EXHIBIT 4.2
RAMP NETWORKS, INC.
FOURTH AMENDED AND RESTATED RIGHTS AGREEMENT
THIS FOURTH AMENDED AND RESTATED RIGHTS AGREEMENT (the "Agreement") is made
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and entered into as of October 30, 1997, by and among Ramp Networks, Inc., a
California corporation (the "Company"), the persons identified on Exhibit A-1
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attached hereto (the "Founders") and the investors identified on Exhibit A-2
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attached hereto (the "Investors").
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RECITALS
WHEREAS, the Company and certain of the Investors have entered into a
Series A Preferred Stock Purchase Agreement dated September 22, 1995 (the
"Series A Purchase Agreement"), pursuant to which the Company sold, and such
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Investors acquired, shares of the Company's Series A Preferred Stock (the
"Series A Shares");
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WHEREAS, the Company and certain of the Investors have entered into a
Series B Preferred Stock Purchase Agreement dated March 28, 1996 (the "Series B
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Purchase Agreement"), pursuant to which the Company sold, and such Investors
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acquired, shares of the Company's Series B Preferred Stock (the "Series B
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Shares");
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WHEREAS, the Company and certain of the Investors have entered into an
Amended and Restated Series C Preferred Stock Purchase Agreement dated April 30,
1997 (the "Series C Purchase Agreement"), pursuant to which the Company sold,
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and such Investors acquired, shares of the Company's Series C Preferred Stock
(the "Series C Shares");
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WHEREAS, the Founders have purchased shares of the Company's Common Stock
pursuant to Common Stock Purchase Agreements (the "Founders' Shares");
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WHEREAS, the Company and certain of the Investors are entering into a
Series D Preferred Stock Purchase Agreement of even date herewith (the "Series D
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Purchase Agreement"), pursuant to which the Company shall sell, and the
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Investors shall acquire, shares of the Company's Series D Preferred Stock (the
"Series D Shares");
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WHEREAS, the Company, the Founders and certain of the Investors have
entered into an existing Third Amended and Restated Rights Agreement (the
"Existing Rights Agreement") dated April 30, 1997, and wish to amend the
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Existing Rights Agreement and grant the Investors who acquire Series D Shares
the registration rights provided herein, subject to execution of this agreement
by such Investors.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties agree as follows:
Section 1. Termination of Prior Rights. Upon execution of this Agreement
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by the Company and the holders of at least a majority of the outstanding
Registrable Securities (as
defined in the Existing Rights Agreement) and the holders of at least a majority
of the outstanding Series C Preferred Stock, the Existing Rights Agreement is
hereby amended and restated pursuant to Sections 2 and 5.7 of the Existing
Rights Agreement to read as set forth in this Agreement.
Section 2. Amendment. Except as expressly provided herein, neither this
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Agreement nor any term hereof may be amended, waived, discharged or terminated
other than by a written instrument signed by the party against whom enforcement
of any such amendment, waiver, discharge or termination is sought; provided,
however, that any provision hereof may be amended, waived, discharged or
terminated upon the written consent of (i) the Company, (ii) the holders of a
majority of the outstanding Registrable Securities (as defined below) determined
on the basis of assumed conversion of all Series A Shares, Series B Shares,
Series C Shares and Series D Shares into Registrable Securities and (iii) the
holders of a majority of the outstanding Series C shares.
Section 3. Registration Rights.
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3.1 Definitions. As used in this Agreement:
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(a) The terms "register," "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act of 1933, as amended (the "Securities Act")
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and the subsequent declaration or ordering of the effectiveness of such
registration statement.
(b) The term "Registrable Securities" means:
(i) the Founders' Shares;
(ii) the shares of Common Stock issuable or issued upon
conversion of the Series A Shares;
(iii) the shares of Common Stock issuable or issued upon
conversion of the Series B Shares;
(iii) the shares of Common Stock issuable or issued upon
conversion of the Series C Shares;
(iv) the shares of Common Stock issuable or issued upon
conversion of the Series D Shares (the shares of Common Stock referred to in
clauses (i), (ii), (iii) and (iv) hereof are collectively referred to hereafter
as the "Stock"); and
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(v) any other shares of Common Stock of the Company
issued as (or issuable upon the conversion or exercise of any warrant, right or
other security which is issued as) a dividend or other distribution with respect
to, or in exchange for or in replacement of, the Stock, excluding in all cases,
however, any Registrable Securities sold by a person in a transaction in which
his or her rights under this Agreement are not assigned;
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provided, however, that Common Stock or other securities shall only be treated
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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, if any, are removed upon the consummation of such sale.
(c) The number of shares of "Registrable Securities then outstanding"
shall be determined by the number of shares of Common Stock outstanding which
are, and the number of shares of Common Stock issuable pursuant to then
exercisable or convertible securities which are, Registrable Securities.
(d) The term "Holder" means any holder of outstanding Registrable
Securities who acquired such Registrable Securities in a transaction or series
of transactions not involving any registered public offering.
