EXHIBIT-10.4
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT dated as of August 31,
1998, by and among STARMEDIA NETWORK, INC., a Delaware corporation (the
"Company"), Jack C. Chen and Fernando J. Espuelas (the "Founders"), and the
persons identified as Purchasers on the signature pages hereto (the
"Purchasers").
WHEREAS, the Founders are the holders of certain shares of Common Stock
(as defined herein); and
WHEREAS, the Purchasers are the holders of certain Preferred Shares (as
defined herein); and
WHEREAS, the parties hereto include all of the parties to that certain
Registration Rights Agreement, dated as of July 25, 1997 (as amended by
Amendment No. 1 thereto, dated as of February 20, 1998, and by Amendment No. 2
thereto, dated as of August 24, 1998, the "Original Agreement"); and
WHEREAS, the parties hereto desire to amend and restate the Original
Agreement in its entirety as set forth herein and, to the extent not a party to
the Original Agreement, to become a party hereto; and
WHEREAS, the parties hereto are willing to execute this Agreement and be
bound by the provisions hereof;
NOW, THEREFORE, in consideration of the mutual covenants and undertakings
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and subject to and on the terms
and conditions herein set forth, the parties hereto agree as follows:
1. Certain Definitions. As used herein, the following terms shall have the
following respective meanings:
"Common Stock" shall mean the Common Stock, par value $0.001 per share, of
the Company.
"Commission" shall mean the Securities and Exchange Commission, or any
other federal agency at the time administering the Securities Act.
"Conversion Shares" shall mean the shares of Common Stock issued or
issuable upon conversion of the Preferred Shares.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
or any successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Founders Stock" shall mean and include all shares of Common Stock held by
the Founders, the certificates for which are required to bear the legend set
forth in Section 2 hereof, excluding Founders Stock which has been (i)
registered under the Securities Act pursuant to an effective registration
statement filed thereunder and disposed of in accordance with the registration
statement covering them or (ii) publicly sold pursuant to Rule 144 under the
Securities Act.
"Preferred Shares" shall mean and include all shares of Series A
Convertible Preferred Stock, $.001 par value, of the Company, Series B
Convertible Preferred Stock, $.001 par value, of the Company and Series C
Convertible Preferred Stock, $.001 par value, of the Company now owned or
hereafter acquired by any of the Purchasers.
"Public Sale" shall mean any sale of Preferred or Common Stock to the
public pursuant to an offering registered under the Securities Act or to the
public pursuant to the provisions of Rule 144 (or any successor or similar rule)
adopted under the Securities Act.
"Registration Expenses" shall mean the expenses so described in Section 8
hereof.
"Restricted Stock" shall mean the Conversion Shares, the certificates for
which are required to bear the legend set forth in Section 2 hereof, excluding
Conversion Shares which have been (i) registered under the Securities Act
pursuant to an effective registration statement filed thereunder and disposed of
in accordance with the registration statement covering them or (ii) publicly
sold pursuant to Rule 144 under the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
successor 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 the expenses so described in Section 8
hereof.
2. Restrictive Legend. Each certificate representing one or more shares of
Restricted Stock or Founders Stock, and each certificate issued upon exchange or
transfer thereof, other than in a Public Sale or as otherwise permitted by the
last paragraph of Section 3, shall be stamped or otherwise imprinted with a
legend substantially in the following form:
"THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL
REGISTERED UNDER SUCH ACT, OR UNLESS THE COMPANY HAS RECEIVED AN
OPINION OF COUNSEL OR OTHER EVIDENCE, SATISFACTORY TO THE COMPANY
AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED."
3. Notice of Proposed Transfer. Prior to any proposed transfer of any
share of Restricted Stock or Founders Stock (other than under the circumstances
described in Section 4, 5
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or 6 hereof), the holder thereof shall give written notice to the Company of its
intention to effect such transfer. Each such notice shall describe the manner of
the proposed transfer and, if requested by the Company, shall be accompanied by
an opinion of counsel reasonably satisfactory to the Company (it being agreed
that Kalow, Springut & Bressler shall be satisfactory) to the effect that the
proposed transfer of the Founders Stock or Restricted Stock, as the case may be,
may be effected without registration under the Securities Act, whereupon the
holder of such Founders Stock or Restricted Stock, as the case may be, may
transfer such Founders Stock or Restricted Stock, as the case may be, in
accordance with the terms of its notice, provided, however, that no such opinion
or other documentation shall be required if such notice shall cover a
distribution by a partnership to its partners or by a limited liability company
to its members. Each certificate of Founders Stock or Restricted Stock, as the
case may be, transferred as above provided shall bear the legend set forth in
Section 2, unless (i) such transfer is to the public in accordance with the
provisions of Rule 144 (or any other rule permitting Public Sale without
registration under the Securities Act) or (ii) the opinion of counsel referred
to above is to the further effect that the transferee and any subsequent
transferee (other than an affiliate of the Company) would be entitled to
transfer such securities in a Public Sale without registration under the
Securities Act. The restrictions provided for in this Section shall not apply to
securities that are not required to bear the legend prescribed by Section 2 in
accordance with the provisions of that Section.
4. Required Registration. (a) At any time on or after the first
anniversary of the effective date of an initial public offering of the Company's
Common Stock under the Securities Act, each of (i) Chase Venture Capital
Associates, L.P. ("Chase"), (ii) Warburg, Pincus Equity Partners, L.P.
("Warburg"), and (iii) the holders of Restricted Stock constituting at least a
majority of the total Restricted Stock outstanding at such time may, on one
occasion only, request the Company to register all or any portion of the
Restricted Stock held by such requesting holder or holders for sale in the
manner specified in such notice; provided, however, that the only securities
which the Company shall be required to register pursuant hereto shall be shares
of Common Stock.
