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EXHIBIT 10.10
INVESTORS' RIGHTS AGREEMENT
DATED AS OF AUGUST 9, 1999
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TABLE OF CONTENTS
PAGE
1. Certain Definitions..............................................1
2. Restrictions on Transferability..................................2
3. Restrictive Legend...............................................2
4. Notice of Proposed Transfers.....................................3
5. Requested Registration...........................................4
6. Company Registration.............................................6
7. Expenses of Registration.........................................6
8. Registration Procedures..........................................6
9. Registration on Form S-2 or S-3..................................8
10. Termination of Registration Rights...............................8
11. Lock-up Agreement................................................8
12. Indemnification..................................................8
13. Information by Holder...........................................10
14. Rule 144 Reporting..............................................10
15. Transfer of Registration Rights.................................10
16. Subsequent Grant of Registration Rights.........................11
17. Basic Financial Information.....................................11
18. Visitation and Observer Rights..................................12
19. Rights of First Offer...........................................12
20. Right of First Refusal..........................................14
21. Negative Covenants..............................................16
22. Governing Law...................................................17
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TABLE OF CONTENTS
(CONTINUED)
Page
23. Entire Agreement................................................17
24. Notices, etc....................................................17
25. Counterparts....................................................17
26. Amendment.......................................................17
27. Additional Parties..............................................18
Exhibits
Exhibit A -- Form of Warrant
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INVESTORS' RIGHTS AGREEMENT
This Investors' Rights Agreement (this "AGREEMENT") is made as of this
9th day of August, 1999 by and among AirWeb Corporation, a Delaware corporation
doing business as OpenSky Corporation (the "COMPANY"), and each of the holders
of the Series A Preferred Stock, par value $0.001 per share (the "SERIES A
PREFERRED") listed on the Schedule of Holders attached hereto as Schedule A
(individually, a "SERIES A HOLDER," collectively, the "SERIES A HOLDERS"), and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇ (individually,
a "FOUNDER," collectively, the "FOUNDERS").
RECITALS
A. The Company and the Series A Holders have entered into agreements
for issuance by the Company and acquisition by the Series A Holders of shares of
the Company's Series A Preferred.
B. The obligation of the Series A Holders to acquire the Series A
Preferred is conditioned upon, among other things, the execution and delivery by
the Company and each of the Founders of this Agreement.
AGREEMENT
1. Certain Definitions. As used in this Agreement, the following
terms shall have the following respective meanings:
"COMMISSION" shall mean the Securities and Exchange Commission or any
successor agency.
"HOLDER" shall mean each Series A Holder and any transferee of
Registrable Securities who, pursuant to Section 15 below, is entitled to
registration rights hereunder.
"NEW SECURITIES" shall have the meaning set forth in Section 19 of this
Agreement.
"RESTRICTED SECURITIES" shall mean the securities of the Company required
to bear the legend set forth in Section 3 hereof (or any similar legend).
"REGISTRABLE SECURITIES" shall mean (i) shares of the Company's Common
Stock issued or issuable upon the conversion of the Series A Preferred; (ii) any
Common Stock of the Company or other securities issued or issuable in respect of
shares of the Series A Preferred; and (iii) shares of the Company's Common Stock
or other securities issued or issuable in respect of the shares described in
clause (i) or (ii) upon any stock split, stock dividend, recapitalization, or
similar event; provided, however, that any shares described in clauses (i)-(iii)
above which have been resold to the public shall cease to be Registrable
Securities upon such resale.
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The terms "REGISTER," "REGISTERED" and "REGISTRATION" refer to a
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.
"REGISTRATION EXPENSES" shall mean all expenses incurred by the Company
in complying with Sections 5, 6, 8 and 9 hereof, including, without limitation,
all registration, qualification and filing fees, printing expenses, escrow fees,
fees and disbursements of counsel for the Company, blue sky fees and expenses
and the expense of any special audits incident to or required by any such
registration.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SELLING EXPENSES" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities registered by
the Holders and the legal expenses of counsel to the Holders.
"WARRANT" shall mean the warrant to purchase 3,000,000 shares of Series A
Preferred issued by the Company on the date hereof to Aether OpenSky Investments
LLC and substantially in the form of Exhibit A hereto.
2. Restrictions on Transferability. The Restricted Securities shall
not be transferable except upon the conditions specified in this Agreement,
which conditions are intended to ensure compliance with the provisions of the
Securities Act. Each Holder of Restricted Securities will cause any proposed
transferee of the Restricted Securities held by such Holder, other than a
transferee acquiring such securities in connection with a registered offering
covering such disposition, to agree to take and hold such Restricted Securities
subject to the provisions and upon the conditions specified in this Agreement.
3. Restrictive Legend. Each certificate representing (i) the Series A
Preferred, (ii) shares of the Company's Common Stock issued upon conversion of
the Series A Preferred, (iii) any other securities issued in respect of the
Series A Preferred or Common Stock issued upon conversion of the Series A
Preferred including upon any stock split, stock dividend, recapitalization,
merger, consolidation or similar event, shall (unless otherwise permitted by the
provisions of Section 4 below) be stamped or otherwise imprinted with a legend
in the following form (in addition to any legend required under applicable
securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933.
