EXHIBIT 4.01
AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
November 15, 1996
TABLE OF CONTENTS
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Page
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1. Registration Rights........................................... 1.
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1.1 Definitions........................................... 1.
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1.2 Request for Registration.............................. 2.
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1.3 Company Registration.................................. 4.
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1.4 Obligations of the Company............................ 4.
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1.5 Furnish Information................................... 5.
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1.6 Expenses of Demand Registration....................... 5.
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1.7 Expenses of Company Registration...................... 6.
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1.8 Underwriting Requirements............................. 6.
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1.9 Delay of Registration................................. 7.
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1.10 Indemnification....................................... 7.
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1.11 Reports Under Securities Exchange Act of 1934......... 9.
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1.12 Form S-3 Registration................................. 9.
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1.13 Assignment of Registration Rights..................... 10.
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1.14 Limitations on Subsequent Registration Rights......... 11.
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1.15 "Market Stand-Off" Agreement.......................... 11.
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1.16 Termination of Registration Rights.................... 12.
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2. Covenants of the Company...................................... 12.
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2.1 Delivery of Financial Statements...................... 12.
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2.2 Special Covenants..................................... 12.
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2.3 Termination of Information and Inspection Covenants... 13.
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2.4 Right of First Offer.................................. 13.
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2.5 Key-Person Insurance.................................. 15.
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2.6 Directors' Expenses................................... 15.
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2.7 Certain Board Approval................................ 15.
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2.8 Confidentiality....................................... 15.
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3. Miscellaneous................................................. 15.
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3.1 Successors and Assigns................................ 15.
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3.2 Governing Law......................................... 15.
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3.3 Counterparts.......................................... 15.
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3.4 Titles and Subtitles.................................. 16.
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3.5 Notices............................................... 16.
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3.6 Expenses.............................................. 16.
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3.7 Amendments and Waivers................................ 16.
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TABLE OF CONTENTS
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Page
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3.8 Severability.......................................... 16.
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3.9 Aggregation of Stock.................................. 16.
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3.10 Entire Agreement; Amendment; Waiver................... 16.
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3.11 Representation........................................ 16.
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3.12 Limitations on Disposition............................ 17.
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SCHEDULE A - Schedule of Investors
SCHEDULE B - Schedule of Stockholders
iii.
AMENDED AND RESTATED
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INVESTORS' RIGHTS AGREEMENT
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THIS AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT is made as of
the 15th day of November, 1996, by and between VeriSign, Inc., a Delaware
corporation (the "Company"), and the investors listed on Schedule A hereto, each
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of which is herein referred to as an "Investor."
RECITALS
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WHEREAS, certain of the Investors hold shares of the Company's Series
A Preferred Stock and/or Series B Preferred Stock and/or Common Stock (the
"Prior Investors") and possess registration rights, information rights, rights
of first refusal, and other rights pursuant to that certain Investor's Rights
Agreement dated February 20, 1996 (the "Prior Rights Agreement");
WHEREAS, certain Investors are parties to the Series C Preferred Stock
Purchase Agreement of even date herewith between the Company and certain of the
Investors (the "Series C Agreement");
WHEREAS, in order to induce the Company to enter into the Series C
Agreement and to induce the Investors who are parties to the Series C Agreement
to invest funds in the Company, the Prior Investors and the Company have agreed
to enter into this Agreement amending and restating the Prior Rights Agreement
in order to govern the rights of the Investors to cause the Company to register
shares of Common Stock and certain other matters as set forth herein;
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth herein, the parties hereto agree as follows:
1. Registration Rights. The Company covenants and agrees as
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follows:
1.1 Definitions. For purposes of this Section 1:
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(a) The term "Act" means the Securities Act of 1933, as
amended.
(b) The term "Form S-3" means such form under the Act as in
effect on the date hereof or any registration form under the Act subsequently
adopted by the SEC
which permits inclusion or incorporation of substantial information by reference
to other documents filed by the Company with the SEC.
(c) The term "Holder" means any person owning or having the
right to acquire Registrable Securities or any assignee thereof in accordance
with Section 1.13 hereof
(d) The term "1934 Act" shall mean the Securities Exchange
Act of 1934, as amended.
(e) The term "register", "registered," and "registration"
refer to a registration effected by preparing and filing a registration
statement or similar document in compliance with the Act, and the declaration or
ordering of effectiveness of such registration statement or document.
(f) The term "Registrable Securities" means (i) the Common
Stock issuable or issued upon conversion of the Series A Preferred Stock, the
Series B Preferred Stock and the Series C Preferred Stock, (ii) any additional
Common Stock of the Company held of record by a Holder and (iii) any Common
Stock of the Company issued as (or issuable upon the conversion or exercise of
any warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of the shares
referenced in (i) and (ii) above, excluding in all cases, however, any
Registrable Securities sold by a person in a transaction in which his rights
under this Section 1 are not assigned. For purposes of Section 1.3 hereof only,
the definition of Registrable Securities shall also include the shares of Common
Stock of the Company set forth on Schedule B attached hereto.
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(g) The number of shares of "Registrable Securities then
outstanding" shall be determined by the number of shares of Common Stock
outstanding which are, and the number of shares of Common Stock issuable
pursuant to then exercisable or convertible securities which are, Registrable
Securities.
(h) The term "SEC" shall mean the Securities and Exchange
Commission.
1.2 Request for Registration.
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(a) If the Company shall receive at any time after the earlier
of (i) January 1, 1997, or (ii) three (3) months after the effective date of the
first registration statement for a public offering of securities of the Company
(other than a registration statement relating either to the sale of securities
to employees of the Company pursuant to a stock option, stock purchase or
similar plan or a SEC Rule 145 transaction), a written request from the Holders
of a majority of the Registrable Securities then outstanding that the Company
file a registration statement under the Act, then the Company shall:
2.
(i) within ten (10) days of the receipt thereof, give
written notice of such request to all Holders; and
(ii) effect as soon as practicable, and in any event within
one hundred twenty (120) days of the receipt of such request, the registration
under the Act of all Registrable Securities which the Holders request to be
registered, subject to the limitations of subsection 1.2(b), within twenty (20)
days of the mailing of such notice by the Company in accordance with Section
3.5.