(b) Promptly following receipt of any notice under this Section 4,
the Company shall immediately notify any holders of Restricted Stock from whom
notice has not been received and any holder of Founders Stock and shall use its
best efforts to register under the Securities Act, for Public Sale in accordance
with the method of disposition specified in such notice from requesting holders,
the number of shares of Restricted Stock specified in such notice (and in any
notices received from other holders of Restricted Stock and holders of Founders
Stock within twenty (20) days after their receipt of notice from the Company),
provided, however, that the number of shares of Restricted Stock and Founders
Stock to be included in such an underwriting may be reduced (first, pro rata
among the requesting holders of Founders Stock based upon the number of shares
of Founders Stock owned by such holders and then, if necessary, pro rata among
holders of Restricted Stock based upon the number of shares of Restricted Stock
owned by such holder) if and to the extent that the managing underwriter, if the
proposed method of disposition specified by the requesting holders shall be an
underwritten public offering, shall be of the opinion that such inclusion would
materially adversely affect the marketing of the Restricted Stock. If such
method of disposition shall be an underwritten public offering, the Company
shall designate the managing underwriter of such offering, subject to the
approval of the selling holders of a majority of the Restricted Stock covered by
the offering,
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which approval shall not be unreasonably withheld. The Company shall be
obligated to register Restricted Stock pursuant to this Section 4 on three (3)
occasions only, provided that such obligation shall be deemed satisfied only
when a registration statement covering all shares of Restricted Stock specified
in notices received as aforesaid, for sale in accordance with the method of
disposition specified by the requesting holders, shall have become effective
and, if such method of disposition is a firm commitment underwritten public
offering, all such shares shall have been sold pursuant thereto.
(c) Notwithstanding anything to the contrary in this Agreement, the
Company may delay for up to 90 days the filing or effectiveness of a
registration statement pursuant to a request under this Section 4 if the Board
of Directors of the Company shall determine that such a registration would not
be in the best interests of the Company at such time, during which period the
requesting holders may withdraw their request, in which case the requesting
holders will not have been deemed to have made a request for registration under
this Section 4.
(d) The Company shall be entitled to include in any registration
statement referred to in this Section 4, for sale in accordance with the method
of disposition specified by the requesting holders, shares of Common Stock to be
sold by the Company for its own account, except as and to the extent that, in
the opinion of the managing underwriter (if such method of disposition shall be
an underwritten public offering), such inclusion would adversely affect the
marketing of the Restricted Stock (if any) to be sold. Except for registration
statements on Form S-4, S-8 or any successors thereto, the Company will not file
with the Commission any other registration statement with respect to its Common
Stock, whether for its own account or that of other holders, from the date of
receipt of a notice from a requesting holder or holders pursuant to this Section
4 until the completion of the period of distribution of the registration
contemplated thereby or withdrawal of such registration.
5. Form S-3 Registration. (a) If at any time (i) the Company shall receive
from any holder or holders of Restricted Stock a written request or requests
that the Company effect a registration of all or any portion of the shares of
Restricted Stock on Form S-3 or any successor thereto, and (ii) the Company is a
registrant entitled to use Form S-3 or any successor thereto to register such
shares, the Company will:
(A) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all
other holders of any shares of Restricted Stock and all holders of
Founders Stock; and
(B) as soon as practicable, effect such registration
(including, without limitation, the execution of an undertaking to
file post-effective amendments, appropriate qualifications under
applicable blue sky or other state securities laws and appropriate
compliance with applicable regulations issued under the Securities
Act and any other government 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 holder's Restricted
Stock as are specified in such request, together with all or such
portion of the Restricted Stock of any other holder or holders of
Restricted Stock and all or such portion of Founders Stock of any
holder or holders of Founders Stock joining in such request as are
specified in
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a written request given within thirty (30) days after receipt of
such written notice from the Company, ), provided, however, that the
number of shares of Restricted Stock and Founders Stock to be
included in such an underwriting may be reduced (first, pro rata
among the requesting holders of Founders Stock based upon the number
of shares of Founders Stock owned by such holders and then, if
necessary, pro rata among holders of Restricted Stock based upon the
number of shares of Restricted Stock owned by such holder) if and to
the extent that the managing underwriter, if the proposed method of
disposition specified by the requesting holders shall be an
underwritten public offering, shall be of the opinion that such
inclusion would materially adversely affect the marketing of the
Restricted Stock, and provided further that the Company shall not be
obligated to effect any such registration, qualification or
compliance pursuant to this Section 5 (A) more than once in any 180
day period. Subject to the foregoing, the Company shall file a
registration statement covering the Restricted Stock and Founders
Stock, if any, so requested to be registered as soon as practicable
after receipt of the request or requests of the holder or holders of
Restricted Stock to do so.
Notwithstanding anything to the contrary in this Agreement, (i) the
Company may delay for up to 90 days the filing or effectiveness of a
registration statement pursuant to a request under this Section 5 if the Board
of Directors of the Company shall determine such registration would not be in
the best interests of the Company at such time, during which period the
requesting holders may withdraw their request, in which case the requesting
holders will not have been deemed to have made a request for registration under
this Section 5.
(b) Registrations effected pursuant to this Section 5 shall not be
counted as requests for registration effected pursuant to Section 4.