THESE SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT. COPIES OF THE
AGREEMENT COVERING THE PURCHASE OF THESE SHARES AND RESTRICTING THEIR
TRANSFER MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER
OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE CORPORATION AT THE
PRINCIPAL EXECUTIVE OFFICES OF THE CORPORATION.
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THE SHARES REPRESENTED HEREBY ARE SUBJECT TO A ONE HUNDRED EIGHTY (180)
DAY LOCKUP FOLLOWING THE CORPORATION'S INITIAL PUBLIC OFFERING, A COPY OF
WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE CORPORATION.
Each Holder consents to the Company's making a notation on its records
and giving instructions to any transfer agent of the Series A Preferred or the
Common Stock in order to implement the restrictions on transfer established in
this Section 3. The Company shall be obligated to reissue promptly unlegended
certificates at the request of any Holder thereof if the Holder shall have
obtained an opinion of counsel at such Holder's expense (which counsel may be
counsel to the Company) reasonably acceptable to the Company to the effect that
the securities proposed to be disposed of may lawfully be so disposed of without
registration, qualification or legend.
4. Notice of Proposed Transfers. The Holder of each certificate
representing Restricted Securities by acceptance thereof agrees to comply in all
respects with the provisions of this Section 4. Prior to any proposed transfer
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. Each such notice shall describe the manner and circumstances of
the proposed transfer in sufficient detail, and shall, if the Company reasonably
requests, be accompanied (except in transactions in compliance with Rule 144) by
either (i) a written opinion of legal counsel who shall be reasonably
satisfactory to the Company, addressed to the Company and reasonably
satisfactory in form and substance to the Company's counsel, to the effect that
the proposed transfer of the Restricted Securities may be effected without
registration under the Securities Act, or (ii) a "No Action" letter from the
Commission to the effect that the transfer of such securities without
registration will not result in a recommendation by the staff of the Commission
that action be taken with respect thereto, whereupon the Holder of such
Restricted Securities shall be entitled to transfer such Restricted Securities
in accordance with the terms of the notice delivered by the Holder to the
Company; provided, however, that no opinion or "No Action" letter need be
obtained with respect to a transfer to (A) a partner or member, active or
retired, of a Holder of Restricted Securities, (B) the estate of any Holder of
Registrable Securities, (C) an "affiliate" of a Holder of Restricted Securities
as that term is defined in Rule 405 promulgated by the Commission under the
Securities Act, (D) if to a corporation, to its stockholders, (E) if to a
limited liability company, to its members or former members or (F) the spouse,
children, grandchildren or spouse of such children or grandchildren of any
Holder or to trusts for the benefit of any Holder or such persons, if the
transferee agrees to be subject to the terms hereof. Each certificate evidencing
the Restricted Securities transferred as above provided shall bear the
appropriate restrictive legend set forth in Section 3 above, except that such
certificate shall not bear such restrictive legend if the transferee provides an
opinion of counsel as provided in Section 3 or in the opinion of counsel for the
Company such legend is not required in order to establish compliance with any
provisions of the Securities Act.
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5. Requested Registration.
(a) Request for Registration. If at any time after the earlier
of (i) five years after the date of this Agreement or (ii) following the closing
date of the first registration statement filed by the Company covering an
underwritten offering of any of its securities to the general public, the
Company shall receive from any Holder or group of Holders holding a majority of
the Registrable Securities (the "INITIATING HOLDERS ") a written request that
the Company effect any registration with respect to at least a majority of the
shares of 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 (including, without limitation, filing 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 would permit or facilitate the sale and distribution of all or such portion
of such Registrable Securities as are specified in such request, together with
all or such portion of the Registrable Securities of any Holder or Holders
joining in such request as are specified in a written request received by the
Company within 20 days after receipt of such written notice from the Company.
Provided, however, that the Company shall not be obligated to take any
action to effect any such registration pursuant to this Section 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;
(B) after the Company has effected two such
registrations pursuant to this Section 5(a), such registrations have been
declared or ordered effective and the securities offered pursuant to such
registration have been sold; or
(C) during the period starting with the date
sixty (60) days prior to the Company's estimated date of filing of, and ending
on the date six (6) months immediately following the effective date of, any
Company-initiated registration statement pertaining to securities of the Company
(other than a registration of securities in a Rule 145 transaction or with
respect to an employee benefit plan); provided that, the Company is actively
employing in good faith all reasonable efforts to cause such registration
statement to become effective.
Subject to the foregoing clauses (A), (B) and (C), 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. If, however, the Company shall furnish to the Initiating
Holders a certificate signed by the President of the Company stating that, in
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the good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its stockholders for such registration
statement to be filed and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer such filing
for a period of not more than 120 days after receipt of the request of the
Initiating Holders; provided, however, that the Company may not utilize this
right more than once in any twelve-month period.
(b) Underwriting. If the Initiating Holders intend to
distribute the Registrable Securities covered by their request by means of an
underwriting, they shall so advise the Company as a part of their request made
pursuant to Section 5(a) and the Company shall include such information in the
written notice referred to in Section 5(a). The right of any Holder to
registration pursuant to Section 5 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities to be registered in the underwriting to the extent
requested (unless otherwise mutually agreed by a majority in interest of the
Holders) and to the extent provided herein. A Holder may elect to include in
such underwriting all or a part of the Registrable Securities he holds.