(b) If the Holders initiating the registration request hereunder
("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 subsection 1.2(a) and the Company
shall include such information in the written notice referred to in subsection
1.2(a). The underwriter will be selected by the Company and shall be reasonably
acceptable to a majority in interest of the Initiating Holders. In such event,
the right of any Holder to include its Registrable Securities in such
registration 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) to the extent provided herein. All Holders
proposing to distribute their securities through such underwriting shall
(together with the Company as provided in subsection 1.4(e)) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting. Notwithstanding any other provision of this
Section 1.2, if the underwriter advises the Initiating Holders in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then the Initiating Holders shall so advise all Holders of
Registrable Securities which would otherwise be underwritten pursuant hereto,
and the number of shares of Registrable Securities that may be included in the
underwriting shall be allocated among all Holders thereof, including the
Initiating Holders, in proportion (as nearly as practicable) to the amount of
Registrable Securities of the Company owned by each Holder; provided, however,
that the number of shares of Registrable Securities to be included in such
underwriting shall not be reduced unless all other securities are first entirely
excluded from the underwriting.
(c) Notwithstanding the foregoing, if the Company shall furnish
to Holders requesting a registration statement pursuant to this Section 1.2, 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 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 taking action
with respect to such filing for a period of not more than one hundred twenty
(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.
3.
(d) In addition, the Company shall not be obligated to effect,
or to take any action to effect, any registration pursuant to this Section 1.2:
(i) After the Company has effected two (2) registrations
pursuant to this Section 1.2 and such registrations have been declared or
ordered effective;
(ii) During the period starting with the date thirty (30)
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
registration subject to Section 1.3 hereof; provided that the Company is
actively employing in good faith all reasonable efforts to cause such
registration statement to become effective; or
(iii) If the Initiating Holders propose to dispose of
shares of Registrable Securities that may be immediately registered on Form S-3
pursuant to a request made pursuant to Section 1.12 below and that may be
effectively marketed by means of the Form S-3 prospectus that the Company
proposes to use.
1.3 Company Registration. If (but without any obligation to do so)
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the Company proposes to register (including for this purpose a registration
effected by the Company for stockholders other than the Holders) any of its
stock or other securities under the Act in connection with the public offering
of such securities solely for cash (other than a registration relating solely to
the sale of securities to participants in a Company stock plan, a registration
on any form which does not include substantially the same information as would
be required to be included in a registration statement covering the sale of the
Registrable Securities or a registration in which the only Common Stock being
registered is Common Stock issuable upon conversion of debt securities which are
also being registered), the Company shall, at such time, promptly give each
Holder written notice of such registration. Upon the written request of each
Holder given within twenty (20) days after mailing of such notice by the Company
in accordance with Section 3.5, the Company shall, subject to the provisions of
Section 1.8, cause to be registered under the Act all of the Registrable
Securities that each such Holder has requested to be registered.
1.4 Obligations of the Company. Whenever required under this
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Section 1 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, upon the request of the Holders
of a majority of the Registrable Securities registered thereunder, keep such
registration statement effective for a period of up to ninety (90) days or until
the distribution contemplated in the Registration Statement has been completed;
provided, however, that such 90-day period shall be extended for a period of
time equal to the period the Holder refrains from selling any securities
included
4.
in such registration at the request of an underwriter of Common Stock (or other
securities) of the Company.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Act with respect to the disposition of all securities covered
by such registration statement.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may reasonably request
in order to facilitate the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders;
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event as a result
of which the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing.
(g) 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.
(h) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereto and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
1.5 Furnish Information.
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(a) It shall be a condition precedent to the obligations of the
Company to take any action pursuant to this Section 1 with respect to the
Registrable Securities of any selling Holder that such Holder shall furnish to
the Company such information
5.
regarding itself, the Registrable Securities held by it, and the intended method
of disposition of such securities as shall be required to effect the
registration of such Holder's Registrable Securities.
(b) The Company shall have no obligation with respect to any
registration requested pursuant to Section 1.2 or Section 1.12 if, due to the
operation of subsection 1.5(a), the number of shares or the anticipated
aggregate offering price of the Registrable Securities to be included in the
registration does not equal or exceed the number of shares or the anticipated
aggregate offering price required to originally trigger the Company's obligation
to initiate such registration as specified in subsection 1.2(a) or subsection
1.12(b), whichever is applicable.
1.6 Expenses of Demand Registration. All expenses other than
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underwriting discounts and commissions (which shall be borne pro rata by the
selling Holders based on the number of Registrable Securities registered by each
such Holder) incurred in connection with registrations, filings or
qualifications pursuant to Section 1.2, including (without limitation) all
registration, filing and qualification fees, printers' and accounting fees, fees
and disbursements of counsel for the Company and the reasonable fees and
disbursements of one counsel for the selling Holders shall be borne by the
Company; provided, however, that the Company shall not be required to pay for
any expenses of any registration proceeding begun pursuant to Section 1.2 if the
registration request is subsequently withdrawn at the request of the Holders of
a majority of the Registrable Securities to be registered (in which case all
participating Holders shall bear such expenses), unless the Holders of a
majority of the Registrable Securities agree to forfeit their right to one
demand registration pursuant to Section 1.2; provided further, however, that if
at the time of such withdrawal, the Holders have learned of a material adverse
change in the condition, business, or prospects of the Company from that known
to the Holders at the time of their request and have withdrawn the request with
reasonable promptness following disclosure by the Company of such material
adverse change, then the Holders shall not be required to pay any of such
expenses and shall retain their rights pursuant to Section 1.2.
1.7 Expenses of Company Registration. The Company shall bear and
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pay all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
pursuant to Section 1.3 for each Holder, including (without limitation) all
registration, filing, and qualification fees, printers and accounting fees
relating or apportionable thereto and the fees and disbursements of one counsel
for the selling Holders, but excluding underwriting discounts and commissions
relating to Registrable Securities (which shall be borne pro rata by the selling
Holders based on the number of Registrable Securities registered by each such
Holder).
