Exhibit 10.28
RHYTHMS NETCONNECTIONS INC.
SERIES D PREFERRED STOCK PURCHASE AGREEMENT
April 6, 1999
TABLE OF CONTENTS
PAGE
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1. Purchase and Sale of Preferred Stock...................................................1
1.1 Sale and Issuance of Preferred Stock..........................................1
1.2 Closing.......................................................................1
2. Representations and Warranties of the Company..........................................1
2.1 Organization, Good Standing and Qualification.................................2
2.2 Capitalization and Voting Rights..............................................2
2.3 Subsidiaries..................................................................3
2.4 Authorization.................................................................3
2.5 Valid Issuance of Preferred Stock and Common Stock............................3
2.6 Consents......................................................................3
2.7 Product Warranty and Product Liability........................................4
2.8 Litigation....................................................................4
2.9 Proprietary Information Agreements............................................4
2.10 Intellectual Property.........................................................4
2.11 Compliance with Other Instruments.............................................5
2.12 Agreements; Action............................................................5
2.13 Related-Party Transactions....................................................6
2.14 Permits.......................................................................7
2.15 Environmental and Safety Laws.................................................7
2.16 Manufacturing and Marketing Rights............................................8
2.17 Disclosure....................................................................8
2.18 Registration Rights...........................................................8
2.19 Corporate Documents...........................................................8
2.20 Title to Property and Assets..................................................9
2.21 Employee Benefit Plans........................................................9
2.22 Financial Statements..........................................................9
2.23 Tax Returns, Payments and Elections...........................................9
2.24 Insurance.....................................................................9
2.25 Minute Books..................................................................9
2.26 Labor Agreements and Actions..................................................9
2.27 Inventory....................................................................10
2.28 Notes and Accounts Receivable................................................10
2.29 Powers of Attorney...........................................................10
2.30 Guaranties...................................................................10
3. Representations and Warranties of the Investor........................................10
3.1 Authorization................................................................10
3.2 Purchase Entirely for Own Account............................................11
3.3 Disclosure of Information....................................................11
3.4 Investment Experience........................................................11
3.5 Accredited Investor..........................................................11
3.6 Restricted Securities........................................................11
3.7 Qualified Passive Investor...................................................11
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4. Covenants of the Investor.............................................................11
4.1 Further Limitations on Disposition...........................................11
4.2 Legends......................................................................12
4.3 Waiver of "Piggy-Back"Registration Rights....................................12
5. Conditions of Investor's Obligations at the Closing...................................13
5.1 Representations and Warranties...............................................13
5.2 Performance..................................................................13
5.3 Compliance Certificate.......................................................13
5.4 Qualifications...............................................................13
5.5 Proceedings and Documents....................................................13
5.6 Opinion of Company Counsel...................................................13
5.7 Investors'Rights Agreement...................................................13
6. Conditions of the Company's Obligations at the Closing................................13
6.1 Representations and Warranties...............................................14
6.2 Qualifications...............................................................14
6.3 Performance..................................................................14
6.4 Investors'Rights Agreement...................................................14
7. Indemnification.......................................................................14
7.1 Indemnity by Company.........................................................14
7.2 Indemnity by Investor........................................................14
8. Miscellaneous.........................................................................15
8.1 Survival of Warranties.......................................................15
8.2 Successors and Assigns.......................................................15
8.3 Governing Law................................................................15
8.4 Counterparts.................................................................15
8.5 Titles and Subtitles.........................................................15
8.6 Notices......................................................................15
8.7 Finder's Fee.................................................................15
8.8 Expenses.....................................................................16
8.9 Amendments and Waivers.......................................................16
8.10 Severability.................................................................16
8.11 Aggregation of Stock.........................................................16
8.12 Entire Agreement.............................................................16
SCHEDULE A - Schedule of Series A Preferred Holders
SCHEDULE B - Schedule of Series B Preferred Holders
SCHEDULE C - Schedule of Common Holders
EXHIBIT A - Restated Certificate of Incorporation
EXHIBIT B - Amended and Restated Investors' Right Agreement
(ii)
SERIES D PREFERRED STOCK PURCHASE AGREEMENT
THIS SERIES D PREFERRED STOCK PURCHASE AGREEMENT (this "Agreement") is
made as of the 6th day of April 1999, by and between Rhythms NetConnections
Inc., a Delaware corporation (the "Company"), and U.S. Telesource, Inc. (the
"Investor").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. PURCHASE AND SALE OF PREFERRED STOCK.
1.1 SALE AND ISSUANCE OF PREFERRED STOCK.
(A) RESTATED CERTIFICATE. The Company shall adopt and file with
the Secretary of State of Delaware before the Closing (as defined below) the
Restated Certificate of Incorporation in the form attached hereto as EXHIBIT A
(the "Restated Certificate").
(B) PURCHASE OF PREFERRED STOCK. Subject to the terms and
conditions of this Agreement, the Investor agrees to purchase at the Closing
(defined below) and the Company agrees to sell and issue to the Investor at the
Closing 441,176 shares of the Company's Series D Preferred Stock ("Series D
Preferred Stock"). The purchase price of each share of Series D Preferred Stock
shall be $17.00.
1.2 CLOSING. The purchase and sale of the Series D Preferred Stock
shall take place at the offices of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ "▇"
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, promptly after the time that the IPO
Price is determined (in no event later than one day after such time), or at such
other time and place as the Company and the Investor mutually agree upon orally
or in writing (which time and place are designated as the "Closing"). At the
Closing the Company shall deliver to the Investor a certificate representing the
Series D Preferred Stock which such Investor is purchasing at the Closing (as
determined pursuant to the formula set forth above in subsection 1.1(b)) against
delivery to the Company by such Investor of a check or wire transfer in the
amount of the purchase price therefor payable to the Company's order.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to the Investor that, except as set forth on a Schedule
of Exceptions furnished to the Investor, which exceptions shall be deemed to be
representations and warranties as if made hereunder:
2.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has all requisite corporate power and authority to
enter into this Agreement and to carry on its business as now conducted and as
proposed to be conducted. The Company is duly qualified to transact business and
is in good standing in each jurisdiction in which the failure so to qualify
would have a material adverse effect on its business or properties.
