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EXHIBIT 10.8
FIRST VIRTUAL CORPORATION
AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
APRIL 1, 1998
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TABLE OF CONTENTS
PAGE
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1. DEFINITIONS.......................................................... 1
1.1 Certain Definitions........................................... 1
1.2 Restrictions on Transfer...................................... 3
1.3 Requested Registration........................................ 5
1.4 Company Registration.......................................... 7
1.5 Expenses of Registration...................................... 8
1.6 Registration on Form S-3...................................... 9
1.7 Registration Procedures....................................... 9
1.8 Indemnification............................................... 10
1.9 Information by Holder......................................... 12
1.10 Limitations on Subsequent Registration Rights................. 13
1.11 Rule 144 Reporting............................................ 13
1.12 Transfer or Assignment of Registration Rights................. 13
1.13 "Market Stand-Off" Agreement.................................. 13
1.14 Allocation of Registration Opportunities...................... 14
1.15 Delay of Registration......................................... 15
1.16 Termination of Registration Rights............................ 15
2. COVENANTS OF THE COMPANY............................................. 15
2.1 Basic Financial Information................................... 15
2.2 Additional Information and Rights............................. 16
2.3 Termination of Rights................................................ 17
3. MISCELLANEOUS............................................................... 17
3.1 Governing Law................................................. 17
3.2 Successors and Assigns........................................ 17
3.3 Entire Agreement; Amendment; Waiver........................... 17
3.4 Additional Series C Purchasers................................ 17
3.5 Notices, Etc.................................................. 18
3.6 Delays or Omissions........................................... 18
3.7 Rights; Separability.......................................... 18
3.8 Information Confidential...................................... 18
3.9 Titles and Subtitles.......................................... 18
3.10 Counterparts.................................................. 19
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FIRST VIRTUAL CORPORATION
AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
THIS AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT (the "Agreement")
is made and entered into as of April 1, 1998 by and among FIRST VIRTUAL
CORPORATION, a California corporation (the "Company"), and the holders of the
Company's Series A Preferred Stock identified on Exhibit A hereto, the holders
of the Company's Series B Preferred Stock identified on Exhibit B hereto, the
holders of the Company's Series C Preferred Stock identified on Exhibit C
hereto, the holders of the Company's Series C Preferred Stock identified on
Exhibit D hereto (the "Employee Holders"), the purchasers of the Company's
Series D Preferred Stock identified on Exhibit E or Exhibit F hereto (purchasers
identified on Exhibit E or Exhibit F are collectively referred to herein as the
"Purchasers"), and Hambrecht & Quist Guaranty Finance, LLC ("H&Q"), the holder
of a warrant to purchase up to 125,000 shares of the Company's Common Stock (the
"H&Q Shares").
WHEREAS, certain of the shareholders of the Company (the "Shareholders")
hold shares of the Company's Series A Preferred Stock, shares of the Company's
Series B Preferred Stock, shares of the Company's Series C Preferred Stock
and/or shares of the Company's Series D Preferred Stock and possess registration
rights, information rights and other rights pursuant to an Amended and Restated
Investors' Rights Agreement dated as of August 29, 1996, as amended, between the
Company and such Shareholders (the "Prior Agreement"); and
WHEREAS, the Shareholders desire to terminate the Prior Agreement and to
accept the rights created pursuant hereto in lieu of the rights granted to them
under the Prior Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth herein, the Shareholders who are parties to the Prior Agreement hereby
agree that the Prior Agreement shall be superseded and replaced in its entirety
by this Agreement, and the parties hereto further agree as follows:
1. DEFINITIONS.
1.1 CERTAIN DEFINITIONS. As used in this Agreement, the following
terms shall have the meanings set forth below:
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(a) "Commission" shall mean the Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act.
(b) "Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended, or any similar successor federal statute and the rules and
regulations thereunder, all as the same shall be in effect from time to time.
(c) "Holder" shall mean any Investor who holds Registrable
Securities and any holder of Registrable Securities to whom the registration
rights conferred by this Agreement have been transferred in compliance with
Section 1.2 and Section 1.12 hereof.
(d) "Initiating Holders" shall mean any Holder or Holders
who in the aggregate hold not less than thirty-three and one-third percent (33
1/3%) of the outstanding Registrable Securities.
(e) "Investors" shall mean the Purchasers, the Employee
Shareholders, the Shareholders and H&Q.
(f) "Other Stockholders" shall mean persons other than
Holders who, by virtue of agreements with the Company, are entitled to include
securities in certain registrations hereunder.
(g) "Registrable Securities" shall mean (i) shares of
Common Stock issued or issuable pursuant to the conversion of the Shares, (ii)
any Common Stock issued as a dividend or other distribution with respect to, or
in exchange or in replacement of, the Shares referred to in clause (i) above,
(iii) shares of Common Stock issued pursuant to the Company's 1993 Employee,
Consultant and Director Stock Purchase Plan (the "1993 Stock Purchase Plan") to
the extent necessary for such holders to repay any promissory notes to the
Company in connection with an initial public offering of the Company's Common
Stock; and (iv) the H&Q Shares; provided, however, that Registrable Securities
shall not include any shares of Common Stock which have previously been
registered or which have been sold to the public, or which have been sold in a
private transaction in which the transferor's rights under this Agreement are
not assigned.
(h) The terms "register," "registered" and "registration"
shall refer to a registration effected by preparing and filing a registration
statement in compliance with the Securities Act, and the declaration or ordering
of the effectiveness of such registration statement.
(i) "Registration Expenses" shall mean all expenses
incurred by the Company in effecting any registration pursuant to this
Agreement, including, without limitation, all registration, qualification, and
filing fees, printing expenses, escrow fees, fees and disbursements of counsel
for the Company, blue sky fees and expenses, and expenses of any regular or
special audits incident to or required by any such registration, but shall not
include Selling Expenses, fees and disbursements of counsel for the Holders and
the compensation of regular employees of the Company (which shall be paid in any
event by the Company).
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(j) "Regulation S" shall mean Rules 902 through 904 as
promulgated by the Commission under the Securities Act, as such rules may be
amended from time to time, or any similar successor rules that may be
promulgated by the Commission.
(k) "Regulation S Purchasers" shall mean the Purchasers
listed on Exhibit E hereto.
(l) "Restricted Securities" shall mean any Registrable
Securities required to bear one or more of the legends set forth in Section
1.2(a) hereof.
(m) "Rule 144" shall mean Rule 144 as promulgated by the
Commission under the Securities Act, as such Rule may be amended from time to
time, or any similar successor rule that may be promulgated by the Commission.
(n) "Rule 415" shall mean Rule 415 as promulgated by the
Commission under the Securities Act, as such Rule may be amended from time to
time, or any similar successor rule that may be promulgated by the Commission.
(o) "Securities Act" shall mean the Securities Act of
1933, as amended, or any similar federal statute, and the rules and regulations
of the Commission thereunder, all as the same shall be in effect at the time.
(p) "Selling Expenses" shall mean all underwriting
discounts, selling commissions and stock transfer taxes applicable to the sale
of Registrable Securities and fees and disbursements of counsel for any Holder
(other than the fees and disbursements of counsel included in Registration
Expenses.).
(q) "Shares" shall mean the shares of Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock, and Series D
Preferred Stock of the Company.
(r) "U.S. Purchasers" shall mean the Purchasers listed on
Exhibit F hereto.
1.2 RESTRICTIONS ON TRANSFER. Each Holder agrees not to make any
disposition of all or any portion of the Registrable Securities unless and until
the transferee has agreed in writing for the benefit of the Company to be bound
by this Section 1.2, provided and to the extent such Section is then applicable
and:
(i) There is then in effect a registration
statement under the Securities Act covering such proposed disposition and such
disposition is made in accordance with such registration statement; or
(ii) (A) Such Holder shall have notified the
Company of the proposed disposition and shall have furnished the Company with a
detailed statement of the
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circumstances surrounding the proposed disposition, and (B) if reasonably
requested by the Company, such Holder shall have furnished the Company with an
opinion of counsel, reasonably satisfactory to the Company, that such
disposition will not require registration of such shares under the Securities
Act. It is agreed that the Company will not require opinions of counsel for
transactions made pursuant to Rule 144 except in unusual circumstances.