6. Incidental Registration. If the Company at any time (other than
pursuant to Section 4 or 5 hereof) proposes to register any of its Common Stock
under the Securities Act for sale to the public, whether for its own account or
for the account of other security holders or both (except with respect to
registration statements on Forms S-4 or S-8, any successors thereto or any other
form not available for registering the Restricted Stock for sale to the public
or a Form S-1 covering solely an employee benefit plan), it will give written
notice at such time to all holders of outstanding Restricted Stock and Founders
Stock of its intention to do so. Upon the written request of any such holder,
given within thirty (30) days after receipt of any such notice by the Company,
to register any of its Restricted Stock or Founders Stock, as the case may be
(which request shall state the intended method of disposition thereof), the
Company will use its best efforts to cause the Restricted Stock or Founders
Stock or both, as the case may be, as to which registration shall have been so
requested, to be included in the securities to be covered by the registration
statement proposed to be filed by the Company, all to the extent requisite to
permit the sale or other disposition by the holder (in accordance with its
written request) of such Restricted Stock or Founders Stock, as the case may be,
so registered; provided that nothing herein shall prevent the Company from
abandoning or delaying any such registration at any time. In the event that any
registration pursuant to this Section 6 shall be, in whole or in part, an
underwritten public offering of Common Stock, any request by a holder pursuant
to this Section 6 to register Restricted Stock or Founders Stock, as the case
may be, shall specify that either (i)
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such Restricted Stock or Founders Stock, as the case may be, is to be included
in the underwriting on the same terms and conditions as the shares of Common
Stock otherwise being sold through underwriters under such registration or (ii)
such Restricted Stock or Founders Stock, as the case may be, is to be sold in
the open market without any underwriting, on terms and conditions comparable to
those normally applicable to offerings of common stock in reasonably similar
circumstances. The number of shares of Restricted Stock or Founders Stock or
both, as the case may be, to be included in such an underwriting may be reduced
(first, pro rata among the requesting holders of Founders Stock based upon the
number of shares of Founders Stock owned by such holders and then, if necessary,
pro rata among the other requesting holders of Restricted Stock, based upon the
number of shares of Restricted Stock owned by such holders), if and to the
extent that the managing underwriter shall be of the opinion that such inclusion
would adversely affect the marketing of the securities to be sold by the Company
therein, provided however, that such number of shares of Restricted Stock shall
not be reduced if any shares are to be included in such underwriting for the
account of any person other than the Company or requesting holders of Restricted
Stock or Founders Stock.
7. Registration Procedures. If and whenever the Company is required by the
provisions of Section 4, 5 or 6 hereof to use its best efforts to effect the
registration of any of the Restricted Stock or Founders Stock or both, as the
case may be, under the Securities Act, the Company will, as expeditiously as
possible:
(a) prepare (and afford counsel for the selling holders
reasonable opportunity to review and comment thereon) and file with the
Commission a registration statement (which, in the case of an underwritten
public offering pursuant to Section 4 hereof, shall be on Form S-1 or
other form of general applicability satisfactory to the managing
underwriter selected as therein provided) with respect to such securities
and use its best efforts to cause such registration statement to become
and remain effective for the period of the distribution contemplated
thereby (determined as hereinafter provided);
(b) prepare (and afford counsel for the selling holders
reasonable opportunity to review and comment thereon) and file with the
Commission such amendments and supplements to such registration statement
and the prospectus used in connection therewith as may be necessary to
keep such registration statement effective for the period specified in
paragraph (a) above and to comply with the provisions of the Securities
Act with respect to the disposition of all Restricted Stock or Founders
Stock or both, as the case may be, covered by such registration statement
in accordance with the sellers' intended method of disposition set forth
in such registration statement for such period;
(c) furnish to each seller and to each underwriter such number
of copies of the registration statement and the prospectus included
therein (including each preliminary prospectus) as such persons may
reasonably request in order to facilitate the Public Sale or other
disposition of the Restricted Stock or Founders Stock or both, as the case
may be, covered by such registration statement;
(d) use its best efforts to register or qualify the Restricted
Stock or Founders Stock or both, as the case may be, covered by such
registration statement under
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the securities or blue sky laws of such jurisdictions as the sellers of
Restricted Stock or Founders Stock or both, as the case may be, and in the
case of an underwritten public offering, the managing underwriter, shall
reasonably request (provided that the Company will not be required to (i)
qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this paragraph (d), (ii) subject
itself to taxation in any such jurisdiction or (iii) consent to general
service of process in any jurisdiction);
(e) use its best efforts to list the Restricted Stock or
Founders Stock or both, as the case may be, covered by such registration
statement with any securities exchange on which any Common Stock of the
Company is then listed;
(f) immediately notify each seller under such registration
statement and each underwriter, 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 contained in
such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state any 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) use its best efforts (if the offering is underwritten and
at the request of any seller of Restricted Stock) to furnish, at the
request of any seller, on the date that Restricted Stock or Founders Stock
or both, as the case may be, is delivered to the underwriters for sale
pursuant to such registration: (i) an opinion dated such date of counsel
representing the Company for the purposes of such registration, addressed
to the underwriters and to such seller, stating that such registration
statement has become effective under the Securities Act and that (A) to
the best knowledge of such counsel, no stop order suspending the
effectiveness thereof has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under the Securities
Act, (B) the registration statement, the related prospectus, and each
amendment or supplement thereof, comply as to form in all material
respects with the requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder (except that such
counsel need express no opinion as to financial statements, the notes
thereto, and the financial schedules and other financial and statistical
data contained therein) and (C) to such other effects as may reasonably be
requested by counsel for the underwriters or by such seller or its
counsel, and (ii) a letter dated such date from the independent public
accountants retained by the Company, addressed to the underwriters and to
such seller, stating that they are independent public accountants within
the meaning of the Securities Act and that, in the opinion of such
accountants, the financial statements of the Company included in the
registration statement or the prospectus, or any amendment or supplement
thereof, comply as to form in all material respects with the applicable
accounting requirements of the Securities Act, and such letter shall
additionally cover such other financial matters (including information as
to the period ending no more than five business days prior to the date of
such letter) with respect to the registration in respect of which such
letter is being given as such underwriters or seller may reasonably
request; and
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(h) make available for inspection by each seller, any
underwriter participating in any distribution pursuant to such
registration statement, and any attorney, accountant or other agent
retained by such seller or underwriter, all financial and other records,
pertinent corporate documents and properties of the Company, and cause the
Company's officers, directors and employees to supply all information
reasonably requested by any such seller, underwriter, attorney, accountant
or agent in connection with such registration statement.
