EXHIBIT 4.1
POINTCAST INCORPORATED
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SEPTEMBER 12, 1997
TABLE OF CONTENTS
PAGE
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SECTION 1. Restrictions on Transferability; Registration Rights................................... 2
1.1 Certain Definitions.......................................................... 2
1.2 Restrictions on Transfer..................................................... 3
1.3 Restrictive Legend........................................................... 4
1.4 Notice of Proposed Transfers................................................. 4
1.5 Requested Registration....................................................... 5
1.6 Company Registration......................................................... 7
1.7 Registration on Form S-3..................................................... 8
1.8 Limitations on Subsequent Registration Rights................................ 9
1.9 Expenses of Registration..................................................... 9
1.10 Registration Procedures...................................................... 10
1.11 Indemnification.............................................................. 11
1.12 Information by Holder........................................................ 12
1.13 Rule 144 Reporting........................................................... 13
1.14 Transfer of Registration Rights.............................................. 13
1.15 Standoff Agreement........................................................... 13
1.16 Termination of Rights........................................................ 14
SECTION 2. Affirmative Covenants of the Company and Holders....................................... 14
2.1 Financial Information........................................................ 14
2.2 Additional Financial Information............................................. 14
2.3 Inspection................................................................... 15
2.4 Assignment of Rights to Financial Information................................ 15
2.5 Proprietary Information Agreement............................................ 15
2.6 Termination of Covenants...................................................... 15
2.7 Right of First Offer.......................................................... 15
2.8 Voting Agreement and Grant of Proxy with Respect to Reorganization
or Sale of Assets Transaction................................................. 17
SECTION 3. Miscellaneous........................................................................... 18
3.1 Assignment.................................................................... 18
3.2 Third Parties................................................................. 18
3.3 Governing Law................................................................. 18
3.4 Counterparts.................................................................. 18
3.5 Notices....................................................................... 18
3.6 Severability.................................................................. 18
3.7 Amendment and Waiver.......................................................... 18
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TABLE OF CONTENTS
(CONTINUED)
PAGE
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3.8 Effect of Amendment or Waiver................................................ 19
3.9 Rights of Holders............................................................ 19
3.10 Delays or Omissions.......................................................... 19
EXHIBIT A Schedule of Investors
EXHIBIT B Irrevocable Proxy
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AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
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THIS AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT (the "Agreement") is
entered into as of the 12th day of September, 1997, by and among PointCast
Incorporated, a California corporation (the "Company"), the persons set forth on
the Schedule of Investors attached hereto as Exhibit A (the "Investors") and,
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with respect to Sections 1.2, 1.6 and 2.8, Christopher R. Hassett and Gregory P.
Hassett (the "Founders") and Lighthouse Capital Partners, L.P. ("Lighthouse").
RECITALS
A. The Company sold and issued to certain of the Investors (the "Series A
Holders") 6,421,385 shares of the Series A Preferred Stock of the Company
pursuant to that certain Series A Preferred Stock Purchase Agreement between the
Company and the Series A Holders dated as of June 3, 1994 (the "Series A
Agreement"); the Company sold and issued to certain of the Investors (the
"Series B Holders") 3,674,446 shares of the Series B Preferred Stock of the
Company pursuant to that certain Series B Preferred Stock Purchase Agreement
between the Company and the Series B Holders dated as of December 7, 1995 (the
"Series B Agreement"); the Company sold and issued to certain investors (the
"Series C Holders") 1,456,554 shares of Series C Preferred Stock of the Company
pursuant to that certain Series C Preferred Stock Purchase Agreement between the
Company and the Series C Holders dated as of February 9, 1996 (the "Series C
Agreement"); the Company sold and issued to certain investors (the "Series D
Holders") 3,810,527 shares of Series D Preferred Stock of the Company pursuant
to that certain Series D Preferred Stock Purchase Agreement between the Company
and the Series D Holders dated as of July 19, 1996 (the "Series D Agreement");
and the Company has issued warrants to purchase an aggregate of 1,052,632 shares
of Series D Preferred Stock (the "Series D Warrants"). Pursuant to that certain
Amended and Restated Investor Rights Agreement dated as of July 19, 1996 (the
"Prior Agreement") the Company granted to such Series A Holders, Series B
Holders, Series C Holders, Series D Holders and Lighthouse certain rights.
B. Pursuant to that certain Series E Preferred Stock Purchase Agreement
of even date herewith (the "Series E Agreement"), the Company has agreed to sell
to certain of the Investors (the "Series E Holders") a total of 2,200,000 shares
of Series E Preferred Stock of the Company and, as an inducement for such Series
E Holders to purchase such shares, the Company, the Series A Holders, the Series
B Holders, the Series C Holders, the Series D Holders and Lighthouse have agreed
to enter into this Agreement to supersede, amend and restate the rights granted
to the Series A Holders, Series B Holders, Series C Holders, Series D Holders
and Lighthouse in the Prior Agreement (all rights of first refusal under
Section 2.8 of such Prior Agreement in respect of the Series E Preferred Stock
hereby being expressly waived).
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties agree as follows:
SECTION 1.
Restrictions on Transferability;
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Registration Rights
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1.1 Certain Definitions. As used in this Agreement, the following terms
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shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission or any
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other federal agency at the time administering the Securities Act.
"Common Stock" means shares of the Company's common stock.
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"Conversion Shares" means the Common Stock issued or issuable upon
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conversion of the Shares.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
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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.
"Holder" shall mean any Investor holding Registrable Securities and
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any person holding Registrable Securities to whom the rights under this
Agreement have been transferred in accordance with Section 1.14 hereof and
Lighthouse. Christopher R. Hassett and Gregory P. Hassett shall be deemed to be
Holders, but only with respect to Sections 1.2, 1.6 and 2.8.
"Initiating Holders" shall mean any Investors, transferees of
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Investors under Section 1.14 hereof or Lighthouse who in the aggregate are
Holders of not less than twenty-five percent (25%) of the Registrable
Securities.
The terms "register," "registered" and "registration" refer to a
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registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registration Expenses" shall mean all expenses incurred by the
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Company in complying with Sections 1.5, 1.6 and 1.7 hereof, including, without
limitation, all registration, qualification and filing fees, printing expenses,
escrow fees, fees and disbursements of counsel for the Company, blue sky fees
and expenses, and the expense of any special audits incident to or required by
any such registration (but excluding the compensation of regular employees of
the Company which shall be paid in any event by the Company).
"Registrable Securities" means the Shares or Conversion Shares or
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other securities issued or issuable with respect to the Shares or Conversion
Shares upon any stock split, stock dividend, recapitalization, or similar event,
or any Common Stock otherwise issued or issuable with
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respect to the Shares or Conversion Shares; provided, however, that shares of
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Common Stock or other securities shall only be treated as Registrable Securities
if and so long as they have not been (A) sold to or through a broker or dealer
or underwriter in a public distribution or a public securities transaction, or
(B) sold in a transaction exempt from the registration and prospectus delivery
requirements of the Securities Act under Section 4(1) thereof so that all
transfer restrictions and restrictive legends with respect thereto are removed
upon the consummation of such sale. The Common Stock held by Christopher R.
Hassett and Gregory P. Hassett shall be deemed Registrable Securities, but only
with respect to a registration effected pursuant to Section 1.6 below.
"Restricted Securities" shall mean the securities of the Company
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required to bear the legend set forth in Section 1.3 hereof.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
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any similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean all underwriting discounts, selling
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commissions and stock transfer taxes applicable to the securities registered by
the Holders and all fees and disbursements of counsel for the Holders (as
limited by Section 1.9).
"Shares" shall mean the shares of Series E Preferred Stock sold to the
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Investors pursuant to the Series E Agreement (whether at the initial closing or
any subsequent closings), the shares of Series D Preferred Stock sold to the
Series D Holders pursuant to the Series D Agreement, the shares of Series C
Preferred Stock sold to the Series C Holders pursuant to the Series C Agreement,
the shares of Series B Preferred Stock sold to the Series B Holders pursuant to
the Series B Agreement, the shares of Series A Preferred Stock sold to the
Series A Holders pursuant to the Series A Agreement, the shares of Series B
Preferred Stock issuable upon exercise of the Lighthouse Warrants, and the
shares of Series D Preferred Stock issuable upon exercise of the Series D
Warrants.
1.2 Restrictions on Transfer. The Shares and the Conversion Shares shall
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not be sold, assigned, pledged or otherwise transferred (collectively,
"Transfer") except upon the conditions specified in this Agreement. Any
permitted purchaser, assignee, transferee or pledgee (collectively , a
"Transferee") shall, in any and all events, agree in writing to be bound by all
of the conditions of this Agreement as a prior condition to receiving any Shares
or Conversion Shares. Any party to this Agreement proposing to Transfer Shares
or Conversion Shares shall cause any proposed Transferee of the Shares and the
Conversion Shares to agree to take and hold such securities subject to the
provisions and upon the conditions specified in this Agreement.
1.3 Restrictive Legend. Each certificate representing (i) the Shares,
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(ii) the Conversion Shares, and (iii) any other securities issued in respect of
the securities referenced in clauses (i) and (ii) upon any stock split, stock
dividend, recapitalization, merger, consolidation or similar event, shall
(unless otherwise permitted by the provisions of Section 1.4 below) be stamped
or otherwise
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imprinted with a legend in the following form (in addition to any
legend required under applicable state securities laws):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933. SUCH SHARES MAY NOT BE SOLD, TRANSFERRED OR PLEDGED IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS THE COMPANY RECEIVES AN OPINION
OF COUNSEL (WHICH MAY BE COUNSEL FOR THE COMPANY) REASONABLY
ACCEPTABLE TO IT STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE
REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACT."
"THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE TRANSFERRED ONLY IN
ACCORDANCE WITH THE TERMS OF AN AGREEMENT BETWEEN THE COMPANY AND THE
SHAREHOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE
COMPANY. THIS CONDITION TO TRANSFER SHALL TERMINATE ON THE EFFECTIVE
DATE OF THE COMPANY'S INITIAL PUBLIC OFFERING."
Each Investor and Holder consents to the Company making a notation on
its records and giving instructions to any transfer agent of the Restricted
Securities in order to implement the restrictions on transfer established in
this Section 1.