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. Notwithstanding any other
provision of this Section 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, subject to the provisions of Section 5(a), the
Company shall so advise all Holders and the number of shares of Registrable
Securities that may be included in the registration and underwriting shall be
allocated among all Holders requesting inclusion in the registration as follows:
(A) all securities proposed to be offered by the Company for its own account or
for the account of holders of securities other than Registrable Securities shall
be excluded before any Registrable Securities are excluded; and (B) if, after
all non-Registrable Securities have been excluded, additional limitations are
required, then the number of Registrable Securities included in the registration
shall be allocated among all Holders requesting inclusion thereof in the
registration in proportion, as nearly as practicable, to the respective amounts
of Registrable Securities proposed to be registered by such Holders at the time
of filing the registration statement. No Registrable Securities excluded from
the underwriting by reason of the managing underwriter's marketing limitation
shall be included in such registration.
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 other Holders. The Registrable
Securities and/or other securities so withdrawn shall also be withdrawn from
registration; provided, however, that if by the withdrawal of such Registrable
Securities a greater number of Registrable Securities held by other Holders may
be included in such registration (up to the maximum of any limitation imposed by
the underwriters), then the Company shall offer to all Holders who have included
Registrable Securities in the registration the right to include additional
Registrable Securities in the same proportion used in determining the
underwriter limitation in this Section 5(b). If the registration does not become
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effective due to the withdrawal of Registrable Securities at the behest of the
Holder(s) of such Registrable Securities and the withdrawal of the registration
is not at the request or on the advice of the Company or the underwriter nor is
the result of a material adverse change in the Company's business, financial
condition, results of operations or prospects since the date of the written
request of the Initiating Holders pursuant to this Section 5, then either (1)
the Holders requesting registration shall reimburse the Company for expenses
incurred in complying with the request or (2) if the Holders fail to make such
reimbursement, the aborted registration shall be treated as effected for
purposes of Section 5(a)(B).
6. Company Registration.
(a) Notice of Registration. If the Company shall determine to
register any of its securities, either for its own account or the account of a
security holder or holders exercising their respective demand registration
rights, other than (i) a registration pursuant to Section 5 or 9, (ii) a
registration relating solely to employee benefit plans or (iii) a registration
relating solely to a 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, mailed by any Holder or Holders within 20 days after receipt of
such written notice from the Company, provided that the Company may limit, to
the extent so advised by the underwriters, the amount of Registrable Securities
to be included in the registration by the Holders to an amount not less than 30%
of the total number of securities included in the offering, unless such offering
is the initial public offering of the Company's securities, in which case all
Registrable Securities may be excluded from such offering. The written request
of a Holder may specify that all or a part of such Holder's Registrable
Securities shall be included in such registration.
(b) In all registered public offerings, whether underwritten or
not, the amount of Registrable Securities of Holders which are included in such
registration, in accordance with the limitations set forth in Section 6(a)(ii)
above, shall be allocated to the Holders in proportion, as nearly as
practicable, to the respective amounts of Registrable Securities proposed to be
registered by each of such Holders (assuming conversion of all outstanding
Series A Preferred) as of the date of the notice given pursuant to this Section.
7. Expenses of Registration. All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to
Sections 5, 6 and 9 shall be borne by the Company. All Selling Expenses relating
to securities registered by the Holders shall be borne by the Holders of such
securities pro rata on the basis of the number of shares so registered.
8. Registration Procedures. In the case of each registration,
qualification or compliance effected by the Company pursuant to this Agreement
the Company will keep each Holder advised in
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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 120 days or
until the distribution described in the registration statement has been
completed; provided, however, that (i) such 120-day period shall be extended for
a period of time equal to the period the Holder refrains from selling any
securities included in such registration at the request of an underwriter of
securities of the Company; and (ii) in the case of any registration of
Registrable Securities on Form S-2 or Form S-3 which are intended to be offered
on a continuous or delayed basis, such 120-day period shall be extended, if
necessary, to keep the registration statement effective until all such
Registrable Securities are sold;
(b) furnish to the Holders participating in such registration
and to the underwriters of the securities being registered such number of copies
of the registration statement, preliminary prospectus, final prospectus and such
other documents as such Holders or underwriters may reasonably request in order
to facilitate the public offering of such securities;
(c) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
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 or to applicable anti-fraud
provisions;
(d) use its best efforts to register and qualify the securities
covered by such registration statement under such other applicable securities or
blue sky laws; provided that, the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions unless
the Company is already subject to service in such jurisdiction and except as may
be required by the Securities Act;
(e) cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange on which similar securities
issued by the Company are then listed;
(f) provide a transfer agent and registrar for all Registrable
Securities registered pursuant to such registration statement and a CUSIP number
for all such Registrable Securities, in each case not later than the effective
date of such registration;
(g) enter into an underwriting agreement in form reasonably
necessary to effect the offer and sale of Registrable Securities; and
(h) notify each Holder of Registrable Securities covered by
such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
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state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of circumstances then existing.