For purposes of paragraphs (a) and (b) above and of Section 4(c) hereof, the
period of distribution of Restricted Stock or Founders Stock or both, as the
case may be, in a firm commitment underwritten public offering shall be deemed
to extend until each underwriter has completed the distribution of all
securities purchased by it, and the period of distribution of Restricted Stock
or Founders Stock or both, as the case may be, in any other registration shall
be deemed to extend until the earlier of the sale of all Restricted Stock or
Founders Stock or both, as the case may be, covered thereby or six months after
the effective date thereof.
In connection with each registration hereunder, the selling holders of
Restricted Stock or Founders Stock, as the case may be, will furnish to the
Company in writing such information with respect to themselves and the proposed
distribution by them as shall be reasonably necessary in order to assure
compliance with federal and applicable state securities laws.
In connection with each registration pursuant to Sections 4, 5 and 6
hereof covering an underwritten public offering, the Company agrees to enter
into a written agreement with the managing underwriter selected in the manner
herein provided in such form and containing such provisions as are customary in
the securities business for such an arrangement between managing underwriters
and companies of the Company's size and investment stature, provided, however,
that such agreement shall not contain any such provision applicable to the
Company which is inconsistent with the provisions hereof and provided, further,
that the time and place of the closing under said agreement shall be as mutually
agreed upon between the Company and such managing underwriter.
8. Expenses. All expenses incurred by the Company in complying with
Sections 4, 5 or 6 hereof, including without limitation all registration and
filing fees, printing expenses, fees and disbursements of counsel and
independent public accountants for the Company, fees of the National Association
of Securities Dealers, Inc., transfer taxes, fees of transfer agents and
registrars, costs of insurance and reasonable fees and expenses of not more than
one counsel for the sellers of Restricted Stock and not more than one counsel
for the sellers of Founders Stock, but excluding any Selling Expenses, are
herein called "Registration Expenses". All underwriting discounts and selling
commissions applicable to the sale of Restricted Stock or Founders Stock are
herein called "Selling Expenses".
The Company will pay all Registration Expenses in connection with each
registration statement filed pursuant to Sections 4, 5 and 6 hereof. All Selling
Expenses in connection with any registration statement filed pursuant to Section
4, 5 or 6 hereof shall be borne by the participating sellers in proportion to
the number of shares sold by each, or by such persons other than the Company
(except to the extent the Company shall be a seller) as they may agree.
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9. Indemnification. (a) In the event of a registration of any of the
Restricted Stock or Founders Stock or both, as the case may be, under the
Securities Act pursuant to Section 4, 5 or 6 hereof, the Company will indemnify
and hold harmless each seller of such Restricted Stock or Founders Stock, as the
case may be, thereunder and each underwriter of Restricted Stock or Founders
Stock, as the case may be, thereunder and each officer, director and each other
person, if any, who controls such seller or underwriter within the meaning of
the Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which such seller or underwriter or controlling person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such Restricted Stock or
Founders Stock, as the case may be, was registered under the Securities Act
pursuant to Section 4, 5 or 6, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereof, or arise out of or
are based upon 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, and will reimburse each such seller, each such underwriter and each
such controlling person for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case if and to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission so made in conformity with information
furnished by such seller, such underwriter or such controlling person in writing
specifically for use in such registration statement or prospectus; and provided
further, that the Company shall not be liable to and does not indemnify any
underwriter in the offering or sale of Restricted Stock or Founders Stock, or
any person who, within the meaning of the Securities Act, controls any
underwriter, in any such case to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises out of
such person's failure to send or give a copy of the final prospectus, as the
same may be supplemented or amended, to the person asserting an untrue statement
or omission or alleged untrue statement or omission at or prior to the written
confirmation of the sale of Restricted Stock or Founders Stock to such person,
if such statement or omission was corrected in such final prospectus.
(b) In the event of a registration of any of the Restricted Stock or
Founders Stock or both, as the case may be, under the Securities Act pursuant to
Section 4, 5 or 6 hereof, each seller of such Restricted Stock or Founders
Stock, as the case may be, thereunder, severally and not jointly, will indemnify
and hold harmless the Company and each officer, director and each other person,
if any, who controls the Company within the meaning of the Securities Act, each
officer of the Company who signs the registration statement, each director of
the Company, each underwriter and each person who controls any underwriter
within the meaning of the Securities Act, against all losses, claims, damages or
liabilities, joint or several, to which the Company or such officer or director
or underwriter or controlling person may become subject under the Securities Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the registration
statement under which such Restricted Stock or Founders Stock, as the case may
be, was registered under the Securities Act pursuant to Section 4, 5 or 6, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereof, or arise out of or are based upon the omission or alleged
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omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse the
Company and each such officer, director, underwriter and controlling person for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that such seller will be liable hereunder in any such case if
and only to the extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in reliance upon and in conformity with information
pertaining to such seller, as such, furnished in writing to the Company by such
seller specifically for use in such registration statement or prospectus;
provided, further, however, that the liability of each seller hereunder shall be
limited to the proportion of any such loss, claim, damage, liability or expense
which is equal to the proportion that the public offering price of shares sold
by such seller under such registration statement bears to the total public
offering price of all securities sold thereunder, but not to exceed the proceeds
(net of underwriting discounts and commissions) received by such seller from the
sale of Restricted Stock or Founders Stock, as the case may be, covered by such
registration statement; and provided further, that such seller shall not be
liable to and does not indemnify any underwriter in the offering or sale of
Restricted Stock or Founders Stock, or any person who, within the meaning of the
Securities Act, controls any underwriter, in any such case to the extent that
any such loss, claim, damage, liability (or action or proceeding in respect
thereof) or expense arises out of such person's failure to send or give a copy
of the final prospectus, as the same may be supplemented or amended, to the
person asserting an untrue statement or omission or alleged untrue statement or
omission at or prior to the written confirmation of the sale of Restricted Stock
or Founders Stock to such person, if such statement or omission was corrected in
such final prospectus.
