LivePerson Inc. Contracts
Sample Business Contracts
Registration Rights Agreement - LivePerson Inc., Dawntreader Fund I LP, FG-LP, FG-LPC, Sterling Payot Capital LP, SAVP Sidecar I LLC, Allen & Company Inc., Sculley Brothers LLC, Silicon Alley Venture Partners LLC, Highland Capital Partners IV LP, Highland Entrepreneurs' Fund IV LP, Hambrecht & Quist California, Hambrecht & Quist Employee Venture Fund, Access Technology Partners LP, Access Technology Partners Brokers Fund LP, the Goldman Sachs Group Inc., Stone Street Fund 1999 LP, Silicon Alley Ventures LP, SAVP Sidecar I-B LLC, Dell USA LP, Austin I LLC, Van Eyck Partners LLC, Striped Marlin Investments LLC, MSD EC I LLC and NBC Interactive Media Inc. and Robert Locascio
SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
THIS SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT is being
entered into and is effective as of this 27th day of January, 2000, by and among
LIVE PERSON, INC., Delaware corporation (the "Company"), the several persons and
entities named on the signature pages hereto as INVESTORS (the "Investors") and
ROBERT LOCASCIO (the "Founder").
WHEREAS, the Founder is the holder of 4,557,142 shares of Common Stock,
$0.001 par value ("Common Stock"), of the Company; and
WHEREAS, certain of the Investors (the "Series A Investors") are the
holders of an aggregate of 2,541,667 shares (the "Series A Shares") of Series A
Convertible Preferred Stock, $0.001 par value ("Series A Preferred Stock"), of
the Company, and warrants to purchase up to 312,500 shares of Common Stock (the
"January 1999 Warrant Shares"); and
WHEREAS, certain of the Investors (the "Series B Investors") are the
holders of an aggregate of 1,142,857 shares (the "Series B Shares") of Series B
Convertible Preferred Stock, $0.001 par value (the "Series B Preferred Stock"),
of the Company, and warrants to purchase up to 166,667 shares of Common Stock
(the "May 1999 Warrant Shares" and, together with the January 1999 Warrant
Shares, the "Warrant Shares"); and
WHEREAS, certain of the Investors (the "Series C Investors" and,
together with the Series A Investors and the Series B Investors, the "Existing
Investors"), are the holders of an aggregate of an aggregate of 5,132,433 shares
(the "Series C Shares") of Series C Convertible Preferred Stock, $0.001 par
value (the "Series C Preferred Stock"), of the Company; and
WHEREAS, the Existing Investors and the Founder were granted certain
registration rights under an Amended and Restated Registration Rights Agreement
dated as of July 19, 1999, (the "Existing Agreement"); and
WHEREAS, pursuant to a Series D Convertible Preferred Stock Purchase
Agreement dated as of the date hereof (the "Series D Purchase Agreement"), among
the Company and the persons named therein as Purchasers (the "New Investors"
and, together with the Existing Investors, the "Investors"), the Company will
issue and sell up to an aggregate of 3,157,895 shares (the "Series D Shares"
and, collectively with the Series A Shares, the Series B Shares and the Series C
Shares, the "Preferred Shares") of Series D Convertible Preferred Stock, $0.001
par value (the "Series D Preferred Stock" and, collectively with Series A
Preferred Stock, Series B Preferred Stock and Series C Preferred Stock, the
"Preferred Stock"), of the Company; and
WHEREAS, in order to induce the New Investors to consummate the
transactions contemplated by the Purchase Agreement, and in order to merge and
consolidate herein the provisions of the Existing Agreement, the parties hereto
desire to amend and restate the Existing Agreement in its entirety and to
provide for such additional terms hereinafter set forth;
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NOW, THEREFORE, in consideration of the mutual premises and of the
covenants and obligations hereinafter set forth, and intending to be legally
bound hereby, the parties hereto agree that the Existing Agreement is hereby
amended and restated in its entirety to read as follows:
1. CERTAIN DEFINITIONS. For the purposes of this Agreement, the
following terms shall have the following meanings:
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended, or any similar federal statute then in effect, and a
reference to a particular section thereof shall be deemed to include a
reference to the comparable section, if any, of any such similar
federal statute.
"FOUNDER'S STOCK" shall mean all shares of Common Stock which
are held on the date hereof or may be issued in the future to the
Founder.
"HOLDER" shall mean the Founder, the Investors and any
permitted transferees thereof to whom Registrable Securities are
transferred so long as such person holds such Registrable Securities.
"INVESTORS' STOCK" shall mean the Preferred Shares, the shares
of Common Stock held by the Investors or issued upon conversion of the
Preferred Shares, the Warrant Shares and any other shares of Common
Stock or other capital stock issued to or acquired by the Investors,
including, without limitation, as a result of stock splits, stock
dividends, reclassifications, recapitalizations, or similar events
relating to any such shares.
"PREFERRED SHARES" shall have the meaning ascribed to such
term in the Recitals to this Agreement.
"QUALIFIED PUBLIC OFFERING" shall mean an initial public
offering of the Company's Common Stock underwritten on a firm
commitment basis by a "nationally recognized" (as determined below)
underwriter pursuant to an effective registration statement under the
Securities Act of 1933, as amended, (i) which raises gross proceeds to
the Company of at least $20,000,000 and (ii) in which such Common Stock
is sold at a price per share (prior to underwriters' commissions and
expenses) of at least $11.10 (as adjusted for stock splits, stock
dividends, combinations and the like). For purposes of this Agreement,
in order to determine if an underwriter is "nationally recognized," the
adequacy of such underwriter's national presence shall be determined by
the Company's Board of Directors.