2.2 CAPITALIZATION AND VOTING RIGHTS. The authorized capital of the
Company consists, or will consist prior to the Closing, of:
(i) PREFERRED STOCK. 27,000,000 shares of Preferred Stock (the
"Preferred Stock"), of which 12,900,000 have been designated Series A Preferred
Stock of which 12,855,094 are issued and outstanding (as set forth on Schedule
A) and which are currently convertible into 30,852,226 shares of Common Stock,
of which 4,044,943 have been designated Series B Preferred Stock all of which
are issued and outstanding (as set forth on Schedule B) and which are currently
convertible into 9,707,864 shares of Common Stock, 8,395,655 shares of which
have been designated Series C Preferred Stock 7,462,819 of which are issued and
outstanding and the rest will be sold pursuant to that certain Series C
Preferred Stock Purchase Agreement dated as of the date hereof and 441,176
shares of which have been designated Series D Preferred Stock all of which may
be sold pursuant to this Agreement. The rights, privileges and preferences of
the Series D Preferred Stock as of the Closing will be as stated in the Restated
Certificate attached hereto as EXHIBIT A.
(ii) COMMON STOCK. 81,000,000 shares of common stock ("Common
Stock"), of which 9,643,660 shares are issued and outstanding and are owned by
the persons, and in the numbers specified in Schedule C hereto, and of which
438,115 shares are held by the Company as treasury stock. The outstanding shares
of common stock are all duly and validly authorized and issued, fully paid and
nonassessable, and were issued in accordance with the registration or
qualification provisions of the Securities Act of 1933, as amended, and any
relevant state securities laws, or pursuant to valid exceptions therefrom.
(iii) Except for (A) warrants to purchase 180,000 shares of
Common Stock to be issued pursuant to that certain Series C Preferred Stock
and Warrant Purchase Agreement dated as of the date hereof, (B) warrants to
purchase 1,576,996 shares of Common Stock issued in connection certain equity
investments in the Company, (C) the conversion privileges of each of the
Series A Preferred Stock, the Series B Preferred Stock, the Series C
Preferred Stock and the Series D Preferred Stock to be issued under this
Agreement, (D) the rights provided in paragraph 2.4 of the Amended and
Restated Investors' Rights Agreement (the "Investors' Rights Agreement") of
even date herewith in the form attached hereto as EXHIBIT B, (E) the
Company's reservation of 11,673,530 shares of Common Stock for issuance to
employees, directors and consultants pursuant to options granted, and to be
granted in the future, under a stock option plan, (F) warrants to purchase up
to 4,732,800 shares of Common Stock issued in connection with the Company's
sale and issuance of 290,000 units consisting of 13-1/2% senior discount
notes and warrants, all pursuant to that certain Purchase Agreement dated
April 28,1998 and (G) warrants to purchase up to 694,878 shares of Common
Stock issued in connection with a lease financing there are not outstanding
any options, warrants, rights (including conversion or preemptive rights) or
agreements for the purchase or acquisition
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from the Company of any shares of its capital stock. The Company is not a party
or subject to any agreement or understanding, and, to the Company's knowledge,
there is no agreement or understanding between any persons and/or entities,
which affects or relates to the voting or giving of written consents with
respect to any security or by a director of the Company.
2.3 SUBSIDIARIES. The Company does not presently own or control,
directly or indirectly, any interest in any other corporation, association, or
other business entity.
2.4 AUTHORIZATION. All corporate action on the part of the Company, its
officers, directors and shareholders necessary for the authorization, execution
and delivery of this Agreement and the Investors' Rights Agreement, the
performance of all obligations of the Company hereunder and thereunder and the
authorization, issuance (or reservation for issuance), sale and delivery of the
Series D Preferred Stock being sold hereunder and the Common Stock issuable upon
conversion of the Series D Preferred Stock has been taken or will be taken prior
to the Closing, and this Agreement and the Investors' Rights Agreement
constitute valid and legally binding obligations of the Company, enforceable in
accordance with their respective terms, except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, and other laws of general
application affecting enforcement of creditors' rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief, or other equitable remedies, and (iii) to the extent the indemnification
provisions contained in the Investors' Rights Agreement may be limited by
applicable federal or state securities laws.
2.5 VALID ISSUANCE OF PREFERRED STOCK AND COMMON STOCK.
(a) The Series D Preferred Stock which are being purchased by the
Investor hereunder, when issued, sold and delivered in accordance with the terms
hereof for the consideration expressed herein, will be duly and validly issued,
fully paid and nonassessable and, based in part upon the representations of the
Investor in this Agreement, will be issued in compliance with all applicable
federal and state securities laws and will be free of restrictions on transfer
other than restrictions on transfer under this Agreement and the Investors'
Rights Agreement and under applicable state and federal securities law. The
Common Stock issuable upon conversion of the Series D Preferred Stock purchased
under this Agreement has been duly and validly reserved for issuance and, upon
issuance in accordance with the terms of the Restated Certificate, shall be duly
and validly issued, fully paid and nonassessable, and issued in compliance with
all applicable securities laws and will be free of restrictions on transfer
other than restrictions on transfer under this Agreement and the Investors'
Rights Agreement and under applicable state and federal securities law, as
presently in effect, of the United States and each of the states whose
securities laws govern the issuance of any of the Securities (as defined in
Section 3.2) hereunder.
(b) The outstanding shares of Common Stock, Series A Preferred
Stock and Series B Preferred Stock are all duly and validly authorized and
issued, fully paid and nonassessable, and were issued in compliance with all
applicable federal and state securities laws.
2.6 CONSENTS. No consent, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with, any person
or entity not a party hereto or
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any federal, state, local or provincial governmental authority on the part of
the Company is required in connection with the consummation of the transactions
contemplated by this Agreement.
