Sample Business Contracts

THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY APPLICABLE STATE SECURITIES LAWS. THESE SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACTS AND REGISTRATION OR QUALIFICATION UNDER APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION OR QUALIFICATION IS NOT REQUIRED. COPIES OF THE AGREEMENT RESTRICTING THE TRANSFER OF THESE SHARES MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE CORPORATION AT THE PRINCIPAL EXECUTIVE OFFICES OF THE CORPORATION.

        (a)    Request for Registration.    If at any time after the earlier of (i) three (3) years after the date of this Agreement, or (ii) one hundred eighty (180) days following the closing date of the first registration statement filed by the Company covering an underwritten offering of any of its securities to the general public, the Company shall receive from any Holder or group of Holders holding at least sixty-six and two-thirds percent (66²/3%) in interest of the Registrable Securities (the "Initiating Holders") a written request that the Company effect any registration with respect to Registrable Securities having an aggregate offering price of not less than $5,000,000, the Company will:

of the Registrable Securities of any Holder or Holders joining in such request as are specified in a written request received by the Company within twenty (20) days after receipt of such written notice from the Company, subject to the terms and conditions of this Section 5;

        (A)  In any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, qualification or compliance unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;

        (B)  After the Company has effected two (2) such registrations pursuant to this Section 5(a), which registrations have been declared or ordered effective, and pursuant to which the securities offered have been sold;

        (C)  During the one hundred eighty (180) day period starting with the date sixty (60) days prior to the Company's estimated date of filing of, and ending on the date immediately following the effective date of any Company-initiated registration statement pertaining to securities of the Company (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan); or

        (D)  If the Company delivers notice to the Holders of Registrable Securities within thirty (30) days of any such request for registration of the Company's intent to file a registration statement for its initial public offering within ninety (90) days from the date of such registration request.

        (b)    Underwriting.    If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to Section 5(a) and the Company shall include such information in the written notice referred to in Section 5(a). The right of any Holder to registration pursuant to Section 5 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities to be registered in the underwriting to the extent requested (unless otherwise mutually agreed by a majority in interest of the Holders) and to the extent provided herein. A Holder may elect to include in such underwriting all or a part of the Registrable Securities such Holder holds.

        (a)    Notice of Registration.    If the Company proposes to register under the Securities Act any of its securities for sale by a security holder (other than (i) pursuant to a registration in connection with an employee benefit or stock ownership plan, (ii) pursuant to Sections 5 or 9, or (iii) a registration relating solely to a Rule 145 transaction) and the registration form to be used may be used for the registration of Registrable Securities, the Company will give prompt written notice to all Holders of its intention to effect such a registration (each, a "Piggyback Notice"). Subject to Section 6(b) below, the Company will include in such registration all shares of Registrable Securities which holders of Registrable Securities request the Company to include in such registration by written notice given to the Company within twenty (20) days after receipt of the above-described notice from the Company.

        (b)    Priority on Company Registrations.    If a registration subject to Section 6(a) relates to an underwritten public offering of equity securities by holders of the Company's securities and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in an orderly manner in such offering within a price range acceptable to the Holders initially requesting such registration, the Company will include in such registration (i) first, the securities requested to be included therein by the Company if the Company has initiated the registration; (ii) second, the Registrable Securities requested to be included in such registration by the Holders, allocated pro rata among the Holders thereof on the basis of the number of shares of Registrable Securities held by such Holders; and (iii) third, among persons not contractually entitled to registration rights under this Agreement; provided, however, that in no event shall the amount of securities of the Holders included in the offering be reduced below twenty-five percent (25%) of the total amount of the securities included in such offering unless such offering is the Company's initial public offering, in which case all securities of the Holders may be excluded (so long as no securities are included in such offering other than shares offered by the Company).

        (c)   The Company may, in its sole discretion, abandon or delay any registration initiated by the Company pursuant to this Section 6.