"REGISTRABLE SECURITIES" shall mean (i) the Founder's Stock
and (ii) the Investors' Stock, provided, however, that the only class
of securities that the Company shall be required to register shall be
Common Stock. As to any particular Registrable Securities, once issued,
such securities shall cease to be Registrable Securities when (i) a
registration statement with respect to the sale of such securities
shall have become effective under the Securities Act in accordance with
the terms hereof, regardless of whether such securities are actually
sold pursuant to such registration statement (provided that such
registration
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statement remains effective for at least 180 days (which 180-day period
shall be extended on a day-per-day basis to the extent of any
suspension in the Holder's ability to sell pursuant to clause (iv) of
Section 6), (ii) such securities can be sold in the public market
pursuant to Rule 144 of the Securities Act, without regard to volume or
manner-of-sale limitations, (iii) they shall have been otherwise
transferred, new certificates for them not bearing a legend restricting
further transfer shall have been delivered by the Company and
subsequent disposition of them shall not require registration or
qualification of them under the Securities Act or any similar state law
then in force (and the Holder thereof shall have received an opinion of
independent counsel for the Holder reasonably satisfactory to the
Company to the foregoing effects), or (iv) they shall have ceased to be
outstanding.
"REGISTRATION EXPENSES" shall mean any and all expenses
incident to performance of or compliance with this Agreement,
including, without limitation, (i) all SEC and National Association of
Securities Dealers, Inc. or relevant stock exchange registration,
listing and filing fees, (ii) all fees and expenses of complying with
securities or blue sky laws (including reasonable fees and
disbursements of counsel for the Company, the underwriters or the
Holders in connection with blue sky qualifications of the Registrable
Securities), (iii) all printing, messenger, telephone and delivery
expenses and transfer taxes, (iv) the fees and disbursements of counsel
for the Company and of its independent public accountants, including
the expenses of any special audits and/or cold comfort letters required
by or incident to such performance and compliance, (v) the reasonable
fees and disbursements of one law firm retained in connection with each
such registration by the Holders of Registrable Securities being
registered and selected by the Holders of a majority of the Registrable
Securities being sold, and (vi) any fees and disbursements of
underwriters customarily paid by issuers or sellers of securities, but
excluding underwriting discounts and commissions of underwriters,
agents or dealers relating to the distribution of the Registrable
Securities, if any.
"SEC" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act or
the Exchange Act or any similar federal statutes then in effect.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, or any similar federal statute then in effect, and a reference
to a particular section thereof shall be deemed to include a reference
to the comparable section, if any, of any such similar federal statute.
"STOCKHOLDERS' AGREEMENT" shall mean the Third Amended and
Restated Stockholders' Agreement dated as of January 27, 2000, by and
among the Company and the persons named therein as Stockholders, as the
same may be amended from time to time.
"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.
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"WARRANT SHARES" shall have the meaning ascribed to such term
in the Recitals to this Agreement.
2. DEMAND REGISTRATION.
(a) If the Company shall receive, at any time after the earlier of (x)
January 27, 2003 and (y) that date that is 180 days following the effective date
of the first registration statement on Form S-1 filed by the Company with the
SEC registering the initial public offering of the Company's Common Stock (the
"IPO"), a written request that the Company file a registration statement under
the Securities Act from the Holders of not less than thirty-three and one-third
percent (33-1/3%) of the Investors' Stock Then Outstanding, the Company shall
use its best efforts to file, within ninety (90) days of receipt of such written
request and subject to the limitations of Section 2(b), a registration statement
and to have the registration statement declared effective by the SEC as soon as
reasonably practicable after filing. Notwithstanding the foregoing, the Company
shall, within fifteen (15) days of the receipt of such written request, give
written notice of such request to the other Holders, which Holders may elect to
have their Registrable Securities included in the offering. The Company shall
not, pursuant to this Section 2(a), (i) be obligated to effect more than two (2)
registrations for the Investors or (ii) prepare such registration statement
unless the anticipated aggregate net cash proceeds resulting from such
registration to the Initiating Holders (as defined below) are expected to exceed
$1,000,000; provided, however, that a registration shall not be counted as a
registration under this Section 2 (x) until such time as the registration
statement has been declared effective by the SEC, and (y) such registration
statement shall include at least thirty percent (30%) of the Registrable
Securities other than Founder's Stock for which such registration has been
requested, unless the Initiating Holders withdraw their request for such
registration and elect not to pay the Registration Expenses therefor; provided
further that if the Initiating Holders withdraw their request for registration
during a deferral period under Section 2(c) hereof, the Company shall pay the
Registration Expenses therefor, and such expenses shall not be debited against
Registration Expense allotments for ensuing registrations hereunder, and such
withdrawal request shall not be counted towards the number of demand
registration permitted hereunder. The Initiating Holders shall select the
underwriter, subject to the approval of the Company, which approval shall not be
unreasonably withheld or delayed, for an offering made pursuant to this Section
2.
(b) Notwithstanding any other provision of this Section 2, if the
contemplated distribution pursuant to this Section 2 shall be by means of an
underwriting and if the underwriter advises the holders of Investors' Stock
initiating the registration request hereunder ("INITIATING HOLDER(S)") that
marketing factors require a limitation of the number of shares to be
underwritten, then the Initiating Holder(s) 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, first, to the Holders of Registrable Securities
other than the Founder's Stock, pro rata based on the number of shares of the
Registrable Securities set forth in the requests made pursuant to Section 2(a)
and then to the extent, if any, advised by the managing underwriter, among all
Holders of Founder's Stock requesting registration hereunder, in proportion (as
nearly as practicable) to the amount of Registrable Securities of the Company
owned by each such other Holder.