(iii) Notwithstanding the provisions of paragraphs
(i) and (ii) above, no such registration statement or opinion of counsel shall
be necessary for a transfer by a Holder which is (A) a partnership to its
partners or retired partners in accordance with partnership interests, or (B) to
the Holder's family member or trust for the benefit of an individual Holder,
provided that (A) the transfer is in accordance with Regulation S, if
applicable, and (B) the transferee will be subject to the terms of this Section
1.2 to the same extent as if such transferee were an original Holder hereunder.
(a) Each certificate representing Registrable
Securities shall (unless otherwise permitted by the provisions of this
Agreement) be stamped or otherwise imprinted with a legend substantially similar
to the following (in addition to any legend required under applicable state
securities laws and except that the Regulation S legend shall be applied only to
those securities issued to Regulation S Purchasers):
THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD OR TRANSFERRED,
ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER SUCH
ACT OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL OR OTHER
EVIDENCE, SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH
REGISTRATION IS NOT REQUIRED.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
PURSUANT TO REGULATION S OF THE SECURITIES ACT OF 1933 AND MAY NOT BE
SOLD, MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED EXCEPT
IN ACCORDANCE THEREWITH.
(b) 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, at such Holder's expense, of counsel (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.
(c) Each Regulation S Purchaser is aware that the Company
will, and the Company agrees that Company shall, to the extent required by
Regulation S, refuse to register any transfer of the Shares purchased by such
Purchaser that is not made in accordance with Regulation S.
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(d) Any legend endorsed on an instrument pursuant to
applicable state securities laws and the stop-transfer instructions with respect
to such securities shall be removed upon receipt by the Company of an order of
the appropriate blue sky authority authorizing such removal.
1.3 REQUESTED REGISTRATION.
(a) REQUEST FOR REGISTRATION. If the Company shall
receive from Initiating Holders at any time or times not earlier than the
earlier of (i) five years after the date of this Agreement or (ii) one year
after the effective date of the first registration statement filed by the
Company covering an underwritten offering of any of its securities to the
general public, a written request that the Company effect any registration with
respect to all or a part of the Registrable Securities having an aggregate
offering price, net of underwriting discounts and expenses, equal to or
exceeding $10.00 per share of Common Stock (as adjusted for any stock dividends,
combinations or splits with respect to such shares) and the aggregate proceeds
of which (after deduction for underwriter's discounts and expenses related to
the issuance) exceed $10,000,000 the Company will:
(i) promptly give written notice of the proposed
registration to all other Holders; and
(ii) as soon as practicable, use its best efforts
to effect such registration (including, without limitation, filing
post-effective amendments, appropriate qualifications under applicable blue sky
or other state securities laws, and appropriate compliance with the Securities
Act) and as would permit or facilitate the sale and distribution of all or such
portion of such Registrable Securities as are specified in a written request
received by the Company within ten (10) days after such written notice from the
Company is mailed or delivered.
The Company shall not be obligated to effect, or to take any action to
effect, any such registration pursuant to this Section 1.3:
(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 initiated two
such registrations pursuant to this Section 1.3(a) (counting for these purposes
only registrations which have been declared or ordered effective and pursuant to
which securities have been sold and registrations which have been withdrawn by
the Holders as to which the Holders have not elected to bear the Registration
Expenses pursuant to Section 1.5 hereof and would, absent such election, have
been required to bear such expenses);
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(C) During the period starting with the date
sixty (60) days prior to the Company's good faith estimate of the date of filing
of, and ending on a date one hundred eighty (180) days after the effective date
of, a Company-initiated registration; provided that the Company is actively
employing in good faith all reasonable efforts to cause such registration
statement to become effective;
(D) If the Initiating Holders propose to
dispose of shares of Registrable Securities which may be immediately registered
on Form S-3 pursuant to a request made under Section 1.6 hereof;
(E) If the Initiating Holders do not request
that such offering be firmly underwritten by underwriters selected by the
Initiating Holders (subject to the consent of the Company, which consent will
not be unreasonably withheld); or
(F) If the Company and the Initiating
Holders are unable to obtain the commitment of the underwriter described in
clause (E) above to firmly underwrite the offer.
(b) Subject to the foregoing clauses (A) through (F), the
Company shall file a registration statement covering the Registrable Securities
so requested to be registered as soon as practicable after receipt of the
request or requests of the Initiating Holders; provided, however, that if (i) in
the good faith judgment of the Board of Directors of the Company, such
registration would be seriously detrimental to the Company and the Board of
Directors of the Company concludes, as a result, that it is essential to defer
the filing of such registration statement at such time, and (ii) the Company
shall furnish to such Holders a certificate signed by the Chief Executive
Officer of the Company stating that in the good faith judgment of the Board of
Directors of the Company, it would be seriously detrimental to the Company for
such registration statement to be filed in the near future and that it is,
therefore, essential to defer the filing of such registration statement, then
the Company shall have the right to defer such filing (except as provided in
clause (C) above) for a period of not more than one hundred eighty (180) days
after the receipt of the request of the Initiating Holders, and, provided
further, that the Company shall not defer its obligation in this manner more
than once in any twelve-month period.
The registration statement filed pursuant to the request of the
Initiating Holders may, subject to the provisions of Sections 1.3(b) and 1.14
hereof, include other securities of the Company, with respect to which
registration rights have been granted, and may include securities of the Company
being sold for the account of the Company.
(c) UNDERWRITING. The right of any Holder to registration
pursuant to Section 1.3 shall be conditioned upon such Holder's participation in
such underwriting and the inclusion of such Holder's Registrable Securities in
the underwriting (unless otherwise mutually agreed by a majority in interest of
the Initiating Holders and such Holder with respect to such participation and
inclusion) to the extent provided herein. A Holder may elect to include in such
underwriting all or a part of the Registrable Securities such Holder holds.
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(d) PROCEDURES. If the Company shall request inclusion in
any registration pursuant to Section 1.3 of securities being sold for its own
account, or if other persons shall request inclusion in any registration
pursuant to Section 1.3, the Initiating Holders shall, on behalf of all Holders,
offer to include such securities in the underwriting and may condition such
offer on their acceptance of the further applicable provisions of this Section 1
(including Section 1.13). The Company shall (together with all Holders and other
persons proposing to distribute their securities through such underwriting)
enter into an underwriting agreement in customary form with the representative
of the underwriter or underwriters selected for such underwriting by a majority
in interest of the Initiating Holders, which underwriters are reasonably
acceptable to the Company. Notwithstanding any other provision of this Section
1.3, if the representative of the underwriters advises the Initiating Holders in
writing that marketing factors require a limitation on the number of shares to
be underwritten, the number of shares to be included in the underwriting or
registration shall be allocated as set forth in Section 1.14 hereof. If a person
who has requested inclusion in such registration as provided above does not
agree to the terms of any such underwriting, such person shall be excluded
therefrom by written notice from the Company, the underwriter or the Initiating
Holders. Any Registrable Securities or other securities excluded or withdrawn
from such underwriting shall also be withdrawn from such registration. If shares
are so withdrawn from the registration and if the number of shares to be
included in such registration was previously reduced as a result of marketing
factors pursuant to this Section 1.3(d), then the Company shall offer to all
Holders who have retained rights to include securities in the registration the
right to include additional securities in the registration in an aggregate
amount equal to the number of shares so withdrawn, with such shares to be
allocated among such Holders requesting additional inclusion in accordance with
Section 1.14.