(e) The term "Form S-3" means such form under the Securities Act of
1933, as amended (the "Act") as in effect on the date hereof or any registration
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form under the Act subsequently adopted by the Securities and Exchange
Commission ("SEC") which permits inclusion or incorporation of substantial
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information by reference to other documents filed by the Company with the SEC.
3.2 Requested Registration.
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(a) If the Company shall receive at any time after the earlier of (i)
five (5) years after April 30, 1997, or (ii) six (6) months after the effective
date of the first registration statement for a public offering of securities of
the Company (other than a registration statement relating either to the sale of
securities to employees of the Company pursuant to a stock option, stock
purchase or similar plan or a SEC Rule 145 transaction), a written request from
the Holders of forty percent (40%) of the Registrable Securities then
outstanding that the Company file a registration statement under the Act
covering the registration of the Registrable Securities then outstanding, the
anticipated aggregate offering price, net of underwriting discounts and
commissions, of which would exceed Seven Million Five Hundred Thousand Dollars
($7,500,000), then the Company shall, within ten (10) days of the receipt
thereof, give written notice of such request to all Holders and shall, subject
to the limitations of subsection 3.2(b), use its best efforts to effect as soon
as practicable, and in any event within ninety (90) days of the receipt of such
request, the registration under the Act of all Registrable Securities which the
Holders request to be registered in a written request given within twenty (20)
days of the mailing of such notice by the Company in accordance with Section
5.5.
(b) If the Holders initiating the registration request hereunder
("Initiating Holders") intend to distribute the Registrable Securities covered
by their request by means of an underwriting, they shall so advise the Company
as a part of their request made pursuant to this Section 3.2 and the Company
shall include such information in the written notice referred to in subsection
3.2(a). In such event, the right of any Holder to include his Registrable
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Securities in such registration shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting (unless otherwise mutually agreed by
a majority in interest of the Initiating Holders and such Holder) to the extent
provided herein. All Holders proposing to distribute their securities through
such underwriting shall (together with the Company as provided in subsection
3.4(e)) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting by a majority in
interest of the Initiating Holders. Notwithstanding any other provision of this
Section 3.2, if the underwriter advises the Initiating Holders in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then the Initiating Holders shall so advise all Holders of
Registrable Securities which would otherwise be underwritten pursuant hereto,
and the number of shares of Registrable Securities that may be included in the
underwriting shall be allocated among all Holders thereof, including the
Initiating Holders, in proportion (as nearly as practicable) to the amount of
Registrable Securities of the Company owned by each Holder.
(c) The Company is obligated to effect only two (2) such registrations
pursuant to this Section 3.2; provided, however, that the Company shall be
obligated to effect one additional registration pursuant to this Section 3.2 if
the Company fails to qualify for use of Form S-3 under the Securities Act within
twelve (12) months after the effective date of the first registration statement
for a public offering of securities of the Company (other than a registration
statement relating either to the sale of securities to employees of the Company
pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145
transaction).
(d) Notwithstanding the foregoing, if the Company shall furnish to
Holders requesting a registration statement pursuant to this Section 3.2, a
certificate signed by the President of the Company stating that in the good
faith judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its shareholders for such registration statement
to be filed and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer such filing
for a period of not more than ninety (90) days after receipt of the request of
the Initiating Holders; provided, however, that the Company may not utilize this
right more than once in any twelve (12) month period.
(e) Notwithstanding the foregoing, the Company shall not be obligated
to effect, or to take any action to effect, any such registration pursuant to
this Section 3.2 during the period starting with the date sixty (60) days prior
to the Company's good faith estimate of the date of filing of, and ending on a
date one hundred eighty (180) days after the effective date of, a Company-
initiated registration; provided the Company is actively employing in good faith
all reasonable efforts to cause such registration statement to become effective.
3.3 Company Registration. If (but without any obligation to do so)
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the Company, at any time or from time to time, proposes to register (including
for this purpose a registration effected by the Company for shareholders other
than the Holders) any of its Common Stock or other securities under the Act in
connection with the public offering of such securities solely for cash (other
than a registration relating either to the sale of securities to participants in
a
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Company stock option, stock purchase or similar plan or to a SEC Rule 145
transaction, or a registration on any form which does not include substantially
the same information as would be required to be included in a registration
statement covering the sale of the Registrable Securities), the Company shall,
at such time, promptly give each Holder written notice of such registration.
Upon the written request of each Holder given within twenty (20) days after
mailing of such notice by the Company in accordance with Section 5.5, the
Company shall, subject to the provisions of Section 3.8, use its best efforts to
cause to be registered under the Act all of the Registrable Securities that each
such Holder has requested to be registered.
3.4 Obligations of the Company. Whenever required under this Section
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3 to effect the registration of any Registrable Securities, the Company shall,
as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, upon the request of the Holders
of a majority of the Registrable Securities registered thereunder, keep such
registration statement effective for up to one hundred twenty (120) days.
(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Act, and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders,
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering. Each Holder participating
in such underwriting shall also enter into and perform its obligations under
such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event as a result
of which the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing.