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(c) Notwithstanding the foregoing, if the Company shall furnish to
Holders requesting a registration statement pursuant to this Section 2, a
certificate signed by the President of the Company stating that in good faith
judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its stockholders for such registration statement
to be filed and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer taking action
with respect to such filing for a period of not more than 90 days after receipt
of the request of the Initiating Holders. During any such deferral period, the
Initiating Holders may withdraw their request, in which case the Initiating
Holders will not have been deemed to have made a request for registration under
this Section 2.
(d) In addition, the Company shall not be obligated to effect, or to
take any action to effect, any registration pursuant to this Section 2:
(i) 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
registration statement filed by the Company (other than a registration statement
on Form S-4, Form S-8 or a "universal shelf registration" on Form S-3 or any
successor form); provided that the Company is actively employing in good faith
all reasonable efforts to cause such registration statement to become effective,
and further provided that such right to defer such filing shall not be exercised
by the Company more than once in any twelve month period; or
(ii) If the Initiating Holder(s) is able to dispose of all of
its remaining shares of Registrable Securities during a three-month period under
Rule 144 promulgated under the Securities Act.
3. FORM S-3 REGISTRATION.
(a) If at any time (1) the Company shall receive from any Holder or
Holders of Investors' Stock a written request or requests that the Company
effect a registration of all or any portion of the Investors' Stock on Form S-3
or any successor thereto, (2) the reasonably anticipated proceeds therefrom
shall be at least $1,500,000 and (3) the Company is a registrant entitled to use
Form S-3 or any successor thereto to register such shares, the Company will:
(i) promptly give written notice of the proposed registration,
and any related qualification or compliance, to all other holders of any shares
of Registrable Securities; and
(ii) use its reasonable best efforts to effect, as soon as
reasonably practicable, 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 or Holders' Registrable Securities as are specified in
such request, together with all or such portion of the Registrable Securities,
of any Holder or Holders of Registrable Securities joining in such request as
are specified in a written request given within thirty (30) days after receipt
of such written notice from the Company.
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(b) Notwithstanding any other provision of this Section 3, if the
contemplated distribution pursuant to this Section 3 shall be by means of an
underwriting and if the underwriter advises the holders of Investors' Stock
initiating the registration request hereunder ("INITIATING HOLDER(S)") that
marketing factors require a limitation of the number of shares to be
underwritten, then the Initiating Holder(s) 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, first, to the Holders of Registrable Securities
other than the Founder's Stock, pro rata based on the number of shares of the
Registrable Securities set forth in the requests made pursuant to Section 3(a)
and then to the extent, if any, advised by the managing underwriter, among all
Holders of Founder's Stock requesting registration hereunder, in proportion (as
nearly as practicable) to the amount of Registrable Securities of the Company
owned by each such other Holder.
(c) The Company shall not, pursuant to Section 3(a), be obligated to
(i) effect more than three (3) such registrations for the Investors, or (ii)
effect more than one such registration per 180-day period; provided, however,
that a registration shall not be counted as a registration under this Section 3
unless such registration statement shall include at least thirty percent (30%)
of the Registrable Securities other than Founder's Stock for which such
registration has been requested; and further provided, that if the Initiating
Holders withdraw their request for registration during a deferral period under
Section 3(c) hereof, the Company shall pay the Registration Expenses therefor,
and such expenses shall not be debited against Registration Expense allotments
for ensuing registrations hereunder, and such withdrawal request shall not be
counted towards the number of S-3 registration permitted hereunder.
(d) Notwithstanding the foregoing, if the Company shall furnish to
Holders requesting a registration statement pursuant to this Section 3, a
certificate signed by the President of the Company stating that in good faith
judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its stockholders for such registration statement
to be filed and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer taking action
with respect to such filing for a period of not more than 90 days after receipt
of the request of the Initiating Holders. During any such deferral period, the
Initiating Holders may withdraw their request, in which case the Initiating
Holders will not have been deemed to have made a request for registration under
this Section 3.
4. INCIDENTAL REGISTRATION. If at any time the Company proposes to
register any of its equity securities under the Securities Act (other than (i) a
"universal shelf" registration on Form S-3, or a registration on Form S-4 or
Form S-8, or any similar or successor forms, (ii) a registration of securities
in a Rule 145 transaction, (iii) with respect to an offering that is reasonably
anticipated to be a Qualified Public Offering or (iv) with respect to an
employee benefit plan), whether or not for sale for its own account, it will
promptly give written notice to all Holders of Registrable Securities of its
intention to do so at least 30 days prior to the filing date. If the
registration for which the Company gives notice is a registered public offering
involving an underwriting, the Company shall advise the Holders as part of the
written notice. Upon the written request of any such Holder made within twenty
(20) days after the receipt of any such notice (which request shall specify the
Registrable Securities intended to be disposed of by such Holder and the
intended method of disposition thereof), the Company will use its best efforts
to effect the registration under the Securities Act of all Registrable
Securities, which the
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Company has been so requested to register by the Holders thereof, to the extent
required to permit the disposition (in accordance with such intended methods
thereof) of the Registrable Securities so to be registered ("INCIDENTAL
REGISTRATION"); PROVIDED that if, at any time after giving written notice of its
intention to register any securities and prior to the effective date of the
registration statement filed in connection with such registration, the Company
shall determine for any reason not to register the securities giving rise to the
Holder's Incidental Registration rights hereunder, the Company may, at its
election, give written notice of such determination to each Holder of
Registrable Securities and thereupon shall be relieved of its obligation to
register any Registrable Securities in connection with such registration,
provided that the foregoing shall not affect the obligations of the Company
under Sections 2 or 3. The Company shall select the underwriter for an offering
made pursuant to this Section 4. All Holders requesting registration in such
offering shall be eligible to distribute their securities through such
underwriting, subject to compliance with the provisions of Sections 2, 3 and 7
of this Agreement. If a registration pursuant to this Section 4 involves an
underwritten offering and the managing underwriter advises the Company in that,
in its opinion, marketing factors require a limitation on the number of shares
to be underwritten, then (i) the securities of the Company held by holders other
than the Holders shall be excluded from such registration and underwriting to
the extent deemed advisable by the managing underwriter, and (ii) if a further
limitation on the number of shares is required, then the number of shares of
Registrable Securities that may be included in the underwriting shall be subject
to reduction, first, among the holders of Founder's Stock pro rata based on the
relative amount of Registrable Securities for which registration has been
requested by such Holders, and second, among the remaining requesting Holders
pro rata based on the relative amount of Registrable Securities for which
registration has been requested by a Holder, provided, however, that in the case
that such further limitation shall be imposed in connection with an underwritten
offering other than a Qualified IPO, the number of shares of Registrable
Securities other than Founder's Stock for which registration has been requested
by the Holder(s) in such underwriting shall not be reduced to less than thirty
percent (30%) of the aggregate number of shares to be included in such
underwritten offering. Any Holder disapproving of the terms of any such
underwriting may elect to withdraw from it by written notice to the Company and
the underwriter.