1.4 Notice of Proposed Transfers. The holder of each certificate
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representing Restricted Securities, by acceptance thereof, agrees to comply in
all respects with the provisions of this Section 1. Prior to any proposed sale,
assignment, transfer or pledge of any Restricted Securities, unless there is in
effect a registration statement under the Securities Act covering the proposed
transfer, the holder thereof shall give written notice to the Company of such
holder's intention to effect such transfer, sale, assignment or pledge. Each
such notice shall describe the manner and circumstances of the proposed
transfer, sale, assignment or pledge in sufficient detail, and shall be
accompanied at such holder's expense by either (i) a written opinion of legal
counsel who shall, and whose legal opinion shall be, reasonably satisfactory to
the Company, addressed to the Company, to the effect that the proposed transfer
of the Restricted Securities may be effected without registration under the
Securities Act, or (ii) a "no action" letter from the Commission to the effect
that the transfer of such securities without registration will not result in a
recommendation by the staff of the Commission that action be taken with respect
thereto, or (iii) any other evidence reasonably satisfactory to counsel to the
Company, whereupon the holder of such Restricted Securities shall be entitled to
transfer such Restricted Securities in accordance with the terms of the notice
delivered by the holder to the Company. The Company will not require such a
legal opinion or "no action" letter (a) in any transaction in compliance with
Rule 144, (b) in any transaction in which an Investor which is a corporation
distributes Restricted Securities after six (6) months after the purchase
thereof solely to its majority owned subsidiaries or affiliates for no
consideration, or (c) in any transaction in which
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an Investor which is a partnership distributes Restricted Securities after six
(6) months after the purchase thereof solely to partners thereof for no
consideration; provided that each transferee agrees in writing to be subject to
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the terms of this Section 1.4. Each certificate evidencing the Restricted
Securities transferred as above provided shall bear, except if such transfer is
made pursuant to Rule 144, the appropriate restrictive legend set forth in
Section 1.3 above, except that such certificate shall not bear such restrictive
legend if, in the opinion of counsel for such holder and the Company, such
legend is not required in order to establish compliance with any provisions of
the Securities Act.
1.5 Requested Registration.
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(a) Request for Registration. In case the Company shall receive from
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Initiating Holders a written request that the Company effect any registration,
qualification or compliance with respect to the Registrable Securities, the
Company will:
(i) promptly give written notice of the proposed registration,
qualification or compliance to all other Holders; and
(ii) as soon as practicable, use its best efforts to effect such
registration, qualification or compliance (including, without limitation, the
execution of an undertaking to file post-effective amendments, appropriate
qualification under applicable blue sky or other state securities laws and
appropriate compliance with applicable regulations issued under the Securities
Act and any other governmental requirements or regulations) as may be so
requested and as would permit or facilitate the sale and distribution of all or
such portion of such Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any Holder or
Holders joining in such request as are specified in a written request received
by the Company within thirty (30) days after receipt of such written notice from
the Company; provided, however, that the Company shall not be obligated to take
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any action to effect any such registration, qualification or compliance pursuant
to this Section 1.5:
(1) 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;
(2) Prior to the earlier of (a) six (6) months following the
effective date of the first public offering of the Common Stock of the Company
to the general public which is effected pursuant to a registration statement
filed with, and declared effective by, the Commission under the Securities Act
(the "Initial Public Offering") or (b) July 19, 2001;
(3) During the period starting with the date sixty (60) days
prior to the Company's estimated date of filing of, and ending on the date six
(6) months immediately following the effective date of, any registration
statement pertaining to securities of the Company (other than a registration of
securities in a Rule 145 transaction or with respect to an employee
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benefit plan), provided that the Company is actively employing in good faith all
reasonable efforts to cause such registration statement to become effective and
that the Company's estimate of the date of filing such registration statement is
made in good faith;
(4) After the Company has effected two (2) such registrations
pursuant to this subparagraph 1.5(a), each such registration has been declared
or ordered effective and the securities offered pursuant to each such
registration have been sold; or
(5) If the Company shall furnish to such Holders a
certificate, signed by the President of the Company, stating that in the good
faith judgment of the Board of Directors it would be seriously detrimental to
the Company or its shareholders for a registration statement to be filed in the
near future, then the Company's obligation to use its best efforts to register,
qualify or comply under this Section 1.5 shall be deferred for a period not to
exceed ninety (90) days from the date of receipt of written request from the
Initiating Holders; provided, however, that the Company may not utilize this
right more than once in any twelve (12) month period.
Subject to the foregoing clauses (1) through (5), the Company shall file a
registration statement covering the Registrable Securities so requested to be
registered as soon as practicable after receipt of the request or requests of
the Initiating Holders.
(b) Underwriting. In the event that a registration pursuant to
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Section 1.5 is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as part of the notice given pursuant to
Section 1.5(a)(i). The right of any Holder to registration pursuant to Section
1.5 shall be conditioned upon such Holder's participation in the underwriting
arrangements required by this Section 1.5 and the inclusion of such Holder's
Registrable Securities in the under writing, to the extent requested, to the
extent provided herein.
The Company shall (together with all Holders proposing to distribute their
securities through such underwriting) enter into an underwriting agreement in
customary form with the managing underwriter selected for such underwriting by a
majority in interest of the Initiating Holders (which managing underwriter shall
be reasonably acceptable to the Company). Notwithstanding any other provision
of this Section 1.5, if the managing underwriter advises the Initiating Holders
in writing that marketing factors require a limitation of the number of shares
to be underwritten, then the Company shall so advise all Holders of Registrable
Securities and the number of shares of Registrable Securities that may be
included in the registration and underwriting shall be allocated among all
Holders thereof in proportion, as nearly as practicable, to the respective
amounts of Registrable Securities held by such Holders at the time of filing the
registration statement, provided, however, that the number of shares of
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Registrable Securities to be included in such underwriting shall not be reduced
unless all other securities are first entirely excluded from the underwriting.
No Registrable Securities excluded from the underwriting by reason of the
underwriter's marketing limitation shall be included in such registration. To
facilitate the allocation of shares in accordance with the above provisions, the
Company or the underwriters may round the number of shares allocated to any
Holder to the nearest 100 shares.
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If any Holder of Registrable Securities disapproves of the terms of the
underwriting, such person may elect to withdraw therefrom by written notice to
the Company, the managing underwriter and the Initiating Holders. The
Registrable Securities and/or other securities so withdrawn shall also be
withdrawn from registration, and such Registrable Securities shall not be
transferred in a public distribution prior to ninety (90) days after the
effective date of such registration.
1.6 Company Registration.
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(a) Notice of Registration. If at any time or from time to time, the
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Company shall determine to register any of its securities, either for its own
account or the account of a security holder or holders other than (i) a
registration relating solely to employee benefit plans, or (ii) a registration
relating solely to a Commission Rule 145 transaction, the Company will:
(i) promptly give to each Holder written notice thereof; and
(ii) include in such registration (and any related qualification
under blue sky laws or other compliance), and in any underwriting involved
therein, all the Registrable Securities specified in a written request or
requests made within thirty (30) days after receipt of such written notice from
the Company by any Holder, but only to the extent that such inclusion will not
diminish the number of securities included by holders of the Company's
securities who have demanded such registration pursuant to Section 1.5 hereof.
(b) Underwriting. If the registration of which the Company gives
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notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 1.6(a)(i). In such event, the right of any Holder to
registration pursuant to Section 1.6 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of Registrable Securities
in the underwriting to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting shall (together with the
Company and the other holders distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the
managing underwriter selected for such underwriting by the Company (or by the
holders who have demanded such registration). Notwithstanding any other
provision of this Section 1.6, if the managing underwriter determines that
marketing factors require a limitation of the number of shares to be
underwritten, the managing underwriter may limit the number of Registrable
Securities to be included in the registration and underwriting (up to the
exclusion of all Registrable Securities in the event of the Company's Initial
Public Offering), on a pro rata basis based on the total number of securities
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(including, without limitation, Registrable Securities) entitled to registration
pursuant to registration rights granted to the participating Holders by the
Company; provided, however, that if such offering is not the Initial Public
Offering, no such reduction may reduce the number of securities being sold by
the Holders to less than thirty percent (30%) of the shares being sold in such
offering. To facilitate the allocation of shares in accordance with the above
provisions, the Company or the underwriters may round the number of shares
allocated to any Holder or other holder to the nearest 100 shares. If any
Holder or other holder disapproves of the terms of any such underwriting, he or
she may elect to withdraw therefrom by written notice to the Company and the
managing underwriter. Any securities excluded
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or withdrawn from such underwriting shall be withdrawn from such registration,
and shall not be transferred in a public distribution prior to ninety (90) days
after the effective date of the registration statement relating thereto.
(c) Right to Terminate Registration. The Company shall have the right
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to terminate or withdraw any registration initiated by it under this Section 1.6
prior to the effectiveness of such registration, whether or not any Holder has
elected to include securities in such registration.
1.7 Registration on Form S-3.
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(a) Following the Initial Public Offering, the Company shall use its
best efforts to become eligible to use the Form S-3 registration statement for
public offerings of its capital stock. If any Holder or Holders of Registrable
Securities requests that the Company file a registration statement on Form S-3
(or any successor form to Form S-3) for a public offering of shares of the
Registrable Securities, the reasonably anticipated aggregate price to the public
of which, net of underwriting discounts and commissions, would exceed $500,000,
and the Company is a registrant entitled to use Form S-3 to register the
Registrable Securities for such an offering, the Company shall use its best
efforts to cause such Registrable Securities to be registered for the offering
on such form. The Company will (i) promptly give written notice of the proposed
registration to all other Holders, and (ii) as soon as practicable, use its best
efforts to effect such registration (including, without limitation, the
execution of an undertaking to file post-effective amendments, appropriate
qualification under applicable blue sky or other state securities laws and
appropriate compliance with applicable regulations issued under the Securities
Act and any other governmental requirements or regulations) as may be so
requested and as would permit or facilitate the sale and distribution of all or
such portion of such Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any Holder or
Holders joining in such request as are specified in a written request received
by the Company within thirty (30) days after receipt of such written notice from
the Company. The substantive provisions of Section 1.5(b) shall be applicable
to each registration initiated under this Section 1.7.
(b) Notwithstanding the foregoing, the Company shall not be obligated
to take any action pursuant to this Section 1.7: (i) in any particular
jurisdiction in which the Company would be required to execute a general consent
to service of process in effecting such registration, qualification or
compliance unless the Company is already subject to service in such jurisdiction
and except as may be required by the Securities Act; (ii) during the period
starting with the date sixty (60) days prior to the Company's estimated date of
filing of, and ending on the date four (4) months immediately following the
effective date of, a registration statement (other than with respect to a
registration statement relating to a Rule 145 transaction, an offering solely to
employees or any other registration which is not appropriate for the
registration of Registrable Securities), provided that the Company is actively
employing in good faith all reasonable efforts to cause such registration
statement to become effective; (iii) during any 12-month period in which the
Company has effected at least three (3) such registrations pursuant to this
Section 1.6 or Section 1.7 of the Prior Agreement; or (iv) if the Company shall
furnish to such Holder a certificate signed by the President of the Company
stating that, in the good faith judgment of the Board of Directors, it would be
seriously detrimental to the
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Company or its shareholders for registration statements to be filed in the near
future, then the Company's obligation to use its best efforts to file a
registration statement shall be deferred for a period not to exceed ninety (90)
days from the receipt of the request to file such registration by such Holder or
Holders; provided, however, that the Company may not utilize this right more
than once in any twelve (12) month period.