1.4 COMPANY REGISTRATION.
(a) If the Company shall determine to register any of
its securities either for its own account or the account of a security holder or
holders exercising their respective demand registration rights (other than
pursuant to Section 1.3 or 1.6 hereof), other than a registration relating
solely to employee benefit plans, or a registration relating solely to a Rule
145 transaction, or a registration on any registration form that does not permit
secondary sales, the Company will:
(i) promptly give to each Holder written notice
thereof; and
(ii) use its best efforts to include in such
registration (and any related qualification under blue sky laws or other
compliance), except as set forth in Section 1.4(b) below, and in any
underwriting involved therein, all the Registrable Securities specified in a
written request or requests, made by any Holder and received by the Company
within ten (10) days after the written notice from the Company described in
clause (i) above is mailed or delivered by the Company. Such written request may
specify all or a part of a Holder's Registrable Securities.
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(b) UNDERWRITING. If the registration of which the Company
gives notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section l.4(a)(i). In such event, the right of any Holder to
registration pursuant to this Section 1.4 shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their securities through such underwriting shall
(together with the Company and the other holders of securities of the Company
with registration rights to participate therein distributing their securities
through such underwriting) enter into an underwriting agreement in customary
form with the representative of the underwriter or underwriters selected by the
Company.
Notwithstanding any other provision of this Section 1.4, if the
representative of the underwriters advises the Company in writing that marketing
factors require a limitation on the number of shares to be underwritten, the
representative may (subject to the limitations set forth below) exclude all
Registrable Securities from, or limit the number of Registrable Securities to be
included in, the registration and underwriting. The Company shall so advise all
Holders of securities requesting registration, and the number of shares of
securities that are entitled to be included in the registration and underwriting
shall be allocated first to the Company for securities being sold for its own
account and thereafter as set forth in Section 1.14. If any person does not
agree to the terms of any such underwriting, such person shall be excluded
therefrom by written notice from the Company or the underwriter. Any Registrable
Securities or other securities excluded or withdrawn from such underwriting
shall also be withdrawn from such registration.
If shares are so withdrawn from the registration or if the number of
shares of Registrable Securities to be included in such registration was
previously reduced as a result of marketing factors, the Company shall then
offer to all persons who have retained the right to include securities in the
registration the right to include additional securities in the registration in
an aggregate amount equal to the number of shares so withdrawn, with such shares
to be allocated among the persons requesting additional inclusion in accordance
with Section 1.14 hereof.
1.5 EXPENSES OF REGISTRATION. All Registration Expenses incurred
in connection with any registration, qualification or compliance pursuant to
Sections 1.4 and 1.6 hereof, and the first two registrations pursuant to Section
1.3 hereof and reasonable fees of one counsel for the selling stockholders in
the case of registrations pursuant to Section 1.3 shall be borne by the Company;
provided, however, that if the Holders bear the Registration Expenses for any
registration proceeding begun pursuant to Section 1.3 and subsequently withdrawn
by the Holders registering shares therein, such registration proceeding shall
not be counted as a requested registration pursuant to Section 1.3 hereof.
Furthermore, in the event that a withdrawal by the Holders is based upon
material adverse information relating to the Company that is different from the
information known or available (upon request from the Company or otherwise) to
the Holders requesting registration at the time of their request for
registration under Section 1.3, such registration shall not be treated as a
counted registration for purposes of Section 1.3 hereof, even though the Holders
do not bear the Registration Expenses for such registration. All Selling
Expenses relating to securities so registered shall be borne by the
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Holders of such securities pro rata on the basis of the number of shares of
securities so registered on their behalf, as shall any other expenses in
connection with the registration required to be borne by the Holders of such
securities.
1.6 REGISTRATION ON FORM S-3.
(a) After its initial public offering, the Company
shall use its best efforts to qualify for registration on Form S-3 or any
comparable or successor form or forms. After the Company has qualified for the
use of Form S-3, in addition to the rights contained in the foregoing provisions
of this Section 1, the Holders of Registrable Securities shall have the right to
request registrations on Form S-3 (such requests shall be in writing and shall
state the number of shares of Registrable Securities to be disposed of and the
intended methods of disposition of such shares by such Holder or Holders),
provided, however, that the Company shall not be obligated to effect any such
registration if (i) the Holders, together with the holders of any other
securities of the Company entitled to inclusion in such registration, propose to
sell Registrable Securities and such other securities (if any) on Form S-3 at an
aggregate price to the public of less than $1,000,000; or (ii) in the event that
the Company shall furnish the certification described in paragraph 1.3(b)(ii)
(but subject to the limitations set forth therein); or (iii) in a given
twelve-month period, the Company has effected one (1) such registration in such
period; or (iv) it is to be effected more than five (5) years after the
Company's initial public offering.
(b) If a request complying with the requirements of
Section 1.6(a) hereof is delivered to the Company, the provisions of Sections
1.3(a) and Section 1.3(b) hereof shall apply to such registration. If the
registration is for an underwritten offering, the provisions of Sections 1.3(c)
and 1.3(d) hereof shall apply to such registration.
1.7 REGISTRATION PROCEDURES. In the case of each registration
effected by the Company pursuant to Section 1, the Company will keep each Holder
advised in writing as to the initiation of each registration and as to the
completion thereof. At its expense, the Company will use its best efforts to:
(a) Keep such registration effective for a period of
one hundred twenty (120) days or until the Holder or Holders have completed the
distribution described in the registration statement relating thereto, whichever
first occurs; provided, however, that (i) such 120-day period shall be extended
for a period of time equal to the period the Holder refrains from selling any
securities included in such registration at the request of an underwriter of
Common Stock (or other securities) of the Company; and (ii) in the case of any
registration of Registrable Securities on Form S-3 which are intended to be
offered on a continuous or delayed basis, such 120-day period shall be extended,
if necessary, to keep the registration statement effective until all such
Registrable Securities are sold, provided that Rule 145, or any successor rule
under the Securities Act, permits an offering on a continuous or delayed basis,
and provided further that applicable rules under the Securities Act governing
the obligation to file a post-effective amendment permit, in lieu of filing a
post-effective amendment that (I) includes any prospectus required by Section
10(a)(3) of the Securities Act or (II) reflects facts or events
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representing a material or fundamental change in the information set forth in
the registration statement, the incorporation by reference of information
required to be included in (I) and (II) above to be contained in periodic
reports filed pursuant to Section 13 or 15(d) of the Exchange Act in the
registration statement;
(b) Prepare and file with the Commission such amendments
and supplements to such registration statement and the prospectus used in
connection with such registration statement as may be necessary to comply with
the provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement;
(c) Furnish such number of prospectuses and other
documents incident thereto, including any amendment of or supplement to the
prospectus, as a Holder from time to time may reasonably request;
(d) 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;
(e) 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;
(f) Otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months, but not more than eighteen
months, beginning with the first month after the effective date of the
Registration Statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act; and
(g) In connection with any underwritten offering pursuant
to a registration statement filed pursuant to Section 1.3 hereof, the Company
will enter into an underwriting agreement in form reasonably necessary to effect
the offer and sale of Common Stock, provided such underwriting agreement
contains customary underwriting provisions and provided further that if the
underwriter so requests the underwriting agreement will contain customary
contribution provisions.
1.8 INDEMNIFICATION.
(a) The Company will indemnify each Holder, each of its
officers, directors and partners, legal counsel, and accountants and each person
controlling such Holder within the meaning of Section 15 of the Securities Act,
with respect to which registration, qualification, or compliance has been
effected pursuant to this Section 1, and each underwriter, if any, and each
person who controls within the meaning of Section 15 of the Securities Act any
underwriter, against all expenses, claims, losses, damages, and liabilities (or
actions, proceedings, or settlements in respect thereof) arising out of or based
on any untrue statement
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(or alleged untrue statement) of a material fact contained in any prospectus,
offering circular, or other document (including any related registration
statement, notification, or the like) incident to any such registration,
qualification, or compliance, or based on any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to make
the statement therein not misleading, or any violation by the Company of the
Securities Act or any rule or regulation thereunder applicable to the Company
and relating to action or inaction required of the Company in connection with
any such registration, qualification, or compliance, and will reimburse each
such Holder, each of its officers, directors, partners, legal counsel, and
accountants and each person controlling such Holder, each such underwriter, and
each person who controls any such underwriter, for any legal and any other
expenses reasonably incurred in connection with investigating and defending or
settling any such claim, loss, damage, liability, or action, provided that the
Company will not be liable in any such case to the extent that any such claim,
loss, damage, liability, or expense arises out of or is based on any untrue
statement or omission based upon written information furnished to the Company by
such Holder or underwriter and stated to be specifically for use therein. It is
agreed that the indemnity agreement contained in this Section 1.8(a) shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability,
or action if such settlement is effected without the consent of the Company
(which consent has not been unreasonably withheld).