1.8 Underwriting Requirements. In connection with any offering
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involving an underwriting of shares of the Company's capital stock, the Company
shall not be required under Section 1.3 to include any of the Holders'
securities in such underwriting unless they accept the terms of the underwriting
as agreed upon between the Company and the
6.
underwriters selected by it (or by other persons entitled to select the
underwriters), and then only in such quantity as the underwriters determine in
their sole discretion will not jeopardize the success of the offering by the
Company. If the total amount of securities, including Registrable Securities,
requested by stockholders to be included in such offering exceeds the amount of
securities sold other than by the Company that the underwriters determine in
their sole discretion is compatible with the success of the offering, then the
Company shall be required to include in the offering only that number of such
securities, including Registrable Securities, which the underwriters determine
in their sole discretion will not jeopardize the success of the offering (the
securities so included to be apportioned pro rata among the selling stockholders
according to the total amount of securities entitled to be included therein
owned by each selling stockholder or in such other proportions as shall mutually
be agreed to by such selling stockholders) but in no event shall (i) the amount
of securities of the selling Holders included in the offering be reduced below
twenty percent (20%) of the total amount of securities included in such
offering, unless such offering is the initial public offering of the Company's
securities in which case the selling stockholders may be excluded if the
underwriters make the determination described above and no other stockholder's
securities are included or (ii) notwithstanding (i) above, any shares being sold
by a stockholder exercising a demand registration right similar to that granted
in Section 1.2 be excluded from such offering. For purposes of the preceding
parenthetical concerning apportionment, for any selling stockholder which is a
holder of Registrable Securities and which is a partnership or corporation, the
partners, retired partners and stockholders of such holder, or the estates and
family members of any such partners and retired partners and any trusts for the
benefit of any of the foregoing persons shall be deemed to be a single "selling
stockholder", and any pro-rata reduction with respect to such "selling
stockholder" shall be based upon the aggregate amount of shares carrying
registration rights owned by all entities and individuals included in such
"selling stockholder" as defined in this sentence.
1.9 Delay of Registration. No Holder shall have any right to
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obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 1.
1.10 Indemnification. In the event any Registrable Securities are
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included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Holder, any underwriter (as defined in the Act) for such
Holder and each person, if any, who controls such Holder or underwriter within
the meaning of the Act or the 1934 Act, against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject under the Act,
or the 1934 Act, insofar as such losses, claims, damages, or liabilities (or
actions in respect thereof) arise out of or are based upon any of the following
statements, omissions or violations (collectively a "Violation"): (i) any untrue
statement or alleged untrue statement of a material fact contained in such
registration statement, including any preliminary prospectus or final prospectus
contained therein or any amendments or
7.
supplements thereto, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the statements
therein not misleading, or (iii) any violation or alleged violation by the
Company of the Act, the 1934 Act, or any rule or regulation promulgated under
the Act, or the 1934 Act; and the Company will pay to each such Holder,
underwriter or controlling person any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability, or action; provided, however, that the indemnity
agreement contained in this subsection 1.10(a) shall not apply to amounts paid
in settlement of any such loss, claim, damage, liability, or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld), nor shall the Company be liable in any such case
for any such loss, claim, damage, liability, or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by any such Holder, underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the Act, any underwriter, any other
Holder selling securities in such registration statement and any controlling
person of any such underwriter or other Holder, against any losses, claims,
damages, or liabilities (joint or several) to which any of the foregoing persons
may become subject, under the Act, or the 1934 Act, insofar as such losses,
claims, damages, or liabilities (or actions in respect thereto) arise out of or
are based upon any Violation, in each case to the extent (and only to the
extent) that such Violation occurs in reliance upon and in conformity with
written information furnished by such Holder expressly for use in connection
with such registration; and each such Holder will pay any legal or other
expenses reasonably incurred by any person intended to be indemnified pursuant
to this subsection 1.10(b), in connection with investigating or defending any
such loss, claim, damage, liability, or action; provided, however, that the
indemnity agreement contained in this subsection 1.10(b) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Holder, which consent
shall not be unreasonably withheld; provided, that, in no event shall any
indemnity under this subsection 1.10(b) exceed the gross proceeds from the
offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 1.10 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 1.10, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
8.
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
1.10 to the extent and only to the extent the failure to timely deliver such
notice has prejudiced the indemnified party's ability to defend such action, but
the omission so to deliver written notice to the indemnifying party will not
relieve it of any liability that it may have to any indemnified party otherwise
than under this Section 1.10.
(d) If the indemnification provided for in this Section 1.10 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage, or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
(e) The obligations of the Company and Holders under this
Section 1.10 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and otherwise.
1.11 Reports Under Securities Exchange Act of 1934. With a view to
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making available to the Holders the benefits of Rule 144 promulgated under the
Act and any other rule or regulation of the SEC that may at any time permit a
Holder to sell securities of the Company to the public without registration or
pursuant to a registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in SEC Rule 144, at all times after ninety (90) days
after the effective date of the first registration statement filed by the
Company for the offering of its securities to the general public;
(b) take such action, including the voluntary registration of
its Common Stock under Section 12 of the 1934 Act, as is necessary to enable the
Holders to utilize Form S-3 for the sale of their Registrable Securities, such
action to be taken as soon as
9.
practicable after the end of the fiscal year in which the first registration
statement filed by the Company for the offering of its securities to the general
public is declared effective;
(c) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the 1934 Act; and
(d) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of SEC Rule 144 (at
any time after ninety (90) days after the effective date of the first
registration statement filed by the Company), the Act and the 1934 Act (at any
time after it has become subject to such reporting requirements), or that it
qualifies as a registrant whose securities may be resold pursuant to Form S-3
(at any time after it so qualifies), (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed by
the Company, and (iii) such other information as may be reasonably requested in
availing any Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration or pursuant to such form.