9. Registration on Form S-2 or S-3. In addition to the rights set
forth above, if the Holder(s) holding at least 25% of the Registrable Securities
request in writing that the Company file a registration statement on Form S-2 or
S-3 (or any successors thereto) ("FOLLOW-ON REGISTRATIONS") for a public
offering of shares of Registrable Securities the reasonably anticipated
aggregate price to the public of which would exceed $1,000,000, and the Company
is entitled to use Form S-2 or S-3 to register securities for such an offering,
the Company shall use its best efforts to effect such registration (including,
without limitation, filing post-effective amendments, appropriate qualifications
under applicable blue sky or other state securities laws, and appropriate
compliance with the Securities Act). The Company will promptly give written
notice of the request for the proposed registration to all other Holders and
include all Registrable Securities of any Holder or Holders joining in such
request as are specified in a written request received by the Company within 30
days after receipt of such written notice from the Company. The written request
of a Holder may specify that all or part of such Holder's Registrable Securities
will be included in such registration. If the Follow-On Registration is for an
underwritten offering, the provisions of Section 5(b) shall apply to such
registration. The rights of the Holders pursuant to this Section 9 shall
terminate after the Company has effected two such Follow-On Registrations
pursuant to this Section 9.
10. Termination of Registration Rights. The registration rights
granted pursuant to this Agreement shall terminate as to any Holder, at such
time after the Company's initial public offering as such Holder is able to sell
all Registrable Securities held by it in a single three-month period pursuant to
Rule 144 promulgated under the Securities Act.
11. Lock-up Agreement. In consideration for the Company agreeing to
its obligations under this Agreement each Holder of Registrable Securities and
each transferee pursuant to Section 15 hereof agrees, in connection with the
first registration of the Company's securities, 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,
or otherwise dispose of any Registrable Securities (other than those included in
the registration) without the prior written consent of the Company or such
underwriters, as the case may be, for 180 days from the effective date of such
registration; provided, however, that all executive officers, directors and 2%
or greater shareholders of the Company must enter into similar lock-up
agreements as well. Each Holder agrees that the Company may instruct its
transfer agent to place stop transfer notations in its records to enforce the
provisions of this Section 11.
12. Indemnification.
(a) The Company will indemnify each Holder, each of its
officers, directors and partners, members, legal counsel, accountants and each
person controlling such Holder within the meaning of Section 15 of the
Securities Act, with respect to which registration, qualification or compliance
has been effected pursuant to this Agreement, and each underwriter, if any, and
each person who controls any underwriter within the meaning of Section 15 of the
Securities Act, against all expenses, claims, losses, damages and liabilities
(or actions in respect thereof), including any of
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the foregoing incurred in settlement of any litigation, 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, not misleading, or any violation by
the Company of the Securities Act or any rule or regulation promulgated
thereunder applicable to the Company and relating to action or inaction required
of the Company in connection with any such registration, qualification or
compliance, and will reimburse each such Holder, each of its officers,
directors, partners and members 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; 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 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 not misleading, and will reimburse
the Company, such Holders, such directors, officers, 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, 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, however, that the obligations of such
Holder hereunder shall not apply to amounts paid in settlement of any such
claims, losses, damages or liabilities (or actions in respect thereof) if such
settlement is effected without the consent of such Holder; and provided further
that the obligations of each such Holder hereunder shall be limited to an amount
equal to the net proceeds after expenses and commissions to such Holder from
Registrable Securities sold in such offering.
(c) Each party entitled to indemnification under this Section
12 (the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity
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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
be unreasonably withheld), and the Indemnified Party may participate in such
defense at such party's expense; and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Agreement, except to the
extent, but only to the extent, that the Indemnifying Party's ability to defend
against such claim or litigation is impaired as a result of such failure to give
notice. No Indemnifying Party, in the defense of any such claim or litigation,
shall, except with the consent of each Indemnified Party, consent to entry of
any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation.
13. 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 and the distribution proposed by
such Holder or Holders as the Company may request in writing and as shall be
reasonably required in connection with any registration, qualification or
compliance referred to in this Agreement.
14. 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, the
Company agrees 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 of the first registration under the Securities Act
filed by the Company for an offering of its securities to the general public;
(b) file with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), at any time
after it has become subject to such reporting requirements; and
(c) so long as any of the Holders owns Restricted Securities,
furnish to Holders of Registrable Securities forthwith upon written request, a
written statement by the Company as to its compliance with the reporting
requirements of Rule 144 (at any time after 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 Securities Act and the Exchange
Act (at any time after it has become subject to such reporting requirements), a
copy of the most recent annual or quarterly report of the Company, and such
other reports and documents of the Company as a Holder of Restricted Securities
may reasonably request in availing itself of any rule or regulation of the
Commission allowing such Holder to sell any such securities without
registration.
15. Transfer of Registration Rights. The right to cause the Company to
register securities granted hereunder may be assigned by a Holder to a
transferee or assignee who acquires the lesser of
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(i) all of such Holder's Registrable Securities or (ii) 50,000 shares of
Registrable Securities (as adjusted for stock splits, stock dividends and the
like); provided that, the Company is given written notice of such assignment at
the time of or within a reasonable time after said transfer or assignment, and
the transferee agrees in writing to be bound by the provisions of this Agreement
regarding the right to register securities. Notwithstanding the foregoing, the
rights to cause the Company to register securities may be freely assigned (a) to
any constituent partner or retired partner of a Holder, where such Holder is a
partnership, (b) to any affiliate (as that term is defined in Rule 405
promulgated by the Commission under the Securities Act) of a Holder, (c) to any
officer, director, principal shareholder or member thereof, where such Holder is
a corporation or limited liability company or (d) to the spouse, children,
grandchildren or spouse of such children or grandchildren of any Holder or to
trusts for the benefit of any Holder or such persons where the Holder is a
natural person, provided that written notice thereof is promptly given to the
Company and that the transferee agrees to be bound by the provisions of this
Agreement.