(b) Each Holder will, if Registrable Securities held by
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, officers, partners, legal counsel, and accountants and each
underwriter, if any, of the Company's securities covered by such a registration
statement, each person who controls the Company or such underwriter within the
meaning of Section 15 of the Securities Act, each other such Holder and Other
Stockholder, and each of their officers, directors, and partners, and each
person controlling such Holder or Other Stockholder, against all claims, losses,
damages and liabilities (or actions in respect thereof) arising out of or based
on any untrue statement (or alleged untrue statement) of a material fact
contained in any such registration statement, prospectus, offering circular, or
other document, or any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse the Company and such Holders, Other
Stockholders, directors, officers, partners, legal counsel, and accountants,
persons, underwriters, or control persons for any legal or any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability, or action, in each case to the extent, but only
to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular, or other document in reliance upon and in
conformity with written information furnished to the Company by such Holder and
stated to be specifically for use therein provided, however, that the
obligations of such Holder hereunder shall not apply to amounts paid in
settlement of any such claims, losses, damages, or liabilities (or actions in
respect thereof) if such settlement is effected without the consent of such
Holder (which consent shall not be unreasonably withheld); and provided that in
no event shall any indemnity under this Section 1.8 exceed the gross proceeds
from the offering received by such Holder.
11.
14
(c) Each party entitled to indemnification under this
Section 1.8 (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of such
claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or any
litigation resulting therefrom, shall be approved by the Indemnified Party
(whose approval shall not unreasonably be withheld), and the Indemnified Party
may participate in such defense at such party's expense, and provided further
that the failure of any Indemnified Party to give notice as provided herein
shall not relieve the Indemnifying Party of its obligations under this Section
1, to the extent such failure is not prejudicial. No Indemnifying Party, in the
defense of any such claim or litigation, shall, except with the consent of each
Indemnified Party, consent to entry of any judgment or enter into any settlement
that does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnified Party of a release from all liability
in respect to such claim or litigation. Each Indemnified Party shall furnish
such information regarding itself or the claim in question as an Indemnifying
Party may reasonably request in writing and as shall be reasonably required in
connection with defense of such claim and litigation resulting therefrom.
(d) If the indemnification provided for in this Section
1.8 is held by a court of competent jurisdiction to be unavailable to an
Indemnified Party with respect to any loss, liability, claim, damage, or expense
referred to therein, then the Indemnifying Party, in lieu of indemnifying such
Indemnified Party hereunder, shall contribute to the amount paid or payable by
such Indemnified Party as a result of such loss, liability, claim, damage, or
expense in such proportion as is appropriate to reflect the relative fault of
the Indemnifying Party on the one hand and of the Indemnified Party on the other
in connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault of the Indemnifying Party and of the
Indemnified Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Indemnifying Party or by the Indemnified Party and the parties'
relative intent, knowledge, access to information, and opportunity to correct or
prevent such statement or omission.
(e) Notwithstanding the foregoing, to the extent that
the provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
1.9 INFORMATION BY HOLDER. Each Holder of Registrable Securities
shall furnish to the Company such information regarding such Holder and the
distribution proposed by such Holder as the Company may reasonably request in
writing and as shall be reasonably required in connection with any registration,
qualification, or compliance referred to in this Section 1.
12.
15
1.10 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and
after the date of this Agreement, the Company shall not, without the prior
written consent of a majority in interest of the Holders, enter into any
agreement with any holder or prospective holder of any securities of the Company
giving such holder or prospective holder any registration rights the terms of
which are more favorable than the registration rights granted to the Holders
hereunder.
1.11 RULE 144 REPORTING. With a view to making available the
benefits of certain rules and regulations of the Commission that may permit the
sale of the Restricted Securities to the public without registration, the
Company agrees to use its best efforts to:
(a) Make and keep public information regarding the
Company available as those terms are understood and defined in Rule 144 under
the Securities Act, at all times from and after ninety (90) days following the
effective date of the first registration under the Securities Act filed by the
Company for an offering of its securities to the general public;
(b) File with the Commission in a timely manner all
reports and other documents required of the Company under the Securities Act and
the Exchange Act at any time after it has become subject to such reporting
requirements;
(c) So long as a Holder owns any Restricted Securities,
furnish to the Holder forthwith upon written request a written statement by the
Company as to its compliance with the reporting requirements of Rule 144 (at any
time from and after ninety (90) days following the effective date of the first
registration statement filed by the Company for an offering of its securities to
the general public), and of the Securities Act and the Exchange Act (at any time
after it has become subject to such reporting requirements), a copy, of the most
recent annual or quarterly report of the Company, and such other reports and
documents so filed as a Holder may reasonably request in availing itself of any
rule or regulation of the Commission allowing a Holder to sell any such
securities without registration.
1.12 TRANSFER OR ASSIGNMENT OF REGISTRATION RIGHTS. The rights to
cause the Company to register securities granted to a Holder by the Company
under this Section 1 may be transferred or assigned by a Holder only to a
transferee or assignee of not less than 50,000 shares of Registrable Securities
(as presently constituted and subject to subsequent adjustments for stock
splits, stock dividends, reverse stock splits, and the like), provided that the
Company is given written notice at the time of or within a reasonable time after
said transfer or assignment, stating the name and address of the transferee or
assignee and identifying the securities with respect to which such registration
rights are being transferred or assigned, and, provided further, that the
transferee or assignee of such rights assumes in writing the obligations of such
Holder under this Section 1.
1.13 "MARKET STAND-OFF" AGREEMENT. Each Holder hereby agrees
that such Holder shall not offer to sell, contract to sell or otherwise sell,
dispose of, loan, pledge or grant any rights with respect to (collectively, a
"Disposition") any shares of Common Stock, any options or warrants to purchase
any shares of Common Stock or any securities convertible into or exchangeable
for shares of Common Stock of the Company (collectively, "Securities") held by
such Holder (other than those included in the registration) for a period
specified by the representative of the underwriters of Common Stock (or other
securities) of the Company not to exceed one hundred eighty (180) days
following the effective date of a registration statement of the Company filed
under the Securities Act (the "Lock-Up Period"); provided that:
(i) such agreement shall apply only to the Company's first such
registration statement; and
(ii) all Holders and officers and directors of the Company enter
into similar agreements.
The foregoing restriction is expressly agreed to preclude the
holder of the Securities from engaging in any hedging or other transaction that
is designed to or reasonably expected to lead to or result in a Disposition of
Securities during the Lock-Up Period even if such Securities would be disposed
of by someone other than the undersigned. Such prohibited hedging or other
transactions would include, without limitation, any short sale (whether or not
against the box) or any purchase, sale or grant of any right (including without
limitation any put or call option) with respect to any Securities or with
respect to any security (other than a broad-based market basket or index) that
includes, relates to or derives any significant part of its value from
Securities.
Each Holder agrees to execute and deliver such other agreements
as may be reasonably requested by the Company or the underwriter which are
consistent with the foregoing or which are necessary to give further effect
thereto. In addition, if requested by the Company or the representative of the
underwriters of Common Stock (or other securities) of the Company, each Holder
shall provide, within ten (10) days of such request, such information as may be
required by the Company or such representative in connection with the
completion of any public offering of the Company's securities pursuant to a
registration statement filed under the Securities Act. The obligations
described in this Section 1.13 shall not apply to a registration relating
solely to employee benefit plans on Form S-1 or Form S-8 or similar forms that
may be promulgated in the future, or a registration relating solely to a
Commission Rule 145 transaction on Form S-4 or similar forms that may be
promulgated in the future. The Company may impose stop-transfer instructions
with respect to the shares of Common Stock (or other securities) subject to the
foregoing restriction until the end of said one hundred eighty (180) day period.