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(g) Furnish, at the request of any Holder requesting registration of
Registrable Securities pursuant to this Section 3, on the date that such
Registrable Securities are delivered to the underwriters for sale in connection
with a registration pursuant to this Section 3, 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 outside
counsel representing the Company for the purposes of such registration, in form
and substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities and (ii) a letter dated such date, from
the independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and to the Holders requesting registration of Registrable Securities.
3.5 Furnish Information. It shall be a condition precedent to the
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obligations of the Company to take any action pursuant to this Section 3 with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be required to effect the registration of such Holder's Registrable
Securities.
3.6 Expenses of Demand Registration. All expenses other than
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underwriting discounts and commissions incurred in connection with
registrations, filings or qualifications pursuant to Section 3.2, including
(without limitation), all registration, filing and qualification fees, printers
and accounting fees, fees and disbursements of counsel for the Company and
reasonable fees and disbursements of one counsel selected by the selling Holders
shall be borne by the Company; provided, however, that the Company shall not be
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required to pay for any expenses of any registration proceeding begun pursuant
to Section 3.2 if the registration request is subsequently withdrawn at the
request of the Holders of a majority of the Registrable Securities to be
registered (in which case all participating Holders shall bear such expenses),
unless the Holders of a majority of the Registrable Securities agree to forfeit
their right to one demand registration pursuant to Section 3.2; provided
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further, that if at the time of such withdrawal, the Holders have learned of a
material adverse change in the condition, business or prospects of the Company
from that known to the Holders at the time of their request, then the Holders
shall not be required to pay any of such expenses and shall retain their rights
pursuant to Section 3.2.
3.7 Expenses of Company Registration. The Company shall bear and pay
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all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
pursuant to Section 3.3 for each Holder (which right may be assigned as provided
in Section 3.13), including (without limitation) all registration, filing, and
qualification fees, printers and accounting fees and fees and disbursements of
counsel for the Company relating or apportionable thereto, but excluding
underwriting discounts and commissions relating to Registrable Securities.
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3.8 Underwriting Requirements. In connection with any offering
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involving an underwriting of shares being issued by the Company, the Company
shall not be required under Section 3.3 to include any of the Holders'
securities in such underwriting unless they accept the terms of the underwriting
as agreed upon between the Company and the underwriters selected by it, and then
only in such quantity as will not, in the opinion of the underwriters,
jeopardize the success of the offering by the Company. If the total amount of
securities, including Registrable Securities, requested by shareholders to be
included in such offering exceeds the amount of securities sold other than by
the Company that the underwriters reasonably believe compatible with the success
of the offering, then the Company shall be required to include in the offering
only that number of such securities, including Registrable Securities, which the
underwriters believe will not jeopardize the success of the offering (the
securities so included to be apportioned pro rata among the selling shareholders
according to the total amount of securities entitled to be included therein
owned by each selling shareholder or in such other proportions as shall mutually
be agreed to by such selling shareholders); but in no event shall (i) the amount
of securities of the selling Holders included in the offering be reduced below
twenty percent (20%) of the total amount of securities included in such
offering, unless such offering is the initial public offering of the Company's
securities, in which case the selling shareholders may be excluded completely if
the underwriters make the determination described above and no other
shareholder's securities are included or (ii) notwithstanding (i) above, any
shares being sold by a shareholder exercising a demand registration right
similar to that granted in Section 3.2 be excluded from such offering. For
purposes of the preceding parenthetical concerning apportionment, for any
selling shareholder which is a holder of Registrable Securities and which is a
partnership or corporation, the partners, retired partners and shareholders of
such holder, or the estates and family members of any such partners and retired
partners and any trusts for the benefit of any of the foregoing persons shall be
deemed to be a single "selling shareholder," and any pro rata reduction with
respect to such "selling shareholder" shall be based upon the aggregate amount
of shares carrying registration rights owned by all entities and individuals
included in such "selling shareholder," as defined in this sentence.
3.9 Delay of Registration. No Holder shall have any right to obtain
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or seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 3.