16. Subsequent Grant of Registration Rights. The Company shall not
grant rights to have securities other than the Registrable Securities registered
under the Securities Act that are more favorable to the registration rights
granted herein without the written consent of the holders of a majority of the
Registrable Securities.
17. Basic Financial Information. The Company will furnish the
following reports to each holder of Series A Preferred then holding shares of
Series A Preferred or Common Stock equal to 5% or more of the total outstanding
capital stock of the Company (each being a "SIGNIFICANT HOLDER"), assuming full
conversion of the Series A Preferred:
(a) As soon as practicable after the end of each fiscal year of
the Company, and in any event within 90 days thereafter, a consolidated balance
sheet of the Company and its subsidiaries, if any, as at the end of such fiscal
year, and consolidated statements of income and cash flows of the Company and
its subsidiaries, if any, for such year, prepared in accordance with generally
accepted accounting principles consistently applied, all in reasonable detail
and audited by an independent public accountant of recognized national standing
selected by the Company.
(b) As soon as practicable after the end of each month and in any
event within 30 days thereafter, a consolidated balance sheet of the Company and
its subsidiaries, if any, as of the end of each monthly period, and consolidated
statements of income and cash flows of the Company and its subsidiaries for such
period, prepared in accordance with generally accepted accounting principles
consistently applied, subject to changes resulting from year-end audit
adjustments and the absence of notes, all in reasonable detail and certified by
the principal financial or accounting officer of the Company.
(c) Not less than 30 days before the end of each fiscal year, an
annual financial plan of the Company, which financial plan shall have been
approved by the Board of Directors and shall provide each Significant Holder
with the Company's projections of its monthly financial statements for the
forthcoming fiscal year.
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15
(d) As soon as practicable after the end of each month, an executive
summary of the activities of the Company including, without limitation,
marketing, financial, product development and support and other material
activities.
(e) The rights to basic financial information set forth in this
Section 17 may be transferred to any person acquiring from a Significant Holder
a number of shares of Series A Preferred equal to 5% or more of the total
outstanding capital stock of the Company (as adjusted for stock splits and like
events) provided that the transferred Series A Preferred is not transferred to
an unaffiliated third party who is an actual competitor of the Company in the
reasonable judgment of the Company.
(f) Each Series A Holder agrees that any information obtained
by such Series A Holder pursuant to this Section 17 which the Company identifies
in writing to be proprietary or otherwise confidential will not be disclosed
without the prior written consent of the Company; provided, however, that a
Series A Holder may reasonably disclose such information without the prior
written consent of the Company if: (A) such information is or becomes generally
available to the public other than as a result of a disclosure by such Series A
Holder or its agent; (B) such information was in the possession of such Series A
Holder prior to receiving it from the Company; (C) such information becomes
available to such Series A Holder on a non-confidential basis from a source
other than the Company and the Series A Holder does not know or reasonably
suspect that the provider of such information was violating a confidentiality
agreement with the Company or its agents; or (D) the disclosure of such
information is required by law. Each Series A Holder further acknowledges and
understands that any information so obtained which may be considered "inside"
non-public information will not be utilized by such Series A Holder in
connection with purchases and/or sales of the Company's securities except in
compliance with applicable state and federal anti-fraud statutes.
18. Visitation and Observer Rights. In addition to any rights of
inspection afforded stockholders by statute or otherwise, the Company shall
permit each Significant Holder 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 times as may be requested
by the Significant Holder.
