the parties hereto hereby acknowledges
that in the event of a breach by any of them of any material provision of this
Agreement, the aggrieved party may be without an adequate remedy at law. Each of
the parties therefore agrees that, except as otherwise provided in Section 1.9,
in the event of a breach of any material provision of this Agreement the
aggrieved party may elect to institute and prosecute proceedings in any court of
16
competent jurisdiction to enforce specific performance or to enjoin continuing
breach of such provision, as well as to obtain damages for breach of this
Agreement. By seeking or obtaining such relief, the aggrieved party will not he
precluded from seeking or obtaining any other relief to which it may be
entitled.
[Signature Pages Follow]
17
The parties have executed this Fifth Amended and Restated Investors'
Rights Agreement as of the date first above written.
COMPANY:
PRINTCAFE, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: President and Chief Executive Officer
Address: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
SERIES B INVESTOR:
CREO SRL
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Manager
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
SERIES C INVESTORS:
MELLON VENTURES II, L.P.
By its general partner
MVMA II L.P.
By its general partner MVMA
Inc.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
KEY PRINCIPAL PARTNERS LLC
By:
------------------------------
Name:
Title:
BANCBOSTON CAPITAL INC.
By:
------------------------------
Name:
Title:
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
SERIES D INVESTORS:
MELLON VENTURES II, L.P.
By its general partner
MVMA II L.P.
By its general partner MVMA
Inc.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
SERIES E INVESTORS:
MELLON VENTURES II, L.P.
By its general partner
MVMA II L.P.
By its general partner MVMA
Inc.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
CREO SRL
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Manager
HARBOURVEST PARTNERS VI -
DIRECT FUND L.P.
By: HarbourVest VI - Direct Associates LLC
By: HarbourVest Partners, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Managing Director
▇▇▇▇▇▇▇▇ NEW TECHNOLOGIES FUND II, INC.
By: J. & ▇. ▇▇▇▇▇▇▇▇ & Co. Incorporated,
its investment adviser
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
WPG SOFTWARE FUND, L.P.
By: ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, L.L.C.,
its General Partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Title:
WPG INSTITUTIONAL SOFTWARE FUND, L.P.
By: ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, L.L.C.
its General Partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Title:
WPG RAYTHEON SOFTWARE FUND, L.P.
By: ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, L.L.C.
its General Partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Title:
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
SERIES F INVESTORS:
MELLON VENTURES II, L.P.
By its general partner
MVMA II L.P.
By its general partner MVMA
Inc.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
HARBOURVEST PARTNERS VI -
DIRECT FUND L.P.
By: HarbourVest VI - Direct Associates LLC
By: HarbourVest Partners, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Managing Director
▇▇▇▇▇▇▇▇ NEW TECHNOLOGIES FUND II, INC.
By: J. & ▇. ▇▇▇▇▇▇▇▇ & Co. Incorporated,
its investment adviser
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, L.L.C.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT
EXHIBIT A
SERIES B INVESTOR
NAME/ADDRESS/FAX NO. NO. OF SHARES OF SERIES B PREFERRED STOCK
Creo SRL
2nd Street 31,186,312
Barbados
EXHIBIT B
SERIES C INVESTORS
NAME/ADDRESS/FAX NO. NO. OF SHARES OF
-------------------- ----------------
SERIES C PREFERRED STOCK
------------------------
BancBoston Capital Inc.
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇ 172,413
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
c/o Orrick, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank Building
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Key Principal Partners LLC
Attn: ▇▇▇▇ ▇▇▇▇▇ 344,827
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Mellon Ventures II, L.P.
c/o Mellon Ventures, Inc. 1,293,103
Attn: ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Menlo Ventures VII, L.P.
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇ 55,776
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇
▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Menlo Entrepreneurs Fund VII, L.P.
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇ 2,474
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇
▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
B-1
NAME/ADDRESS/FAX NO. NO. OF SHARES OF
-------------------- ----------------
SERIES C PREFERRED STOCK
------------------------
▇▇▇▇ ▇▇▇▇▇▇
▇/▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP 862
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Olympic Venture Partners III, L.P.
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇ 30,337
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
OVP III Entrepreneurs Fund
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇ 1,426
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
Old Federal Reserve Bank Building 13,000
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
B-2
EXHIBIT C
---------
SERIES D INVESTORS
------------------
NO. OF SHARES OF
----------------
NAME/ADDRESS/TAX NO. SERIES D PREFERRED STOCK
-------------------- ------------------------
Mellon Ventures II, L.P. 293,125
c/o Mellon Ventures, Inc.
Attn: ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
C-1
EXHIBIT D
---------
COMMON STOCK INVESTORS
----------------------
NO. OF SHARES
NAME/ADDRESS/ TAX NO. OF CLASS A COMMON STOCK
--------------------- -----------------------
Efi Gildor 101,925
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 8,493
▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, #▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Iphigonia ▇. ▇▇▇▇▇▇▇▇▇ 2,831
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Creo SRL 1,132,502
▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ 566
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ 566
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ 2,831
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 2,831
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ 1,132
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 14,156
Laurel Advisors, LLC
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
Managing Partner
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇,▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
D-1
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III 5,662
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ 11,325
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 5,662
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ 5,622
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ 2,831
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 5,662
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ 8,493
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ 20,385
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ 13,590
(▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Trust)
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
D-2
EXHIBIT E
SERIES E INVESTORS
NO. OF SHARES
NAME/ADDRESS/FAX NO. OF SERIES E-1
PREFERRED STOCK
Mellon Ventures II, L.P.
c/o Mellon Ventures, Inc. 3,125,000
Attn: ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Creo SRL
▇▇▇ ▇▇▇▇▇▇ 8,000,000
Holetown
St. ▇▇▇▇▇
Barbados
HarbourVest Partners VI - Direct Fund L.P.
Attn: Ofer Nemorivsky 3,750,000
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
WPG Software Fund, L.P.
Attn: ▇▇▇ ▇▇▇▇▇▇ 172,725
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
WPG Institutional Software Fund, L.P.
Attn: ▇▇▇ ▇▇▇▇▇▇ 272,775
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
WPG Raytheon Software Fund, L.P.
Attn: ▇▇▇ ▇▇▇▇▇▇ 304,500
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇ New Technologies Fund II, Inc.
c/o J. & ▇. ▇▇▇▇▇▇▇▇ and Co. Incorporated 1,750,000
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-1
EXHIBIT F
---------
SERIES F INVESTORS
------------------
NO. OF SHARES
-------------
NAME/ADDRESS/FAX NO. OF SERIES F PREFERRED
-------------------- ---------------------
STOCK
-----
Mellon Ventures II, L.P. 1,861,048
c/o Mellon Ventures, Inc.
Attn: ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
HarbourVest Partners VI - Direct Fund L.P. 1,163,155
Attn: Ofer Nemorivsky
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, L.L.C. 188,736
Attn: ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇ New Technologies Fund II, Inc. 697,893
c/o J. & ▇. ▇▇▇▇▇▇▇▇ and Co. Incorporated
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
F-1