1.8 Limitations on Subsequent Registration Rights. From and after the
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date hereof, the Company shall not enter into any agreement granting any holder
or prospective holder of any securities of the Company registration rights with
respect to such securities unless such new registration rights are subordinate
to the registration rights granted Holders hereunder, including, without
limitation, provision for a standoff obligation no shorter than that provided
for in this Agreement.
1.9 Expenses of Registration. All Registration Expenses incurred in
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connection with any registration pursuant to Sections 1.5, 1.6 and 1.7 and the
reasonable cost of one special legal counsel to represent all of the Holders
together in any such registration shall be borne by the Company. If a
registration proceeding is begun upon the request of Initiating Holders pursuant
to Section 1.5, but such request is subsequently withdrawn, then the Holders of
Registrable Securities to have been registered may either: (i) bear all
Registration Expenses of such proceeding, pro rata on the basis of the number of
shares to have been registered, in which case the Company shall be deemed not to
have effected a registration pursuant to subparagraph 1.5(a) of this Agreement;
or (ii) require the Company to bear all Registration Expenses of such
proceeding, in which case the Company shall be deemed to have effected a
registration pursuant to subparagraph 1.5(a) of this Agreement. Notwith
standing the foregoing, however, if at the time of the withdrawal, the Holders
have learned of a material adverse change in the condition, business or
prospects of the Company from that known to the Holders at the time of their
request, then the Holders shall not be required to pay any of said Registration
Expenses. In such case, the Company shall be deemed not to have effected a
registration pursuant to subparagraph 1.5(a) of this Agreement. Unless
otherwise stated, all other Selling Expenses relating to securities registered
on behalf of the Holders shall be borne by the Holders of the registered
securities included in such registration pro rata on the basis of the number of
shares so registered.
1.10 Registration Procedures. In the case of each registration,
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qualification or compliance effected by the Company pursuant to this Section 1,
the Company will keep each Holder advised in writing as to the initiation of
each registration, qualification and compliance and as to the completion
thereof. At its expense the Company will:
(a) Prepare and file with the Commission a registration statement
with respect to such securities and use its best efforts to cause such
registration statement to become and remain effective for at least one hundred
eighty (180) days or until the distribution described in the registration
statement has been completed; and
(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
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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 to the Holders participating in such registration and to
the under writers of the securities being registered such reasonable number of
copies of the registration statement, preliminary prospectus, final prospectus
and such other documents as such underwriters may reasonably request in order to
facilitate the public offering of such securities.
(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, unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Securities Act.
(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 Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
(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 hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
(i) Use its best efforts to furnish, at the request of any Holder
requesting registration of Registrable Securities pursuant to this Section 1, on
the date that such Registrable Securities are delivered to the underwriters for
sale in connection with a registration pursuant to this Section 1, if such
securities are being sold through underwriters, or, if such securities are not
being sold through underwriters, on the date that the registration statement
with respect to such securities becomes effective, (i) an opinion, dated such
date, of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to underwriters in
an underwritten public offering, addressed to the underwriters, if any, and to
the Holders requesting registration of Registrable Securities and (ii) a letter
dated such date, from the independent certified public accountants of the
Company, in form and substance as is customarily given by independent
-10-
certified public accountants to underwriters in an underwritten public offering,
addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities.
1.11 Indemnification.
---------------
(a) The Company will indemnify each Holder, each of its officers and
directors and partners, and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, with respect to which registration,
qualification or compliance has been effected pursuant to this Section 1, and
each underwriter, if any, and each person who controls any under writer within
the meaning of Section 15 of the Securities Act, against all expenses, claims,
losses, damages or liabilities (or actions in respect thereof), including any of
the foregoing incurred in settlement of any litigation, commenced or threatened,
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any registration statement, prospectus, preliminary
prospectus, offering circular or other document, or any amendment or supplement
thereto, incident to any such registration, qualification or compliance, or
based on any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading, or any
violation or any alleged violation by the Company of any rule or regulation
promulgated under the Securities Act or the Exchange Act or any state securities
law applicable to the Company in connection with any such registration,
qualification or compliance, and the Company will reimburse each such Holder,
each of its officers and directors, and each person controlling such Holder,
each such underwriter and each person who controls any such underwriter, for any
legal and any other expenses reasonably incurred in connection with
investigating, preparing or defending any such claim, loss, damage, liability or
action, as such expenses are incurred, provided that the Company will not be
liable in any such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any untrue statement or
omission or alleged untrue statement or omission, made in reliance upon and in
conformity with written information furnished to the Company by an instrument
duly executed by such Holder, controlling person or underwriter and stated to be
specifically for use therein.
(b) Each Holder will, if Registrable Securities held by such Holder
are included in the securities as to which such registration, qualification or
compliance is being effected, indemnify the Company, each of its directors and
officers, each underwriter, if any, of the Company's securities covered by such
a registration statement, each person who controls the Company or such
underwriter within the meaning of Section 15 of the Securities Act, and each
other such Holder, each of its officers and directors and each person
controlling such Holder within the meaning of Section 15 of the Securities Act,
against all claims, losses, damages and liabilities (or actions in respect
thereof) arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any such registration statement,
prospectus, offering circular or other document, or any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse the
Company, such Holders, such directors, officers, persons, underwriters or
control persons for any legal or any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability or action, as such expenses are incurred, in each case to the extent,
but only to the
-11-
extent, that such untrue statement (or alleged untrue statement) or omission (or
alleged omission) is made in such registration statement, prospectus, offering
circular or other document in reliance upon and in conformity with written
information furnished to the Company by an instrument duly executed by such
Holder and stated to be specifically for use therein.
(c) Each party entitled to indemnification under this Section 1.11
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not unreasonably be
withheld), and the Indemnified Party may participate in such defense at such
party's expense; provided, however, that an Indemnified Party (together with all
other Indemnified Parties which may be represented without conflict by one
counsel) shall have the right to retain one separate counsel, with the fees and
expenses to be paid by the Indemnifying Party, if representation of such
Indemnified Party by the counsel retained by the Indemnifying Party would be
inappropriate due to actual or potential differing interests between such
Indemnified Party and any other party represented by such counsel in such
proceeding. The failure of any Indemnified Party to give notice as provided
herein shall not relieve the Indemnifying Party of its obligations under this
Section 1.11 unless the failure to give such notice is materially prejudicial to
an Indemnifying Party's ability to defend such action. No Indemnifying Party,
in the defense of any such claim or litigation, shall, except with the consent
of each Indemnified Party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation.
1.12 Information by Holder. The Holder or Holders of Registrable
---------------------
Securities included in any registration shall furnish to the Company such
information regarding such Holder or Holders, the Registrable Securities held by
them and the distribution proposed by such Holder or Holders as the Company may
request in writing and as shall be required in connection with any registration,
qualification or compliance referred to in this Section 1.
1.13 Rule 144 Reporting. With a view to making available the benefits of
------------------
certain rules and regulations of the Commission which may at any time permit the
sale of the Restricted Securities to the public without registration, after such
time as a public market exists for the Common Stock of the Company, the Company
agrees to use its best efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all times after
the effective date that the Company becomes subject to the reporting
requirements of the Securities Act or the Exchange Act;
(b) File with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act
(at any time after it has become subject to such reporting requirements); and
-12-
(c) So long as an Investor owns any Restricted Securities, to furnish
to the Investor forthwith upon request a written statement by the Company as to
its compliance with the reporting requirements of said Rule 144 (at any time
after ninety (90) days after the effective date of the Initial Public Offering),
and of the Securities Act and the Exchange Act (at any time after it has become
subject to such reporting requirements), a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents of the
Company and other information in the possession of or reasonably obtainable by
the Company as an Investor may reasonably request in availing itself of any rule
or regulation of the Commission allowing an Investor to sell any such securities
without registration.
1.14 Transfer of Registration Rights. The rights to cause the Company to
-------------------------------
register securities granted Investors under Sections 1.5, 1.6 and 1.7 may be
assigned to a transferee or assignee reasonably acceptable to the Company in
connection with any transfer or assignment of Registrable Securities by an
Investor (together with any affiliate); provided that (a) such transfer may
--------
otherwise be effected in accordance with applicable securities laws, (b) notice
of such assignment is given to the Company, and (c) such transferee or assignee
(i) is a wholly-owned subsidiary or constituent partner (including limited
partners, retired partners, spouses and ancestors, lineal descendants and
siblings of such partners or spouses who acquire Registrable Securities by gift,
will or intestate succession) of such Investor, or (ii) acquires from such
Investor at least 100,000 shares of Restricted Securities (as appropriately
adjusted for stock splits and the like).
1.15 Standoff Agreement. Each Holder agrees in connection with any
------------------
registration of the Company's securities (other than a registration of
securities in a Rule 145 transaction or with respect to an employee benefit
plan), upon request of the Company or the underwriters managing any under
written offering of the Company's securities, not to sell, make any short sale
of, loan, pledge (or otherwise encumber or hypothecate), grant any option for
the purchase of, or otherwise directly or indirectly dispose of any Registrable
Securities (other than those included in the registration) without the prior
written consent of the Company and such managing underwriters for such period of
time, not to exceed 180 days, as the Board of Directors establishes pursuant to
its good faith negotiations with such managing underwriters; provided, however,
-------- -------
that the Investors shall not be subject to such lockup unless the officers and
directors of the Company who own stock of the Company shall also be bound by
such restrictions.
1.16 Termination of Rights. The rights of any particular Holder to cause
---------------------
the Company to register securities under Sections 1.5 and 1.6 shall terminate
with respect to such Holder on the fifth anniversary of the effective date of
the Company's Initial Public Offering.
-13-
SECTION 2.
Affirmative Covenants of the Company and Holders
------------------------------------------------
The Company and Holders, as applicable, hereby covenant and agree as
follows:
2.1 Financial Information. So long as an Investor is a holder of 90,000
---------------------
Shares and/or shares of Common Stock issued upon the conversion thereof (as
adjusted for any stock splits, consolidations and the like), the Company will
furnish to such Investor the following reports:
(a) As soon as practicable after the end of each fiscal year, and in
any event within ninety (90) days thereafter, audited consolidated balance
sheets and statements of share holders' equity of the Company and its
subsidiaries, if any, as of 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 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 national standing selected by the Company; and
(b) As soon as practicable, but in any event within forty-five (45)
days after the end of each of the first three (3) quarters of each fiscal year
of the Company, unaudited balance sheets of the Company and its subsidiaries, if
any, as of the end of each such quarter, and consolidated statements of income
and cash flows of the Company and its subsidiaries, if any, for each such
quarter, all prepared in accordance with generally accepted accounting
principles.