3.10 Indemnification. In the event any Registrable Securities are
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included in a registration statement under this Section 3:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, any underwriter (as defined in the Act) for such
Holder and each person, if any, who controls such Holder or underwriter within
the meaning of the Act or the Securities Exchange Act of 1934, as amended (the
"1934 Act"), against any losses, claims, damages, or liabilities (joint or
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several) to which they may become subject under the Act, the 1934 Act or other
federal or state law, insofar as such losses, claims, damages, or liabilities
(or actions in respect thereof) arise out of or are based upon any of the
following statements, omissions or violations (collectively a "Violation"): (i)
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any untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including any preliminary
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prospectus or final prospectus contained therein or any amendments or
supplements thereto; (ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the statements
therein not misleading; or (iii) any violation or alleged violation by the
Company of the Act, the 1934 Act, any state securities law or any rule or
regulation promulgated under the Act, the 1934 Act or any state securities law;
and the Company will pay as incurred to each such Holder, underwriter or
controlling person, any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, the Company will not be liable in any such case
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to the extent that any such loss, claim, damage, liability, or action arises out
of or is based on any untrue statement or omission based upon written
information furnished to the Company by such Holder or underwriter and stated to
be specifically for use therein; provided further, the indemnity agreement
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contained in this subsection 3.10(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability, or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld), nor shall the Company be liable in any such case
to a Holder, underwriter or controlling person for any such loss, claim, damage,
liability, or action to the extent that it arises out of or is based upon a
Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by
such Holder, underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder will indemnify
and hold harmless the Company, each of its directors, each of its officers who
has signed the registration statement, each person, if any, who controls the
Company within the meaning of the Act, any underwriter, any other Holder selling
securities in such registration statement and any controlling person of any such
underwriter or other Holder, against any losses, claims, damages, or liabilities
(joint or several) to which any of the foregoing persons may become subject,
under the Act, the 1934 Act or other federal or state law, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereto) arise
out of or are based upon any Violation, in each case to the extent (and only to
the extent) that such Violation occurs in reliance upon and in conformity with
written information furnished by such Holder expressly for use in connection
with such registration; and each such Holder will pay, as incurred, any legal or
other expenses reasonably incurred by any person intended to be indemnified
pursuant to this subsection 3.10(b), in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided, however,
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that the indemnity agreement contained in this subsection 3.10(b) shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability
or action if such settlement is effected without the consent of the Holder,
which consent shall not be unreasonably withheld; provided that in no event
shall any indemnity under this subsection 3.10(b) exceed the net proceeds from
the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this Section
3.10 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 3.10, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly
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noticed, to assume the defense thereof with counsel mutually satisfactory to the
parties; provided, however, that an indemnified party shall have the right to
retain its own 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 to deliver written
notice to the indemnifying party within a reasonable time of the commencement of
any such action, if materially prejudicial to its ability to defend such action,
shall relieve such indemnifying party of any liability to the indemnified party
under this Section 3.10, but the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 3.10.
(d) If the indemnification provided for in this Section 3.10 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any loss, liability, claim, damage, or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
(e) Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting agreement
entered into in connection with the underwritten public offering are in conflict
with the foregoing provisions, the provisions in the underwriting agreement
shall control.
(f) The obligations of the Company and Holders under this Section 3.10
shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 3, and otherwise.
3.11 Reports Under Securities Exchange Act of 1934. With a view to
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making available to the Holders the benefits of Rule 144 promulgated under the
Act and any other rule or regulation of the SEC that may at any time permit a
Holder to sell securities of the Company to the public without registration or
pursuant to a registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times after ninety (90) days
after the effective date of the first registration statement filed by the
Company for the offering of its securities to the general public;
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(b) take such action, including the voluntary registration of its
Common Stock under Section 12 of the 1934 Act, as is necessary to enable the
Holders to utilize Form S-3 for the sale of their Registrable Securities, such
action to be taken as soon as practicable after the end of the fiscal year in
which the first registration statement filed by the Company for the offering of
its securities to the general public is declared effective;
(c) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the 1934 Act; and
(d) furnish to any Holder, so long as the Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by the Company that
it has complied with the reporting requirements of SEC Rule 144 (at any time
after ninety (90) days after the effective date of the first registration
statement filed by the Company), the Act and the 1934 Act (at any time after it
has become subject to such reporting requirements), or that it qualifies as a
registrant whose securities may be resold pursuant to Form S-3 (at any time
after it so qualifies); (ii) a copy of the most recent annual or quarterly
report of the Company and such other reports and documents so filed by the
Company; and (iii) such other information as may be reasonably requested in
availing any Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration or pursuant to such form.
3.12 Form S-3 Registration. In case the Company shall receive from
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any Holder or Holders a written request or requests that the Company effect a
registration on Form S-3 and any related qualification or compliance with
respect to all or a part of the Registrable Securities owned by such Holder or
Holders, the Company will:
(a) promptly give written notice of the proposed registration, and any
related qualification or compliance, to all other Holders; and
(b) as soon as practicable, effect such registration and all such
qualifications and compliances as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such Holder's or
Holders' Registrable Securities as are specified in such request, together with
all or such portion of the Registrable Securities of any other Holder or Holders
joining in such request as are specified in a written request given within
fifteen (15) days after receipt of such written notice from the Company;
provided, however, that the Company shall not be obligated to effect any such
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registration, qualification or compliance, pursuant to this Section 3.12, (i) if
Form S-3 is not available for such offering by the Holders; (ii) if the Holders,
together with the holders of any other securities of the Company entitled to
inclusion in such registration, propose to sell Registrable Securities and such
other securities (if any) at an aggregate price to the public (net of any
underwriters' discounts or commissions) of less than Five Hundred Thousand
Dollars ($500,000); (iii) if the Company shall furnish to the Holders a
certificate signed by the president of the Company stating that in the good
faith judgment of the Board of Directors of the Company it would be seriously
detrimental to the Company and its shareholders for such Form S-3 Registration
to be effected at such time, in which event the Company shall have the right to
defer the filing of the Form S-3 registration statement for a period of not more
than sixty (60) days after receipt of the request of the Holder
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or Holders under this Section 3.12; provided, however, that the Company shall
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not utilize this right more than once in any twelve (12) month period; (iv) if
the Company has, within the twelve (12) month period preceding the date of such
request, already effected two (2) registrations on Form S-3 for the Holders
pursuant to this Section 3.12; or (v) in any particular jurisdiction in which
the Company would be required to qualify to do business or to execute a general
consent to service of process in effecting such registration, qualification or
compliance.