        (a)   Prepare and file with the Commission a registration statement with respect to such securities and use its best efforts to cause such registration statement to become and remain effective for at least one hundred twenty (120) days or until the distribution described in the registration statement has been completed; provided, however, that (i) such 120-day period shall be extended for a period of time equal to the period the Holder refrains from selling any securities included in such registration at the request of an underwriter of securities of the Company; and (ii) in the case of any registration of Registrable Securities on Form S-3 which are intended to be offered on a continuous or delayed basis, such 120-day period shall be extended, if necessary, to keep the registration statement effective until all such Registrable Securities are sold;

        (b)   Furnish to the Holders participating in such registration and to the underwriters of the securities being registered such number of copies of the registration statement, preliminary prospectus, final prospectus and such other documents as such Holders or underwriters may reasonably request in order to facilitate the public offering of such securities;

        (c)   Prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection with such registration statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement or to applicable anti-fraud provisions;

        (d)   Use its best efforts to register and qualify the securities covered by such registration statement under such other applicable securities or blue sky laws, provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;

        (e)   Cause all such Registrable Securities registered pursuant hereto to be listed on each securities exchange on which similar securities issued by the Company are then listed;

        (f)    Provide a transfer agent and registrar for all Registrable Securities registered pursuant to such registration statement and a CUSIP number for all such Registrable Securities, in each case not later than the effective date of such registration;

        (g)   Enter into an underwriting agreement in form reasonably necessary to effect the offer and sale of Registrable Securities;

        (h)   Notify each Holder of Registrable Securities covered by such registration statement at any time when a prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of circumstances then existing; and

        (i)    Furnish, at the request of any Holder requesting registration of Registrable Securities, on the date that such Registrable Securities are delivered to the underwriters for sale, if such securities are being sold through underwriters, or, if such securities are not being sold through underwriters, on the date that the registration statement with respect to such securities becomes effective, (i) an opinion, dated as of such date, of the counsel representing the Company for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering and reasonably satisfactory to a majority in interest of the Holders requesting registration, addressed to the underwriters, if any, and to the Holders requesting registration of Registrable Securities and (ii) a "comfort" letter dated as of such date, from the independent certified public accountants of the Company, in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering and reasonably satisfactory to a majority in interest of the Holders requesting registration, addressed to the underwriters, if any, and to the Holders requesting registration of Registrable Securities.

        (a)   if the Company shall furnish to the Holders initiating the registration on Form S-3 a certificate signed by the President of the Company stating that, in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such Form S-3 registration statement to be filed and it is therefore essential to defer such filing; in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Holders initiating the

registration on Form S-3 under this Section 9, provided, however, that the Company may not utilize this right more than once in any twelve-month period; or

        (b)   if the Company has, within any 90-day period already effected one (1) registration or within the twelve (12) month period preceding the date of such request already effected two (2) registrations on Form S-3 for Holders pursuant to this Section 9;

        (c)   if the Company has effected two (2) such registrations pursuant to this Section 9; or

        (d)   in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance unless the Company is already subject to such service in such jurisdiction and except as may be required by the Securities Act.

        (a)   The Company will indemnify each Holder, each of its officers, directors and partners, legal counsel, accountants, underwriters and each person controlling such Holder within the meaning of Section 15 of the Securities Act, with respect to which registration, qualification or compliance has been effected pursuant to this Agreement, and each underwriter, if any, and each person who controls any underwriter within the meaning of Section 15 of the Securities Act, against all expenses, claims, losses, damages and liabilities (or actions in respect thereof), including any of the foregoing incurred in settlement of any litigation, arising out of or based on (i) any untrue statement (or alleged untrue statement) of a material fact contained in any registration statement, prospectus, offering circular or other document, or any amendment or supplement thereto, incident to any such registration, qualification or compliance, 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, or (iii) any violation or alleged violation by the Company of the Securities Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act"), any federal or state securities law, or any rule or regulation promulgated thereunder applicable to the Company and relating to action or inaction required of the Company in connection with any such registration, qualification or compliance, and will reimburse each such Holder, each of its officers, directors and partners and each person controlling such Holder, each such underwriter and each person who controls any such underwriter, for any legal and any other expenses reasonably incurred in connection with investigating, preparing or defending any such claim, loss, damage, liability or action, provided, however, that the indemnity agreement contained in this Section 12(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Company (which consent

shall not be unreasonably withheld), nor shall the Company be liable in any such case for any such loss, claim, damage, liability or action to the extent that it arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission, that occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder or underwriter and stated to be specifically for use therein.