2.2 Additional Financial Information. So long as an Investor is a holder
--------------------------------
of 100,000 Shares and/or shares of Common Stock issued upon the conversion
thereof (as adjusted for any stock splits, consolidations and the like), the
Company will, in addition to the information furnished to such Investor pursuant
to Section 2.1 above, furnish to such Investor the following reports:
(a) As soon as practicable after the end of each calendar month, and
in any event within 30 days thereafter, consolidated balance sheets of the
Company and its subsidiaries, if any, as of the end of each calendar month, and
consolidated statements of income and cash flows for such period and for the
current fiscal year to date, together with a comparison of such statements to
the Company's operating plan then in effect; and
(b) As soon as practicable upon approval or adoption by the Company's
Board of Directors, the Company will furnish such Investor with the Company's
budget and operating plan (including projected balance sheets and profit and
loss and cash flow statements) for such fiscal year.
2.3 Inspection. The Company shall permit each Investor and its
----------
representatives, at such Investor's expense, to visit and inspect the Company's
properties, to examine its books of account and records and to discuss the
Company's affairs, finances and accounts with its officers, all at such
reasonable times as may be requested by the Investor; provided, however, that
the Company shall not
-14-
be obligated pursuant to this Section 2.3 to provide access to any information
which it reasonably considers to be a trade secret or similar confidential
information.
2.4 Assignment of Rights to Financial Information.
---------------------------------------------
(a) The rights granted pursuant to Section 2.1 may be assigned by an
Investor to a third party who acquires at least 80,000 Shares and/or shares of
Common Stock issued upon conversion thereof (as adjusted for any stock splits,
consolidations and the like) from such Investor and who is not a competitor, or
affiliated in any manner with a competitor, of the Company, provided that the
Company receives notice twenty (20) days prior to such assignment; and
(b) The rights granted pursuant to Section 2.2 may be assigned by an
Investor to a third party who acquires at least 100,000 Shares and/or shares of
Common Stock issued upon conversion thereof (as adjusted for any stock splits,
consolidations and the like) from such Investor and who is not a competitor, or
affiliated in any manner with a competitor, of the Company, provided that the
Company receives notice twenty (20) days prior to such assignment.
2.5 Proprietary Information Agreement. The Company shall require each
---------------------------------
person employed by, or who consults for, the Company to execute a proprietary
information confidentiality and nondisclosure agreement in substantially the
form provided to the Investors.
2.6 Termination of Covenants. The covenants set forth in Sections 2.1
------------------------
through 2.5 shall terminate on, and be of no further force or effect after, the
closing of the Company's Initial Public Offering.
2.7 Right of First Offer. Subject to the terms and conditions specified
--------------------
in this Section 2.7, the Company hereby grants to each Investor a right of first
offer with respect to future sales by the Company of its Securities (as
hereinafter defined).
Each time the Company proposes to offer subsequent to the offering
under the Series E Agreement any shares of, or securities convertible into or
exercisable for any shares of, any class of its capital stock ("Securities"),
the Company shall first make an offering of such Securities to each Investor in
accordance with the following provisions:
(a) The Company shall deliver a notice by certified mail ("Notice") to
each Investor stating (i) its bona fide intention to offer such Securities, (ii)
the number of such Securities to be offered, (iii) the price, if any, for which
it proposes to offer such Securities, and (iv) the terms of such offer.
(b) Within fifteen (15) 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 an amount of such Securities equal to that
portion of such Securities which equals the proportion that the number of shares
of Common Stock then issued or issuable to the Investor upon conversion of the
shares of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock, Series D Preferred
-15-
Stock and Series E Preferred Stock held by the Investor bears to the sum of the
number of shares of Common Stock then issued plus the number of shares of Common
Stock issuable upon conversion of all convertible securities of the Company then
outstanding. For purposes of this Section 2.7, the term "Investor" includes any
general partners or affiliates of an Investor. An Investor shall be entitled to
apportion the right of first offer hereby granted among itself and its partners
and affiliates in such proportions as it deems appropriate.
(c) If all Securities which the Investors are entitled to purchase
pursuant to this Section 2.7 are not elected to be obtained as provided in
subsection 2.7(b) hereof, the Company may, during the thirty (30) day period
following the expiration of the period provided in subsection 2.7(b) hereof,
offer such unsubscribed Securities 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
Securities within such period, or if such agreement is not consummated within
thirty (30) days of the execution thereof, the right provided hereunder shall be
deemed to be revived.
(d) The right of first offer in this Section 2.7 shall not be
applicable (i) to the issuance or sale of up to 6,000,000 shares of capital
stock (or options therefor) after the date hereof to employees, officers,
directors or consultants for the primary purpose of soliciting or retaining
their services, provided that any such issuance or sale is approved by the
Company's Board of Directors, (ii) to the issuance or sale of the Company's
securities to leasing entities or financial institutions in connection with
commercial leasing or borrowing transactions provided that any such issuance or
sale is approved by the Company's Board of Directors, (iii) to or after
consummation of a bona fide, underwritten firm commitment public offering of
shares of Common Stock, registered under the Securities Act, at a price per
share not less than $9.50 (subject to appropriate adjustment for stock splits,
stock dividends, combinations and recapitalizations and the like) which results
in aggregate proceeds to the Company of at least $20,000,000, (iv) conversions
of convertible securities or (v) any issuances of any of the shares of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock or Series E Preferred Stock authorized as of the date of this
Agreement.
2.8 Voting Agreement and Grant of Proxy with Respect to Reorganization or
---------------------------------------------------------------------
Sale of Assets Transaction. If a reorganization (as defined in Section 181 of
- --------------------------
the California Corporations Code) or a transaction in which all or substantially
all of the Company's assets are proposed to be sold (collectively, a
"Reorganization") is proposed to be presented to the shareholders of the Company
for approval, then the Holders agree as follows:
(a) Agreement to Vote in Accordance with Preliminary Vote; Grant of
---------------------------------------------------------------
Proxy. Not less than 12 business days prior to the date a vote is to be taken by
- -----
(or written consent to be mailed to) the shareholders of the Company with
respect to a Reorganization, the Secretary of the Company (the "Secretary")
shall send via overnight courier or facsimile transmission to each Holder a
complete description of such Reorganization and a questionnaire (the
"Questionnaire"), to be completed by each Holder and returned to the Secretary,
upon which each Holder shall indicate
-16-
whether such Holder would approve the Reorganization at a formal vote or written
consent of the shareholders of the Company. Each Holder shall complete the
Questionnaire and return it to the Secretary within 10 business days of the date
the Questionnaire was deemed given in accordance with Section 3.5 hereof. Upon
the earlier of (i) the date the Secretary receives all completed Questionnaires
or (ii) 11 business days after the Questionnaires are deemed given to the
Holders, the Secretary shall tabulate the responses to the Questionnaires. If
the Holders of a majority of the shares of stock represented on the completed
and returned Questionnaires (without regard to how many shares in the aggregate
are held by all Holders) approve the Reorganization (without regard for any
series, class or other voting rights, if any, contained in the Amended and
Restated Articles of Incorporation of the Company from time to time), then each
Holder agrees that, regardless of whether such Holder indicated on the
Questionnaire that such Holder would vote to approve such Reorganization, such
Holder will approve the proposed Reorganization at the time the proposed
Reorganization is formally presented to the shareholders for their approval, and
grants to the Secretary a limited, irrevocable proxy to so vote each Holder's
shares, such proxy to be substantially in the form attached hereto as Exhibit B
---------
and to be executed and delivered to the Secretary at the Closing (as defined in
the Series E Agreement).
(b) Covenant not to Impede Transaction. If a majority approval by the
----------------------------------
Holders who timely return Questionnaires of the proposed Reorganization is
indicated pursuant to the procedure set forth in subsection 2.8(a) above, then
each Holder further agrees not to in any way impede the consummation of the
proposed Reorganization. This covenant shall include, without limitation, the
obligation not to seek dissenters' appraisal rights or take any other action
that would reasonably be taken (in the discretion of the Company's Board of
Directors after consulting with the Company's counsel and independent public
accountants) to prevent the proposed Reorganization from being eligible to be
accounted for as a pooling of interests.
(c) Termination of Voting Agreement. All agreements and covenants set
-------------------------------
forth in this Section 2.8 shall terminate on, and be of no further force and
effect after, the earlier of (i) the first anniversary of the date of this
Agreement and (ii) the closing of the Initial Public Offering.
SECTION 3.
Miscellaneous
-------------
3.1 Assignment. Except as otherwise provided herein, the terms and
----------
conditions of this Agreement shall inure to the benefit of and be binding upon
the respective successors and assigns of the parties hereto.
3.2 Third Parties. Nothing in this Agreement, express or implied, is
-------------
intended to confer upon any party, other than the parties hereto, and their
respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
herein.
-17-
3.3 Governing Law. This Agreement shall be governed by and construed
-------------
under the laws of the State of California in the United States of America.
3.4 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
3.5 Notices. Any notice required or permitted by this Agreement shall
-------
be in writing and shall be sent by either (a) prepaid registered or certified
mail, return receipt requested, (b) overnight courier or (c) facsimile,
addressed to the other party at the address shown on Exhibit A hereto or at such
---------
other address for which such party gives notice hereunder. Such notice shall be
deemed to have been given three (3) days after deposit in the mail, one (1) day
after mailing via overnight courier or one (1) day after transmission via
facsimile, provided that such facsimile was confirmed tele phonically on the
date of transmission.
3.6 Severability. If one or more provisions of this Agreement are held
------------
to be unenforceable under applicable law, portions of such provisions, or such
provisions in their entirety, to the extent necessary, shall be severed from
this Agreement, and the balance of this Agreement shall be enforceable in
accordance with its terms.
3.7 Amendment and Waiver. Any provision of this Agreement may be amended
--------------------
with the written consent of the Company and the Holders (other than Messrs.
Christopher R. Hassett and Gregory P. Hassett) of at least fifty-five percent
(55%) of the outstanding shares of the Registrable Securities; provided,
--------
however, that Messrs. Christopher R. Hassett and Gregory P. Hassett shall have
- -------
the right to consent (or withhold consent) on any amendment to this Agreement
that modifies their rights hereunder. Any amendment or waiver effected in
accordance with this paragraph shall be binding upon each Holder of Registrable
Securities and the Company. In addition, the Company may waive performance of
any obligation owing to it, as to some or all of the Holders of Registrable
Securities, or agree to accept alternatives to such performance, without
obtaining the consent of any Holder of Registrable Securities. In the event
that an underwriting agreement is entered into between the Company and any
Holder, and such underwriting agreement contains terms differing from this
Agreement, as to any such Holder the terms of such underwriting agreement shall
govern.
3.8 Effect of Amendment or Waiver. The Investors and their successors
-----------------------------
and assigns acknowledge that by the operation of Section 3.7 hereof the holders
of fifty-five percent (55%) of the outstanding Registrable Securities, acting in
conjunction with the Company, will have the right and power to diminish or
eliminate any or all rights or increase any or all obligations pursuant to this
Agreement.
3.9 Rights of Holders. Each holder of Registrable Securities shall have
-----------------
the absolute right to exercise or refrain from exercising any right or rights
that such holder may have by reason of this Agreement, including, without
limitation, the right to consent to the waiver or modification of any obligation
under this Agreement, and such holder shall not incur any liability to any other
holder of
-18-
any securities of the Company as a result of exercising or refraining from
exercising any such right or rights.