(c) Promptly after receipt by an indemnified party hereunder of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may have
to any indemnified party other than under this Section 9. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in and, to the extent it shall wish, to assume and
undertake the defense thereof with counsel satisfactory to such indemnified
party, and, after notice from the indemnifying party to such indemnified party
of its election so to assume and undertake the defense thereof, the indemnifying
party shall not be liable to such indemnified party under this Section 9 for any
legal expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation and of
liaison with counsel so selected; provided, however, that, if the defendants in
any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be
reasonable defenses available to it which are different from or additional to
those available to the indemnifying party, or if the interests of the
indemnified party reasonably may be deemed to conflict with the interests of the
indemnifying party, the indemnified party shall have the right to select a
separate counsel and to assume such legal defenses and otherwise to participate
in the defense of such action, with the expenses and fees of such separate
counsel and other expenses related to such participation to be reimbursed by the
indemnifying party as incurred.
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Notwithstanding the foregoing, any indemnified party shall have the right
to retain its own counsel in any such action, but the fees and disbursements of
such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party shall have failed to retain counsel for the indemnified
person as aforesaid or (ii) the indemnifying party and such indemnified party
shall have mutually agreed to the retention of such counsel. It is understood
that the indemnifying party shall not, in connection with any action or related
actions in the same jurisdiction, be liable for the fees and disbursements of
more than one separate firm qualified in such jurisdiction to act as counsel for
the indemnified party. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in paragraphs (a) and (b) of
this Section 9 is unavailable or insufficient to hold harmless an indemnified
party under such paragraphs in respect of any losses, claims, damages or
liabilities or actions in respect thereof referred to therein, then each
indemnifying party shall in lieu of indemnifying such indemnified party
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or actions in such proportion as
appropriate to reflect the relative fault of the Company, on the one hand, and
the sellers of such Restricted Stock and Founders Stock, on the other, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or actions as well as any other relevant equitable
considerations, including the failure to give any notice under paragraph (c) of
this Section 9. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
relates to information supplied by the Company, on the one hand, or the sellers
of such Restricted Stock and Founders Stock, on the other hand, and to the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the sellers of
Restricted Stock and Founders Stock agree that it would not be just and
equitable if contributions pursuant to this paragraph were determined by pro
rata allocation (even if all of the sellers of such Restricted Stock and
Founders Stock were treated as one entity for such purpose) or by any other
method of allocation which did not take account of the equitable considerations
referred to above in this paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities or
action in respect thereof, referred to above in this paragraph, shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this paragraph, the sellers of such Restricted
Stock and Founders Stock shall not be required to contribute any amount in
excess of the amount, if any, by which the net proceeds received by such sellers
for the Common Stock sold by each of them under such registration statement
exceeds the amount of any damages which they would have otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission. No
person guilty of fraudulent misrepresentations (within the meaning of Section
11(f) of the Securities Act), shall be entitled to contribution from any person
who is not guilty of such fraudulent misrepresentation.
The indemnification of underwriters provided for in this Section 9 shall
be on such other terms and conditions as are at the time customary and
reasonably required by such underwriters. In that event the indemnification of
the sellers of Restricted Stock or Founders Stock or both, as
11
the case may be, in such underwriting shall at the sellers' request be modified
to conform to such terms and conditions.
10. Changes in Restricted Stock. If, and as often as, there are any
changes in the Common Stock by way of stock split, stock dividend, combination
or reclassification, or through merger, consolidation, reorganization or
recapitalization, or by any other means, appropriate adjustment shall be made in
the provisions hereof, as may be required, so that the rights and privileges
granted hereby shall continue with respect to the Common Stock as so changed and
shall apply to any securities received in any such transaction.
11. Representations and Warranties of the Company. The Company represents
and warrants to you as follows:
(a) The execution, delivery and performance of this Agreement by the
Company have been duly authorized by all requisite corporate action and will not
violate any provision of law, any order of any court or other agency of
government, the Certificate of Incorporation or By-laws of the Company, or any
provision of any indenture, agreement or other instrument to which it or any of
its properties or assets is bound, or conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument, or result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever upon any
of the properties or assets of the Company.
(b) This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms, subject to general equity principles
and to applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws from time to time in effect affecting the
enforcement of creditors' rights generally (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
12. Rule 144 Reporting. The Company agrees with you as follows:
(a) The Company shall make and keep public information available, as
those terms are understood and defined in Rule 144 under the Securities Act, at
all times from and after the date it is first required to do so.
(b) The Company shall file with the Commission in a timely manner
all reports and other documents as the Commission may prescribe under Section
13(a) or 15(d) of the Exchange Act at any time after the Company has become
subject to such reporting requirements of the Exchange Act.
(c) The Company shall furnish to such holder of Restricted Stock or
Founders Stock forthwith upon request (i) a written statement by the Company as
to its compliance with the reporting requirements of Rule 144 (at any time from
and after the date it first becomes subject to such reporting requirements), and
of the Securities Act and the Exchange Act (at any time after it has become
subject to such reporting requirements), (ii) a copy of the most recent annual
or quarterly report of the Company, and (iii) such other reports and documents
so filed as a holder may reasonably request to avail itself of any rule or
regulation of the Commission
12
allowing a holder of Restricted Stock or Founders Stock to sell any such
securities without registration.