5. EXPENSES. The Company has agreed that the Registration Expenses in
each registration under Sections 2, 3 and 4 hereof shall be borne by the
Company; PROVIDED that, subject to Section 2(a), in the event a registration
requested by the Initiating Holders pursuant to Section 2(a) is withdrawn at the
request of such Holders, and if the Initiating Holders elect not to have such
registration counted as a registration under Section 2(a), the Initiating
Holders shall pay the Registration Expenses of such registration pro rata in
accordance with the number of Registrable Securities included in such
registration.
6. REGISTRATION PROCEDURES. Whenever the Company effects or causes the
registration of the Registrable Securities under the Securities Act as provided
in this Agreement, the Company will use its reasonable best efforts to permit
the sale of such Registrable Securities in accordance with the intended method
or methods of distribution thereof, and will:
(a) prepare (and afford counsel for the selling Holders of Registrable
Securities reasonable opportunity to review and comment thereon) and file with
the SEC a registration
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statement with respect to such Registrable Securities and use its best efforts
to cause such registration statement to become effective as soon as commercially
reasonable;
(b) amend or supplement (and afford counsel for the selling Holders of
Registrable Securities reasonable opportunity to review and comment thereon)
such registration statement and the prospectus contained therein from time to
time to the extent necessary to comply with the Securities Act (including the
anti-fraud provisions thereof) and applicable state securities as may be
necessary to keep such registration statement effective until the earlier of (x)
the date on which securities registered pursuant to such registration statement
have been disposed of and (y) the 180th day following the effectiveness of such
registration statement (which 180-day period shall be extended on a day-per-day
basis to the extent of any suspension in the Holder's ability to sell pursuant
to clause (iv) of Section 6);
(c) furnish to the Holders (i) notices of declaration of effectiveness
issued by the SEC with respect to such filed registration statements, (ii)
notices of suspension or withdrawal by the Company of any registration statement
pursuant to which Registrable Securities are to be registered, and (iii) such
reasonable number of the copies of registration statements and the prospectus
included therein or any amendments or supplements thereto, and other documents
incident thereto as may be reasonably requested from time to time;
(d) use its best efforts to register or qualify (and keep effective
such registration or qualification) such Registrable Securities covered by such
registration statement under such other securities or blue sky laws of such
jurisdictions within the United States as may be reasonably required to permit
the Holders to sell the Registrable Securities or as the Holders shall
reasonably request, PROVIDED that the Company shall not for any such purpose be
required to qualify generally to do business as a foreign corporation in any
jurisdiction where, but for the requirements of this subsection (d), it would
not be obligated to be so qualified, to subject itself to taxation in any such
jurisdiction, or to consent to general service of process in any such
jurisdiction; and PROVIDED, FURTHER, that this subsection (d) shall not be
construed to require the Company to register as a broker-dealer in any
jurisdiction any third person to whom or through whom a Holder proposes to sell
Registrable Securities;
(e) as expeditiously as possible, cause all such Registrable Securities
to be listed on each securities exchange or automated quotation system on which
similar securities issued by the Company are then listed;
(f) promptly provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such registration
statement;
(g) promptly make available for inspection by the Holders, any managing
underwriter participating in any disposition pursuant to such registration
statement, and any attorney or accountant or other agent retained by any such
underwriter or selected by the Holders, all financial and other records,
pertinent corporate documents and properties of the Company and cause the
Company's officers, directors, employees and independent accountants to supply
all information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
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(h) as expeditiously as possible following the effectiveness of such
registration statement, notify each seller of such Registrable Securities of any
request by the Commission for the amending or supplementing of such registration
statement or prospectus; and
(i) obtain opinions of counsel to the Company addressed to the
underwriters covering the matters customarily covered in underwritten offerings,
and obtain a "cold comfort" letter or letters and updates thereof from the
Company's independent public accountants (to the extent then permitted under
applicable professional guidelines and standards) in customary form and covering
matters of the type customarily covered in underwritten offerings, in each case
as the underwriters or the Holder shall request; and make available for
inspection by the Holders, by any underwriter participating in any disposition
to be effected pursuant to such registration statement and by any attorney,
accountant, or other agent retained by the Holders or any such underwriter, such
pertinent corporate documents and properties of the Company as may be reasonably
requested.