19. Rights of First Offer. The Company hereby grants to each Series A
Holder and Founder (individually, an "OFFEREE;" collectively, the "OFFEREES")
who owns any shares of Series A Preferred or Common Stock, the right of first
offer to purchase a pro rata share of New Securities (as defined in this Section
19) which the Company may, from time to time, propose to sell and issue. Each
Offeree's pro rata share, for purposes of this right of first offer, is the
ratio of the number of shares of Common Stock owned by such Offeree immediately
prior to the issuance of New Securities, assuming full conversion of the Series
A Preferred and exercise of all outstanding rights, options and warrants held by
said Series A Holder or Founder, to the total number of shares of Common Stock
outstanding immediately prior to the issuance of New Securities, assuming full
conversion of all outstanding Series A Preferred and exercise of all outstanding
rights, options and warrants to acquire Common Stock of the Company. Each
Offeree shall have a right of over-
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16
allotment such that if any Offeree fails to exercise its right hereunder to
purchase its pro rata share of New Securities, the other Offerees may purchase
the non-purchasing Offeree's portion on a pro rata basis within twenty (20) days
from the date such non-purchasing Offeree fails to exercise its right hereunder
to purchase its pro rata share of New Securities. This right of first offer
shall be subject to the following provisions:
(a) "NEW SECURITIES" shall mean any Common Stock and Preferred
Stock of the Company whether or not authorized on the date hereof, and rights,
options, or warrants to purchase Common Stock or Preferred Stock and securities
of any type whatsoever that are, or may become, convertible into Common Stock or
Preferred Stock; provided, however, that "New Securities" does not include the
following:
(i) shares of Common Stock, or options to purchase
shares of Common Stock, issued or granted to officers, directors and employees
of, or consultants to, the Company or its subsidiaries pursuant to an option
plan or purchase plan or other stock incentive program (collectively, the
"PLANS") approved by the Board of Directors, including the approval of a
majority of the representatives of the Series A Holders;
(ii) shares of Common Stock issued upon conversion of the
Series A Preferred or other outstanding securities as of the date hereof;
(iii) shares of Common Stock of the Company sold in a firm
commitment underwritten public offering pursuant to a registration statement
under the Securities Act, the aggregate proceeds of which are not less than
$15,000,000 at a public offering price of not less than $3.00 per share
(appropriately adjusted for any recapitalizations, stock combinations, stock
dividends, stock splits and the like);
(iv) securities of the Company issued pursuant to an
acquisition approved by the Board of Directors, including the approval of a
majority of the representatives of the Series A Holders, of another corporation
by the Company by merger, purchase of substantially all of the assets, or other
reorganization;
(v) securities of the Company issued in connection with
equipment lease financing transactions or bank financing transactions approved
by the Company's Board of Directors, including the approval of a majority of the
representatives of the Series A Holders which the principal purpose of which is
not to raise equity funding;
(vi) securities issued in connection with transactions
with operating companies approved by the Company's Board of Directors, including
the approval of a majority of the representatives of the Series A Holders,
involving research or development funding, technology licensing or joint
marketing or manufacturing activities; and
(vii) shares of Common Stock or Preferred Stock issued in
connection with any stock split, stock dividend, or recapitalization by the
Company.
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17
(b) In the event that the Company proposes to undertake an
issuance of New Securities, it shall give each Offeree written notice of its
intention, describing the type of New Securities, the price, and the general
terms upon which the Company proposes to issue the same. Each Offeree shall have
thirty (30) business days after receipt of such notice to agree to purchase its
pro rata share of such New Securities at the price and upon the terms specified
in the notice by giving written notice to the Company and stating therein the
quantity of New Securities to be purchased. Such Offeree's obligation to
purchase such New Securities under this Section 19 will be contingent upon the
completion of the issuance of the New Securities substantially in the form as
provided in the written notice.
(c) The Company shall have sixty (60) days after the thirty
(30) business days specified above to sell (or enter into an agreement pursuant
to which the sale of New Securities covered thereby shall be closed, if at all,
within thirty (30) days from the date of said agreement) the New Securities
respecting which the rights of the Offerees were not exercised (or which were
not subject to a right of first offer) at a price and upon terms no more
favorable to the purchasers thereof than specified in the Company's notice. In
the event the Company has not sold the New Securities within such sixty (60) day
period (or sold and issued New Securities in accordance with the foregoing
within thirty (30) days from the date of such agreement) the Company shall not
thereafter issue or sell any New Securities, without first offering such New
Securities to the Offerees in the manner provided above.
(d) Expiration. The Right of First Offer granted under this
Section 19 shall expire upon the first sale of Common Stock in a bona fide, firm
commitment underwriting pursuant to a registration statement under the
Securities Act, the public offering of which is not less than $3.00 per share
(appropriately adjusted for any recapitalizations, stock combinations, stock
dividends, stock splits and the like) and for an aggregate offering price, net
of underwriters' discounts and commissions, of more than $15,000,000.
(e) Assignability. This Right of First Offer is nonassignable
except to any transferee to whom registration rights may be transferred pursuant
to Section 15 of this Agreement.
20. Right of First Refusal.
(a) The Right. In the event a Holder of Series A Preferred
proposes to sell, assign, pledge or in any manner transfer any of the Series A
Preferred or any right or interest therein, whether voluntarily or by operation
of law, or by gift or otherwise (a "SELLER"), to one (1) or more unaffiliated
third parties in a transaction not registered under the Securities Act, then
such Seller shall first grant the other Holders of Series A Preferred (the
"NONSELLING HOLDERS") the right to purchase all or any part of such securities
(the "OFFERED SECURITIES") on the same terms as such Seller is willing to sell
or otherwise transfer the Offered Securities to such third parties and then, to
the extent such Nonselling Holders do not fully exercise their rights with
respect to the Offered Securities, to the Company. In the event of a gift,
property settlement or other transfer in which the proposed transferee is not
paying the full price for the shares, the price payable by the purchasing
Holders and/or the Company (or its designee) (collectively, the "PURCHASING
PARTIES ") shall be
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18
deemed to be the fair market value of the securities at such time, as reasonably
determined by the Board of Directors in good faith.
(b) Notice of Proposed Transfer. Before any Registrable
Securities held by a Seller may be sold or otherwise transferred, the Seller
shall deliver to the Nonselling Holders and the Company a written notice (the
"TRANSFER NOTICE") stating (i) the Seller's bona fide intention to sell or
otherwise transfer such Registrable Securities; (ii) the name of the proposed
transferee(s); (iii) the number of shares of Registrable Securities to be
transferred to each proposed transferee; and (iv) the bona fide cash price or
other consideration for which the Seller proposes to transfer the Registrable
Securities.