13.
16
1.14 ALLOCATION OF REGISTRATION OPPORTUNITIES. In any
circumstance in which all of the Registrable Securities and other shares of
Common Stock of the Company (including shares of Common Stock issued or issuable
upon conversion of shares of any currently unissued series of Preferred Stock of
the Company) with registration rights (the "Other Shares") requested to be
included in a registration on behalf of the Holders or other selling
stockholders cannot be so included as a result of limitations of the aggregate
number of shares of Registrable Securities and Other Shares that may be so
included, the number of shares of Registrable Securities and Other Shares that
may be so included shall be allocated among the Holders and other selling
stockholders requesting inclusion of shares pro rata on the basis of the number
of shares of Registrable Securities and Other Shares that would be held by such
Holders and other selling stockholders, assuming conversion; provided, however,
so that such allocation shall not operate to reduce the aggregate number of
Registrable Securities and Other Shares to be included in such registration, if
any Holder or other selling stockholder does not request inclusion of the
maximum number of shares of Registrable Securities and Other Shares allocated to
such person pursuant to the above-described procedure, the remaining portion of
such person's allocation shall be reallocated among those requesting Holders and
other selling stockholders whose allocations did not satisfy their requests pro
rata on the basis of the number of shares of Registrable Securities and Other
Shares which would be held by such Holders and other selling stockholders,
assuming conversion, and this procedure shall be repeated until all of the
shares of Registrable Securities and Other Shares which may be included in the
registration on behalf of the Holders and other selling stockholders have been
so allocated. The Company shall not limit the number of Registrable Securities
to be included in a registration pursuant to this Agreement in order to include
shares held by stockholders with no registration rights or to include founder's
stock or any other shares of stock issued to employees, officers, directors, or
consultants pursuant to the Company's 1993 Stock Purchase Plan except to the
extent necessary for the repayment of promissory notes issued to the Company by
holders of Common Stock issued to such holders under the 1993 Stock Purchase
Plan, or with respect to registrations under
14.
17
Section 1.6 hereof, in order to include in such registration securities
registered for the Company's own account.
1.15 DELAY OF REGISTRATION. No Holder shall have any right to
take any action to restrain, enjoin, or otherwise delay any registration as the
result of any controversy that might arise with respect to the interpretation or
implementation of this Section 1.
1.16 TERMINATION OF REGISTRATION RIGHTS.
(a) Except as set forth in subparagraph (b) below, the
right of any Holder to request registration or inclusion in any registration
pursuant to Section 1.3, 1.4 or 1.6 shall terminate on the closing of the first
Company initiated registered public offering of Common Stock of the Company, if
all shares of Registrable Securities held or entitled to be held upon conversion
by such Holder may immediately be sold under Rule 144 during any 90-day period,
or on such date after the closing of the first Company-initiated registered
public offering of Common Stock of the Company as all shares of Registrable
Securities held or entitled to be held upon conversion by such Holder may
immediately be sold under Rule 144 during any 90-day period.
(b) The provisions of subparagraph (a) shall not apply to
any Holder who owns more than two percent (2%) of the Company's outstanding
stock until the earlier of (i) such time as such Holder owns less than two
percent (2%) of the outstanding stock of the Company, or (ii) the expiration of
three years after the closing of the first registered public offering of Common
Stock of the Company.
2. COVENANTS OF THE COMPANY.
The Company hereby covenants and agrees, so long as any Holder
owns any Registrable Shares, as follows:
2.1 BASIC FINANCIAL INFORMATION. The Company will furnish the
following reports to each Holder:
(a) As soon as practicable after the end of each fiscal
year of the Company, and in any event within ninety (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
and setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail and certified by independent public
accountants of recognized national standing selected by the Company, and a
Company-prepared comparison to the Company's operating plan for such year.
(b) As soon as practicable after the end of the first,
second, and third quarterly accounting periods in each fiscal year of the
Company, and in any event within
15.
18
forty-five (45) days thereafter, a consolidated balance sheet of the Company and
its subsidiaries, if any, as of the end of each such quarterly period, and
consolidated statements of income and cash flows of the Company and its
subsidiaries, if any, for such period and for the current fiscal year to date,
prepared in accordance with generally accepted accounting principles
consistently applied and setting forth in comparative form the figures for the
corresponding periods of the previous fiscal year and to the Company's operating
plan then in effect and approved by its Board of Directors, subject to changes
resulting from normal year-end audit adjustments, all in reasonable detail,
except that such financial statements need not contain the notes required by
generally accepted accounting principles.
2.2 ADDITIONAL INFORMATION AND RIGHTS.
(a) The Company will permit any Holder, so long as such
Holder (or its representative) owns at least 500,000 Shares, or such number of
shares of Common Stock issued upon conversion of 500,000 or more Shares, or any
combination thereof (as presently constituted and subject to subsequent
adjustment for stock splits, stock dividends, reverse stock splits,
recapitalizations and the like) and to each Holder which represents that it is a
"venture capital operating company" for purposes of Department of Labor
Regulation Section 2510.3-101, who requests them (a "Significant Holder") (or a
representative of any Significant Holder) to visit and inspect any of the
properties of the Company, including its books of account and other records (and
make copies thereof and take extracts therefrom), and to discuss its affairs,
finances and accounts with the Company's officers and its independent public
accountants, all at such reasonable times and as often as any such person may
reasonably request.
(b) The Company will deliver to each Significant Holder,
who so requests in writing, annually (and in any event no later than ten (10)
days after adoption by the Board of Directors of the Company) the financial plan
of the Company, in such manner and form as approved by the Board of Directors of
the Company, which financial plan shall include at least a projection of income
and a projected cash flow statement for each month in such fiscal year and a
projected balance sheet as of the end of each fiscal quarter in such fiscal
year. Any material changes in such business plan shall be delivered to each
Significant Holder as promptly as practicable after such changes have been
approved by the Board of Directors of the Company.
(c) The Company will deliver to each Significant Holder,
who so requests in writing, within thirty (30) days after the end of each month,
a consolidated balance sheet of the Company and its subsidiaries, if any, as at
the end of each month, and consolidated statements of income and cash flows of
the Company and its subsidiaries, if any, for such month.
(d) The provisions of Section 2.1 and this Section 2.2
shall not be in limitation of any rights which any Holder or Significant Holder
may have with respect to the books and records of the Company and its
subsidiaries, or to inspect their properties or discuss their affairs, finances
and accounts, under the laws of the jurisdictions in which they are
incorporated.
16.
19
(e) Anything in Section 2 to the contrary notwithstanding,
no Holder or Significant Holder by reason of this Agreement shall have access to
any trade secrets or classified information of the Company. Each Significant
Holder hereby agrees to hold in confidence and trust and not to misuse or
disclose any confidential information provided pursuant to this Section 2.2. The
Company shall not be required to comply with this Section 2.2 in respect of any
Holder whom the Company reasonably determines to be a competitor or an officer,
employee, director or greater than 10% stockholder of a competitor. For purposes
of this Section 2.2, AT&T Venture Company, L.P. ("AT&T Ventures") shall not be
considered a competitor of the Company; provided, however, that AT&T Ventures
hereby agrees not to disclose any confidential information of the Company to any
other person or entity.
(f) Each Holder who represents to the Company that such
Holder is a "venture capital operating company" for purposes of Department of
Labor Regulation Section 2510.3-101 shall in addition have the right to consult
with and advise the officers of the Company as to the management of the Company.