In connection with each registration hereunder, as a condition to the
right to sell under any registration statement (i) the selling Holders of
Registrable Securities 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; (ii) any such Holder of Registrable Securities will enter
into a written agreement with the underwriters and the Company in such form and
containing such provisions as are customary in the securities business for such
an arrangement between major underwriters and companies of the Company's size
and investment stature, and, if requested by the managing underwriter in
connection with an underwritten public offering, such Holder of Registrable
Securities will use its reasonable best efforts to cause its counsel to give any
opinion customarily given, in connection with secondary distributions under
similar circumstances PROVIDED that such underwriting agreement shall not
provide for indemnification or contribution obligations on the part of the
Holders materially greater than the obligations of the Holders set forth in
Section 7; (iii) during such time as any such Holder of Registrable Securities
may be engaged in a distribution of such stock, such Holder of Registrable
Securities will comply with all applicable laws and, to the extent required by
such laws, will, among other things (A) not engage in any stabilization activity
in connection with the securities of the Company in contravention of such rules,
(B) distribute the Registrable Securities owned by such Holder solely in the
manner described in applicable registration statement or as otherwise permitted
by law, (C) cause to be furnished to each agent or broker-dealer to or through
whom the Registrable Securities owned by such Holder may be offered, or to the
offeree if an offer is made directly by such holder, such copies of the
applicable prospectus (as amended and supplemented to such date) and the
documents incorporated by reference therein as may be required by such agent,
broker-dealer or offeree, provided that the Company shall have provided such
holder of Registrable Securities with an adequate number of copies thereof and
(D) not bid for or purchase any securities of the Company or attempt to induce
any person to purchase any securities of the Company; and (iv) on notice from
the Company of the happening of any event that requires the suspension by
Holders of Registrable Securities of the distribution of any of Registrable
Securities, then such Holder will cease offering or distributing the Registrable
Securities until the Company notifies such Holder that the offering and
distribution of the Registrable Securities may recommence. The Company shall not
exercise its rights under Section 6(i)(iv) for a period
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in excess of 120 days in any twelve-month period.
7. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. In the event of any registration of
any securities of the Company under the Securities Act pursuant to Sections 2, 3
or 4 herein, the Company will, and it hereby does, indemnify and hold harmless,
to the fullest extent permitted by law, the sellers of any Registrable
Securities covered by such registration statement, its directors and officers or
general and limited partners (and directors and officers thereof), each person
who participates as an underwriter in the offering or sale of such securities
and each other person, if any, who controls such seller or any such underwriter
within the meaning of the Securities Act, against any and all losses, claims,
damages or liabilities, joint or several, and expenses (including legal,
accounting and other expenses incurred in connection with investigation,
preparation or defense of any of the foregoing, and including any amounts paid
in any settlement effected with the Company's consent) to which such seller, any
such director or officer or general or limited partner or any such underwriter
or controlling person may become subject under the Securities Act, the Exchange
Act, common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement of any material
fact contained in any registration statement under which such securities were
registered under the Securities Act, any preliminary, final or supplemental
prospectus contained therein, or any amendment or supplement thereto, or (ii)
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
the Company will reimburse such seller and each such director, officer, general
or limited partner, underwriter and controlling person for any legal or any
other expenses reasonably incurred by them in connection with investigating or
preparing for and defending any such loss, claim, liability, damages, action or
proceeding from time to time as such expenses are incurred; PROVIDED that the
Company shall not be liable in any such case to any such person, to the extent
that any such loss, claim, damage, liability (or action or proceeding in respect
thereof) or expense arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement or amendment or supplement thereto or in any such
preliminary, final or supplemental prospectus in reliance upon and in conformity
with written information furnished to the Company through an instrument duly
executed by such seller or underwriter specifically stating that it is for use
in the preparation thereof. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such seller or any such
director, officer, general or limited partner, underwriter or controlling person
and shall survive the transfer of such securities by such seller.
(b) INDEMNIFICATION BY SELLERS OF REGISTRABLE SECURITIES. Each seller
of Registrable Securities will, severally and not jointly, if Registrable
Securities held by such seller are included in the securities as to which such
registration, qualification or compliance is being effected, indemnify and hold
harmless (in the same manner and to the same extent as set forth in subsection
(a) of this Section 7) the Company, its directors and officers signing the
registration statement and each person who participates as an underwriter in the
offering or sale of such securities and their respective controlling persons
with respect to any untrue statement or alleged untrue statement of a material
fact in or omission or alleged omission to state a material fact required to be
stated therein or necessary to make the statements therein not misleading from
such registration statement, any preliminary, final or supplemental prospectus
contained therein, or any amendment or supplement, if such statement or alleged
statement or omission or alleged
10
<PAGE>
omission was made in reliance upon and in conformity with written information
furnished to the Company through an instrument duly executed by such seller
specifically stating that it is for use in the final or supplemental prospectus
or amendment or supplement; PROVIDED in no event shall the liability of any
seller of Registrable Securities be greater in amount than the amount of net
proceeds received by such seller upon such sale. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
the Company or any other prospective sellers or any of their respective
directors, officers or controlling Persons and shall survive the transfer of
such securities by such sellers.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an indemnified
party hereunder of written notice of the commencement of any action or
proceeding with respect to which a claim for indemnification may be made
pursuant to this Section 7, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party, give written notice to the
latter of the commencement of such action; PROVIDED that the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding subdivisions of this
Section 7, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice. In case any such action is brought
against an indemnified party, unless in such indemnified party's reasonable
judgment (which is based on the written opinion of its counsel) a conflict of
interest between such indemnified and indemnifying parties exists in respect of
such claim, the indemnifying party will be entitled to participate in and to
assume the defense thereof, jointly with any other indemnifying party similarly
notified to the extent that it may wish, with counsel reasonably satisfactory to
such indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party for any legal or
other expenses subsequently incurred by the latter in connection with the
defense thereof. If in an indemnified party's reasonable judgment (which is
based on the written opinion of its counsel) a conflict of interest between the
indemnified and indemnifying parties exists in respect of a claim or if the
indemnifying party refuses or fails to participate in and to assume the defense
of any action brought against an indemnified party, the indemnified party may
assume the defense of such claim or action with counsel of its choosing at the
expense of the indemnifying party which shall not relieve the indemnifying party
of its obligations under the preceding paragraphs of this Section 7. No
indemnifying party will consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such indemnified party of a release from all
liability in respect to such claim or litigation.