2.7 PRODUCT WARRANTY AND PRODUCT LIABILITY. Each product manufactured,
sold, leased, or delivered by the Company has been in material conformity with
all applicable contractual commitments and all express and implied warranties,
and the Company has no liability (and there is no basis for any present or
future action, suit, proceeding, hearing, investigation, charge, complaint,
claim, or demand against the Company giving rise to any liability) for
replacement or repair thereof or other damages in connection therewith. The
Company has received no customer complaints concerning its products and/or
services, nor has it had any of its products returned by a purchaser thereof.
The Company has no material liability (and there is no basis for any present or
future action, suit, proceeding, hearing, investigation, charge, complaint,
claim, or demand against any of them giving rise to any liability) arising out
of any injury to individuals or property as a result of the ownership,
possession, or use of any product manufactured, sold, leased, or delivered by
the Company.
2.8 LITIGATION. There is no action, suit, proceeding or investigation
pending or, to its knowledge, currently threatened against the Company. The
foregoing includes, without limitation, actions pending or threatened involving
the prior employment of any of the Company's employees, their use in connection
with the Company's business of any information or techniques allegedly
proprietary to any of their former employers, or their obligations under any
agreements with prior employers. The Company is not a party or subject to the
provisions of any order, writ, injunction, judgment or decree of any court or
government agency or instrumentality. There is no action, suit, proceeding or
investigation by the Company currently pending or which the Company intends to
initiate.
2.9 PROPRIETARY INFORMATION AGREEMENTS. Each employee, officer and
consultant of the Company has executed a Proprietary Information and Inventions
Agreement in the form provided to the Investor. The Company, after reasonable
investigation, is not aware that any of its employees, officers or consultants
are in violation thereof, and the Company will use its best efforts to prevent
any such violation.
2.10 INTELLECTUAL PROPERTY. The Company has sufficient title and
ownership of all patents, trademarks, service marks, trade names, copyrights,
trade secrets, information, proprietary rights and processes necessary for its
business as now conducted and as proposed to be conducted without any conflict
with or infringement of the rights of others. There are no outstanding options,
licenses, or agreements of any kind relating to the foregoing, nor is the
Company bound by or a party to any options, licenses or agreements of any kind
with respect to the patents, trademarks, service marks, trade names, copyrights,
trade secrets, licenses, information, proprietary rights and processes of any
other person or entity. The Company has not interfered with, infringed upon,
misappropriated, or otherwise come into conflict with any patents, trademarks,
service marks, trade names, copyrights, trade secrets, information, proprietary
rights, or processes of third parties, nor has the Company received any
communications alleging that the Company has violated or, by conducting its
business as proposed, would violate any of the patents, trademarks, service
marks, trade names, copyrights, trade secrets, information, proprietary rights,
processes, or other proprietary rights of any other
4
person or entity. The Company is not aware after due inquiry of its employees
that any of its employees is obligated under any contract (including licenses,
covenants or commitments of any nature) or other agreement, or subject to any
judgment, decree or order of any court or administrative agency, that would
interfere with the use of his or her best efforts to promote the interests of
the Company or that would conflict with the Company's business as proposed to be
conducted. Neither the execution nor delivery of this Agreement and the
Investors' Rights Agreement, nor the carrying on of the Company's business by
the employees of the Company, nor the conduct of the Company's business as
proposed, will, to the Company's knowledge after due inquiry of its employees,
conflict with or result in a breach of the terms, conditions or provisions of,
or constitute a default under, any law, contract, covenant or instrument under
which any of such employees is now subject to or obligated. The Company does not
believe it is or will be necessary to utilize any inventions of any of its
employees (or people it currently intends to hire) made prior to their
employment by the Company.
2.11 COMPLIANCE WITH OTHER INSTRUMENTS.
(a) The Company is not in violation or default of any provisions of
its Certificate of Incorporation or Bylaws or of any instrument, judgment,
order, writ, decree, lien, indenture, mortgage, lease, or contract to which it
is a party or by which it is bound or of any provision of federal or state
statute, rule or regulation applicable to the Company. The execution, delivery
and performance of this Agreement, the Investors' Rights Agreement or any
ancillary agreements and the consummation of the transactions contemplated
hereby and thereby, and the issuance and sale of Securities (as defined in
Section 3.2), will not result in any such violation, will not permit the
acceleration of the maturity of, or be in conflict with or constitute, with or
without the passage of time and giving of notice, either a default under any
such provision, instrument, judgment, order, writ, decree, lien, indenture,
mortgage, lease, contract, statute, rule, or regulation, or an event which
results in the creation of any lien, charge or encumbrance upon any assets of
the Company or the Securities or the suspension, revocation, impairment,
forfeiture, or nonrenewal of any material permit, license, authorization, or
approval applicable to the Company, its business or operations or any of its
assets or properties.
(b) There is no judgment, order, writ or decree issued by a court
of law that specifically names the Company.
2.12 AGREEMENTS; ACTION.
(a) Except for agreements explicitly contemplated hereby and by the
Investors' Rights Agreement, there are no agreements, understandings or proposed
transactions between the Company and any of its officers, directors, affiliates,
or any affiliate thereof.
(b) There are no agreements, understandings, instruments,
contracts, proposed transactions, judgments, orders, writs or decrees to which
the Company is a party or by which it is bound which may involve (i) obligations
of the Company (contingent or otherwise) of, or payments to the Company
individually in excess of $100,000 or, in case of agreements, understandings,
instruments, contracts, proposed transactions, judgments, orders, writs or
decrees to which the Company is a party or by which it is bound are individually
less than $100,000, in excess of $250,000 in the aggregate, or (ii) the license
of any patent, copyright,
5
trade secret or other proprietary right to or from the Company or (iii)
provisions restricting or affecting the development, manufacture or distribution
of the Company's products or services, or (iv) indemnification by the Company
with respect to infringement of proprietary rights.