1.12 Form S-3 Registration. In case the Company shall receive from
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any Holder or Holders a written request or requests that the Company effect a
registration on Form S-3 and any related qualification or compliance with
respect to all or a part of the Registrable Securities owned by such Holder or
Holders, the Company will:
(a) promptly give written notice of the proposed registration,
and any related qualification or compliance, to all other Holders; and
(b) as soon as practicable, effect such registration and all
such qualifications and compliances as may be so requested and as would permit
or facilitate the sale and distribution of all or such portion of such Holder's
or Holders' Registrable Securities as are specified in such request, together
with all or such portion of the Registrable Securities of any other Holder or
Holders joining in such request as are specified in a written request given
within fifteen (15) days after receipt of such written notice from the Company;
provided, however, that the Company shall not be obligated to effect any such
registration, qualification or compliance, pursuant to this Section 1.12: (1) if
Form S-3 is not available for such offering by the Holders; (2) if 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) at an aggregate price to the public (net of any
underwriters' discounts or commissions) of less than $1,000,000; (3) if the
Company shall furnish to the Holders a certificate signed by the President of
the Company stating that in the good faith judgment of the Board of Directors of
the Company, it would be seriously detrimental to the Company and its
stockholders for such Form S-3 Registration to be effected at such time, in
which event the Company shall have the right to defer the filing of the Form S-3
registration statement for a period of not more than 60 days after receipt of
the request of the Holder or Holders under this Section 1.12; provided, however,
that the Company shall not utilize this
10.
right more than once in any twelve month period; (4) if the Company has, within
the twelve (12) month period preceding the date of such request, already
effected two registrations on Form S-3 for the Holders pursuant to this, Section
1.12; or (5) in any particular jurisdiction in which the Company would be
required to qualify to do business or to execute a general consent to service of
process in effecting such registration, qualification or compliance.
(c) Subject to the foregoing, the Company shall file a
registration statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request or requests of the Holders. All expenses incurred in connection with a
registration requested pursuant to this Section 1.12, including (without
limitation) all registration, filing, qualification, printer's and accounting
fees and the reasonable fees and disbursements of one counsel for all selling
Holders and counsel for the Company, but excluding any underwriters' discounts
or commissions associated with Registrable Securities (which shall be borne pro
rata by the selling Holders based on the number of Registrable Securities
registered by each such Holder), shall be borne by the Company. Registrations
effected pursuant to this Section 1.12 shall not be counted as demands for
registration or registrations effected pursuant to Sections 1.2 or 1.3,
respectively.
1.13 Assignment of Registration Rights. The rights to cause the
---------------------------------
Company to register Registrable Securities pursuant to this Section 1 may be
assigned (but only with all related obligations) by a Holder to a transferee or
assignee of such securities, provided: (a) the Company is, within a reasonable
time after such transfer, furnished with written notice of the name and address
of such transferee or assignee and the securities with respect to which such
registration rights are being assigned; (b) such transferee or assignee agrees
in writing to be bound by and subject to the terms and conditions of this
Agreement, including without limitation the provisions of Section 1.15 below;
and (c) such assignment shall be effective only if immediately following such
transfer the further disposition of such securities by the transferee or
assignee is restricted under the Act. For the purposes of determining the number
of shares of Registrable Securities held by a transferee or assignee, the
holdings of transferees and assignees of a partnership who are partners or
retired partners of such partnership (including spouses and ancestors, lineal
descendants and siblings of such partners or spouses who acquire Registrable
Securities by gift, will or intestate succession) shall be aggregated together
and with the partnership; provided that all assignees and transferees who would
not qualify individually for assignment of registration rights shall have a
single attorney-in-fact for the purpose of exercising any rights, receiving
notices or taking any action under this Section 1.
1.14 Limitations on Subsequent Registration Rights. From and after
---------------------------------------------
the date of this Agreement, the Company shall not, without the prior written
consent of the Holders of a majority of the outstanding Registrable Securities,
enter into any agreement with any holder or prospective holder of any securities
of the Company which would allow such holder or prospective holder (a) to
include such securities in any registration filed under Section 1.2 hereof,
unless under the terms of such agreement, such holder or prospective holder may
include such securities in any such registration only to the extent that the
inclusion of its
11.
securities will not reduce the amount of the Registrable Securities of the
Holders which is included or (b) to make a demand registration which could
result in such registration statement being declared effective prior to the
earlier of either of the dates set forth in subsection 1.2(a) or within one
hundred twenty (120) days of the effective date of any registration effected
pursuant to Section 1.2.
1.15 "Market Stand-Off" Agreement. Each Investor hereby agrees that,
----------------------------
during the period of duration specified by the Company and an underwriter of
common stock or other securities of the Company, following the effective date of
a registration statement of the Company filed under the Act, it shall not, to
the extent requested by the Company and such underwriter, directly or indirectly
sell, offer to sell, contract to sell (including, without limitation, any short
sale), grant any option to purchase or otherwise transfer or dispose of (other
than to donees who agree to be similarly bound) any securities of the Company
held by it at any time during such period except common stock included in such
registration; provided, however, that:
(a) such agreement shall not exceed one hundred eighty (180)
days; and
(b) all officers and directors of the Company and all other
persons with registration rights (whether or not pursuant to this Agreement)
enter into similar agreements or the Company imposes stock transfer restrictions
on such person's shares pursuant to the following paragraph.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Registrable Securities of each
Investor (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period.
1.16 Termination of Registration Rights.
----------------------------------
(a) No Holder shall be entitled to exercise any right provided
for in this Section 1 after the earlier of (i) five (5) years following the
consummation of the sale of securities pursuant to a registration statement
filed by the Company under the Act in connection with the initial firm
commitment underwritten offering of its securities to the general public, or
(ii) such time as the Holder can sell all of such stock under Rule 144(k) (or
successor rule) promulgated by the SEC.
2. Covenants of the Company.
------------------------
2.1 Delivery of Financial Statements. The Company shall deliver to
--------------------------------
each Investor who holds a minimum of 50,000 shares of Series A Preferred Stock
and/or Series B Preferred Stock and/or Series C Preferred Stock (subject to
appropriate adjustment for stock splits, stock dividends, combinations and other
recapitalizations):
12.