(c) Subject to the foregoing, the Company shall file a registration
statement covering the Registrable Securities and other securities so requested
to be registered as soon as practicable after receipt of the request or requests
of the Holders. All expenses other than underwriting discounts and commissions
incurred in connection with a registration requested pursuant to Section 3.12,
including (without limitation) all registration, filing, qualification,
printer's and accounting fees, fees and disbursements of counsel for the
Company, and the reasonable fees and disbursements of one counsel selected by
the selling Holders shall be borne by the Company. Registrations effected
pursuant to this Section 3.12 shall not be counted as demands for registration
or registrations effected pursuant to Section 3.2 or 3.3.
3.13 Assignment of Registration Rights. The rights to cause the
---------------------------------
Company to register Registrable Securities pursuant to this Section 3 may be
assigned by a Holder to a transferee or assignee of at least One Hundred
Thousand (100,000) shares of such securities provided the Company is, within a
reasonable time after such transfer, furnished with written notice of the name
and address of such transferee or assignee and the securities with respect to
which such registration rights are being assigned; and provided, further, that
such assignment shall be effective only if immediately following such transfer
the further disposition of such securities by the transferee or assignee is
restricted under the Act. The foregoing One Hundred Thousand (100,000) share
limitation shall not apply, however, to transfers by a Holder to shareholders,
partners or retired partners of the Holder (including spouses and ancestors,
lineal descendants and siblings of such partners or spouses who acquire
Registrable Securities by gift, will or intestate succession) if all such
transferees or assignees agree in writing to appoint a single representative as
their attorney in fact for the purpose of receiving any notices and exercising
their rights under this Section 3.
3.14 Limitations on Subsequent Registration Rights. From and after
---------------------------------------------
the date of this Agreement, the Company shall not, without the prior written
consent of (i) the Holders of a majority of the outstanding Registrable
Securities and (ii) the Holders of a majority of the Series C Shares, enter into
any agreement with any holder or prospective holder of any securities of the
Company which would allow such holder or prospective holder (a) to include such
securities in any registration filed under Section 3.2 or Section 3.3 hereof,
unless under the terms of such agreement, such holder or prospective holder may
include such securities in any such registration only to the extent that the
inclusion of his securities will not reduce the amount of the Registrable
Securities of the Holders which is included or (b) to make a demand registration
which could result in such registration statement being declared effective prior
to the earlier of either of the dates set forth in subsection 3.2(a) or within
one hundred twenty (120) days of the effective date of any registration effected
pursuant to Section 3.2.
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3.15 "Market Stand-Off" Agreement. The Holder hereby agrees that
----------------------------
during the one hundred eighty (180) day period following the effective date of a
registration statement of the Company filed under the Act, it shall not, to the
extent requested by the Company and such underwriter, sell or otherwise transfer
or dispose of (other than to donees who agree to be similarly bound) any Common
Stock of the Company held by it at any time during such period except Common
Stock included in such registration; provided, however, that:
(a) such agreement shall be applicable only to the first such
registration statement of the Company which covers Common Stock (or other
securities) to be sold on its behalf to the public in an underwritten offering;
and
(b) all officers and directors of the Company, all other persons with
registration rights (whether or not pursuant to this Agreement) and all holders
of two percent (2%) or more of the Company's outstanding securities enter into
similar agreements.
To enforce the foregoing covenant, the Company may impose stop-
transfer instructions with respect to the Registrable Securities of the Holder
(and the shares or securities.
3.16 Termination of Registration Rights. No Holder shall be entitled
----------------------------------
to exercise any right provided for in this Section 3 (a) after five (5) years
following the consummation of the Company's sale of its Common Stock in a bona
fide, firm commitment underwriting pursuant to a registration statement on Form
S-1 under the Securities Act of 1933, as amended, which results in aggregate
gross cash proceeds to the Company in excess of Ten Million Dollars
($10,000,000) and the public offering price of which is not less than Five
Dollars ($5.00) per share (adjusted to reflect subsequent stock dividends, stock
splits or recapitalization) (other than a registration statement relating either
to the sale of securities to employees of the Company pursuant to a stock
option, stock purchase or similar plan or a SEC Rule 145 transaction) or (b) at
and after such time following the Company's initial public offering as such
Holder holds Registrable Securities equal to one percent (1%) or less of the
outstanding stock of the Company and is able to dispose of all of its
Registrable Securities in one three (3) month period pursuant to the provisions
of Rule 144.
Section 4. Additional Rights.
-----------------
4.1 Right of First Refusal. Subject to the terms and conditions
----------------------
specified in this Section 4.1, the Company hereby grants to each Investor (so
long as such Investor holds at least one hundred thousand (100,000) shares of
Stock) (the "Rightholder"), a right of first refusal with respect to future
sales by the Company of its New Securities (as hereinafter defined). For
purposes of this Section 4.1, the term Rightholder includes any partners,
retired partners, shareholders or affiliates of an Investor. An Investor shall
be entitled to apportion the right of first refusal hereby granted among itself
and its partners, retired partners, shareholders and affiliates in such
proportions as it deems appropriate.