(c) The Company has not (i) declared or paid any dividends, or
authorized or made any distribution upon or with respect to any class or series
of its capital stock, (ii) incurred any indebtedness for money borrowed or any
other liabilities individually in excess of $100,000 or, in the case of
indebtedness and/or liabilities individually less than $100,000, in excess of
$250,000 in the aggregate, (iii) made any loans or advances to any person, other
than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise
disposed of any of its assets or rights, other than the sale of its inventory in
the ordinary course of business.
(d) For the purposes of subsections (b) and (c) above, all
indebtedness, liabilities, agreements, understandings, instruments, contracts
and proposed transactions involving the same person or entity (including persons
or entities the Company has reason to believe are affiliated therewith) shall be
aggregated for the purpose of meeting the individual minimum dollar amounts of
such subsections.
(e) The Company is not a party to and is not bound by any contract,
agreement or instrument, or subject to any restriction under its Restated
Certificate or Bylaws, which adversely affects its business as now conducted or
as proposed to be conducted, its properties or its financial condition.
(f) The Company has not engaged in the past three (3) months in any
discussion (i) with any representative of any corporation or corporations
regarding the consolidation or merger of the Company with or into any such
corporation or corporations, (ii) with any corporation, partnership, association
or other business entity or any individual regarding the sale, conveyance or
disposition of all or substantially all of the assets of the Company in a
transaction or series of related transactions in which more than fifty percent
(50%) of the voting power of the Company is disposed of, or (iii) regarding any
other form of acquisition, liquidation, dissolution or winding up of the
Company.
(g) As of the Closing, the Company has not incurred any expenses
and has no liabilities individually in excess of $100,000 or, in the case of
expenses and/or liabilities individually less than $100,000, in excess of
$250,000 in the aggregate.
2.13 RELATED-PARTY TRANSACTIONS. No employee, officer, or director of
the Company or member of his or her immediate family is indebted to the Company,
nor is the Company indebted (or committed to make loans or extend or guarantee
credit) to any of them. To the best of the Company's knowledge, none of such
persons has any direct or indirect ownership interest in any firm or corporation
with which the Company is affiliated or with which the Company has a business
relationship, or any firm or corporation that competes with the Company, except
that employees, officers, or directors of the Company and members of their
immediate families may own stock in publicly traded companies that may compete
with the Company. No member of the immediate family of any officer or director
of the Company is directly or indirectly interested in any material contract
with the Company.
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2.14 PERMITS. The Company has all franchises, permits, licenses, and
other similar authorities necessary for the conduct of its business as now being
conducted by it, the lack of which could materially and adversely affect the
business, properties, prospects, or financial condition of the Company and
believes it can obtain, without undue burden or expense, any similar authority
for the conduct of its business as planned to be conducted. The Company is not
in default in any material respect under any of such franchises, permits,
licenses, or other similar authority.
2.15 ENVIRONMENTAL AND SAFETY LAWS.
(a) The Company is not in violation of any federal, state, local
or foreign statute, regulation, ordinance or other provision having the force or
effect of law, any judicial or administrative order or determination, any
contractual obligation or any common law concerning public health and safety,
worker health and safety, or pollution or protection of the environment,
including without limitation any of those relating to the presence, use,
production, generation, handling, transportation, treatment, storage, disposal,
distribution, labeling, testing, processing, discharge, release, threatened
release, control, or cleanup of any hazardous materials, substances or wastes,
chemical substances or mixtures, pesticides, pollutants, contaminants, toxic
chemicals, petroleum products or byproducts, asbestos, polychlorinated
biphenyls, noise or radiation, each as amended and as now or hereafter in effect
(referred to herein collectively as the "Environmental, Health, and Safety
Requirements"), and no material expenditures are or will be required in order to
comply with the Environmental, Health, and Safety Requirements.
(b) The Company has obtained and complied with, and is in
compliance with, all permits, licenses and other authorizations that are
required pursuant to all Environmental, Health, and Safety Requirements for the
occupation of its facilities and the operation of its business.
(c) The Company has not received any written or oral notice,
report or other information regarding any actual or alleged violation of
Environmental, Health, and Safety Requirements, or any liabilities or potential
liabilities (whether accrued, absolute, contingent, unliquidated or otherwise),
including any investigatory, remedial or corrective obligations, relating to
Company or its facilities arising under the Environmental, Health, and Safety
Requirements.
(d) None of the following exists at any property or facility owned
or operated by the Company: (1) underground storage tanks, (2)
asbestos-containing material in any form or condition, (3) materials or
equipment containing polychlorinated biphenyls, or (4) landfills, surface
impoundments, or disposal areas.
(e) The Company has not treated, stored, disposed of, arranged for
or permitted the disposal of, transported, handled, or released any substance,
including without limitation any hazardous substance, or owned or operated any
property or facility (and no such property or facility is contaminated by any
such substance) in a manner that has given or would give rise to liabilities,
including any liability for response costs, corrective action costs, personal
injury, property damage, natural resources damages or attorney fees, pursuant to
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended
7
("CERCLA"), the Solid Waste Disposal Act, as amended ("SWDA"), or any of the
Environmental, Health, and Safety Requirements.
(f) Neither this Agreement nor the consummation of the transaction
that is the subject of this Agreement will result in any obligations for site
investigation or cleanup, or notification to or consent of government agencies
or third parties, pursuant to any of the so-called "transaction-triggered" or
"responsible property transfer" Environmental, Health, and Safety Requirements.
(g) The Company has not, either expressly or by operation of law,
assumed or undertaken any liability, including without limitation any obligation
for corrective or remedial action, of any person or entity relating to the
Environmental, Health, and Safety Requirements.