(d) CONTRIBUTION. If the indemnification provided for in or pursuant to
this Section 7 is due in accordance with the terms hereof but is held by a court
to be unavailable or unenforceable in respect of any losses, claims, damages,
liabilities or expenses referred to herein, then each applicable indemnifying
party, in lieu of indemnifying such indemnified person, shall contribute to the
amount paid or payable by such indemnified person as a result of such losses,
claims, damages, liabilities or expenses in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one hand and of the
indemnified person on the other in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or expenses as well
as any other relevant equitable considerations. The relative fault of the
indemnifying party on the one hand and of the indemnified person on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement
11
<PAGE>
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the indemnifying party or by the indemnified
person by such person's relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The parties hereto
agree that it would not be just and equitable if contribution pursuant to this
section were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to above. In no event shall the liability of any selling seller of Registrable
Securities be greater in amount than the amount of net proceeds received by such
seller of Registrable Securities upon such sale, and the Company shall be liable
and responsible for any amount in excess of such proceeds; PROVIDED, HOWEVER,
that no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties under this
section, notify such party or parties from whom contribution may be sought, but
the omission so to notify such party or parties from whom contribution may be
sought shall not relieve such party from any other obligation it or they may
have thereunder or otherwise under this section. No party shall be liable for
contribution with respect to any action, suit, proceeding or claim settled
without its prior written consent, which consent shall not be unreasonably
withheld.
8. NOTICE OF PROPOSED TRANSFER; LEGEND.
(a) Prior to any proposed transfer of any share of Registrable
Securities (other than under the circumstances described in Section 2, 3 or 4
hereof) so long as the certificates representing Registrable Securities are
required to bear the legends set forth in the Stockholders' Agreement, and in
addition to any requirement or restriction on transfer set forth in the
Stockholders' Agreement, 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 LLP shall be
satisfactory) to the effect that the proposed transfer of the Registrable
Securities may be effected without registration under the Securities Act and
appropriate action necessary for compliance with the Securities Act and any
applicable state, local or foreign law has been taken, whereupon the holder of
such Registrable Securities may transfer such Registrable Securities, in
accordance with the terms of its notice. Notwithstanding the foregoing, no such
opinion or other documentation shall be required if such notice shall cover (i)
a transfer of Registrable Securities by a partnership or corporation to an
affiliate of such partnership or corporation, or (ii) a distribution by a
partnership to its partners or by a limited liability company to its members or
by any other legal entity to its beneficial owners. The term "affiliate" of a
person or entity or "affiliated with" a specified person or entity means any
person or entity that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with the
person or entity specified. The term "control" means the possession, directly or
indirectly, alone or in concert with others, of the power to direct or cause the
direction of the management and policies of a person or entity, whether through
ownership of securities, by contract, or otherwise.
12
<PAGE>
(b) Each certificate of Registrable Securities, as the case may be,
transferred as above shall bear the legends substantially set forth in the
Stockholders' Agreement 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.
9. LOCKUP AGREEMENT. Each Holder, during the period of duration (up to,
but not exceeding, one hundred eighty (180) days) specified by the Company and
the managing underwriter of an underwritten public offering of Common Stock or
other securities of the Company (the "Lockup Period"), following the effective
date of a registration statement of the Company filed under the Securities Act,
will not, to the extent requested by the Company and such underwriter, without
the consent of the Company and such underwriter, directly or indirectly sell,
offer to sell, contract to sell (including, without limitation, any short sale),
grant any option to purchase or otherwise transfer or dispose of (other than to
donees who agree to be similarly bound) any securities of the Company held by it
at any time during such period except Common Stock included in such
registration. The Holders' agreement under the preceding sentence, however,
shall be subject to the following conditions:
(a) that all directors, officers and executive-level employees of the
Company and all holders of more than three percent (3%) of the then outstanding
capital stock of the Company shall have agreed to comparable restrictions,
(b) if the managing underwriter releases from the lockup restrictions
described in this Section 9, any stockholder of the Company (except any employee
or consultant of the Company that is not an officer, director or executive)
prior to the expiration of the Lockup Period with respect to all or a percentage
of the Common Stock held by such stockholder, all other stockholders of the
Company subject to the lockup shall be released from such lockup restrictions to
the same extent and on the same terms and conditions, and
(c) the registrations with respect to which such restrictions shall be
applicable shall be (A) the IPO, and (B) any other underwritten public offering
in which such Holder shall have agreed to sell Registrable Securities.
Notwithstanding anything herein to the contrary, this agreement shall not
restrict Goldman, Sachs & Co. or Allen & Company Incorporated and their
respective affiliates from engaging in any brokerage, investment advisory,
financial advisory, anti-raid advisory, merger advisory, financing, asset
management, trading, market making, arbitrage and other similar activities
conducted in the ordinary course of its or its affiliates' business, so long as
such activities are not conducted with respect to any Registrable Securities.