(a) as soon as practicable, but in any event within ninety (90)
days after the end of each fiscal year of the Company, an income statement for
such fiscal year, a balance sheet of the Company and statement of stockholder's
equity as of the end of such year, and a schedule as to the sources and
applications of funds for such year, such year-end financial reports to be in
reasonable detail, prepared in accordance with generally accepted accounting
principles ("GAAP"), and audited and certified by independent public accountants
of nationally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within thirty (30)
days after the end of each of the first three (3) quarters of each fiscal year
of the Company, an unaudited profit or loss statement, schedule as to the
sources and application of funds for such fiscal quarter and an unaudited
balance sheet and a statement of stockholder's equity as of the end of such
fiscal quarter;
(c) as soon as practicable, but in any event thirty (30) days
prior to the end of each fiscal year, a budget and operating plan for the next
fiscal year, prepared on a monthly basis, including balance sheets and sources
and applications of funds statements for such months and, as soon as prepared,
any other budgets or revised budgets prepared by the Company.
2.2 Special Covenants.
-----------------
(a) The Company shall deliver to each Investor as soon as
practicable, but in any event within thirty (30) days after the end of each of
the first three (3) quarters of each fiscal year of the Company, a statement
showing the number of shares of each class and series of capital stock and
securities convertible into or exercisable for shares of capital stock
outstanding at the end of the period, the number of common shares issuable upon
conversion or exercise of any outstanding securities convertible or exercisable
for common shares and the exchange ratio or exercise price applicable thereto,
all in sufficient detail as to permit such Investor to calculate its percentage
equity ownership in the Company.
(b) The Company shall deliver to each Investor such other
information relating to the financial condition, business, prospects or
corporate affairs of the Company as such Investor or any assignee of such
Investor may from time to time request, provided, however, that the Company
shall not be obligated under this subsection (b) or any other subsection of
Section 2.2 to provide information which it deems in good faith to be a trade
secret or similar confidential information.
(c) The Company shall permit each Investor, at its expense, to
visit and inspect the Company's properties, to examine its books of account and
records and to discuss the Company's affairs, finances and accounts with its
officers, all at such reasonable times as may be requested by such Investor;
provided, however, that the Company shall not be
13.
obligated pursuant to this subsection (c) to provide access to any information
which it reasonably considers to be a trade secret or similar confidential
information.
2.3 Termination of Information and Inspection Covenants. The
---------------------------------------------------
covenants set forth in Sections 2.1, 2.2 and 2.4 shall terminate as to Investors
and be of no further force or effect when the sale of securities pursuant to a
registration statement filed by the Company under the Act in connection with the
firm commitment underwritten offering of its securities to the general public is
consummated. In addition, notwithstanding anything to the contrary in this
Section 2, the Company shall have no obligation to deliver any information
pursuant to the provisions of Section 2.1(c)(i) which the Company believes to be
a trade secret or similar confidential information or (ii) to any Investor whom
the Company's Board of Directors reasonably determines is a direct or indirect
competitor or potential competitor of the Company or any of its affiliated
entities.
2.4 Right of First Offer. Subject to the terms and conditions
--------------------
specified in this Section 2.4, the Company hereby grants to each Investor and to
Mr. Stratton Sclavos (who, solely for purposes of this Section 2.4 shall be
considered an "Investor") a right of first offer with respect to future sales by
the Company of its Shares (as hereinafter defined). For purposes of this Section
2.4, Investor includes any general partners and affiliates of an Investor. An
Investor shall be entitled to apportion the right of first offer hereby granted
it among itself and its partners and affiliates in such proportions as it deems
appropriate.
Each time the Company proposes to offer any shares of, or securities
convertible into or exercisable for any shares of, any class of its capital
stock ("Shares"), the Company shall first make an offering of such Shares to
each Investor in accordance with the following provisions:
(a) The Company shall deliver a notice by registered or
certified mail ("Notice") to the Investors (but need not send a notice to an
Investor's general partners and affiliates) stating (i) its bona fide intention
to offer such Shares, (ii) the number of such Shares to be offered, and (iii)
the price and terms, if any, upon which it proposes to offer such Shares.
(b) Within twenty (20) calendar days after receipt of the
Notice, the Investor may elect to purchase or obtain, at the price and on the
terms specified in the Notice, up to that portion of such Shares which equals
the proportion that the number of shares of Common Stock issued and held, or
issuable upon conversion of the Series A Preferred Stock, Series B Preferred
Stock and Series C Preferred Stock then held by such Investor bears to the total
number of shares of Common Stock of the Company then outstanding (assuming full
conversion of all convertible securities). The Company shall promptly, in
writing, inform each Investor which purchases all the shares available to it
("Fully-Exercising Investor") of any other Investor's failure to do likewise.
During the ten-day period commencing after receipt of such information, each
Fully-Exercising Investor shall be entitled to obtain that portion of the Shares
for which Investors were entitled to subscribe but which were not subscribed for
by the Investors which is equal to the proportion that the number of shares of
Common Stock issued
14.
and held, or issuable upon conversion of Series A Preferred Stock, Series B
Preferred Stock and Series C Preferred Stock then held, by such Fully-Exercising
Investor bears to the total number of shares of Common Stock issued and held, or
issuable upon conversion of the Series A Preferred Stock, Series B Preferred
Stock and Series C Preferred Stock then held, by all Fully-Exercising Investors
who wish to purchase some of the unsubscribed shares.
(c) If all Shares which Investors are entitled to obtain
pursuant to subsection 2.4(b) are not elected to be obtained as provided in
subsection 2.4(b) hereof, the Company may, during the ninety (90)-day period
following the expiration of the period provided in subsection 2.4(b) hereof,
offer the remaining unsubscribed portion of such Shares to any person or persons
at a price not less than, and upon terms no more favorable to the offeree than
those specified in the Notice. If the Company does not enter into an agreement
for the sale of the Shares within such period, or if such agreement is not
consummated within ninety (90) days of the execution thereof, the right provided
hereunder shall be deemed to be revived and such Shares shall not be offered
unless first reoffered to the Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be
applicable (i) to the issuance and sale of the Series C Preferred Stock to be
purchased at the Closing, as defined in the Series C Agreement, (ii) to the
issuance or sale of not to exceed 4,370,000 shares of Common Stock (or options
therefor) to employees, consultants, directors or officers of the Company,
members of advisory boards of the Company, entities of strategic significance to
the Company, or lenders or vendors to the Company (and not repurchased at cost
by the Company in connection with the termination of employment or service
relationship) subsequent to the date of this Agreement, (iii) to securities
offered to the public generally pursuant to a registration statement, (iv) to
the issuance of securities pursuant to the conversion or exercise of convertible
or exercisable securities, (v) to the issuance of securities in connection with
a bona fide business acquisition of or by the Company, whether by merger,
consolidation, sale of assets, sale or exchange of stock or otherwise, or (vi)
to stock issued in connection with any split, stock dividend or recapitalization
by the Company.