(h) No facts, events or conditions relating to the past or present
facilities, properties or operations of the Company will prevent, hinder or
limit continued compliance with the Environmental, Health, and Safety
Requirements, give rise to any investigatory, remedial or corrective obligations
pursuant to the Environmental, Health, and Safety Requirements, or give rise to
any other liabilities (whether accrued, absolute, contingent, unliquidated or
otherwise) pursuant to the Environmental, Health, and Safety Requirements,
including without limitation any relating to onsite or offsite releases or
threatened releases of hazardous materials, substances or wastes, personal
injury, property damage or natural resources damage.
2.16 MANUFACTURING AND MARKETING RIGHTS. The Company has not granted
rights to manufacture, produce, assemble, license, market, or sell its products
to any other person and is not bound by any agreement that affects the Company's
exclusive right to develop, manufacture, assemble, distribute, market, or sell
its products.
2.17 DISCLOSURE. The Company has fully provided the Investor with all
the information which such Investor has requested for deciding whether to
purchase the Series D Preferred Stock and all information that is material to
enable such Investor to make such decision. Neither this Agreement, the
Investors' Rights Agreement, nor any other statements or certificates made or
delivered in connection herewith or therewith contains any untrue statement of a
material fact or omits to state a material fact necessary to make the statements
herein or therein not misleading.
2.18 REGISTRATION RIGHTS. Except as provided in the Investors' Rights
Agreement, the Company has not granted or agreed to grant any registration
rights, including piggyback rights, to any person or entity.
2.19 CORPORATE DOCUMENTS. Except for amendments necessary to satisfy
representations and warranties or conditions contained herein (the form of which
amendments has been approved by the Investor), the Certificate of Incorporation
and Bylaws of the Company as currently in effect are in the form previously
provided to the Investor.
8
2.20 TITLE TO PROPERTY AND ASSETS. The Company owns its property and
assets free and clear of all mortgages, liens, loans and encumbrances, except
such encumbrances and liens which arise in the ordinary course of business and
do not materially impair the Company's ownership or use of such property or
assets. With respect to the property and assets it leases, the Company is in
compliance with such leases and holds a valid leasehold interest free of any
liens, claims or encumbrances.
2.21 EMPLOYEE BENEFIT PLANS. The Company does not have any Employee
Benefit Plan as defined in the Employee Retirement Income Security Act of 1974.
2.22 FINANCIAL STATEMENTS. The Company has provided to the Investor
copies of its unaudited balance sheet and statement of operations at December
31, 1998 and for the period then ended (the "Financial Statements"). The
Financial Statements are true, complete and correct, present fairly the
financial condition of the Company and the results of operations as of the date
of such statements and have been prepared in accordance with generally accepted
accounting principles ("GAAP"), except that the unaudited Financial Statements
do not contain the footnotes required by GAAP. The Financial Statements
accurately set forth and describe the financial condition and operating results
of the Company as of the date, and for the period, indicated therein, subject to
normal year-end audit adjustments.
2.23 TAX RETURNS, PAYMENTS AND ELECTIONS. The Company has filed all tax
returns and reports required by law. These returns and reports are true and
correct in all material respects. The Company has paid all taxes and other
assessments due, except those contested by it in good faith which are listed in
the Schedule of Exceptions. The provision for taxes of the Company as shown in
its Financial Statements is adequate for taxes due or accrued as of the date
thereof. The Company has not elected pursuant to the Internal Revenue Code of
1986, as amended ("Code"), to be treated as a Subchapter S corporation or a
collapsible corporation pursuant to Section 341(f) or Section 1362(a) of the
Code, nor has it made any other elections pursuant to the Code (other than
elections which relate solely to methods of accounting, depreciation or
amortization) which would have a material effect on the Company, its financial
condition, its business as presently conducted or proposed to be conducted or
any of its properties or material assets.
2.24 INSURANCE. The Company has in full force and effect and shall
maintain fire and casualty insurance policies, with extended coverage,
sufficient in amount (subject to reasonable deductibles) to allow it to replace
any of its properties that might be damaged or destroyed. The Company shall also
maintain broad form comprehensive general liability insurance in the minimum
amount of $2,000,000 per year.
2.25 MINUTE BOOKS. The minute books of the Company provided to the
Investor contain a complete summary of all meetings of directors and
stockholders since the time of incorporation and reflect all transactions
referred to in such minutes accurately in all material respects.
2.26 LABOR AGREEMENTS AND ACTIONS. The Company is not bound by or
subject to (and none of its assets or properties is bound by or subject to) any
written or oral, express or implied, contract, commitment or arrangement with
any labor union, and no labor union has
9
requested or, to the knowledge of the Company, has sought to represent any of
the employees, representatives or agents of the Company. There is no strike or
other labor dispute involving the Company pending, or to the knowledge of the
Company threatened, which could have a material adverse effect on the assets,
properties, financial condition, operating results, or business of the Company
(as such business is presently conducted and as it is proposed to be conducted),
nor is the Company aware of any labor organization activity involving its
employees. The Company is not aware that any officer or key employee, or that
any group of key employees, intends to terminate their employment with the
Company, nor does the Company have a present intention to terminate the
employment of any of the foregoing. Subject to general principles related to
wrongful termination of employees, the employment of each officer and employee
of the Company is terminable at the will of the Company.
2.27 INVENTORY. All inventory of the Company consists of raw materials
and supplies, manufactured and purchased parts, goods in process, and finished
goods, all of which is merchantable and fit for the purpose for which it was
procured or manufactured, and none of which is slow-moving, obsolete, damaged,
or defective, subject only to the reserve for inventory writedown set forth on
the face of the Company's most recent balance sheet (rather than in any notes
thereto) as adjusted for the passage of time through the Closing in accordance
with the past custom and practice of the Company.
2.28 NOTES AND ACCOUNTS RECEIVABLE. All notes and accounts receivable
of the Company are reflected properly on the Company's books and records, are
valid receivables subject to no setoffs or counterclaims, are current and
collectible, and will be collected in accordance with their terms at their
recorded amounts, subject only to the reserve for bad debts set forth on the
face of the Company's most recent balance sheet (rather than in any notes
thereto) as adjusted for the passage of time through the Closing in accordance
with the past custom and practice of the Company.