10. NOTICES. All notices, requests, consents, and other communications
under this Agreement shall be in writing and shall be deemed delivered (i) two
business days after being sent by registered or certified mail, return receipt
requested, postage prepaid or (ii) one business day after being sent via a
reputable nationwide overnight courier service guaranteeing next business day
delivery, in each case to the intended recipient at the address specified below
its respective signature hereto, if to an Investor, at his or its address
specified on Schedule I hereto.
13
<PAGE>
Any party may give any written notice, request, consent or other
written communication under this Agreement using any other means (including,
without limitation, personal delivery, messenger service, telecopy, first class
mail or electronic mail), but no such notice, request, consent or other
communication shall be deemed to have been duly given unless and until it is
actually received by the party for whom it is intended. Any party may change the
address to which notices, requests, consents or other communications hereunder
are to be delivered by giving the other parties notice in the manner set forth
in this Section.
11. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
among the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings between them or any of them
with respect to such subject matter (including, without limitation, the Existing
Agreement). The parties hereto, being all the parties to the Existing Agreement,
hereby acknowledge and agree that this Agreement constitutes a valid amendment
and restatement of the Existing Agreement, in accordance with Section 12 hereof.
12. AMENDMENTS, WAIVERS, ETC. Neither this Agreement nor any provision
hereof may be waived, modified, amended or terminated, nor may the Company grant
registration rights that conflict in any way with the registration rights
granted hereunder, except by a written agreement signed by each of the parties
hereto, PROVIDED, HOWEVER, that Investors holding at least sixty percent (60%)
of the Investors' Stock may effect any such waiver, modification, amendment or
termination on behalf of all holders of Investors' Stock, which shall then be
binding on all such holders of Investors' Stock, and holders of at least sixty
percent (60%) of the Founder's Stock may effect any such waiver, modification,
amendment or termination on behalf of all holders of Founder's Stock, which
shall then be binding on all such holders of Founder's Stock; PROVIDED FURTHER,
that without the consent of the Company and holders of ninety percent (90%) of
the Investors' Stock Then Outstanding, no amendment or addition to this
Agreement may be made which alters the stated requisite percentage of holdings
of Investors' Stock Then Outstanding to request a registration under Section
2(a) above or alters the provisions of this Section 12 affecting the holders of
Investors' Stock. Notwithstanding the foregoing, if any waiver, modification,
amendment or termination shall directly apply to any holder or holders of
Investors' Stock or Founder's Stock, as the case may be, hereunder in a
different fashion than all other holders of Investors' Stock or Founder's Stock,
as the case may be, the written agreement of each holder of Registrable
Securities Stock so adversely affected shall additionally be required.
13. RULE 144 REPORTING.
(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 90th day after its initial registration statement
is declared effective by the Commission.
(b) The Company shall use its reasonable best efforts to 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 any holder of Registrable Securities
upon request (i) a written statement by the Company as to its compliance with
the reporting requirements of
14
<PAGE>
Rule 144 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 of the Company as such holder may reasonably request to avail
itself of any similar rule or regulation of the Commission allowing it to sell
any such securities without registration.
14. GOVERNING LAW; SUCCESSORS AND ASSIGNS. This Agreement shall be
governed by, and construed and enforced in accordance with the laws of the State
of New York without giving effect to the conflicts of laws principles thereof
and, except as otherwise provided herein, shall be binding upon, and shall inure
to the benefit of, the heirs, personal representatives, executors,
administrators, successors and assigns of the parties.
15. SEVERABILITY. 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.
16. PRONOUNS. Whenever the context may require, any pronouns used in
this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular form of nouns and pronouns shall include the plural, and
vice versa.
17. CAPTIONS. Captions are for convenience only and are not deemed to
be part of this Agreement.
19. COUNTERPARTS; FACSIMILE. 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. This Agreement may be
executed by facsimile signature.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
15
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
COMPANY:
LIVE PERSON, INC.
By: _____________________________
Name:
Title:
FOUNDER:
____________________________________
Robert LoCascio
INVESTORS:
DAWNTREADER FUND I LP
By: DT Advisors LLC, General Partner
By: _____________________________
Name: Edward Sim
Title: Senior Vice President
FG-LP
By: _____________________________
Name:
Title:
FG-LPC
By: _____________________________
Name:
Title:
SIGNATURE PAGE FOR LIVEPERSON, INC. SECOND AMENDED AND RESTATED REGISTRATION
RIGHTS AGREEMENT
<PAGE>
STERLING PAYOT CAPITAL, LP
By: _____________________________
Name:
Title:
SAVP SIDECAR I LLC
By: _____________________________
Name:
Title:
ALLEN & COMPANY INCORPORATED
By: _____________________________
Name:
Title:
SCULLEY BROTHERS LLC
By: _____________________________
Name:
Title:
SIGNATURE PAGE FOR LIVEPERSON, INC. SECOND AMENDED AND RESTATED REGISTRATION
RIGHTS AGREEMENT
<PAGE>
SILICON ALLEY VENTURE PARTNERS, LLC
By: _____________________________
Name:
Title:
____________________________________
HENRY R. KRAVIS
____________________________________
MARC LIPSCHULTZ
____________________________________
ESTHER DYSON
____________________________________
ALAN BRAVERMAN
SIGNATURE PAGE FOR LIVEPERSON, INC. SECOND AMENDED AND RESTATED REGISTRATION
RIGHTS AGREEMENT
<PAGE>
HIGHLAND CAPITAL PARTNERS IV
LIMITED PARTNERSHIP
By: Highland Management Partners IV
Limited Partnership
Its General Partner
By: ______________________________________
General Partner
HIGHLAND ENTREPRENEURS' FUND IV
LIMITED PARTNERSHIP
By: Highland Entrepreneurs' Fund IV LLC,
Its General Partner
By: ______________________________________
Member
SIGNATURE PAGE FOR LIVEPERSON, INC. SECOND AMENDED AND RESTATED REGISTRATION
RIGHTS AGREEMENT
<PAGE>
HAMBRECHT & QUIST CALIFORNIA
By: ____________________________________
Name: ____________________________________
Title: ____________________________________
HAMBRECHT & QUIST EMPLOYEE VENTURE FUND,
L.P. II
By: H&Q VENTURE MANAGEMENT, L.L.C.