(a) In the event the Company proposes to issue New Securities, it
shall give the Rightholder written notice (the "Notice") of its intention
stating (i) a description of the
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New Securities it proposes to issue; (ii) the number of shares of New Securities
it proposes to offer; (iii) the price per share at which, and other terms on
which, it proposes to offer such New Securities; and (iv) the number of shares
that the Rightholder has the right to purchase under this Section 4.1, based on
the Rightholder's Percentage (as defined in Section 4.1(d)(ii)).
(b) Within twenty (20) days after the Notice is given (in accordance
with Section 5.5), the Rightholder may elect to purchase, at the price specified
in the Notice, up to the number of shares of the New Securities proposed to be
issued that the Rightholder has the right to purchase as specified in the
Notice. An election to purchase shall be made in writing and must be given to
the Company within such twenty (20) day period (in accordance with Section 5.5).
The closing of the sale of New Securities by the Company to the participating
Rightholder upon exercise of its rights under this Section 4.1 shall take place
simultaneously with the closing of the sale of New Securities to third parties.
(c) The Company shall have ninety (90) days after the last date on
which the Rightholder's right of first refusal lapsed to enter into an agreement
(pursuant to which the sale of New Securities covered thereby shall be closed,
if at all, within forty-five (45) days from the execution thereof) to sell the
New Securities which the Rightholder did not elect to purchase under this
Section 4.1, at or above the price and upon terms not materially more favorable
to the purchasers of such securities than the terms specified in the initial
Notice given in connection with such sale. In the event the Company has not
entered into an agreement to sell the New Securities within such ninety (90) day
period (or sold and issued New Securities in accordance with the foregoing
within forty-five (45) days from the date of said agreement), the Company shall
not thereafter issue or sell any New Securities without first offering such New
Securities to the Rightholder in the manner provided in this Section 4.1.
(d) (i) "New Securities" shall mean any shares of, or securities
convertible into or exercisable for any shares of, any class of the Company's
capital stock; provided that "New Securities" does not include: (i) the Series A
Shares, the Series B Shares, the Series C Shares, the Series D Shares or the
Common Stock issuable upon conversion thereof; (ii) securities issued pursuant
to the acquisition of another business entity by the Company by merger, purchase
of substantially all of the assets of such entity, or other reorganization
whereby the Company owns not less than a majority of the voting power of such
entity; (iii) up to Three Million Five Hundred Sixteen Thousand Three Hundred
Twenty-One (3,516,321) shares, or options to purchase shares, of the Company's
Common Stock and the shares of Common Stock issuable upon exercise of such
options, issued pursuant to any arrangement approved by the Board of Directors
to employees, officers and directors of, or consultants, advisors or other
persons performing services for, the Company; (iv) shares of the Company's
Common Stock or Preferred Stock of any series issued in connection with any
stock split, stock dividend or recapitalization of the Company; (v) Common Stock
issued upon exercise of warrants, options or convertible securities if the
issuance of such warrants, options or convertible securities was a result of the
exercise of the right of first refusal granted under this Section 4.1 or was
subject to the right of first refusal granted under this Section 4.1; (vi)
capital stock or warrants or options for the purchase of shares of capital stock
issued by the Company to a lender in connection with any loan or lease financing
transaction; (vii) capital stock or warrants or options for the purchase
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of shares of capital stock issued by the Company to vendors or customers or
other persons in similar commercial situations with the Company if such
agreement is an arms-length transaction and such issuance is approved by the
Board of Directors; (viii) securities sold to the public in an offering pursuant
to a registration statement filed with the Securities and Exchange Commission
under the Act; and (ix) securities issued in connection with a corporate
partnering transaction if such issuance is approved by the Board of Directors.
(ii) The applicable "Percentage" for the Rightholder shall be
the number of shares of New Securities calculated by dividing (i) the total
number of shares of Common Stock owned by the Rightholder (assuming
conversion of all shares of Preferred Stock and exercise of any options or
warrants held by said Rightholder) by (ii) the total number of shares of
Common Stock outstanding at the time the Notice is given (assuming
conversion of all shares of Preferred Stock and exercise of all outstanding
rights, options and warrants to acquire Common Stock of the Company).
(e) The right of first refusal granted under this Section 4.1 shall
expire upon the consummation of the Company's sale of its Common Stock in a bona
fide, firm commitment underwriting pursuant to a registration statement on Form
S-1 under the Securities Act of 1933, as amended, which results in aggregate
gross cash proceeds to the Company in excess of Ten Million Dollars
($10,000,000) and the public offering price of which is not less than Five
Dollars ($5.00) per share (adjusted to reflect subsequent stock dividends, stock
splits or recapitalization) (other than a registration statement relating either
to the sale of securities to employees of the Company pursuant to a stock
option, stock purchase or similar plan or a SEC Rule 145 transaction).