3.10 Delays or Omissions. No delay or omission to exercise any right,
-------------------
power or remedy accruing to any party to this Agreement, upon any breach or
default of the other party, shall impair any such right, power or remedy of such
non-breaching party nor shall it be construed to be a waiver of any such breach
or default, or an acquiescence therein, or of or in any similar breach or
default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any party of any breach or default under this
Agreement, or any waiver on the part of any party of any provisions or
conditions of this Agreement, must be made in writing and shall be effective
only to the extent specifically set forth in such writing. All remedies, either
under this Agreement, or by law or otherwise afforded to any holder, shall be
cumulative and not alternative.
[This space intentionally left blank]
-19-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
POINTCAST INCORPORATED
Signature: /s/ Philip J. Koen
---------------------------
Name: Philip J. Koen
--------------------------------
Senior Vice President
Title: Chief Financial Officer
-------------------------------
-20-
FOUNDERS:
/s/ Christopher R. Hassett
----------------------------------
Christopher R. Hassett
----------------------------------
Gregory P. Hassett
LIGHTHOUSE CAPITAL PARTNERS L.P.
By:
-------------------------------
Title:
----------------------------
-21-
FOUNDERS:
----------------------------------
Christopher R. Hassett
/s/ Gregory P. Hassett
----------------------------------
Gregory P. Hassett
LIGHTHOUSE CAPITAL PARTNERS L.P.
By:
-------------------------------
Title:
----------------------------
-22-
COUNTERPART SIGNATURE PAGE TO POINTCAST INCORPORATED
AMENDED AND RESTATED FOUNDERS' CO-SALE AGREEMENT
Dated as of , 1997
- --------------------------------
LIGHTHOUSE CAPITAL PARTNERS, L.P.
By: LIGHTHOUSE MANAGEMENT PARTNERS,
L.P., its general partner
By: LIGHTHOUSE CAPITAL PARTNERS, INC.,
its general partner
By: /s/ Richard D. Stubblefield
-------------------------------------
Name: Richard D. Stubblefield
-----------------------------------
Title: Managing Director
----------------------------------
-23-
COUNTERPART SIGNATURE PAGE TO POINTCAST INCORPORATED
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
Dated as of September 12, 1997
- ------------------------------
INVESTOR: Encompass Group, Inc.
Name: Mr. Yasuki Matsumoto
---------------------------------------
(Please print or type)
Signature: /s/ Yasuki Matsumoto
----------------------------------
Title: President
--------------------------------------
-24-
COUNTERPART SIGNATURE PAGE TO POINTCAST INCORPORATED
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
Dated as of September 12, 1997
- ------------------------------
INVESTOR:
Name: Asahi Shimbun Publishing Co.
---------------------------------------
(Please print or type)
Signature: /s/ Asahi Shimbun Publishing Co.
----------------------------------
Title: President/CEO
--------------------------------------
-25-
COUNTERPART SIGNATURE PAGE TO POINTCAST INCORPORATED
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
Dated as of September 16, 1997
- ------------------------------
INVESTOR:
Name: Roger S. Siboni
---------------------------------------
(Please print or type)
Signature: /s/ Roger S. Siboni
----------------------------------
Title: Deputy Chairman
--------------------------------------
-26-
COUNTERPART SIGNATURE PAGE TO POINTCAST INCORPORATED
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
Dated as of September 17, 1997
- ------------------------------
INVESTOR:
Name: Shozo Okuda
---------------------------------------
(Please print or type)
Signature: /s/ Shozo Okuda
----------------------------------
Title: President, Trans Cosmos USA, Inc.
--------------------------------------
-27-
COUNTERPART SIGNATURE PAGE TO POINTCAST INCORPORATED
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
Dated as of October 22, 1997
- ----------------------------
INVESTOR: Ambac Investments, Inc.
Name: David L. Boyle
---------------------------------------
(Please print or type)
Signature: /s/ David L. Boyle
----------------------------------
Title: Chairman, President and Chief
--------------------------------------
Executive Officer
--------------------------------------
-28-
COUNTERPART SIGNATURE PAGE TO POINTCAST INCORPORATED
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
Dated as of October 22, 1997
- ----------------------------
INVESTOR: PCN Corp., LLC
Name: W. Grant Gregory
---------------------------------------
(Please print or type)
Signature: /s/ W. Grant Gregory
----------------------------------
Title: Manager
--------------------------------------
-29-
COUNTERPART SIGNATURE PAGE TO POINTCAST INCORPORATED
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
Dated as of December 31, 1997
- -----------------------------
INVESTOR: CPO HOLDINGS, INC.
Name: Robert W. Stearns
---------------------------------------
(Please print or type)
Signature: /s/ Robert W. Stearns
----------------------------------
Title: President
--------------------------------------
-30-
COUNTERPART SIGNATURE PAGE TO POINTCAST INCORPORATED
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
Dated as of December 31, 1997
- -----------------------------
INVESTOR:
Name: David Dorman
---------------------------------------
(Please print or type)
Signature: /s/ David Dorman
----------------------------------
Title: President & CEO
--------------------------------------
-31-
COUNTERPART SIGNATURE PAGE TO POINTCAST INCORPORATED
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
Dated as of September 12, 1997
- ------------------------------
INVESTOR: BENCHMARK CAPITAL PARTNERS, L.P.
By Benchmark Capital Management
Co. L.L.C.
Name:
---------------------------------------
(Please print or type)
Signature: /s/ Andrew Rachleff
----------------------------------
Title: Member
--------------------------------------
-32-
COUNTERPART SIGNATURE PAGE TO POINTCAST INCORPORATED
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
Dated as of September 12, 1997
- ------------------------------
INVESTOR: BENCHMARK FOUNDERS' FUND, L.P.
By Benchmark Capital Management
Co. L.L.C.
Name:
---------------------------------------
(Please print or type)
Signature: /s/ Andrew Rachleff
----------------------------------
Title: Member
--------------------------------------
-33-
COUNTERPART SIGNATURE PAGE TO POINTCAST INCORPORATED
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
Dated as of September , 1997
- -----------------------------
INVESTOR: Mohr, Davidow Ventures III
By: WLPJ Partners, General Partner
Name: Jonathan D. Feiber
---------------------------------------
(Please print or type)
Signature: /s/ Jonathan D. Feiber
----------------------------------
Title: General Partner
--------------------------------------
-34-
COUNTERPART SIGNATURE PAGE TO POINTCAST INCORPORATED
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
Dated as of September 12, 1997
- ------------------------------
INVESTOR: Merrill, Pickard Anderson & Eyre V, L.P.
By: MPAE V Management Co., L.P.
Name:
---------------------------------------
(Please print or type)
Signature: /s/ Andrew Rachleff
----------------------------------
Title: General Partner
--------------------------------------
-35-
COUNTERPART SIGNATURE PAGE TO POINTCAST INCORPORATED
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
Dated as of September 12, 1997
- ------------------------------
INVESTOR: MPAE V Affiliates Fund, L.P.
By: MPAE V Management Co., L.P.
Name:
---------------------------------------
(Please print or type)
Signature: /s/ Andrew Rachleff
----------------------------------
Title: General Partner
--------------------------------------
-36-
COUNTERPART SIGNATURE PAGE TO POINTCAST INCORPORATED
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
Dated as of September 12, 1997
- ------------------------------
INVESTOR: WS Investment Company 95B
Name: Mary Anne Pedroni
---------------------------------------
(Please print or type)
Signature: /s/ Mary Anne Pedroni
----------------------------------
Title: Acting Administrator
--------------------------------------
-37-
COUNTERPART SIGNATURE PAGE TO POINTCAST INCORPORATED
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
Dated as of September 12, 1997
- ------------------------------
INVESTOR: WS Investment Company 94A
Name: Mary Anne Pedroni
---------------------------------------
(Please print or type)
Signature: /s/ Mary Anne Pedroni
----------------------------------
Title: Acting Administrator
--------------------------------------
-38-
COUNTERPART SIGNATURE PAGE TO POINTCAST INCORPORATED
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
Dated as of September 12, 1997
- ------------------------------
INVESTOR:
Name: Allen Morgan
---------------------------------------
(Please print or type)
Signature: /s/ Allen Morgan
----------------------------------
Title:
--------------------------------------
-39-
COUNTERPART SIGNATURE PAGE TO POINTCAST INCORPORATED
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
Dated as of September 12, 1997
- ---------------------------------------------
INVESTOR: CPO HOLDINGS, INC.
Name: Robert W. Stearns
---------------------------------------
(Please print or type)
Signature: /s/ Robert W. Stearns
----------------------------------
Title: President
--------------------------------------
-40-
COUNTERPART SIGNATURE PAGE TO POINTCAST INCORPORATED
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
Dated as of September 12, 1997
- ------------------------------
INVESTOR: Gannet International
Communications, Inc.
Name: Evan A. Ray
---------------------------------------
(Please print or type)
Signature: /s/ Evan A. Ray
----------------------------------
Title: Vice President
--------------------------------------
-41-
COUNTERPART SIGNATURE PAGE TO POINTCAST INCORPORATED
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
Dated as of September 8, 1997
- -----------------------------
INVESTOR:
Name: Thomas Unterman
---------------------------------------
(Please print or type)
Signature: /s/ Thomas Unterman
----------------------------------
Title: Senior Vice Presidnet and
--------------------------------------
Chief Financial Officer
--------------------------------------
-42-
COUNTERPART SIGNATURE PAGE TO POINTCAST INCORPORATED
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
Dated as of September , 1997
- -----------------------------
INVESTOR:
Name: Carey P. Hendrickson
---------------------------------------
(Please print or type)
Signature: /s/ Carey P. Hendrickson
----------------------------------
Title: Vice President/Strategic and
--------------------------------------
Financial Planning
--------------------------------------
-43-
COUNTERPART SIGNATURE PAGE TO POINTCAST INCORPORATED
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
Dated as of September 8, 1997
- -----------------------------
INVESTOR:
Name: Cowles Media Company
---------------------------------------
(Please print or type)
Signature: /s/ Jim Viera
----------------------------------
Title: V.P.
--------------------------------------
-44-
COUNTERPART SIGNATURE PAGE TO POINTCAST INCORPORATED
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
Dated as of September 12, 1997
- ------------------------------
INVESTOR:
By: General Electric Capital Corporation
Name: John A. McKinley, Jr.
---------------------------------------
(Please print or type)
Signature: /s/ John A. McKinley, Jr.
----------------------------------
Title: Chief Technology Officer
--------------------------------------
-45-
COUNTERPART SIGNATURE PAGE TO POINTCAST INCORPORATED
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
Dated as of September 12, 1997
- ------------------------------
INVESTOR:
Name: CUC International, Inc.
---------------------------------------
(Please print or type)
Signature: /s/ Cosmo Corigliano
----------------------------------
Title: Senior Vice President & CFO
--------------------------------------
-46-
COUNTERPART SIGNATURE PAGE TO POINTCAST INCORPORATED
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
Dated as of September 12, 1997
- ------------------------------
INVESTOR: Freedom Communications, Inc.