2.29 POWERS OF ATTORNEY. There are no outstanding powers of attorney
executed on behalf of the Company.
2.30 GUARANTIES. The Company is not a guarantor or otherwise is liable
for any liability or obligation (including indebtedness) of any other person or
entity other than its wholly owned subsidiaries.
3. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR. The Investor hereby
represents and warrants to the Company that:
3.1 AUTHORIZATION. The Investor has full power and authority to enter
into this Agreement and the Investors' Rights Agreement and each such agreement
constitutes its valid and legally binding obligation, enforceable in accordance
with its terms except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, and other laws of general application affecting
enforcement of creditors' rights generally, (ii) as limited by laws relating to
the availability of specific performance, injunctive relief, or other equitable
remedies, and (iii) to the extent the indemnification provisions contained in
the Investors' Rights Agreement may be limited by applicable Federal or state
securities laws.
10
3.2 PURCHASE ENTIRELY FOR OWN ACCOUNT. This Agreement is made with the
Investor in reliance upon such Investor's representation to the Company that the
Series D Preferred Stock to be received by such Investor and the Common Stock
issuable upon conversion thereof (collectively, the "Securities") will be
acquired for investment for such Investor's own account, not as a nominee or
agent, and not with a view to the resale or distribution of any part thereof,
and that such Investor has no present intention of selling, granting any
participation in, or otherwise distributing the same. The Investor does not have
any contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participations to such person or to any third person, with
respect to any of the Securities. The Investor has full power and authority to
enter into this Agreement.
3.3 DISCLOSURE OF INFORMATION. The Investor has had an opportunity to
ask questions and receive answers from the Company regarding the terms and
conditions of the offering of the Series D Preferred Stock. The foregoing,
however, does not limit or modify the representations and warranties of the
Company in Section 2 of this Agreement or the right of the Investor to rely
thereon.
3.4 INVESTMENT EXPERIENCE. The Investor acknowledges that it is able to
fend for itself, can bear the economic risk of its investment and has such
knowledge and experience in financial or business matters that it is capable of
evaluating the merits and risks of the investment in the Series D Preferred
Stock. If other than an individual, it has not been organized for the purpose of
acquiring the Series D Preferred Stock.
3.5 ACCREDITED INVESTOR. The Investor is an "accredited investor"
within the meaning of SEC Rule 501 of Regulation D, as presently in effect.
3.6 RESTRICTED SECURITIES. It understands that the Securities it is
purchasing are characterized as "restricted securities" under the federal
securities laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws and
applicable regulations such Securities may be resold without registration under
the Securities Act of 1933, as amended (the "Act"), only in certain limited
circumstances. In this connection, Investor is familiar with SEC Rule 144, as
presently in effect, and understands the resale limitations imposed thereby and
by the Act.
3.7 QUALIFIED PASSIVE INVESTOR. The Investor represents and warrants to
the Company that the voting securities of the Company are being acquired by, and
will be held by the Investor solely for the purpose of investment within the
meaning of Section 7A(c)(9) of the ▇▇▇▇▇▇▇ Act, and 16 C.F.R. Sections 801.1(j)
and 802.9, and that the Investor has no intention of participating in the
formulation, determination, or direction of the basic business decisions of the
Company.
4. COVENANTS OF THE INVESTOR.
4.1 FURTHER LIMITATIONS ON DISPOSITION.
(a) Without in any way limiting the representations set forth
above, the Investor further agrees not to make any disposition of all or any
portion of the Securities
11
unless and until the transferee has agreed in writing for the benefit of the
Company to be bound by this Section 4.1, provided and to the extent such
sections are then applicable, and the Investors' Rights Agreement and:
(i) There is then in effect a Registration Statement under the
Act covering such proposed disposition and such disposition is made in
accordance with such Registration Statement; or
(ii) (A) Such Investor shall have notified the Company of the
proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and (B) if
reasonably requested by the Company, such Investor shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company, that
such disposition will not require registration of such shares under the Act. It
is agreed that the Company will not require opinions of counsel for transactions
made pursuant to Rule 144 except in unusual circumstances.
(b) Notwithstanding the provisions of paragraph (a) above, (i) no
such Registration Statement or opinion of counsel shall be necessary for a
transfer (A) by an Investor which is a partnership to a partner of such
partnership or a retired partner of such partnership who retires after the date
hereof, or to the estate of any such partner or retired partner or to the
transfer by gift, will or intestate succession of any partner to his spouse or
to the siblings, lineal descendants or ancestors of such partner or his spouse,
or (B) to an "affiliate" of the Investor as that term is defined in Rule 405
promulgated by the Securities and Exchange Commission under the Act, if the
transferee agrees in writing to be subject to the terms hereof to the same
extent as if he were an original Investor hereunder, and (ii) no transferee
shall be required, as a condition to any transfer of Securities by the Investor,
to agree to be bound by this Section 4.1, if the transferee is acquiring such
Securities pursuant to a Registration Statement under the Act or in a
transaction made pursuant to Rule 144.
4.2 LEGENDS. It is understood that the certificates evidencing the
Securities (and the Common Stock issuable upon conversion thereof) may bear one
or all of the following legends:
(a) "These securities have not been registered under the
Securities Act of 1933. They may not be sold, offered for sale, pledged or
hypothecated in the absence of a registration statement in effect with respect
to the securities under such Act or an opinion of counsel satisfactory to the
Company that such registration is not required or unless sold pursuant to Rule
144 of such Act."
(b) Any legend required by the laws of the State of Colorado.
4.3 WAIVER OF "PIGGY-BACK" REGISTRATION RIGHTS. The Investor hereby
waives, solely with respect to the Company's filing, within six months of the
Closing, of a registration statement under the Act in connection with an initial
public offering of its Common Stock, any "piggy-back" registration rights it may
have under Section 1.3 of the Investors' Rights Agreement; PROVIDED, HOWEVER,
that such waiver shall only be deemed effective if the Company
12
shall obtain a similar waiver of such rights on behalf of all other holders of
Registrable Securities (as defined in the Investors' Rights Agreement) under the
Investors' Rights Agreement.