(f) The right of first refusal granted under this section may only be
assigned by an Investor to a transferee or assignee of the Investor's shares of
the Company's stock acquiring the lesser of (a) at least one hundred thousand
(100,000) of the Investor's shares of the Company's Common Stock (treating all
shares of Preferred Stock for this purpose as though converted into Common
Stock) (equitably adjusted for any stock splits, subdivision stock dividends,
changes, combinations or the like) or (b) all of the Investor's remaining shares
of the Company's stock. In the event that the Investor shall assign its right
of first refusal pursuant to this Section 4.1 in connection with the transfer of
less than all of its shares of the Company's stock, the Investor shall also
retain its right of first refusal.
4.2 Delivery of Financial Statements
--------------------------------
(a) The Company shall deliver to each Investor, as soon as practicable,
but in any event within ninety (90) days after the end of each fiscal year of
the Company, an income statement for such fiscal year, a balance sheet of the
Company as of the end of such year, and statements of income and cash flows for
such year, such year-end financial reports to be in reasonable detail, prepared
in accordance with generally accepted accounting principles ("GAAP"), and
audited and certified by independent public accountants of nationally recognized
standing selected by the Company.
-14-
(b) The Company shall deliver to each Investor, so long as it holds at
least one hundred thousand (100,000) shares of Stock (or Common Stock issuable
upon conversion thereof):
(i) as soon as practicable, but in any event within forty-
five (45) days after the end of each fiscal quarter, a balance sheet of the
Company as of the end of each such quarterly period, and statements of income
and cash flows for such period and for the current fiscal year to date, prepared
in accordance with GAAP, subject to changes resulting from normal year-end audit
adjustments, all in reasonable detail and certified by the principal financial
or accounting officer of the Company, except that such financial statements need
not contain the notes required by GAAP;
(ii) within thirty (30) days of the end of each month, an
unaudited income statement and schedule as to the sources and application of
funds and balance sheet and comparison to budget for and as of the end of such
month, in reasonable detail;
(iii) as soon as practicable, but in any event within thirty
(30) days prior to the end of each fiscal year, a budget and business plan for
the next fiscal year, prepared on a monthly basis, including balance sheets and
sources and applications of funds statements for such months and, as soon as
prepared, any other budgets or revised budgets prepared by the Company; and
(iv) such other information relating to the financial
condition, business, prospects or corporate affairs of the Company as the
Investor may from time to time reasonably request; provided, however, that the
Company shall not be obligated to provide information which it deems in good
faith to be proprietary.
4.3 Inspection. The Company shall permit each Investor who holds at least
----------
one hundred thousand (100,000) shares of Stock (or Common Stock issuable upon
conversion thereof), 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 such Investor; provided, however, that
the Company shall not be obligated pursuant to this Section 4.3 to provide
access to any information which it considers to be a trade secret or similar
confidential information.
4.4 Termination of Information and Inspection Covenants. Except as otherwise
---------------------------------------------------
required by securities or other laws, the covenants set forth in Sections 4.2
and 4.3 shall terminate as to the Investors and be of no further force or effect
immediately upon the consummation of the Company's sale of its Common Stock in a
bona fide, firm commitment underwriting pursuant to a registration statement on
Form S-1 under the Act, which results in aggregate gross cash proceeds to the
Company in excess of Ten Million Dollars ($10,000,000) and the public offering
price of which is not less than Five Dollars
-15-
($5.00) per share (adjusted to reflect subsequent stock dividends, stock splits
or recapitalization) (other than a registration statement relating either to the
sale of securities to employees of the Company pursuant to a stock option, stock
purchase or similar plan or a SEC Rule 145 transaction).
Section 5. Miscellaneous.
-------------
5.1 Assignment. Subject to the provisions of Section 3.13 hereof,
----------
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.
5.2 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.
5.3 Governing Law. This Agreement shall be governed by and construed
-------------
under the laws of the State of California in the United States of America as
applied to agreements among California residents entered into and to be
performed entirely within California.
5.4 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.
5.5 Notices. Any notice required or permitted by this Agreement
-------
shall be in writing and shall be sent by prepaid registered or certified mail,
return receipt requested, addressed to the other party at the address shown
below 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.
5.6 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.
5.7 Amendment and Waiver. Any provision of this Agreement may be
--------------------
amended with the written consent of (i) the Company, (ii) the Investors holding
at least a majority of the outstanding shares of the Registrable Securities held
by the Investors and (iii) the Investors holding at least a majority of the
outstanding Series C Shares held by the Investors; provided, however, that any
amendment which would adversely affect the Founders in a manner different than
the Investors shall additionally require the consent of the Founders holding at
least a majority of the Registrable Securities held by the Founders. Any
amendment or waiver effected in accordance with this paragraph shall be binding
upon each Holder of Registrable Securities, each Founder and the Company. In
the event that an underwriting agreement is entered into between the Company and
any Holder, and such underwriting agreement contains
-16-
terms differing from this Agreement, as to any such Holder the terms of such
underwriting agreement shall govern.
5.8 Effect of Amendment or Waiver. The Investors and Founders and
-----------------------------
their respective successors and assigns acknowledge that by the operation of
Section 5.7 hereof the holders of a majority of the outstanding Registrable
Securities and the holders of a majority of the oustanding Series C shares
acting in conjunction with the Company, will have the right and power to
diminish or eliminate all rights pursuant to this Agreement.