Name: David L. Kuykendell
---------------------------------------
(Please print or type)
Signature: /s/ David L. Kuykendell
----------------------------------
Title: SVP - CFO
--------------------------------------
-47-
EXHIBIT A
---------
SCHEDULE OF INVESTORS
---------------------
Benchmark Capital Partners, L.P. WS Investment Company 95B
2480 Sand Hill Road, Suite 200 c/o Wilson Sonsini Goodrich & Rosati, P.C.
Menlo Park, CA 94025 650 Page Mill Road
Attn: Andrew S. Rachleff Palo Alto, CA 94304-1050
Attn: Allen L. Morgan
Benchmark Founders' Fund, L.P. WS Investment Company 94A
2480 Sand Hill Road, Suite 200 c/o Wilson Sonsini Goodrich & Rosati, P.C.
Menlo Park, CA 94025 650 Page Mill Road
Attn: Andrew S. Rachleff Palo Alto, CA 94304-1050
Attn: Allen L. Morgan
Mohr, Davidow Ventures III
3000 Sand Hill Road Allen L. Morgan
Building 1, Suite 240 c/o Latham & Watkins.
Menlo Park, CA 94025 75 Willow Road
Attn: Jon Feiber Menlo Park, CA 94025
Merrill, Pickard, Anderson & Eyre V, L.P.
2480 Sand Hill Road, Suite 200 Point Fund
Menlo Park, CA 94025 c/o Kenneth D. Cron
Attn: Andrew S. Rachleff CMP Publications, Inc.
600 Community Drive
MPAE V Affiliates Fund, L.P. Manhasset, NY 11030
2480 Sand Hill Road, Suite 200
Menlo Park, CA 94025 SOFTBANK Holdings, Inc.
Attn: Andrew S. Rachleff 10 Langley Road
Suite 403
Adobe Systems Incorporated Newton Center, MA 02159
345 Park Avenue Attn: Charles R. Lax
San Jose, CA 95110-2704
Attn: Jack Bell CPQ Holdings, Inc.
c/o Compaq
P.O. Box 692000
Houston, TX 77269-2000
Attn: Robert W. Stearns
EXHIBIT A
---------
SCHEDULE OF INVESTORS
---------------------
(continued)
Gannett International Communications, Inc. General Electric Capital Corporation
1100 Wilson Boulevard 260 Longridge Road
Arlington, VA 22234 Third Floor
Attn: Carolyn Martin, Director, Gannett New Media Stamford, CT 06927
with a copy to: Thomas Chapple Attn: Thomas A. Crowley
Senior Vice President,
General Counsel & Secretary
Gannett Co., Inc.
1100 Wilson Boulevard
Arlington, VA 22234
The Times Mirror Company CUC International Inc.
Times Mirror Square 707 Summer Street
Los Angeles, CA 90053 Stamford, CT 06901
(For federal express: 220 West First Street Attn: Cosmo Corigliano
Los Angeles, CA 90012)
Attn: Thomas Unterman, Senior Vice President
and Chief Financial Officer
Knight-Ridder Investments, Inc. Pulitzer Publishing Company
50 W. San Fernando, 7th Floor 900 N. Tucker Boulevard
San Jose, CA 95112 St. Louis, MO 63010
Attn: Robert Ingle Attn: Ron Ridgway
McClatchy Newspapers, Inc. Central Newspapers, Inc
2100 Q Street 135 N. Pennsylvania Street, #1200
Sacramento, CA 95816 Indianapolis, IN 46204
Attn: Jim Smith Attn: Thomas MacGillivray
A. H. Belo Corporation Freedom Communications, Inc.
400 S. Record Street 17666 Fitch
17th Floor Irvine, CA 92714
Dallas, TX 75202 Attn: David Kuykendall
Attn: Michael Perry
Cowles Media Company
329 Portland Avenue
Minneapolis, MN 55415
Attn: Jim Viera
-2-
EXHIBIT A
---------
SCHEDULE OF INVESTORS
---------------------
(continued)
Asahi Shimbun Publishing KPMG Peat Marwick LLP
5-3-2 Tsukiji 345 Park Avenue
Chuo-Ku, Tokyo 104-11 New York, NY 10010
JAPAN Attn: Mark Zuffante
Attn: Jun-Ichi Ohmae
Trans Cosmos Inc. Emcompass Group
4040 Lake Washington Boulevard, NE 4040 Lake Washington Boulevard, NE
Suite 205 Suite 205
Kirkland, WA 98033 Kirkland, WA 98033
Attn: Mr. Yasuki Matsumoto Attn: Mr. Yasuki Matsumoto
Ambac Financial Group, Inc. Gregory & Hoenemeyer, Inc.
One State Street Plaza 660 Steamboat Road
New York, NY 10004 Greenwich, CT 06830
Attn: Mr. David Boyle Attn: Mr. W. Grant Gregory, Jr.
David Dorman
c/o PointCast Incorporated
501 Macara Ave.
Sunnyvale, CA 94086
-3-
EXHIBIT B
---------
IRREVOCABLE PROXY
-----------------
1. Subject to paragraph 3 below, the undersigned, as owner of shares of
capital stock of PointCast Incorporated, a California corporation (the
"Company"), the number and description of which shares are set forth below (the
"Shares"), hereby revokes all previous proxies and appoints the Secretary of the
Company (at the time this proxy is exercised) as proxyholder to attend and vote
at any and all meetings of the shareholders of the Company, and any adjournments
thereof, held on or after the date of the giving of this proxy and prior to the
termination of this proxy, as well as to execute any and all written consents of
shareholders of the Company executed on or after the date of the giving of this
proxy and prior to the termination of this proxy, with the same effect as if
the undersigned had personally attended the meeting or had personally voted the
shares or had personally signed the written consent.
2. The undersigned authorizes the proxyholder to substitute another
person as proxyholder and to file the substitution instrument with the Secretary
of the Company.
3. This proxy is granted pursuant to Section 2.8 of that certain Investor
Rights Agreement dated as of September 12, 1997 (the "Investor Rights
Agreement"). The right of the proxyholder to vote the Shares shall be limited
to the circumstances set forth in Section 2.8 of the Investor Rights Agreement.
This proxy shall terminate on, and be of no further force and effect after, the
earlier of (i) the first anniversary of the date of the Investor Rights
Agreement and (ii) the closing of the Initial Public Offering (as such term is
defined in the Investor Rights Agreement).
4. This proxy is irrevocable pursuant to paragraph (2) of subdivision (e)
of Section 705 of the California Corporations Code.
/s/ Andrew S. Rachleff 1,910,037 shares of Series B Preferred Stock
- -----------------------------
(Signature)
223,920 shares of Series C Preferred Stock
Andrew S. Rachleff
- ----------------------------- 114,746 shares of Common Stock
(Print or Type Name)
EXHIBIT B
---------
IRREVOCABLE PROXY
-----------------
1. Subject to paragraph 3 below, the undersigned, as owner of shares of
capital stock of PointCast Incorporated, a California corporation (the
"Company"), the number and description of which shares are set forth below (the
"Shares"), hereby revokes all previous proxies and appoints the Secretary of the
Company (at the time this proxy is exercised) as proxyholder to attend and vote
at any and all meetings of the shareholders of the Company, and any adjournments
thereof, held on or after the date of the giving of this proxy and prior to the
termination of this proxy, as well as to execute any and all written consents of
shareholders of the Company executed on or after the date of the giving of this
proxy and prior to the termination of this proxy, with the same effect as if
the undersigned had personally attended the meeting or had personally voted the
shares or had personally signed the written consent.
2. The undersigned authorizes the proxyholder to substitute another
person as proxyholder and to file the substitution instrument with the Secretary
of the Company.
3. This proxy is granted pursuant to Section 2.8 of that certain Investor
Rights Agreement dated as of September 12, 1997 (the "Investor Rights
Agreement"). The right of the proxyholder to vote the Shares shall be limited
to the circumstances set forth in Section 2.8 of the Investor Rights Agreement.
This proxy shall terminate on, and be of no further force and effect after, the
earlier of (i) the first anniversary of the date of the Investor Rights
Agreement and (ii) the closing of the Initial Public Offering (as such term is
defined in the Investor Rights Agreement).
4. This proxy is irrevocable pursuant to paragraph (2) of subdivision (e)
of Section 705 of the California Corporations Code.
/s/ Andrew S. Rachleff 222,463 shares of Series B Preferred Stock
- -----------------------------
(Signature)
26,080 shares of Series C Preferred Stock
Andrew S. Rachleff
- ----------------------------- 16,038 shares of Common Stock
(Print or Type Name)
EXHIBIT B
---------
IRREVOCABLE PROXY
-----------------
1. Subject to paragraph 3 below, the undersigned, as owner of shares of
capital stock of PointCast Incorporated, a California corporation (the
"Company"), the number and description of which shares are set forth below (the
"Shares"), hereby revokes all previous proxies and appoints the Secretary of the
Company (at the time this proxy is exercised) as proxyholder to attend and vote
at any and all meetings of the shareholders of the Company, and any adjournments
thereof, held on or after the date of the giving of this proxy and prior to the
termination of this proxy, as well as to execute any and all written consents of
shareholders of the Company executed on or after the date of the giving of this
proxy and prior to the termination of this proxy, with the same effect as if
the undersigned had personally attended the meeting or had personally voted the
shares or had personally signed the written consent.
2. The undersigned authorizes the proxyholder to substitute another
person as proxyholder and to file the substitution instrument with the Secretary
of the Company.
3. This proxy is granted pursuant to Section 2.8 of that certain Investor
Rights Agreement dated as of September 12, 1997 (the "Investor Rights
Agreement"). The right of the proxyholder to vote the Shares shall be limited
to the circumstances set forth in Section 2.8 of the Investor Rights Agreement.
This proxy shall terminate on, and be of no further force and effect after, the
earlier of (i) the first anniversary of the date of the Investor Rights
Agreement and (ii) the closing of the Initial Public Offering (as such term is
defined in the Investor Rights Agreement).
4. This proxy is irrevocable pursuant to paragraph (2) of subdivision (e)
of Section 705 of the California Corporations Code.
Mohr, Davidow Ventures III 3,190,750 shares of Series A Preferred Stock
By: WLPJ Partners,
General Partner 710,834 shares of Series B Preferred Stock
1,000,000 shares of Series C Preferred Stock
269,066 shares of Common Stock
By: /s/ Jonathan D. Feiber
--------------------------
Jonathan D. Feiber, General Partner
EXHIBIT B
---------
IRREVOCABLE PROXY
-----------------
1. Subject to paragraph 3 below, the undersigned, as owner of shares of
capital stock of PointCast Incorporated, a California corporation (the
"Company"), the number and description of which shares are set forth below (the
"Shares"), hereby revokes all previous proxies and appoints the Secretary of the
Company (at the time this proxy is exercised) as proxyholder to attend and vote
at any and all meetings of the shareholders of the Company, and any adjournments
thereof, held on or after the date of the giving of this proxy and prior to the
termination of this proxy, as well as to execute any and all written consents of
shareholders of the Company executed on or after the date of the giving of this
proxy and prior to the termination of this proxy, with the same effect as if
the undersigned had personally attended the meeting or had personally voted the
shares or had personally signed the written consent.