5. CONDITIONS OF INVESTOR'S OBLIGATIONS AT THE CLOSING. With respect to
the Closing, the obligations of the Investor under subsections 1.1 and 1.2 of
this Agreement are subject to the fulfillment on or before the Closing of each
of the following conditions, the waiver of which shall not be effective against
the Investor unless such Investor consents thereto:
5.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties
of the Company contained in Section 2 shall be true on and as of the date of the
Closing with the same effect as though such representations and warranties had
been made on and as of the date of Closing.
5.2 PERFORMANCE. The Company shall have performed and complied with all
agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Closing.
5.3 COMPLIANCE CERTIFICATE. The President of the Company shall have
delivered to the Investor at the Closing a certificate certifying that the
conditions specified in Sections 5.1 and 5.2 have been fulfilled and stating
that there has been no adverse change in the business, affairs, operations,
properties, assets or condition of the Company since the date of this Agreement.
5.4 QUALIFICATIONS. Any authorizations, approvals, or permits, if any,
of any governmental authority or regulatory body of the United States or of any
state that are required in connection with the lawful issuance and sale of the
Series D Preferred Stock pursuant to this Agreement, shall be duly obtained by
the Company and effective as of the Closing.
5.5 PROCEEDINGS AND DOCUMENTS. All corporate and other proceedings in
connection with the transactions contemplated at the Closing and all documents
incident thereto shall be reasonably satisfactory in form and substance to the
Investor, and the Investor shall have received all such counterpart original and
certified or other copies of such documents as such Investor may reasonably
request.
5.6 OPINION OF COMPANY COUNSEL. The Investor shall have received from
▇▇▇▇▇▇▇, Phleger & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, an opinion, dated the
date of the Closing, in form and substance satisfactory to the Investor.
5.7 INVESTORS' RIGHTS AGREEMENT. The Company and the Investor shall
have entered into the Investors' Rights Agreement in the form attached as
EXHIBIT B.
6. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT THE CLOSING. The
obligations of the Company to the Investor under this Agreement are subject to
the fulfillment on or before the Closing of each of the following conditions by
the Investor:
13
6.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties
of the Investor contained in Section 3 shall be true on and as of the date of
the Closing with the same effect as though such representations and warranties
had been made on and as of the Closing.
6.2 QUALIFICATIONS. The Commissioner of Corporations of the State of
California shall have issued a permit qualifying the offer and sale to the
Investor of the Series D Preferred Stock and the Common Stock issuable upon the
conversion thereof or such offer and sale shall be exempt from such
qualification under the California Corporate Securities Law of 1968, as amended.
Any other authorizations, approvals, or permits, if any, of any governmental
authority or regulatory body of the United States or of any state that are
required in connection with the lawful issuance and sale of the securities
pursuant to this Agreement shall be duly obtained and effective as of the
Closing.
6.3 PERFORMANCE. The Investor shall have performed and complied with
all agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Closing.
6.4 INVESTORS' RIGHTS AGREEMENT. The Company and the Investor shall
have entered into the Investors' Rights Agreement in the form attached as
EXHIBIT B..
7. INDEMNIFICATION.
7.1 INDEMNITY BY COMPANY. Company shall indemnify and hold Investor
harmless from and against any and all liability (including, without limitation,
strict liability), loss, damage, or deficiency (including, without limitation,
reasonable attorneys' fees and associated costs) resulting from any
misrepresentation, breach of warranty, or nonfulfillment of any agreement on the
part of Company under this Agreement or under any certificate or other
instrument furnished or to be furnished by Company hereunder, and from the
ownership, management, operations, and interests of Company prior to Closing. To
be entitled to such indemnification, Investor must give Company written notice
of the assertion by a third party, to which Investor has knowledge, of any claim
with respect to which Investor might bring a claim for indemnification
hereunder, and in all events must have supplied such notice to Company within
the applicable period for defense of such claim by Company. Upon Company's
agreement to indemnify Investor hereunder, Company shall have the right, at
Company's own expense, to defend and litigate any such third party claim. In no
event shall Company be liable for the acts or omissions of prior owners,
operators, or managers of the Investor or their agents, independent contractors,
or employees, including, without limitation, any liability arising out of or in
connection with claims which occurred prior to the Closing.
7.2 INDEMNITY BY INVESTOR. Investor shall indemnify and hold Company
harmless from and against any and all liability (including, without limitation,
strict liability), loss, damage or deficiency (including, without limitation,
reasonable attorneys' fees and associated costs) resulting from any
misrepresentation, breach of warranty, or nonfulfillment under any agreement on
the part of Investor under this Agreement or under any certificate or other
instrument furnished by Investor or to be furnished by Investor hereunder. To be
entitled to such indemnification, Company must give Investor written notice of
the assertion by a third party, to which Company has knowledge, of any claim
with respect to which Company might
14
bring a claim for indemnification hereunder, and in all events must have
provided such notice within the applicable period for defense of such claim by
Investor. Upon Investor's agreement to indemnify Company hereunder, Investor
shall have the right, at Investor's own expense, to defend and litigate any such
third party claim. In no event shall Investor be liable for the acts or
omissions of prior owners, operators, or managers of the Company or their
agents, independent contractors, or employees, including, without limitation,
any liability arising out of or in connection with claims which occurred prior
to the Closing.
8. MISCELLANEOUS.
8.1 SURVIVAL OF WARRANTIES. The warranties, representations and
covenants of the Company and the Investor contained in or made pursuant to this
Agreement shall survive the execution and delivery of this Agreement and the
Closing and shall in no way be affected by any investigation of the subject
matter thereof made by or on behalf of the Investor or the Company.
8.2 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties (including
transferees of any shares of Securities sold hereunder or any Common Stock
issued upon conversion thereof). Nothing in this Agreement, express or implied,
is intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
8.3 GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of Delaware without regard to choice of law
principles.