13. Miscellaneous. (a) Each holder of Restricted Stock and Founders Stock
will agree, to the extent reasonably requested by any underwriter of securities
of the Company in connection with an initial public offering of the Company's
Common Stock, to enter into an agreement consistent with then market practice
for major bracket underwriters not to sell or otherwise transfer or dispose of
any shares of Common Stock for such period of time (not to exceed 180 days)
following the effective date of a registration statement of the Company filed
under the Securities Act, which agreement shall also bind the Founders,
executive officers, directors, and other shareholders on terms and conditions
substantially similar to those which shall apply to holders of Restricted Stock
and Founders Stock.
(b) All covenants and agreements contained in this Agreement by or
on behalf of any of the parties hereto, including, without limitation, the
rights to indemnification under Section 9 hereof, shall bind and inure to the
benefit of the respective successors and assigns of the parties hereto whether
so expressed or not. Without limiting the generality of the foregoing, the
registration rights conferred herein on the holders of Restricted Stock or
Founders Stock, as the case may be, shall inure to the benefit of any and all
subsequent holders from time to time of the Restricted Stock and the Founders
Stock.
(c) All notices, requests, consents and other communications
hereunder shall be in writing and shall be mailed by first class registered
mail, postage prepaid, addressed as follows:
if to the Company, to it at 29 West 36th Street, New York, New York
10018, Attn: President, with a copy to Justin K. Macedonia, Esq.,
Winthrop, Stimson, Putnam & Roberts, One Battery Park Plaza, New York, NY
10004;
if to any holder of Restricted Stock, to him, her or it, as the case
may be, at its address as set forth on Annex I hereto or on the applicable
counterpart signature page hereto, with a copy to Jay S. Rand, Esq.,
Kalow, Springut & Bressler, 488 Madison Avenue, New York, New York 10022;
if to any holder of Founders Stock, to him, her or it, as the case
may be, at its address as set forth on Annex II hereto, with a copy to
Justin K. Macedonia, Esq., Winthrop, Stimson, Putnam & Roberts, One
Battery Park Plaza, New York, NY 10004;
if to any subsequent holder of Restricted Stock or Founders Stock,
to it at such address as may have been furnished to the Company in writing
by such holder;
or, in any case, at such other address or addresses as shall have been furnished
in writing to the Company (in the case of a holder of Restricted Stock or
Founders Stock), or to the holders of Restricted Stock or Founders Stock (in the
case of the Company).
(d) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
13
(e) This Agreement constitutes the entire agreement of the parties
with respect to the subject matter hereof and may not be modified or amended
except in writing executed by the Company, the holders of 51% of the total
number of shares of Restricted Stock and the holders of 51% of the total number
of shares of Founders Stock; provided, however, that no amendment to Section 4
of this Agreement adverse to Chase or Warburg shall be effective without the
additional written consent of such party.
(f) This Agreement may be executed in two or more counterparts, by
original or facsimile signature, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
(g) The Company shall not grant to any third party any registration
rights more favorable than or inconsistent with any of those contained herein,
so long as any of the registration rights under this Agreement remains in
effect.
(h) If any provision of this Agreement shall be held to be illegal,
invalid or unenforceable, such illegality, invalidity or unenforceability shall
attach only to such provision and shall not in any manner affect or render
illegal, invalid or unenforceable any other provision of this Agreement, and
this Agreement shall be carried out as if any such illegal, invalid or
unenforceable provision were not contained herein.
[This Page Intentionally Ends Here]
14
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
STARMEDIA NETWORK, INC.
By: /s/ Jack Chen
-----------------------
Name: JACK CHEN
Title: PRESIDENT
FOUNDERS:
/s/ Fernando Espuelas
---------------------------
Fernando Espuelas
/s/ Jack Chen
---------------------------
Jack Chen
PURCHASERS:
THE FLATIRON FUND LLC
By:
-----------------------
Name:
Title:
FLATIRON FUND 1998/99, LLC
By:
-----------------------
Name:
Title:
15
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
STARMEDIA NETWORK, INC.
By:
-----------------------
Name:
Title:
FOUNDERS:
---------------------------
Fernando Espuelas
---------------------------
Jack Chen
PURCHASERS:
THE FLATIRON FUND LLC
By: /s/ Fred Wilson
-----------------------
Name: Fred Wilson
Title: Managing Member
FLATIRON FUND 1998/99, LLC
By: /s/ Fred Wilson
-----------------------
Name: Fred Wilson
Title: Managing Member
15
PURCHASERS:
CHASE VENTURE CAPITAL ASSOCIATES, L.P.
By: Chase Capital Partners, its General
Partner
By: /s/ Donald J. Hofman, Jr.
-----------------------------------
Name: Donald J. Hofman, Jr.
Title: General Partner
NEW YORK CITY INVESTMENT FUND, LLC
By:
-----------------------------------
Name:
Title:
INTEL CORPORATION
By:
-----------------------------------
Name:
Title:
WARBURG, PINCUS EQUITY PARTNERS, L.P.
By:
-----------------------------------
Name:
Title:
WARBURG, PINCUS VENTURES INTERNATIONAL,
L.P.
By:
-----------------------------------
Name:
Title:
16
PURCHASERS:
CHASE VENTURE CAPITAL ASSOCIATES, L.P.
By: Chase Capital Partners, its General
Partner
By:
-----------------------------------
Name:
Title:
NEW YORK CITY INVESTMENT FUND, LLC
By: /s/ Kathlyn Wylde
-----------------------------------
Name: Kathlyn Wylde
Title: President & CEO
INTEL CORPORATION
By:
-----------------------------------
Name:
Title:
WARBURG, PINCUS EQUITY PARTNERS, L.P.