2. The undersigned authorizes the proxyholder to substitute another
person as proxyholder and to file the substitution instrument with the Secretary
of the Company.
3. This proxy is granted pursuant to Section 2.8 of that certain Investor
Rights Agreement dated as of September 12, 1997 (the "Investor Rights
Agreement"). The right of the proxyholder to vote the Shares shall be limited
to the circumstances set forth in Section 2.8 of the Investor Rights Agreement.
This proxy shall terminate on, and be of no further force and effect after, the
earlier of (i) the first anniversary of the date of the Investor Rights
Agreement and (ii) the closing of the Initial Public Offering (as such term is
defined in the Investor Rights Agreement).
4. This proxy is irrevocable pursuant to paragraph (2) of subdivision (e)
of Section 705 of the California Corporations Code.
/s/ Andrew S. Rachleff 105,925 shares of Series A Preferred Stock
- -----------------------------
(Signature)
_____ shares of Series _ Preferred Stock
Andrew S. Rachleff _____ shares of Series _ Preferred Stock
- -----------------------------
(Print or Type Name)
EXHIBIT B
---------
IRREVOCABLE PROXY
-----------------
1. Subject to paragraph 3 below, the undersigned, as owner of shares of
capital stock of PointCast Incorporated, a California corporation (the
"Company"), the number and description of which shares are set forth below (the
"Shares"), hereby revokes all previous proxies and appoints the Secretary of the
Company (at the time this proxy is exercised) as proxyholder to attend and vote
at any and all meetings of the shareholders of the Company, and any adjournments
thereof, held on or after the date of the giving of this proxy and prior to the
termination of this proxy, as well as to execute any and all written consents of
shareholders of the Company executed on or after the date of the giving of this
proxy and prior to the termination of this proxy, with the same effect as if
the undersigned had personally attended the meeting or had personally voted the
shares or had personally signed the written consent.
2. The undersigned authorizes the proxyholder to substitute another
person as proxyholder and to file the substitution instrument with the Secretary
of the Company.
3. This proxy is granted pursuant to Section 2.8 of that certain Investor
Rights Agreement dated as of September 12, 1997 (the "Investor Rights
Agreement"). The right of the proxyholder to vote the Shares shall be limited
to the circumstances set forth in Section 2.8 of the Investor Rights Agreement.
This proxy shall terminate on, and be of no further force and effect after, the
earlier of (i) the first anniversary of the date of the Investor Rights
Agreement and (ii) the closing of the Initial Public Offering (as such term is
defined in the Investor Rights Agreement).
4. This proxy is irrevocable pursuant to paragraph (2) of subdivision (e)
of Section 705 of the California Corporations Code.
/s/ Andrew S. Rachleff 3,084,825 shares of Series A Preferred Stock
- -----------------------------
(Signature)
710,834 shares of Series B Preferred Stock
Andrew S. Rachleff
- ----------------------------- 200,000 shares of Series C Preferred Stock
(Print or Type Name)
225,150 Shares of Common Stock
EXHIBIT B
---------
IRREVOCABLE PROXY
-----------------
1. Subject to paragraph 3 below, the undersigned, as owner of shares of
capital stock of PointCast Incorporated, a California corporation (the
"Company"), the number and description of which shares are set forth below (the
"Shares"), hereby revokes all previous proxies and appoints the Secretary of the
Company (at the time this proxy is exercised) as proxyholder to attend and vote
at any and all meetings of the shareholders of the Company, and any adjournments
thereof, held on or after the date of the giving of this proxy and prior to the
termination of this proxy, as well as to execute any and all written consents of
shareholders of the Company executed on or after the date of the giving of this
proxy and prior to the termination of this proxy, with the same effect as if
the undersigned had personally attended the meeting or had personally voted the
shares or had personally signed the written consent.
2. The undersigned authorizes the proxyholder to substitute another
person as proxyholder and to file the substitution instrument with the Secretary
of the Company.
3. This proxy is granted pursuant to Section 2.8 of that certain Investor
Rights Agreement dated as of September 12, 1997 (the "Investor Rights
Agreement"). The right of the proxyholder to vote the Shares shall be limited
to the circumstances set forth in Section 2.8 of the Investor Rights Agreement.
This proxy shall terminate on, and be of no further force and effect after, the
earlier of (i) the first anniversary of the date of the Investor Rights
Agreement and (ii) the closing of the Initial Public Offering (as such term is
defined in the Investor Rights Agreement).
4. This proxy is irrevocable pursuant to paragraph (2) of subdivision (e)
of Section 705 of the California Corporations Code.
WS Investment Company 95B
/s/ Mary Anne Petroni 35,500 shares of Series B Preferred Stock
- -----------------------------
(Signature)
______ shares of Series _ Preferred Stock
Mary Anne Petroni
Acting Administrator ______ shares of Series _ Preferred Stock
- -----------------------------
(Print or Type Name)
EXHIBIT B
---------
IRREVOCABLE PROXY
-----------------
1. Subject to paragraph 3 below, the undersigned, as owner of shares of
capital stock of PointCast Incorporated, a California corporation (the
"Company"), the number and description of which shares are set forth below (the
"Shares"), hereby revokes all previous proxies and appoints the Secretary of the
Company (at the time this proxy is exercised) as proxyholder to attend and vote
at any and all meetings of the shareholders of the Company, and any adjournments
thereof, held on or after the date of the giving of this proxy and prior to the
termination of this proxy, as well as to execute any and all written consents of
shareholders of the Company executed on or after the date of the giving of this
proxy and prior to the termination of this proxy, with the same effect as if
the undersigned had personally attended the meeting or had personally voted the
shares or had personally signed the written consent.
2. The undersigned authorizes the proxyholder to substitute another
person as proxyholder and to file the substitution instrument with the Secretary
of the Company.
3. This proxy is granted pursuant to Section 2.8 of that certain Investor
Rights Agreement dated as of September 12, 1997 (the "Investor Rights
Agreement"). The right of the proxyholder to vote the Shares shall be limited
to the circumstances set forth in Section 2.8 of the Investor Rights Agreement.
This proxy shall terminate on, and be of no further force and effect after, the
earlier of (i) the first anniversary of the date of the Investor Rights
Agreement and (ii) the closing of the Initial Public Offering (as such term is
defined in the Investor Rights Agreement).
4. This proxy is irrevocable pursuant to paragraph (2) of subdivision (e)
of Section 705 of the California Corporations Code.
WS Investment Company 95B
/s/ Mary Anne Petroni 28,717 shares of Series A Preferred Stock
- -----------------------------
(Signature)
______ shares of Series _ Preferred Stock
Mary Anne Petroni
Acting Administrator ______ shares of Series _ Preferred Stock
- -----------------------------
(Print or Type Name)
EXHIBIT B
---------
IRREVOCABLE PROXY
-----------------
1. Subject to paragraph 3 below, the undersigned, as owner of shares of
capital stock of PointCast Incorporated, a California corporation (the
"Company"), the number and description of which shares are set forth below (the
"Shares"), hereby revokes all previous proxies and appoints the Secretary of the
Company (at the time this proxy is exercised) as proxyholder to attend and vote
at any and all meetings of the shareholders of the Company, and any adjournments
thereof, held on or after the date of the giving of this proxy and prior to the
termination of this proxy, as well as to execute any and all written consents of
shareholders of the Company executed on or after the date of the giving of this
proxy and prior to the termination of this proxy, with the same effect as if
the undersigned had personally attended the meeting or had personally voted the
shares or had personally signed the written consent.
2. The undersigned authorizes the proxyholder to substitute another
person as proxyholder and to file the substitution instrument with the Secretary
of the Company.
3. This proxy is granted pursuant to Section 2.8 of that certain Investor
Rights Agreement dated as of September 12, 1997 (the "Investor Rights
Agreement"). The right of the proxyholder to vote the Shares shall be limited
to the circumstances set forth in Section 2.8 of the Investor Rights Agreement.
This proxy shall terminate on, and be of no further force and effect after, the
earlier of (i) the first anniversary of the date of the Investor Rights
Agreement and (ii) the closing of the Initial Public Offering (as such term is
defined in the Investor Rights Agreement).
4. This proxy is irrevocable pursuant to paragraph (2) of subdivision (e)
of Section 705 of the California Corporations Code.
/s/ Allen Morgan 11,168 shares of Series A Preferred Stock
- -----------------------------
(Signature)
13,700 shares of Series B Preferred Stock
Allen Morgan
- ----------------------------- 6,554 shares of Series C Preferred Stock
(Print or Type Name)
EXHIBIT B
---------
IRREVOCABLE PROXY
-----------------
1. Subject to paragraph 3 below, the undersigned, as owner of shares of
capital stock of PointCast Incorporated, a California corporation (the
"Company"), the number and description of which shares are set forth below (the
"Shares"), hereby revokes all previous proxies and appoints the Secretary of the
Company (at the time this proxy is exercised) as proxyholder to attend and vote
at any and all meetings of the shareholders of the Company, and any adjournments
thereof, held on or after the date of the giving of this proxy and prior to the
termination of this proxy, as well as to execute any and all written consents of
shareholders of the Company executed on or after the date of the giving of this
proxy and prior to the termination of this proxy, with the same effect as if
the undersigned had personally attended the meeting or had personally voted the
shares or had personally signed the written consent.
2. The undersigned authorizes the proxyholder to substitute another
person as proxyholder and to file the substitution instrument with the Secretary
of the Company.
3. This proxy is granted pursuant to Section 2.8 of that certain Investor
Rights Agreement dated as of September 12, 1997 (the "Investor Rights
Agreement"). The right of the proxyholder to vote the Shares shall be limited
to the circumstances set forth in Section 2.8 of the Investor Rights Agreement.
This proxy shall terminate on, and be of no further force and effect after, the
earlier of (i) the first anniversary of the date of the Investor Rights
Agreement and (ii) the closing of the Initial Public Offering (as such term is
defined in the Investor Rights Agreement).
4. This proxy is irrevocable pursuant to paragraph (2) of subdivision (e)
of Section 705 of the California Corporations Code.
/s/ Evan A. Ray 315,790 shares of Series D Preferred Stock
- -----------------------------
(Signature)
_____ shares of Series _ Preferred Stock
Evan A. Ray
- ----------------------------- _____ shares of Series _ Preferred Stock
(Print or Type Name)
Vice President
Gannet International Communications, Inc.