(e) The right of first offer set forth in this Section 2.4 may
not be assigned or transferred, except that (i) such right is assignable by each
Investor to any wholly owned subsidiary or parent of, or to any corporation or
entity that is, within the meaning of the Act, controlling, controlled by or
under common control with, any such Investor, (ii) such right is assignable to
an assignee purchasing at least fifty percent (50%) of the outstanding Series A
Preferred Stock, Series B Preferred Stock or Series C Preferred Stock originally
purchased by such Investor and (iii) such right is assignable between and among
any of the Investors.
(f) That certain Right of First Refusal Agreement dated July 26,
1995 between the Company and Mr. Stratton Sclavos is hereby terminated and is
replaced in its entirety by this Section 2.4.
15.
2.5 Key-Person Insurance. As long as any shares of Series A
--------------------
Preferred Stock, Series B Preferred Stock or Series C Preferred Stock remain
outstanding, the Company shall maintain, from financially sound and reputable
insurers, a term life insurance policy in the amount of at least $1,000,000 on
the life of Stratton Sclavos for so long as such individual remains an employee
of the Company. Such policy names the Company as loss payee and shall not be
cancelable by the Company without prior approval of the Board of Directors.
2.6 Directors' Expenses. The Company shall reimburse reasonable
-------------------
out-of-pocket expenses incurred by the Directors in attending Board of
Directors' meetings.
2.7 Certain Board Approval. The Company agrees that it will obtain
----------------------
the Board of Directors' prior approval before entering into any agreement with
RSA Data Security, Inc., a Delaware corporation, which is outside of the
ordinary course of the Company's business and provides for payments to or by the
Company in excess of $25,000.
2.8 Confidentiality. Kleiner Perkins Caulfield & Byers acknowledges
---------------
that any member of the Board of Directors appointed by it shall have the
fiduciary duties applicable to members of the Board of Directors under law with
respect to the information provided under Article 2 of this Agreement.
3. Miscellaneous.
-------------
3.1 Successors and Assigns. Except as otherwise provided herein, the
----------------------
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties (including
transferees of any shares of Registrable Securities). Nothing in this
Agreement, express or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
3.2 Governing Law. This Agreement shall be governed by and construed
-------------
under the laws of the State of California as applied to agreements among
California residents entered into and to be performed entirely within
California.
3.3 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
3.4 Titles and Subtitles. The titles and subtitles used in this
--------------------
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
3.5 Notices. Unless otherwise provided, any notice required or
-------
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon
16.
personal delivery to the party to be notified or five (5) days after deposit
with the United States Post Office, by registered or certified mail, postage
prepaid and addressed to the party to be notified at the address indicated for
such party on the signature page hereof, or at such other address as such party
may designate by ten (10) days' advance written notice to the other parties.
3.6 Expenses. If any action at law or in equity is necessary to
--------
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
3.7 Amendments and Waivers. Any term of this Agreement may be
----------------------
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders of
a majority of the Registrable Securities then outstanding. Any amendment or
waiver effected in accordance with this Section 3.7 shall be binding upon each
holder of any Registrable Securities then outstanding, each future holder of all
such Registrable Securities, and the Company.
3.8 Severability. If one or more provisions of this Agreement are
------------
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
3.9 Aggregation of Stock. All shares of Registrable Securities
--------------------
held or acquired by affiliated entities or persons shall be aggregated together
for the purpose of determining the availability of any rights under this
Agreement.
3.10 Entire Agreement. This Agreement (including the Exhibits
----------------
hereto, if any) constitutes the full and entire understanding and agreement
between the parties with regard to the subjects hereof and thereof.
3.11 Representation. By executing this Agreement, each Investor
--------------
acknowledges and agrees that it has been advised to, and has had an opportunity
to, consult with its own attorney in connection with this Agreement. In
connection with the execution of the Prior Rights Agreement, each Investor
executing same acknowledges and agrees that Brobeck, Phleger & Harrison LLP
represented Kleiner Perkins Caulfield & Byers solely and that each such Investor
had been advised to, and had an opportunity to, consult with its own attorney in
connection with the Prior Rights Agreement.
3.12 Limitations on Disposition. Each Investor agrees not to make any
--------------------------
disposition of any Series A Preferred Stock, Series B Preferred Stock or Series
C Preferred Stock (or any securities issued upon the conversion thereof) unless
and until the transferee has
17.
agreed in writing for the benefit of the Company to be bound by this Section
3.12, provided and to the extent such section is then applicable, and:
(a) There is then in effect a Registration Statement under the
Act covering such proposed disposition and such disposition is made in
accordance with such Registration Statement; or
(b) (i) Such Investor shall have notified the Company of the
proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and (ii) if
reasonably requested by the Company, such Investor 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 Act. It
is agreed that the Company will not require opinions of counsel for transactions
made pursuant to Rule 144 except in unusual circumstances.
(c) Notwithstanding the provisions of paragraphs (a) and (b)
above, no such registration statement or opinion of counsel shall be necessary
for a transfer by an Investor which is a partnership to a partner of such
partnership or a retired partner of such partnership who retires after the date
hereof, or to the estate of any such partner or retired partner or the transfer
by gift, will or intestate succession of any partner to his spouse or to the
siblings, lineal descendants or ancestors of such partner or his spouse, if the
transferee agrees in writing to be subject to the terms of this Section 3.12 to
the same extent as if he were an original Investor hereunder.
(d) Nothing in this Agreement prohibits a party from selling,
assigning, transferring or pledging shares of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock or Common Stock to an affiliate of
such party whether foreign, domestic or otherwise, provided that Section 1.13 is
satisfied.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
18.
This Amendment is hereby executed as of the date first above written.