2.3 TERMINATION OF RIGHTS. In lieu of the rights granted to
Holders under Section 2.2 of this Agreement, from the date the Company becomes
subject to the reporting requirements of the Exchange Act, the Company will
provide to any Holder who requests such in writing, copies of the Company's
annual reports on Form 10-K and quarterly reports on Form 10-Q.
3. MISCELLANEOUS.
3.1 GOVERNING LAW. This Agreement shall be governed in all
respects by the laws of the State of California as applied to agreements among
California residents entered into and to be performed entirely within
California.
3.2 SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors and administrators of
the parties hereto.
3.3 ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement
(including the Exhibits hereto) constitutes the full and entire understanding
and agreement between the parties with regard to the subjects hereof and
thereof. Neither this Agreement nor any term hereof may be amended, waived,
discharged or terminated, except by a written instrument signed by the Company
and the holders of at least fifty percent (50%) of the Registrable Securities
and any such amendment, waiver, discharge or termination shall be binding on all
the Holders, but in no event shall the obligation of any Holder hereunder be
materially increased, except upon the written consent of such Holder.
3.4 ADDITIONAL SERIES C PURCHASERS. Any person who has purchased
or who purchases shares of the Company's Series C Preferred Stock pursuant to
the Company's 1996 Employee Stock Purchase Bonus Plan may execute a counterpart
copy of this Agreement and
17.
20
shall thereupon become an "Employee Shareholder" and an "Investor" under this
Agreement, and shall have the rights and obligations of an "Investor" hereunder
and thereunder.
3.5 NOTICES, ETC. All notices and other communications required
or permitted hereunder shall be in writing and shall be mailed by first-class
mail, postage prepaid, sent by facsimile or delivered personally by hand or
nationally or internationally recognized courier (as the case may be) addressed
(a) if to a Holder, as indicated on the list of Holders attached hereto as
Exhibit A, Exhibit B, Exhibit C, Exhibit D, Exhibit E, or Exhibit F or at such
other address or facsimile number as such Holder or permitted assignee shall
have furnished to the Company in writing, or (b) if to the Company, at such
address or facsimile number as the Company shall have furnished to each Holder
in writing. All such notices and other written communications shall be effective
on the date of mailing, facsimile transfer or delivery.
3.6 DELAYS OR OMISSIONS. No delay or omission to exercise any
right, power or remedy accruing to any Holder, upon any breach or default of the
Company under this Agreement shall impair any such right, power or remedy of
such Holder nor shall it be construed to be a waiver of any such breach or
default, or an acquiescence therein, or of or in any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default therefore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or character on
the part of any Holder of any breach or default under this Agreement or any
waiver on the part of any Holder of any provisions or conditions of this
Agreement must be made in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement or by law or otherwise afforded to any Holder, shall be cumulative and
not alternative.
3.7 RIGHTS; SEPARABILITY. Unless otherwise expressly provided
herein, a Holder's rights hereunder are several rights, not rights jointly held
with any of the other Holders. In case any provision of the Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
3.8 INFORMATION CONFIDENTIAL. Each Holder acknowledges that the
information received by such Holder pursuant hereto may be confidential and for
such Holder's use only, and Holder will not use such confidential information in
violation of the Exchange Act or reproduce, disclose or disseminate such
information to any other person (other than its employees or agents having a
need to know the contents of such information, and its attorneys), except in
connection with the exercise of rights under this Agreement, unless the Company
has made such information available to the public generally or such Holder is
required to disclose such information by a governmental body.
3.9 TITLES AND SUBTITLES. The titles of the paragraphs and
subparagraphs of this Agreement are for convenience of reference only and are
not to be considered in construing or interpreting this Agreement.
18.
21
3.10 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
19.
22
IN WITNESS WHEREOF, the parties hereto have executed this Investors'
Rights Agreement effective as of the day and year first above written.
FIRST VIRTUAL CORPORATION
By:___________________________________________
James O. Mitchell, Chief Financial Officer
Address: 3393 Octavius Drive, Suite 102
Santa Clara, CA 95054
Facsimile: (408) 988-7077
20.
23
INVESTORS
ACCEL IV L.P.
By: Accel IV Associates L.P.
Its: General Partner
By:______________________________________
James Swartz, General Partner
Address: One Embarcadero Center
San Francisco, CA 94111
Facsimile: (408) 989-5554
ACCEL INVESTORS '93 L.P.
By:______________________________________
James Swartz, General Partner
One Embarcadero Center
San Francisco, CA 94111
Facsimile: (408) 989-5554
RALPH K. UNGERMANN, TRUSTEE OR ACCEL KEIRETSU L.P.
SUCCESSOR TRUSTEE OF THE RALPH K.
UNGERMANN LIVING TRUST UAD MAY 18, By: Accel Partners & Co., Inc.
1988, AS AMENDED Its: General Partner
Signature:_______________________________ By:______________________________________
James Swartz, General Partner
By: Ralph K. Ungermann, Trustee or
Successor Trustee Address: One Embarcadero Center
San Francisco, CA 94111
Address: 27240 Natoma Road Facsimile: (408) 989-5554
Los Altos Hills, CA 94022
(415) 941-3134
24
ELLMORE C. PATTERSON PARTNERS RICHARD T. PEERY SEPARATE PROPERTY
TRUST
By:______________________________________
Arthur C. Patterson, General Partner By:______________________________________
Richard T. Peery, Trustee
Address: Attn: Arthur C. Patterson
c/o Accel Partners Address: 2560 Mission College Blvd.
One Palmer Square Suite 101
Princeton, NJ 08542 Santa Clara, CA 95054-1291
Facsimile: (609) 683-0384 (408) 988-4893
AT&T VENTURE COMPANY, L.P.
PROSPER PARTNERS
By:______________________________________
Neal M. Douglas
By:______________________________________ General Partner
Carter Sednaoui, Attorney-in-Fact
Address: Building 4 - Suite 235
Address: Attn: G. Carter Sednaoui 3000 Sand Hill Road
c/o Accel Partners Menlo Park, CA 94025
One Palmer Square Facsimile: (415) 854-8083
Princeton, NJ 08542
Facsimile: (609) 683-0384
25
THE GOLDMAN, SACHS GROUP, L.P.
By:_______________________________________
Joseph Gleberman
Title: ___________________________________
Address: 85 Broad Street, 19th Floor
New York, New York 10004
Facsimile: (212) 902-3000
HAMBRECHT & QUIST
GUARANTY FINANCE, LLC
_______________________________________
(signature)