8.4 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.5 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
8.6 NOTICES. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon receipt, and shall be addressed to the party to be
notified at the address indicated for such party on the signature page hereof,
or at such other address as such party may designate by ten (10) days' advance
written notice to the other parties.
8.7 FINDER'S FEE. Each party represents that it neither is nor will be
obligated for any finders' fee or commission in connection with this
transaction. The Investor agrees to indemnify and to hold harmless the Company
from any liability for any commission or compensation in the nature of a
finders' fee (and the costs and expenses of defending against such liability or
asserted liability) for which the Investor or any of its officers, partners,
employees, or representatives is responsible.
15
The Company agrees to indemnify and hold harmless the Investor from
any liability for any commission or compensation in the nature of a finders' fee
(and the costs and expenses of defending against such liability or asserted
liability) for which the Company or any of its officers, employees or
representatives is responsible.
8.8 EXPENSES. Irrespective of whether the Closing is effected, the
Company shall pay all costs and expenses that it incurs with respect to the
negotiation, execution, delivery and performance of this Agreement. If any
action at law or in equity is necessary to enforce or interpret the terms of
this Agreement or the Restated Certificate, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
8.9 AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended
and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), only
with the written consent of the Company and the holders of a majority of the
Common Stock issued or issuable upon conversion of the Series D Preferred Stock
issued or issuable pursuant to this Agreement. Any amendment or waiver effected
in accordance with this paragraph shall be binding upon each holder of any
Securities purchased under this Agreement at the time outstanding (including
securities into which such Securities are convertible and/or exercisable), each
future holder of all such securities, and the Company.
8.10 SEVERABILITY. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
8.11 AGGREGATION OF STOCK. All shares of the Preferred Stock held or
acquired by affiliated entities or persons shall be aggregated together for the
purpose of determining the availability of any rights under this Agreement.
8.12 ENTIRE AGREEMENT. This Agreement and the documents referred to
herein constitute the entire agreement among the parties and no party shall be
liable or bound to any other party in any manner by any warranties,
representations, or covenants except as specifically set forth herein or
therein.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
16
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
RHYTHMS NETCONNECTIONS INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, President
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
INVESTOR:
U.S. TELESOURCE, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Its: President & Chief Executive Officer
------------------------------------
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
[SIGNATURE TO SERIES D PREFERRED STOCK PURCHASE AGREEMENT]
SCHEDULE A
Schedule of Series A Preferred Holders
TOTAL SERIES
FIRST CLOSING (JULY 3, 1997) A STOCK
Enterprise Partners III, L.P. 1,380,000
Enterprise Partners III Associates, L.P. 120,000
Enterprise Partners IV, L.P. --
Brentwood Associates VII, L.P. 1,060,000
Brentwood Affiliates Fund, L.P. 60,000
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ VIII 1,462,500
KPCB VIII Information Sciences Zaibatsu Fund II 37,500
DLJ Capital Corporation 30,000
DLJ First ESC L.L.C. 150,000
Sprout Capital VII, L.P. 1,304,843
The Sprout CEO Fund, L.P. 15,157
▇▇▇▇▇ Investors II, LLC 125,000
Stanford University 15,000
-----------
FIRST CLOSING TOTAL 5,760,000
-----------
-----------
SECOND CLOSING (JULY 29, 1997)
Brentwood Associates VII, L.P. 380,000
SECOND CLOSING TOTAL 380,000
-----------
-----------
FIRST & SECOND CLOSING TOTAL 6,140,000
-----------
-----------
FRIENDS AND FAMILY CLOSING (DECEMBER 23, 1997)
Other Purchasers 210,000
A-1
TOTAL SERIES
THIRD CLOSING (DECEMBER 23, 1997) A STOCK
Enterprise Partners III, L.P. 1,380,000
Enterprise Partners III Associates, L.P. 120,000
Brentwood Associates VII, L.P. 1,440,000
Brentwood Affiliates Fund, L.P. 60,000
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ VIII 1,462,500
KPCB VIII Information Sciences Zaibatsu Fund II 37,500
DLJ Capital Corporation 30,000
DLJ First ESC L.L.C. 150,000
Sprout Capital VII, L.P. 1,304,843
The Sprout CEO Fund, L.P. 15,157
▇▇▇▇▇ Investors II, LLC 125,000
Stanford University 15,000
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 365,094
----------
THIRD CLOSING TOTAL 6,505,094
----------
FIRST, SECOND & THIRD CLOSING TOTAL 12,855,094
----------
----------
A-2
SCHEDULE B
Schedule of Series B Preferred Holders
Number of Shares
Enron Communications Group, Inc. 2,247,191
Enterprise Partners III, L.P. 413,483
Enterprise Partners III Associates, L.P. 35,955
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ VIII 414,202
KPCB VIII Founders Fund 24,000
KPCB Information Sciences Zaibatsu 11,236
Fund II
Brentwood Associates VII, L.P. 431,461
Brentwood Affiliates Fund, L.P. 17,977
DLJ Capital Corporation 8,989
DLJ First ESC L.L.C. 44,944
Sprout Capital VII, L.P. 390,966
The Sprout CEO Fund, L.P 4,539
TOTAL 4,044,943
---------
---------
B-1
SCHEDULE C
Schedule of Common Holders
NUMBER OF SHARES
----------------
Enterprise Partners III, L.P. 1,325,882
Enterprise Partners III Associates, L.P. 115,294
Enterprise Partners IV, L.P. 720,588
Employees of the Company who have exercised
stock options 7,481,896
---------
TOTAL 9,643,660
---------
---------
C-1
EXHIBIT A
RESTATED CERTIFICATE OF INCORPORATION
See Exhibit 3.1 to Registration Statement on Form S-1
Exhibit A-1
EXHIBIT B
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
See Exhibit 10.29 to Registration Statement on Form S-1
Exhibit B-1