EXHIBIT B
---------
IRREVOCABLE PROXY
-----------------
1. Subject to paragraph 3 below, the undersigned, as owner of shares of
capital stock of PointCast Incorporated, a California corporation (the
"Company"), the number and description of which shares are set forth below (the
"Shares"), hereby revokes all previous proxies and appoints the Secretary of the
Company (at the time this proxy is exercised) as proxyholder to attend and vote
at any and all meetings of the shareholders of the Company, and any adjournments
thereof, held on or after the date of the giving of this proxy and prior to the
termination of this proxy, as well as to execute any and all written consents of
shareholders of the Company executed on or after the date of the giving of this
proxy and prior to the termination of this proxy, with the same effect as if
the undersigned had personally attended the meeting or had personally voted the
shares or had personally signed the written consent.
2. The undersigned authorizes the proxyholder to substitute another
person as proxyholder and to file the substitution instrument with the Secretary
of the Company.
3. This proxy is granted pursuant to Section 2.8 of that certain Investor
Rights Agreement dated as of September 8, 1997 (the "Investor Rights
Agreement"). The right of the proxyholder to vote the Shares shall be limited
to the circumstances set forth in Section 2.8 of the Investor Rights Agreement.
This proxy shall terminate on, and be of no further force and effect after, the
earlier of (i) the first anniversary of the date of the Investor Rights
Agreement and (ii) the closing of the Initial Public Offering (as such term is
defined in the Investor Rights Agreement).
4. This proxy is irrevocable pursuant to paragraph (2) of subdivision (e)
of Section 705 of the California Corporations Code.
/s/ Thomas Unterman 315,790 shares of Series D Preferred Stock
- -----------------------------
(Signature)
______ shares of Series _ Preferred Stock
Thomas Unterman
- ----------------------------- ______ shares of Series _ Preferred Stock
(Print or Type Name)
EXHIBIT B
---------
IRREVOCABLE PROXY
-----------------
1. Subject to paragraph 3 below, the undersigned, as owner of shares of
capital stock of PointCast Incorporated, a California corporation (the
"Company"), the number and description of which shares are set forth below (the
"Shares"), hereby revokes all previous proxies and appoints the Secretary of the
Company (at the time this proxy is exercised) as proxyholder to attend and vote
at any and all meetings of the shareholders of the Company, and any adjournments
thereof, held on or after the date of the giving of this proxy and prior to the
termination of this proxy, as well as to execute any and all written consents of
shareholders of the Company executed on or after the date of the giving of this
proxy and prior to the termination of this proxy, with the same effect as if
the undersigned had personally attended the meeting or had personally voted the
shares or had personally signed the written consent.
2. The undersigned authorizes the proxyholder to substitute another
person as proxyholder and to file the substitution instrument with the Secretary
of the Company.
3. This proxy is granted pursuant to Section 2.8 of that certain Investor
Rights Agreement dated as of September 12, 1997 (the "Investor Rights
Agreement"). The right of the proxyholder to vote the Shares shall be limited
to the circumstances set forth in Section 2.8 of the Investor Rights Agreement.
This proxy shall terminate on, and be of no further force and effect after, the
earlier of (i) the first anniversary of the date of the Investor Rights
Agreement and (ii) the closing of the Initial Public Offering (as such term is
defined in the Investor Rights Agreement).
4. This proxy is irrevocable pursuant to paragraph (2) of subdivision (e)
of Section 705 of the California Corporations Code.
/s/ Carey P. Hendrickson 21,052 shares of Series D Preferred Stock
- -----------------------------
(Signature)
______ shares of Series _ Preferred Stock
Vice President
Strategic and Financial Planning
- ----------------------------- ______ shares of Series _ Preferred Stock
(Print or Type Name)
EXHIBIT B
---------
IRREVOCABLE PROXY
-----------------
1. Subject to paragraph 3 below, the undersigned, as owner of shares of
capital stock of PointCast Incorporated, a California corporation (the
"Company"), the number and description of which shares are set forth below (the
"Shares"), hereby revokes all previous proxies and appoints the Secretary of the
Company (at the time this proxy is exercised) as proxyholder to attend and vote
at any and all meetings of the shareholders of the Company, and any adjournments
thereof, held on or after the date of the giving of this proxy and prior to the
termination of this proxy, as well as to execute any and all written consents of
shareholders of the Company executed on or after the date of the giving of this
proxy and prior to the termination of this proxy, with the same effect as if
the undersigned had personally attended the meeting or had personally voted the
shares or had personally signed the written consent.
2. The undersigned authorizes the proxyholder to substitute another
person as proxyholder and to file the substitution instrument with the Secretary
of the Company.
3. This proxy is granted pursuant to Section 2.8 of that certain Investor
Rights Agreement dated as of September 8, 1997 (the "Investor Rights
Agreement"). The right of the proxyholder to vote the Shares shall be limited to
the circumstances set forth in Section 2.8 of the Investor Rights Agreement.
This proxy shall terminate on, and be of no further force and effect after, the
earlier of (i) the first anniversary of the date of the Investor Rights
Agreement and (ii) the closing of the Initial Public Offering (as such term is
defined in the Investor Rights Agreement).
4. This proxy is irrevocable pursuant to paragraph (2) of subdivision (e)
of Section 705 of the California Corporations Code.
/s/ James J. Viera 21,052 shares of Series D Preferred Stock
- -----------------------------
(Signature)
______ shares of Series _ Preferred Stock
James J. Viera, VP
Cowles Media Company
- ----------------------------- ______ shares of Series _ Preferred Stock
(Print or Type Name)
EXHIBIT B
---------
IRREVOCABLE PROXY
-----------------
1. Subject to paragraph 3 below, the undersigned, as owner of shares of
capital stock of PointCast Incorporated, a California corporation (the
"Company"), the number and description of which shares are set forth below (the
"Shares"), hereby revokes all previous proxies and appoints the Secretary of the
Company (at the time this proxy is exercised) as proxyholder to attend and vote
at any and all meetings of the shareholders of the Company, and any adjournments
thereof, held on or after the date of the giving of this proxy and prior to the
termination of this proxy, as well as to execute any and all written consents of
shareholders of the Company executed on or after the date of the giving of this
proxy and prior to the termination of this proxy, with the same effect as if
the undersigned had personally attended the meeting or had personally voted the
shares or had personally signed the written consent.
2. The undersigned authorizes the proxyholder to substitute another
person as proxyholder and to file the substitution instrument with the Secretary
of the Company.
3. This proxy is granted pursuant to Section 2.8 of that certain Investor
Rights Agreement dated as of September 5, 1997 (the "Investor Rights
Agreement"). The right of the proxyholder to vote the Shares shall be limited
to the circumstances set forth in Section 2.8 of the Investor Rights Agreement.
This proxy shall terminate on, and be of no further force and effect after, the
earlier of (i) the first anniversary of the date of the Investor Rights
Agreement and (ii) the closing of the Initial Public Offering (as such term is
defined in the Investor Rights Agreement).
4. This proxy is irrevocable pursuant to paragraph (2) of subdivision (e)
of Section 705 of the California Corporations Code.
/s/ John A. McKinley, Jr. 315,790 shares of Series D Preferred Stock
- -----------------------------
(Signature)
_____ shares of Series _ Preferred Stock
John A. McKinley, Jr.
Chief Technology Officer _____ shares of Series _ Preferred Stock
- -----------------------------
(Print or Type Name)
EXHIBIT B
---------
IRREVOCABLE PROXY
-----------------
1. Subject to paragraph 3 below, the undersigned, as owner of shares of
capital stock of PointCast Incorporated, a California corporation (the
"Company"), the number and description of which shares are set forth below (the
"Shares"), hereby revokes all previous proxies and appoints the Secretary of the
Company (at the time this proxy is exercised) as proxyholder to attend and vote
at any and all meetings of the shareholders of the Company, and any adjournments
thereof, held on or after the date of the giving of this proxy and prior to the
termination of this proxy, as well as to execute any and all written consents of
shareholders of the Company executed on or after the date of the giving of this
proxy and prior to the termination of this proxy, with the same effect as if
the undersigned had personally attended the meeting or had personally voted the
shares or had personally signed the written consent.
2. The undersigned authorizes the proxyholder to substitute another
person as proxyholder and to file the substitution instrument with the Secretary
of the Company.
3. This proxy is granted pursuant to Section 2.8 of that certain Investor
Rights Agreement dated as of September 12, 1997 (the "Investor Rights
Agreement"). The right of the proxyholder to vote the Shares shall be limited
to the circumstances set forth in Section 2.8 of the Investor Rights Agreement.
This proxy shall terminate on, and be of no further force and effect after, the
earlier of (i) the first anniversary of the date of the Investor Rights
Agreement and (ii) the closing of the Initial Public Offering (as such term is
defined in the Investor Rights Agreement).
4. This proxy is irrevocable pursuant to paragraph (2) of subdivision (e)
of Section 705 of the California Corporations Code.
/s/ Cosmo Corigliano 210,527 shares of Series D Preferred Stock
- -----------------------------
(Signature)
_______ shares of Series _ Preferred Stock
CUC International Inc.
- ----------------------------- _______ shares of Series _ Preferred Stock
(Print or Type Name)
EXHIBIT B
---------
IRREVOCABLE PROXY
-----------------
1. Subject to paragraph 3 below, the undersigned, as owner of shares of
capital stock of PointCast Incorporated, a California corporation (the
"Company"), the number and description of which shares are set forth below (the
"Shares"), hereby revokes all previous proxies and appoints the Secretary of the
Company (at the time this proxy is exercised) as proxyholder to attend and vote
at any and all meetings of the shareholders of the Company, and any adjournments
thereof, held on or after the date of the giving of this proxy and prior to the
termination of this proxy, as well as to execute any and all written consents of
shareholders of the Company executed on or after the date of the giving of this
proxy and prior to the termination of this proxy, with the same effect as if
the undersigned had personally attended the meeting or had personally voted the
shares or had personally signed the written consent.
2. The undersigned authorizes the proxyholder to substitute another
person as proxyholder and to file the substitution instrument with the Secretary
of the Company.
3. This proxy is granted pursuant to Section 2.8 of that certain Investor
Rights Agreement dated as of September 12, 1997 (the "Investor Rights
Agreement"). The right of the proxyholder to vote the Shares shall be limited
to the circumstances set forth in Section 2.8 of the Investor Rights Agreement.
This proxy shall terminate on, and be of no further force and effect after, the
earlier of (i) the first anniversary of the date of the Investor Rights
Agreement and (ii) the closing of the Initial Public Offering (as such term is
defined in the Investor Rights Agreement).
4. This proxy is irrevocable pursuant to paragraph (2) of subdivision (e)
of Section 705 of the California Corporations Code.
FREEDOM COMMUNICATIONS, INC.
/s/ David L. Kuykendell 21,052 shares of Series D Preferred Stock
- -----------------------------
(Signature)
______ shares of Series _ Preferred Stock
David L. Kuykendell
- ----------------------------- ______ shares of Series _ Preferred Stock
(Print or Type Name)
Senior Vice President and
Chief Executive Officer