Title: President
_____________________________
26
EXHIBIT A
Number of Shares of
Name Series A Preferred Address
- ---- ------------------- -------
Ralph K. Ungermann, Trustee 900,000 27240 Natoma Road
or Successor Trustee of the Los Altos Hills, CA 94022
Ralph K. Ungermann Living Facsimile: (415) 941-3134
Trust UAD May 18, 1988,
as amended
Kathryn M. Ungermann, 300,000 27240 Natoma Road
Trustee or Successor Trustee Los Altos Hills, CA 94022
of the Kathryn Mason Ungermann Facsimile: (415) 941-3134
Living Trust UAD May 18, 1988,
as amended
Allwyn Sequeira 50,000 18580 Paseo Pueblo
Saratoga, CA 95070
Thomas J. Leffingwell 200,000 3393 Octavius Drive, Suite 102
Santa Clara, CA 95054
Elserino Piol 66,667 10015 Ivrea (TO) Italy
Via G. Jervis, 77
Italy
Providence Investment
Company Limited 66,667 Motte Chambers
St. Heller Jersey
Channel Islands, JE1 1BJ
Andrew Hopper 66,666 Old Addenbrooke Site
240 Trumpington Street
Cambridge CB2 1QA
England
Accel IV L.P. 1,557,200 One Embarcadero Center
Suite 3820
San Francisco, CA 94111
Attn: Mr. James Swartz
27
Number of Shares of
Name Series A Preferred Address
- ---- ------------------- -------
Accel Keiretsu L.P. 32,300 One Embarcadero Center
Suite 3820
San Francisco, CA 94111
Attn: Mr. James Swartz
Accel Investors '93 L.P. 62,900 One Embarcadero Center
Suite 3820
San Francisco, CA 94111
Attn: Mr. James Swartz
Ellmore C. Patterson Partners 37,400 One Palmer Square
Princeton, NJ 08542
Attn: Mr. G. Carter Sednaoui
Prosper Partners 10,200 One Palmer Square
Princeton, NJ 08542
Attn: Mr. G. Carter Sednaoui
John Arrillaga Separate
Property Trust 270,000 c/o Peery/Arrillaga
2560 Mission College Blvd.
Suite 101
Santa Clara, CA 95054-1291
Richard T. Peery Separate
Property Trust 270,000 c/o Peery/Arrillaga
2560 Mission College Blvd.
Suite 101
Santa Clara, CA 95054-1291
GC&H Investments 60,000 One Maritime Plaza
20th Floor
San Francisco, CA 94111-3580
Robert C. Harris, Jr. 20,000 c/o Unterberg Harris
275 Battery Street
29th Floor
San Francisco, CA 94111
David Norman 30,000 16101 Greenwood Road
Monte Sereno, CA 95030
28
EXHIBIT B
Number of Shares of
Name Series B Preferred Address
- ---- ------------------- -------
AT&T Venture Company, L.P. 1,000,000 3000 Sand Hill Road
Building 4 - Suite 235
Menlo Park, CA 94025
Facsimile: (415) 854-8083
Accel IV L.P. 366,400 One Embarcadero Center
Suite 3820
San Francisco, CA 94111
Attn: Mr. James Swartz
Accel Keiretsu L.P. 7,600 One Embarcadero Center
Suite 3820
San Francisco, CA 94111
Attn: Mr. James Swartz
Accel Investors '93 L.P. 14,800 One Embarcadero Center
Suite 3820
San Francisco, CA 94111
Attn: Mr. James Swartz
Ellmore C. Patterson Partners 8,800 One Palmer Square
Princeton, NJ 08542
Attn: Mr. G. Carter Sednaoui
Prosper Partners 2,400 One Palmer Square
Princeton, NJ 08542
Attn: Mr. G. Carter Sednaoui
GC&H Investments 33,333 One Maritime Plaza
20th Floor
San Francisco, CA 94111-3580
David Norman 66,667 16101 Greenwood Road
Monte Sereno, CA 95030
29
Number of Shares of
Name Series B Preferred Address
- ---- ------------------- -------
John Arrillaga Separate 100,000 c/o Peery/Arrillaga
Property Trust 2560 Mission College Blvd.
Suite 101
Santa Clara, CA 95054-1291
Richard T. Peery Separate 100,000 c/o Peery/Arrillaga
Property Trust 2560 Mission College Blvd.
Suite 101
Santa Clara, CA 95054-1291
Allwyn Sequiera 40,000 18580 Paseo Pueblo
Saratoga, CA 95070
Enzo Torresi 33,333 211 Tourney Loop
Los Gatos, CA 95032
Ralph K. Ungermann, Trustee 140,999 27240 Natoma Road
or Successor Trustee of the Los Altos Hills, CA 94022
Ralph K. Ungermann Living Facsimile: (415) 941-3134
Trust UAD May 18, 1988,
as amended
Kathryn M. Ungermann, 33,333 27240 Natoma Road
Trustee or Successor Trustee Los Altos Hills, CA 94022
of the Kathryn Mason Ungermann Facsimile: (415) 941-3134
Living Trust UAD May 18, 1988,
as amended
Mark Berkeland 6,667 389 Bay Street
San Jose, CA 95123
Kanwaldeep S. Bindra 11,000 225 Kansas Way
Fremont, CA 94539
Russell Erikson 6,667 1260 Lorelei Court
Campbell, CA 95008
Heather Gelormini 34,000 915 Oak Lane, #4
Menlo Park, CA 94025
30
Number of Shares of
Name Series B Preferred Address
- ---- ------------------- -------
Diane Guthmann 6,667 5533 Yale Drive
San Jose, CA 95118
Joseph Lacombe 12,000 143 Wyndham Drive
Portola Valley, CA 94028
Thomas J. Leffingwell 20,001 3393 Octavius Drive, Suite 102
Santa Clara, CA 95054
Kathleen Lytle 16,667 3376 Shady Spring Lane
Mountain View, CA 94040
Patricia McBride 3,333 83 S. El Monte Avenue
Los Altos, CA 94022
David G. Norman 60,000 1748 Dorrance Drive
San Jose, CA 95125
Michael Pham 6,667 1987 Autumn Gold Drive
San Jose, CA 95131
Gernot Scheichl 20,000 101 First Street, Suite 273
Los Altos, CA 94022
Douglas W. Tsui 10,000 972 Michelangelo Drive
Sunnyvale, CA 94087
Hemant Vinchure 3,333 1875 Masuda Landing
San Jose, CA 95132
Luen Wuu Wey 23,333 711 Hebrides Way
Sunnyvale, CA 94087
Todd Wilde 12,000 10188 Ridgeway Drive
Cupertino, CA 95014
31
EXHIBIT C
Number of Shares of
Name Series C Preferred Address
- ---- ------------------- -------
AT&T Venture Company, L.P. 75,000 3000 Sand Hill Road
Building 4 - Suite 235
Menlo Park, CA 94025
Facsimile: (415) 854-8083
Accel IV L.P. 114,500 One Embarcadero Center
Suite 3820
San Francisco, CA 94111
Attn: Mr. James Swartz
Accel Keiretsu L.P. 4,625 One Embarcadero Center
Suite 3820
San Francisco, CA 94111
Attn: Mr. James Swartz
Accel Investors '93 L.P. 2,375 One Embarcadero Center
Suite 3820
San Francisco, CA 94111
Attn: Mr. James Swartz
Ellmore C. Patterson Partners 2,750 One Palmer Square
Princeton, NJ 08542
Attn: Mr. G. Carter Sednaoui
Prosper Partners 750 One Palmer Square
Princeton, NJ 08542
Attn: Mr. G. Carter Sednaoui
GC&H Investments 5,625 One Maritime Plaza
20th Floor
San Francisco, CA 94111-3580
John Arrillaga Separate 50,000 c/o Peery/Arrillaga
Property Trust 2560 Mission College Blvd.
Suite 101
Santa Clara, CA 95054-1291
32
Number of Shares of
Name Series C Preferred Address
- ---- ------------------- -------
Richard T. Peery Separate 50,000 c/o Peery/Arrillaga
Property Trust 2560 Mission College Blvd.
Suite 101
Santa Clara, CA 95054-1291
Enzo Torresi 5,000 211 Tourney Loop
Los Gatos, CA 95032
Ralph K. Ungermann, Trustee 75,000 27240 Natoma Road
or Successor Trustee of the Los Altos Hills, CA 94022
Ralph K. Ungermann Living Facsimile: (415) 941-3134
Trust UAD May 18, 1988,
as amended
Robert W. Wilmot and 125,000 Attn: Mary J. Wilmot
Mary J. Wilmot, trustees 10969 Wellworth Avenue
of the Wilmot Living Trust Apartment 312
u/d/t dated April 18, 1995 Westwood, CA 90024
Kanematsu Corporation 125,000 2-1 Shibaura 1-Chome
Minato-Ku, Tokyo 105-05
Bruce A. Wilford and 25,000 935 Eastwood Pl.