COMPANY: VERISIGN, INC., a Delaware corporation
By: /s/ Stratton Sclavos
------------------------------------
Stratton Sclavos, President
Address: 2593 Coast Avenue
Mountain View, CA 94043
PRIOR INVESTORS: AMERITECH DEVELOPMENT CORPORATION
By: /s/ Thomas Touton
------------------------------------
Name: Thomas Touton
Title: Vice President - Venture Capital
Address: 30 South Wacker Drive, 37th Floor
Chicago, IL 60606
BESSEMER VENTURE PARTNERS DCI
By: Bessemer Venture Partners III, L.P.
Managing General partner
By: Deer III & Co.
By: /s/ Robert H. Buescher
--------------------------------
Name: Robert H. Buescher
------------------------------
Title: Partner
-----------------------------
Address: 1025 Old Country Road
Suite 205
Westbury, NY 11590
/s/ D. James Bidzos
----------------------------------------
D. James Bidzos
Address: c/o RSA Data Security, Inc.
100 Marine Parkway, Suite 500
Redwood City, CA 94065
FIRST TZMM INVESTMENT PARTNERSHIP
By: /s/ Timothy Tomlinson
-----------------------------------------
Name: Timothy Tomlinson
Title: General Partner
Address: c/o Tomlinson Zisko Morosoli &
Maser LLP
200 Page Mill Road, 2nd Floor
Palo Alto, CA 94306
FISCHER SECURITY CORPORATION L.L.C.
By: /s/ Addison M. Fischer
-----------------------------------------
Name: Addison M. Fischer
----------------------------------
Title: Managing Director
Address: 4073 Mercantile Avenue
Naples, FL 33942
GC&H INVESTMENTS
By: /s/ James C. Kitch
-----------------------------------------
Name: James C. Kitch
----------------------------------
Title: Executive Partner
----------------------------------
Address: 3000 Sand Hill Road
Building 3, Suite 230
Menlo Park, CA 94025
INTEL CORPORATION
By: /s/ Satish Rishi
-----------------------------------------
Name: Satish Rishi
---------------------------------------
Title: Assistant Treasurer
--------------------------------------
[SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS RIGHTS AGREEMENT]
Address: 2200 Mission College Boulevard
Santa Clara, CA 95052
KAIRDOS L.L.C.
By: /s/ D. James Bidzos
---------------------------------------
Name: D. James Bidzos
Title: Manager
Address: c/o D. James Bidzos
RSA Data Security, Inc.
100 Marine Parkway, Suite 500
Redwood City, Ca 94065
KLEINER PERKINS CAULFIELD & BYERS VII
By: /s/ Kevin R. Compton
---------------------------------------
Name: Kevin R. Compton
Title: General Partner
Address: 2750 Sand Hill Road
Menlo Park, CA 94025
KPCB INFORMATION SCIENCE ZAIBATSU FUND II
By: /s/ Kevin R. Compton
---------------------------------------
Name: Kevin R. Compton
Title: General Partner
Address: 2750 Sand Hill Road
Menlo Park, CA 94025
KPCB VII FOUNDERS FUND
By: /s/ Kevin R. Compton
---------------------------------------
Name: Kevin R. Compton
Title: General Partner
[SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS RIGHTS AGREEMENT]
Address: 2750 Sand Hill Road
Menlo Park, CA 94025
MITSUBISHI CORPORATION
By:_______________________________________
Name: Hironori Aihara
Title: Managing Director
Address: 6-3, Marunouchi 2-Chome
Chiyoda-ku, Tokyo 100-86
Japan
/s/ Ronald Rivest
------------------------------------------
Ronald Rivest
Address: 24 Candia Street
Arlington, MA 02174
RSA DATA SECURITY, INC.
By: /s/ D. James Bidzos
---------------------------------------
Name: D. James Bidzos
Title: CEO
Address: 100 Marine Parkway, Suite 500
Redwood City, CA 94065
SECURITY DYNAMICS TECHNOLOGIES, INC.
By: /s/ Charles R. Stuckey
---------------------------------------
Name: Charles R. Stuckey
-------------------------------------
Title: Chairman and CEO
------------------------------------
Address: 20 Crosby Drive
Bedford, MA 01730
TZM INVESTMENT FUND
By: /s/ Timothy Tomlinson
---------------------------------------
[SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS RIGHTS AGREEMENT]
Name: Timothy Tomlinson
Title: General Partner
Address: c/o Tomlinson Zisko Morosoli &
Maser LLP
200 Page Mill Road, 2nd Floor
Palo Alto, CA 94306
VISA INTERNATIONAL SERVICE ASSOCIATION
By: /s/ William Chenevich
---------------------------------------
Name: William Chenevich
--------------------------------
Title: EVP
--------------------------------
Address: c/o Andrew Konstantaras
Legal Department
VISA
900 Metro Center Boulevard
Foster City, CA 94404
Acknowledged and Agreed Solely
with Respect to Section 2.4:
/s/ Stratton Sclavos
- ------------------------------
________________
Stratton Sclavos
Address: 2593 Coast Avenue
Mountain View,
CA 94043
INVESTORS: CISCO SYSTEMS, INC.
By: /s/ Cisco Systems, Inc.
---------------------------------
Name: __________________________
Title: __________________________
Address: 170 West Tasman Drive
[SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS RIGHTS AGREEMENT]
Building J-4
San Jose, CA 95134
Attention: Mike Volpi
MICROSOFT CORPORATION
By: /s/ Gregory B. Maffei
------------------------------------------
Name: Gregory B. Maffei
-----------------------------------
Title: VP Corporate Development; Treasurer
-----------------------------------
Address: One Microsoft Way
Redmond, WA 98052-6399
Attn: Robert A. Eshelman
------------------------------
COMCAST INVESTMENT HOLDINGS, INC.
By: /s/ Julian A. Brodsky
------------------------------------------
Name: Julian A. Brodsky
-----------------------------------
Title: Vice Chairman
-----------------------------------
Address: 1500 Market Street
Philadelphia, PA 19102
Attn: General Counsel
VENTURE FUND I, LP
By: /s/ Neal Douglas
------------------------------------------
Name: Neal Douglas
-----------------------------------
Title: General Partner
-----------------------------------
Address: c/o AT&T Ventures
3000 Sand Hill Road, Bldg. 4,
Suite 235
Menlo Park, CA 94025
Attn: Neal Douglas
INTUIT INC.
[SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS RIGHTS AGREEMENT]
By: /s/ James J. Heeger
------------------------------------------
Name: James J. Heeger
-----------------------------------
Title: SVP/CFO
-----------------------------------
Address: 2535 Garcia Avenue
P. O. Box 7850
Mountain View, CA 94039-7850
Attn: General Counsel
REUTERS NEWMEDIA INC.
By: /s/ Reuters Newmedia Inc.
------------------------------------------
Name: ___________________________________
Title: CFO, Reuters America Holdings Inc.
-----------------------------------
Address: c/o Reuters America Holdings
1700 Broadway
New York, NY 10019
Attn: Devin Wenig, Legal Dept.
FIRST DATA CORPORATION
By: /s/ Scott Loftesness
------------------------------------------
Name: Scott Loftesness
-----------------------------------
Title: Executive Vice President
-----------------------------------
Address: 700 Hansen Way
-----------------------------------
Palo Alto, CA 94304
-----------------------------------
___________________________________
SOUTHBANK VENTURES, INC.
By: /s/ Yoshitaka Kitao
------------------------------------------
Name: Yoshitaka Kitao
[SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS RIGHTS AGREEMENT]
Title: President
Address: 24-1 Nihonbashi-Hakozakicho
Chuo-ku, Tokyo 103
Japan
MERRILL LYNCH GROUP, INC.
By: /s/ Theresa Lang
--------------------------------
Name: Theresa Lang
-------------------------
Title: President
-------------------------
Address: Merrill Lynch & Co., Inc.
World Financial Center
North Tower
280 Vesey Street
New York, NY 10281-1334
Attn: Andrea Lowenthal, Esq.
AMERINDO TECHNOLOGY GROWTH FUND II
By: /s/ Albert W. Vilar
--------------------------------
Name: Albert W. Vilar
-------------------------
Title: Director
-------------------------
Address: c/o Amerindo Investment Advisors
399 Park Avenue, 18th Floor
New York, NY 10022
ATTRACTOR L.P.
By: /s/ Harvey Allison
--------------------------------
Name: Harvey Allison
-------------------------
Title: MM of Attractor Ventures LLC
GD of Attractor
-------------------------
Address: 2730 Sand Hill Road, Suite 280
Menlo Park, CA 94025
[SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS RIGHTS AGREEMENT]
Attn: Harvey Allison
CHANCELLOR LGT ASSET MANAGEMENT
By: /s/ Joan DeSantis
--------------------------------
Name: Joan DeSantis
-------------------------
Title: Nominee Partner
-------------------------
Address: 1166 Avenue of the Americas
New York, NY 10036
Attn: Alessandro Piol
[SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS RIGHTS AGREEMENT]
SCHEDULE A
Schedule of Investors
Number Purchase
Name of shares price
- --------------------------- ------------------- -----------------
Cisco Systems, Inc. 812,500 $6,500,000.00
Microsoft Corporation 812,500 6,500,000.00
Venture Fund I, LP 250,000 2,000,000.00
COMCAST Investment Holdings, Inc. 250,000 2,000,000.00
First Data Corporation 250,000 2,000,000.00
Intuit Inc. 250,000 2,000,000.00
Reuters NewMedia Inc. 250,000 2,000,000.00
SOFTBANK Ventures, Inc. 250,000 2,000,000.00
Merrill Lynch & Co., Inc. 250,000 2,000,000.00
Amerindo Technology Growth Fund II 62,500 500,000.00
Attractor L.P. 62,500 500,000.00
Chancellor LGT Asset Management 62,500 500,000.00
------------------- -----------------
TOTAL: 3,562,500 $28,500,000.00
SCHEDULE D
Schedule of Stockholders
EXHIBIT D
---------
Schedule of Stockholders
------------------------
Series A Preferred Stockholders No. of Shares
- ------------------------------- -------------
Ameritech Development Corporation 452,000
Bessemer Venture Partners DCI 850,000
First TZMM Investment Partnership 23,550
Fischer Security Corporation 425,000
GC&H Investments 33,333
Intel Corporation 850,000
Mistsubishi Corporation 425,000
Security Dynamics Technologies, Inc. 425,000
Visa International Service Association 850,000
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TOTAL 4,306,883
Series B Preferred Stockholders No. of Shares
- ------------------------------- -------------
Kleiner Perkins Caufield & Byers VII 1,153,207
KPCB VII Founders Fund 125,947
KPCB Information Science Zaibatsu III 32,799
Bessemer Venture Partners DCI 187,819
Mitsubishi Corporation 72,026
Security Dynamics Technologies, Inc. 72,026
Intel Corporation 144,052
Ameritech Development Corporation 72,026
GC&H Investments 5,589
Visa International Service Association 144,052
Fischer Security Corporation L.L.C. 72,026
First TZMM Investment Partnership 17,554
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TOTAL 2,099,123
Schedule of Stockholders
Page 2
Common Stockholders No. of Shares
- ------------------- -------------
The Allison A. Zisko 1996 Trust 10,000
Webster Augustine 55,000
Michael Baum 125,000
Bessemer Venture Partners DCI 258,333
D. James Bidzos 125,000
Lynette Covington 2,000
Ethel Daly 140,000
Cheryl Erickson 2,000
Dana L. Evan 135,000
Joni F. Harris 1,000
Hart Enterprises, LLC 500
Interim Services, Inc. 2,500
The Joy E. Tomlinson 1996 Trust 5,000
Kairdos L.L.C. 100,000
Betty J. Kinser 12,000
Lisa Kleissner 1,000
Peter Landrock 6,000
Lynn McNulty 1,000
Ram A. Moskovitz 625
The Natalie L. Zisko 1996 Trust 10,000
Jason Paul 6,250
Ronald Rivest 125,000
RSA Data Security, Inc. 4,000,000
Schedule of Stockholders
Page 3
Common Stockholders (cont'd) No. of Shares
- ---------------------------- -------------
Arn Schaeffer 142,000
Stratton Sclavos 616,000
The Tucker Tomlinson 1996 Trust 5,000
TZM Investment Fund 50,000
Richard Yanovitch 290,000
George Ziemba 125,000
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TOTAL 6,351,208