5.9 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 any securities of the Company as a result of exercising or refraining
from exercising any such right or rights.
5.10 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.
5.11 Attorney's Fees. If any action at law or in equity is
---------------
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorney's fees, costs and necessary
disbursements in addition to any other relief to which such party may be
entitled.
[Signature pages follow]
-17-
IN WITNESS WHEREOF, the parties hereto have executed this Fourth Amended
and Restated Rights Agreement as of the day and year first above written.
THE COMPANY:
RAMP NETWORKS, INC.
By: /s/ Mahesh Veerina
___________________________
Mahesh Veerina, President
FOUNDERS:
/s/
______________________________
(Print Name)
By:___________________________
Title:________________________
INVESTOR:
/s/
______________________________
(Print Name)
By:___________________________
Title:________________________
Date:_________________________
SIGNATURE PAGE TO FOURTH AMENDED AND
RESTATED RIGHTS AGREEMENT
-18-
EXHIBIT A-1
-----------
Schedule of Founders
Mahesh Veerina
959H La Mesa Terrace
Sunnyvale, CA 94086
Sridhar Bathina
959H La Mesa Terrace
Sunnyvale, CA 94086
Raghu Bathina
395 Ano Nuevo Ave., Apt. 1016
Sunnyvale, CA 94086
Rao Cherukuri
946-C Kiely Boulevard
Santa Clara, CA 95051
Ranganathan Kothandapani
1235 Wildwood Avenue, #319
Sunnyvale, CA 94089
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EXHIBIT A-2
-----------
Schedule of Investors
Venrock Associates Draper International India, L.P. Dr. Puttagunta Ranga
30 Rockefeller Plaza, Room 5508 50 Fremont Street, Suite 3500 3920 Southland Road
New York, NY 10112 San Francisco, CA 94105 (State Rte. 66 at Southland Road)
Attn: Kim Rummelsburg Attn: William H. Draper III New Bremen, OH 45869-0098
Venrock Associates II, L.P. Sekhar Bathina Needham Capital Partners, L.P.
30 Rockefeller Plaza, Room 5508 Veda Trancell (Pvt. Ltd.) 445 Park Avenue
New York, NY 10112 8-2-348/3, 2nd Floor, Road #3 New York, NY 10022
Attn: Kim Rummelsburg Banjara Hills Attn: John Michaelson
Hyderabad - 500034, AP, India
Ravindranath Bathina Interwest Partners V, L.P. Needham Emerging Growth Partners, L.P.
1325 Sycamore Hills Pkwy. 3000 Sand Hill Road, Bldg. 3, Suite 225 445 Park Avenue
Fort Wayne, IN 46804 Menlo Park, CA 94025 New York, NY 10022
Attn: John Michaelson
Frank A. Bonsal, Jr. Interwest Investors V
c/o New Enterprise Associates 3000 Sand Hill Road, Bldg. 3, Suite 225 Charter Ventures II, L.P.
1119 St. Paul Street Menlo Park, CA 94025 525 University Ave., Suite 1500
Baltimore, MD 21202 Palo Alto, CA 94301
The Subhedar Irrevocable Trust, Vertex Investment II, Limited CPQ Holdings, Inc.
dated 1/19/95 c/o Vertex Management, Inc. 20555 S.H. 249
c/o Sanjay Subhedar as Trustee 3 Lagoon Drive, Suite 220 Houston, TX 77070
12649 Lido Way Redwood City, CA 94065 Attn.: Andrea Dillman, Legal Dept.
Saratoga, CA 95070
Stephen G. Tolchin and Veronica HWH Investment Party, Limited InveStar Burgeon Venture Capital, Inc.
M. Howard, TRUSTEES OF THE C/O Vertex Management, Inc. Attn: Herbert Chang
TOLCHIN FAMILY TRUST U/D/T 3 Lagoon Drive, Suite 220 C/O VentureStar, Inc.
dated July 10, 1991 Redwood City, CA 94065 1737 No. 1st Street, Ste. 650
738 Los Altos Ave. San Jose, CA 95112
Los Altos, CA 94022
VLG Investments 1995 Terence J. Garnett London Pacific Life & Annuity
VLG Investments 1996 c/o Venrock Associates Company
Venture Law Group 755 Page MIll Road, Suite A230 3109 Poplarwood Court
2800 Sand Hill Road Palo Also, CA 94304 Raleigh, North Carolina 27604
Menlo Park, CA 9402
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Tae Hea Nahm Mr. G. Arjavalingam Charter Growth Capital
Venture Law Group Needham & Company, Inc. 525 University Avenue, Suite 1500
2800 Sand Hill Road 445 Park Avenue Palo Alto, CA 94301
Menlo Park, CA 94025 New York, NY 10022
Charter Growth Capital John Zeisler
Co-Investment Fund, L.P. c/o Interwest Partners
525 University Avenue, Suite 1500 3000 Sand Hill Road
Palo Alto, CA 94301 Building 3
Menlo Park, CA 94025-7112
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