(c) Exercise of Right of First Refusal. The Right of First
Refusal set forth in this Section 20 may be exercised first by each Nonselling
Holder as to any or all of the Offered Securities by giving notice to the Seller
within seven (7) business days of the receipt by such Nonselling Holder of the
Transfer Notice. Each Nonselling Holder shall have a right of over-allotment
such that if any other holder fails to exercise its right hereunder to purchase
its pro rata share of Offered Securities, the other holders may purchase the
non-purchasing holder's portion on a pro rata basis. If the Nonselling Holders
do not exercise their Right of First Refusal as to all of such Offered
Securities within such period, then the Company (or a designee approved by the
Board and identified to the Seller in writing before exercise) may exercise its
Right of First Refusal as to any or all of the remaining Offered Securities,
within thirty (30) days of the expiration of the Nonselling Persons' Right of
First Refusal. If the Company does not exercise its Right of First Refusal
within such period as to all remaining Offered Securities, then the Seller shall
have sixty (60) days thereafter to sell (or enter into an agreement pursuant to
which the sale of Offered Securities covered thereby shall be closed, if at all,
within thirty (30) days from the date of said agreement) the Offered Securities
respecting which the rights of the Nonselling Holders and the Company were not
exercised at a price and upon terms no more favorable to the transferees thereof
than specified in the Transfer Notice. In the event the Seller has not sold the
Offered Securities within such sixty (60) day period (or sold and issued Offered
Securities in accordance with the foregoing within thirty (30) days from the
date of such agreement) the Seller shall not thereafter issue or sell any
Offered Securities, without first offering such Offered Securities to the
Nonselling Holders and the Company in the manner provided above.
(d) Legend. The certificates held by the Series A Holder that
are subject to the Right of First Refusal set forth in this Section 20 shall
have endorsed thereon, in addition to such other legends as required to be
imprinted thereon pursuant to this Agreement or to applicable law, a legend in
substantially the following form:
THE SECURITIES REPRESENTED BY THE CERTIFICATE ARE SUBJECT TO A
RIGHT OF FIRST REFUSAL AND CERTAIN OTHER RESTRICTIONS ON TRANSFER AS SET FORTH
IN AN INVESTORS' RIGHTS AGREEMENT, ENTERED INTO AMONG THE COMPANY, CERTAIN OF
ITS STOCKHOLDERS AND THE REGISTERED HOLDER, A COPY OF WHICH IS ON FILE AT THE
PRINCIPAL OFFICE OF THE COMPANY AND WILL
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19
BE FURNISHED UPON REQUEST TO THE HOLDER OF RECORD OF THE SHARES REPRESENTED BY
THIS CERTIFICATE.
(e) Expiration. The Right of First Refusal granted under this
Section 20 shall expire upon the first sale of the Company's Common Stock to the
public in a bona fide, firm commitment underwriting pursuant to a registration
statement under the Securities Act, the public offering of which is not less
than $3.00 per share (appropriately adjusted for any recapitalizations, stock
combinations, stock dividends, stock splits and the like) and for an aggregate
offering price, net of underwriters' discounts and commissions, of more than
$15,000,000.
(f) Assignability. The Right of First Refusal is not assignable
except to any transferee to whom registration rights may be transferred pursuant
to Section 15 of this Agreement.
(g) Exceptions to Right of First Refusal. The provisions of
this Section 20 shall not apply if the proposed transferee of the Offered
Securities is (A) a partner, active or retired, of a Holder of Registrable
Securities, (B) if the Holder is a corporation, to its stockholders, (C) if the
Holder is a limited liability company, to its members, (D) the estate of any
Holder of Registrable Securities, (E) the spouse, children, grandchildren or
spouse of such children or grandchildren of any Holder or a trust or trusts for
the benefit of any Holder or such persons, or (F) any fund or entity affiliated
with a Holder including any successor funds or follow-on funds related thereto,
upon the request of the appropriate partner or officer of such Holder; provided
that the transferee agrees to be subject to the terms of the Right of First
Refusal set forth in this Section 20.
21. Negative Covenants. Until such time as the Warrant is exercised or
expires pursuant to its terms, the Company shall not, without first obtaining
the unanimous approval (by vote or written consent as provided by law) of the
Company's Board of Directors:
(a) sell, convey, or otherwise dispose of or encumber all or
substantially all of its property or business or merge into or consolidate with
any other corporation (other than a wholly owned subsidiary corporation) or
effect any transaction or series of related transactions in which more than
fifty percent (50%) of the voting power of this corporation is disposed of;
(b) authorize, create or issue, or obligate itself to issue,
any new class or series of stock or any other securities convertible into equity
securities of the Company with rights, preferences or privileges senior to, or
on a parity with, those of the Series A Preferred;
(c) amend or repeal any provision of, or add any provision to,
the Company's Amended and Restated Certificate of Incorporation or Bylaws if
such action would change adversely the preferences, rights, privileges or powers
of, or restrictions provided for the benefit of, the Series A Preferred;
(d) redeem, purchase or otherwise acquire for value (or pay
into or set aside for a sinking fund for such purpose) any share or shares of
Series A Preferred otherwise than by conversion in accordance with the Amended
and Restated Cetificate of Incorporation;
-16-
20
(e) redeem, purchase or otherwise acquire (or pay into or set
aside for a sinking fund for such purpose) any of the Common Stock; provided,
however, that this restriction shall not apply to the repurchase of shares of
Common Stock from employees, officers, directors, consultants or other persons
performing services for the Company or any subsidiary pursuant to agreements
under which the Company has the option to repurchase such shares at cost upon
the occurrence of certain events, such as the termination of employment; or
(f) permit any subsidiary to issue or sell, or obligate itself
to issue or sell, except to the Company or any wholly-owned subsidiary, any
stock of such subsidiary.