Ruth Wilford, Trustees, Los Altos, CA 94022-5022
or the Successor Trustee,
under the Bruce A. and
Ruth Wilford Revocable Living
Trust dated December 9, 1993
James O. Mitchell 25,000 c/o First Virtual Corporation
3393 Octavius Drive
Suite 102
Santa Clara, Ca 95054
Facsimile: (408) 988-7077
33
Number of Shares of
Name Series C Preferred Address
- ---- ------------------- -------
The Goldman, Sachs Group, L.P. 375,000 85 Broad Street, 19th Floor
New York, NY 10004
Farrokh Billimoria 10,000 23 Wield Court
Park Ridge, NJ 07656
Robert C. Harris, Jr . 10,000 c/o Unterberg Harris
275 Battery Street, 29th Floor
San Francisco, CA 94111
Laura K. Arrillaga 12,500 c/o Peery/Arrillaga
2560 Mission College Blvd.
Suite 101
Santa Clara, CA 95054
John Arrillaga, Jr. 12,500 c/o Peery/Arrillaga
2560 Mission College Blvd.
Suite 101
Santa Clara, CA 95054
The Richard T. Peery 25,000 c/o Peery/Arrillaga
1976 Children Trust 2560 Mission College Blvd.
Suite 101
Santa Clara, CA 95054
Jeannette Schirtzinger 2,500 15681 Lomas Lane
Los Gatos, CA 95030
Robert F. Mitro 25,000 20 East Main Street, #47
Los Gatos, CA 95032
Maureen B. Bannister 25,000 20 East Main Street, #47
Los Gatos, CA 95032
Jean-Claude Asscher 21,875 34 Avenue Raphael
75016 Paris
France
Pier Carlo Falotti 40,000 15 Chemin de Vignes
1299 Crans (VD)
Switzerland
34
Number of Shares of
Name Series C Preferred Address
- ---- ------------------- -------
Eric Le Guinniec 5,000 5 Villa des Buttes Chaumont
75019 PARIS
France
35
EXHIBIT D
Name Address
- ---- -------
Kevin Asano 405 Fieldcrest Drive
San Jose, CA 95123
Kanwaldeep S. Bindra 225 Kansas Way
Fremont, CA 94539
Frank Chu 6388 Bancroft Way
San Jose, CA 93129
Russell Erickson 1260 Lorelei Court
Campbell, CA 95008
Bill Gallmeister 16210 Lilac Lane
Los Gatos, CA 95032
Heather Gelormini 915 Oak Lane, #4
Menlo Park, CA 94025
Alan Glowacki 6901 B Rodling Way
San Jose, CA 95138
William Gunter 6579 Cooperage Court
San Jose, CA 95120
Joseph H. Lacombe 143 Wyndham Drive
Portola Valley, CA 94028
Marlis Rossetta, 2117 Bush Street, Flat A
Trustee or Successor Trustee under San Francisco, CA 94115
the Marlis Rossetta Living Trust
U/A/D April 28, 1995
Alan J. McMillan 187 Bryant Street
Palo Alto, CA 94301
Michael Munoz 6921 B. Rodling Way
San Jose, CA 95138
David G. Norman 1748 Dorrance Drive
San Jose, CA 95125
Michael Pham 1987 Autumn Gold Drive
San Jose, CA 95131
36
Name Address
- ---- -------
Ralph K. Ungermann, Trustee or c/o First Virtual Corporation
Successor Trustee of the Ralph K. 3393 Octavius Drive, Suite 102
Ungermann Living Trust ... May 18, Santa Clara, CA 95054
1988
Mike Regli 3393 Octavius Drive, Suite 102
Santa Clara, CA 95054
Andrew Schwartz 4212 17th Street
San Francisco, CA 94114
Douglas W. Tsui 972 Michelangelo Drive
Sunnyvale, CA 94087
Luen-Wuu Wey 711 Hebridges Way
Sunnyvale, CA 94087
Todd Wilde 2335 Amherst Drive
Palo Alto, CA 94024
Bruce Wilford 935 Eastwood Place
Los Altos, CA 94024
37
EXHIBIT E
FIRST CLOSING
Number of Shares of
Name Series D Preferred Address
- ---- ------------------- -------
Jan Abercrombie 12,500 Ringslangweide 63
3437 VD Nieuwegein
The Netherlands
Jean Claude Fino 2,500 4 Villa Cour creuse
92140 CLAMART
France
Serge Feldmann 2,500 9 rue d'Odessa
75014 PARIS
France
Philippe Le Mestreallan 2,500 47 Avenue de la Division LECLERC
92320 CHATILLON
France
Eric Le Guinniec 1,250 5 Villa des Buttes Chaumont
75019 PARIS
France
Jean Claude Asscher 12,500 First Virtual Corporation (France)
c/o Tekelec Airtronic SA
5, rue Carle Vernet
92315 Sevres Cedex
France
Facsimile: 33-1-45072191
Muriel Asscher 12,500 First Virtual Corporation (France)
c/o Tekelec Airtronic SA
5, rue Carle Vernet
92315 Sevres Cedex
France
Facsimile: 33-1-45072191
Mike Carlucci 12,500 14 Chemin De La Mare Close
78240 Chambourcy
France
Facsimile: 33-1-30747229
38
Number of Shares of
Name Series D Preferred Address
- ---- ------------------- -------
Gottfried Haederle 11,174 First Virtual Corporation (UK)
c/o INL
4th Floor, 25 City Road
London
United Kingdom EC1Y 1AA
Facsimile: 44 171 972 0019
Bruce Withington 12,500 First Virtual Corporation (UK)
c/o INL
4th Floor, 25 City Road
London
United Kingdom EC1Y 1AA
Facsimile: 44 171 972 0019
Camilla N. Withington 7,250 First Virtual Corporation (UK)
c/o INL
4th Floor, 25 City Road
London
United Kingdom EC1Y 1AA
Facsimile: 44 171 972 0019
Sohei Mori 1,000 Kanematsu Electronics Ltd.
17-5 Kyobashi 2-chome,
Chuo-ku, Tokyo 104
Japan
Facsmile: 81-3-5250-6178
Ryosuke Ichikawa 1,000 Attn: Sohei Mori
Kanematsu Electronics Ltd.
17-5 Kyobashi 2-chome,
Chuo-ku, Tokyo 104
Japan
Facsmile: 81-3-5250-6178
Almargen Pty Ltd 6,250 Attn: Philip Mellett
17 Bay Street
Brighton, Victoria
Australia 3186
39
Number of Shares of
Name Series D Preferred Address
- ---- ------------------- -------
Insight Computer Systems Pty Ltd 6,250 Attn: Alan Gray
C/- Trevor Dumas Management
Services Pty Ltd
1st Floor, 8 The Highway
Mt Waverley, Victoria 3149
Australia
Facsimile: 011-61-3-96966483
SECOND CLOSING
Number of Shares of
Name Series D Preferred Address
- ---- ------------------- -------
Bob Schuchard 3,750 van Aerssenstraat 124
2582 JS DEN HAAG
The Netherlands
Facsimile: 31-70-350-5108
Koen Gielen 2,500 Miraeusstrat 10
2018 ANTWERPEN
Belgium
Gottfried Haederle 326 First Virtual Corporation (UK)
c/o INL
4th Floor, 25 City Road
London
United Kingdom EC1Y 1AA
Facsimile: 44-171-972-0019
First Virtual (Asia) Ltd. 12,500 17B, 23 Braemar Hill
North Point, Hong Kong
Attn: Ratna Widjaja
40
EXHIBIT F
FIRST CLOSING
Number of Shares of
Name Series D Preferred Address
- ---- ------------------- -------
Edwin A. Rodriguez and
Pamela R. Rodriguez, JTWRS 6,250 12308 Trayside Lane
Saratoga, CA 95070
Facsimile: (408) 255-2993
Joanne Clare Knight 1,375 793 View Street
Mountain View, CA 94041
Facsimile: (415) 960-0433
James O. Mitchell 12,500 3393 Octavius Drive, Suite 102
Santa Clara, CA 95054
Facsimile: (408) 988-7077
SECOND CLOSING
Number of Shares of
Name Series D Preferred Address
- ---- ------------------- -------
KPMG Peat Marwick LLP 12,500 3 Embarcadero Center, 20th Floor
San Francisco, CA 94111
Attn: Allen Holter, Partner
Facsimile: (415) 677-9145
Jinnes Technologies, Inc. 12,500 624 E. Evelyn Ave., Suite F
Sunnyvale, CA 94086
Attn: In Hong Kim
Facsimile: (408) 736-1433