By:
-----------------------------------
Name:
Title:
WARBURG, PINCUS VENTURES INTERNATIONAL,
L.P.
By:
-----------------------------------
Name:
Title:
16
PURCHASERS:
CHASE VENTURE CAPITAL ASSOCIATES, L.P.
By: Chase Capital Partners, its General
Partner
By:
-----------------------------------
Name:
Title:
NEW YORK CITY INVESTMENT FUND, LLC
By:
-----------------------------------
Name:
Title:
INTEL CORPORATION
-----------
LEGAL OK By: /s/ Diane R. Labrader
----------- -----------------------------------
TLR 9/24/92 Name: Diane R. Labrader
----------- Title: Asst Treasurer
WARBURG, PINCUS EQUITY PARTNERS, L.P.
By:
-----------------------------------
Name:
Title:
WARBURG, PINCUS VENTURES INTERNATIONAL,
L.P.
By:
-----------------------------------
Name:
Title:
16
Intel/StarMedia -- Amended and Restated Registration Rights Agreement
PURCHASERS:
CHASE VENTURE CAPITAL ASSOCIATES, L.P.
By: Chase Capital Partners, its General
Partner
By:
-----------------------------------
Name:
Title:
NEW YORK CITY INVESTMENT FUND, LLC
By:
-----------------------------------
Name:
Title:
INTEL CORPORATION
By:
-----------------------------------
Name:
Title:
WARBURG, PINCUS EQUITY PARTNERS, L.P.
By: /s/ Gary Nussbaum
-----------------------------------
Name: Gary Nussbaum
Title: Managing Director
WARBURG, PINCUS VENTURES INTERNATIONAL,
L.P.
By: /s/ Gary Nussbaum
-----------------------------------
Name: Gary Nussbaum
Title: Managing Director
16
PURCHASERS:
/s/ Albert S. Waxman
-----------------------------------------
Albert S. Waxman, Ph.D.
-----------------------------------------
David Rockefeller
-----------------------------------------
Henry R. Kravis
AURORA INVESTMENTS LLC
By:
-------------------------------------
Name:
Title:
17
PURCHASERS:
-----------------------------------------
Albert S. Waxman, Ph.D.
By: Rockefeller & Co., Inc. as
Attorney-in-Fact
/s/ William L. Asmundson
-----------------------------------------
for David Rockefeller
Name: William L. Asmundson
Title: Authorized Signatory
-----------------------------------------
Henry R. Kravis
AURORA INVESTMENTS LLC
By:
-------------------------------------
Name:
Title:
17
PURCHASERS:
-----------------------------------------
Albert S. Waxman, Ph.D.
-----------------------------------------
David Rockefeller
/s/ Henry R. Kravis
-----------------------------------------
Henry R. Kravis
AURORA INVESTMENTS LLC
By: /s/ Henry R. Kravis
-------------------------------------
Name: Henry R. Kravis
Title: Member
17
COUNTERPART SIGNATURE PAGE TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
DATED AS OF AUGUST 31, 1998
IN WITNESS WHEREOF, the undersigned has executed this counterpart
signature page to the Amended and Restated Registration Rights Agreement dated
as of August 31, 1998, intending to become a party thereto, and be bound by the
obligations of, and entitled to the benefits of, a Purchaser thereunder.
PURCHASER:
PLATINUM VENTURE PARTNERS II, L.P.
/s/ Michael A. Santer
----------------------------------
Signature
MICHAEL A. SANTER
----------------------------------
Print Name:
ADDRESS:
1815 South Meyers Road
----------------------------------
Oakbrook Terrace, IL 60181
----------------------------------
----------------------------------
----------------------------------
2
COUNTERPART SIGNATURE PAGE TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
DATED AS OF AUGUST 31, 1998
IN WITNESS WHEREOF, the undersigned has executed this counterpart
signature page to the Amended and Restated Registration Rights Agreement dated
as of August 31, 1998, intending to become a party thereto, and be bound by the
obligations of, and entitled to the benefits of, a Purchaser thereunder.
PURCHASER:
FLATIRON ASSOCIATES, LLC
By: Flatiron Partners, LLC, Manager
/s/ Fred Wilson
----------------------------------
Signature
Fred Wilson
----------------------------------
Print Name
Address:
257 Park Avenue South
----------------------------------
New York, NY 10010
----------------------------------
Attn: Mr. Fred Wilson
----------------------------------
18
COUNTERPART SIGNATURE PAGE TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
DATED AS OF AUGUST 31, 1998
IN WITNESS WHEREOF, the undersigned has executed this counterpart
signature page to the Amended and Restated Registration Rights Agreement dated
as of August 31, 1998, intending to become a party thereto, and be bound by the
obligations of, and entitled to the benefits of, a Purchaser thereunder.
PURCHASER:
/s/ Robert K. Hamshaw
----------------------------------
Signature
ROBERT K. HAMSHAW
----------------------------------
Print Name
Brentwood Corporation
Address:
Apartado 87-2106, Zona 7
----------------------------------
Panama
----------------------------------
Republica de Panama
----------------------------------
----------------------------------
18
COUNTERPART SIGNATURE PAGE TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
DATED AS OF AUGUST 31, 1998
IN WITNESS WHEREOF, the undersigned has executed this counterpart
signature page to the Amended and Restated Registration Rights Agreement dated
as of August 31, 1998, intending to become a party thereto, and be bound by the
obligations of, and entitled to the benefits of, a Purchaser thereunder.
PURCHASER:
New Crussul Holdings Inc.