22. Governing Law. This Agreement and the legal relations between the
parties arising hereunder shall be governed by and interpreted in accordance
with the laws of the State of Delaware. The parties hereto agree to submit to
the jurisdiction of the federal and state courts of the State of Delaware with
respect to the breach or interpretation of this Agreement or the enforcement of
any and all rights, duties, liabilities, obligations, powers, and other
relations between the parties arising under this Agreement.
23. Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement between the parties regarding the rights provided
herein. Except as otherwise expressly provided herein, the provisions hereof
shall inure to the benefit of, and be binding upon, the successors, assigns,
heirs, executors and administrators of the parties hereto.
24. Notices, etc. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed effectively given
upon delivery to the party to be notified in person, by courier service or by
confirmed facsimile or ten days after deposit with the United States mail, by
registered or certified mail, postage prepaid, addressed (a) if to a Holder, to
such Holder's address set forth on Schedule A hereto, or at such other address
as such Holder shall have furnished to the Company in writing, (b) if to any
other holder of any Registrable Securities, to such address as such holder shall
have furnished the Company in writing, or, until any such holder so furnishes an
address to the Company, then to and at the address of the last holder of such
securities who has so furnished an address to the Company, (c) if to a Founder,
to such Founder's address as set forth in the records of the Company, or (d) if
to the Company, to its address set forth on the signature page of this Agreement
to the attention of the Corporate Secretary, or at such other address as the
Company shall have furnished to the stockholders of the Company.
25. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
26. Amendment. Any provision of this Agreement may be amended, waived
or modified only upon the written consent of (i) the Company, (ii) the holders
of a majority of the Registrable Securities and (iii) with respect to Section 19
or any amendment, waiver or modification which may adversely affect the rights
of the Founders thereunder, a majority-in-interest of the Founders. Any
amendment or modification effected in accordance with this Section shall be
binding upon each Holder of Registrable Securities and the Company. Any
Shareholder may waive any of his or her rights or the Company's obligations
hereunder with respect to such Shareholder without obtaining
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21
the consent of any other person only be a writing signed by such Shareholder.
Any amendment, waiver or modification not effected in accordance with this
Section shall be void.
27. Additional Parties. The parties hereto agree that additional
holders of securities of the Company may, subject only to Section 2.3 of that
certain Series A Purchase Agreement between the Company and the Series A
Holders, be added as parties to this Agreement with respect to any or all
securities of the Company held by them, and shall thereupon be deemed for all
purposes "Series A Holders" hereunder. Any such additional party shall execute a
counterpart of this Agreement, and upon execution by such additional party and
by the Company, shall be considered a Series A Holder for purposes of this
Agreement.
[Remainder of Page Intentionally Left Blank]
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22
IN WITNESS WHEREOF, the undersigned have executed this Investors' Rights
Agreement as of the date first set forth above.
COMPANY:
AIRWEB CORPORATION
a Delaware corporation
By:/s/ ▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name:
Title:
Address:
--------------------------
--------------------------
FOUNDERS:
/s/ ▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------------------
▇▇▇▇ ▇▇▇▇▇
[SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT]
23
IN WITNESS WHEREOF, the undersigned have executed this Investors' Rights
Agreement as of the date first set forth above.
3COM VENTURES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
[SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT]
24
IN WITNESS WHEREOF, the undersigned have executed this Investors' Rights
Agreement as of the date first set forth above.
AETHER OPENSKY INVESTMENTS LLC
By: Aether Technologies International, L.L.C.,
Its Sole Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Manager
[SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT]
25
IN WITNESS WHEREOF, the undersigned have executed this Investors' Rights
Agreement as of the date first set forth above.
WS INVESTMENT COMPANY 99B
By:
--------------------------------------
Name:
Title:
[SIGNATURE PAGE TO INVESTORS' RIGHTS AGREEMENT]
26
SCHEDULE A
SCHEDULE OF HOLDERS
1) 3Com Ventures, Inc.
Address:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy of all notices to:
3Com Corporation
Attention: General Counsel
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
2) Aether OpenSky Investments LLC
Address:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
3) WS Investment Company 99B
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
4) ▇▇▇▇▇ ▇▇▇▇▇▇▇
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
5) ▇▇▇▇▇ ▇▇▇▇▇▇▇
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
27
SCHEDULE A (CONTINUED)
SCHEDULE OF HOLDERS
6) ▇▇▇▇▇ ▇▇▇▇▇
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
7) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
8) ▇▇▇▇▇▇▇ ▇▇
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
9) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
10) ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