Its: General Partner
By: ____________________________________
Title: ____________________________________
ACCESS TECHNOLOGY PARTNERS, L.P.
By: ACCESS TECHNOLOGY MANAGEMENT, L.L.C.
Its: General Partner
By: H&Q VENTURE MANAGEMENT, L.L.C.
Its: Managing Member
By: ____________________________________
Title: ____________________________________
ACCESS TECHNOLOGY PARTNERS BROKERS FUND, L.P.
By: H&Q VENTURE MANAGEMENT, L.L.C.
Its: General Partner
By: ____________________________________
Title: ____________________________________
SIGNATURE PAGE FOR LIVEPERSON, INC. SECOND AMENDED AND RESTATED REGISTRATION
RIGHTS AGREEMENT
<PAGE>
THE GOLDMAN SACHS GROUP, INC.
By: ____________________________________
Name:
Title:
STONE STREET FUND 1999, L.P.
By: Stone Street 1999 Corp.,
its general partner
By: ____________________________________
Name:
Title:
SIGNATURE PAGE FOR LIVEPERSON, INC. SECOND AMENDED AND RESTATED REGISTRATION
RIGHTS AGREEMENT
<PAGE>
SILICON ALLEY VENTURES, L.P.
By:_________________________
General Partner
SAVP SIDECAR I-B, LLC
By:_________________________
Member
SIGNATURE PAGE FOR LIVEPERSON, INC. SECOND AMENDED AND RESTATED REGISTRATION
RIGHTS AGREEMENT
<PAGE>
DELL USA, L.P.
By: Del. Gen. P. Corp., its General Partner
By: ___________________________________
Name:
Title:
AUSTIN I, LLC
By: ___________________________________
Name:
Title:
VAN EYCK PARTNERS, LLC
By: ___________________________________
Name:
Title:
STRIPED MARLIN INVESTMENTS, LLC
By: ___________________________________
Name:
Title:
MSD EC I, LLC
By: ___________________________________
Name:
Title:
NBC INTERACTIVE MEDIA, INC.
By: ___________________________________
Name:
Title:
SIGNATURE PAGE FOR LIVEPERSON, INC. SECOND AMENDED AND RESTATED REGISTRATION
RIGHTS AGREEMENT
<PAGE>
SCHEDULE I
Dawntreader Fund I LP
118 West 22nd Street
11th Floor
New York, NY 10011
Attn: Ed Sim
Fax no. (212) 337-1257
FG-LP
FG-LPC
20 Dayton Avenue
Greenwich, Connecticut 06830
Attn: Kathleen Shepphird
Fax no. (203) 661-1331
Sterling Payot Capital, LP
222 Sutter Street, 8th Floor
San Francisco, CA 94108
Attn: Josh Huffard
Fax no. (415) 274-4545
SAVP Sidecar I LLC
SAVP Sidecar I-B LLC
Silicon Alley Venture Partners, LLC
Silicon Alley Ventures, L.P.
c/o the Scion Group
1010 Northern Blvd., Suite 310
Great Neck, New York 11021
Attn: Steve Brotman
Fax no. (212) 898-9044
Allen & Company Incorporated
711 Fifth Avenue
New York, New York 10022
Attn: Mr. Richard Fields
Sculley Brothers LLC
90 Park Avenue
New York, New York 10016
Attn: Mr. Arthur Sculley
<PAGE>
Henry R. Kravis
c/o KKR
9 West 57th Street
New York, New York 10019
Marc Lipschultz
c/o KKR
9 West 57th Street
New York, New York 10019
Esther Dyson
104 Fifth Avenue, 20th Floor
New York, New York 10011
Alan Braverman
16 Cardinal Drive
Princeton Junction, NJ 08550
Highland Capital Partners IV Limited Partnership
Highland Entrepreneurs' Fund IV Limited Partnership
c/o Highland Capital Partners
Two International Place
Boston, MA 02110
Attention: Wycliffe K. Grousbeck
Fax: 617-531-1550
Hambrecht & Quist California
Access Technology Partners, L.P.
Access Technology Partners Brokers Fund, L.P.
Hambrecht & Quist Employee Venture Fund II, L.P.
c/o Hambrecht & Quist
One Bush Street
San Francisco, CA 94104
Attention: Chris Montano
Fax: (415) 439-3818
The Goldman Sachs Group, L.P.
Stone Street Fund 1999, L.P.
85 Broad Street, 19th Floor
New York, NY 10004
Attention: Eve Gerriets
Fax: 212-357-5505
<PAGE>
Dell USA, L.P.
Paul Legris
Dell Ventures
c/o Dell Computer Corporation
Mail Stop 8066
One Dell Way
Round Rock, TX 78682
With a copy to:
Thomas H. Welch, Jr.
VP and Deputy General Counsel
Legal Dept.
Dell Computer Corporation
Mail Stop 8033
One Dell Way
Round Rock, TX 78682
Austin I, LLC
Van Eyck Partners, LLC
Striped Marlin Investments, LLC
MSD EC I, LLC
c/o MSD Capital, L.P.
780 Third Avenue, 43rd Floor
New York NY 10017
Attn: Marc R. Lisker
NBC Interactive Media, Inc.
30 Rockefeller Plaza
New York, NY 10112
Attn: Martin J. Yudkovitz