/s/ Artur Paxoto
----------------------------------
Signature
ARTUR PAXOTO
----------------------------------
Print Name
Address:
----------------------------------
----------------------------------
----------------------------------
----------------------------------
18
COUNTERPART SIGNATURE PAGE TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
DATED AS OF AUGUST 31, 1998
IN WITNESS WHEREOF, the undersigned has executed this counterpart
signature page to the Amended and Restated Registration Rights Agreement dated
as of August 31, 1998, intending to become a party thereto, and be bound by the
obligations of, and entitled to the benefits of, a Purchaser thereunder.
PURCHASER:
/s/ [ILLEGIBLE]
----------------------------------
Signature
Rosewood Ventures Ltd
----------------------------------
Print Name
Address:
----------------------------------
----------------------------------
----------------------------------
----------------------------------
18
STARMEDIA NETWORK, INC.
COUNTERPART SIGNATURE PAGE TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
DATED AS OF AUGUST 31, 1998
IN WITNESS WHEREOF, the undersigned has executed this counterpart
signature page to the Amended and Restated Registration Rights Agreement dated
as of August 31, 1998, intending to become a party thereto, and be bound by the
obligations of, and entitled to the benefits of, a Purchaser thereunder.
PURCHASER:
/s/ [ILLEGIBLE]
----------------------------------
Signature
ESRU Investments LLC
----------------------------------
Print Name
Address:
9 East Loockerman Street
----------------------------------
Dover, Delaware 19901
----------------------------------
U S A
----------------------------------
----------------------------------
18
COUNTERPART SIGNATURE PAGE TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
DATED AS OF AUGUST 31, 1998
IN WITNESS WHEREOF, the undersigned has executed this counterpart
signature page to the Amended and Restated Registration Rights Agreement dated
as of August 31, 1998, intending to become a party thereto, and be bound by the
obligations of, and entitled to the benefits of, a Purchaser thereunder.
PURCHASER:
/s/ [ILLEGIBLE]
----------------------------------
Signature
Integrity Holdings Ltd.
----------------------------------
Print Name
Integrity Holdings Ltd.
Address:
Sandringham House
----------------------------------
83 Shirley Street
----------------------------------
P.O. Box N-3247
----------------------------------
Nassau Bahamas
----------------------------------
18
COUNTERPART SIGNATURE PAGE TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
DATED AS OF AUGUST 31, 1998
IN WITNESS WHEREOF, the undersigned has executed this counterpart
signature page to the Amended and Restated Registration Rights Agreement dated
as of August 31, 1998, intending to become a party thereto, and be bound by the
obligations of, and entitled to the benefits of, a Purchaser thereunder.
PURCHASER:
/s/ [ILLEGIBLE]
----------------------------------
Signature
----------------------------------
Print Name
Address:
JEMIAK LTD.
----------------------------------
----------------------------------
----------------------------------
----------------------------------
18
COUNTERPART SIGNATURE PAGE TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
DATED AS OF AUGUST 31, 1998
IN WITNESS WHEREOF, the undersigned has executed this counterpart
signature page to the Amended and Restated Registration Rights Agreement dated
as of August 31, 1998, intending to become a party thereto, and be bound by the
obligations of, and entitled to the benefits of, a Purchaser thereunder.
PURCHASER:
GENERAL ELECTRIC CAPITAL
CORPORATION
/s/ Tony J. Pantuso
----------------------------------
Signature
Tony J. Pantuso
----------------------------------
Print Name
Address:
----------------------------------
----------------------------------
----------------------------------
----------------------------------
18
COUNTERPART SIGNATURE PAGE TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
DATED AS OF AUGUST 31, 1998
IN WITNESS WHEREOF, the undersigned has executed this counterpart
signature page to the Amended and Restated Registration Rights Agreement dated
as of August 31, 1998, intending to become a party thereto, and be bound by the
obligations of, and entitled to the benefits of, a Purchaser thereunder.
PURCHASER:
MORGAN STANLEY DEAN WITTER EQUITY FUNDING,
INC.
/s/ David R. Powers
----------------------------------
Signature
David R. Powers
----------------------------------
Print Name
Address:
c/o Morgan Stanley Dean Witter
----------------------------------
1585 Broadway
----------------------------------
36th Floor
----------------------------------
New York, NY 10036
----------------------------------
Attn: David R. Powers
18
ANNEX I
Holders of Restricted Stock
Chase Venture Capital Associates, L.P.
380 Madison Avenue, 12th floor
New York, NY 10017
Attn: Mr. I. Robert Greene
The Fl@tiron Fund LLC
257 Park Avenue South
New York, NY 10010
Attn: Mr. Fred Wilson
Flatiron Fund 1998/99, LLC
257 Park Avenue South
New York, NY 10010
Attn: Mr. Fred Wilson
New York City Investment Fund, LLC
One Battery Park Plaza
New York, NY 10004
Attn: Janice Roberts
Albert S. Waxman, Ph.D.
c/o Psilos Group Partners, L.P.
152 West 57th Street, 33rd Floor
New York, New York 10011
David Rockefeller
Rockefeller & Co.
30 Rockefeller Plaza
New York, NY 10112
Henry R. Kravis
c/o Kohlberg Kravis Roberts & Co.
9 West 57th Street, Suite 4200
New York, NY 10019
Intel Corporation
2200 Mission College Blvd.
Santa Clara, CA 95052
Attn: George Powlick
Warburg, Pincus Equity Partners, L.P.
466 Lexington Avenue
New York, NY 10017-3147
Warburg, Pincus Ventures International, L.P.
466 Lexington Avenue
New York, NY 10017-3147
Aurora Investments LLC
c/o Kohlberg Kravis Roberts & Co.
9 West 57th Street, Suite 4200
New York, NY 10019
20