        (b)   Each Holder will, if Registrable Securities held by such Holder are included in the securities as to which such registration, qualification or compliance is being effected, indemnify the Company, each of its directors and officers, legal counsel, accountants each underwriter, if any, of the Company's securities covered by such a registration statement, each person who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act, and each other such Holder, each of its officers and directors and each person controlling such Holder within the meaning of Section 15 of the Securities Act, against all expenses, claims, losses, damages and liabilities (or actions in respect thereof) arising out of or based on (i) any untrue statement (or alleged untrue statement) of a material fact contained in any such registration statement, prospectus, offering circular or other document, 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 will reimburse the Company, such Holders, such directors, officers, legal counsel, accountants, underwriters or control persons for any legal or any other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability or action, in each case to the extent, but only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such registration statement, prospectus, offering circular or other document in reliance upon and in conformity with written information furnished to the Company by an instrument duly executed by such Holder and stated to be specifically for use therein; provided, however, that the obligations of such Holder hereunder shall not apply to amounts paid in settlement of any such claims, losses, damages or liabilities (or actions in respect thereof) if such settlement is effected without the consent of such Holder and provided that the obligations of each such Holder hereunder shall be limited to an amount equal to the net proceeds after expenses and commissions to such Holder from Registrable Securities sold in such offering.

        (c)   Each party entitled to indemnification under this Section 12 (the "Indemnified Party") shall give notice to the party required to provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not be unreasonably withheld), and the Indemnified Party may participate in such defense at such party's expense; and provided further that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Agreement, except to the extent, but only to the extent, that the Indemnifying Party's ability to defend against such claim or litigation is impaired as a result of such failure to give notice. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation.

        (d)   If the indemnification provided for herein is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or expense referred to herein, then the indemnifying party, in lieu of indemnifying such indemnified party hereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, damage, liability or expense in such proportion as is appropriate to reflect the relative fault of the indemnifying party, on the one hand, and of the indemnified party, on the other, in connection with the action or omission that resulted in such loss, claim, damage, liability or expense, as well as any other relevant equitable considerations. The obligation of Holders to contribute will be individual to each Holder and will be limited to the net amount of proceeds received by such Holder from the sale of Registrable Securities.

        (a)   Make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act, at all times after ninety (90) days after the effective date of the first registration under the Securities Act filed by the Company for an offering of its securities to the general public;

        (b)   File with the Commission in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act, at any time after it has become subject to such reporting requirements; and

        (c)   So long as any of the Holders owns Restricted Securities, furnish to Holders of Registrable Securities forthwith upon written request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 (at any time after ninety (90) days after the effective date of the first registration statement filed by the Company for an offering of its securities to the general public), and of the Securities Act and the Exchange Act (at any time after it has become subject to such reporting requirements), a copy of the most recent annual or quarterly report of the Company, and such other reports and documents of the Company as a Holder of Restricted Securities may reasonably request in availing itself of any rule or regulation of the Commission allowing such Holder to sell any such securities without registration.

        (a)   The Company will furnish the following reports to each holder who, along with such holder's affiliate holds at least one million (1,000,000) shares of Preferred Stock (or Common

Stock issuable upon conversion of the Preferred Stock) (a "Significant Holder"), as adjusted for stock splits, stock dividends and other like recapitalization events:

        (b)   Each Significant Holder agrees that any information obtained by such Significant Holder pursuant to this Section 17 which the Company identifies in writing to be proprietary or otherwise confidential will not be disclosed without the prior written consent of the Company; provided, however, that the disclosure of any portion of such information by a Significant Holder shall not be considered to be a breach of this Agreement or a waiver of confidentiality for other purposes if

(a) such information was in the public domain at or subsequent to the time such portion was communicated to the Significant Holder by Company through no fault of the Significant Holder; (b) such information was rightfully in the Significant Holder's possession free of any obligation of confidence at or subsequent to the time such portion was communicated to the Significant Holder by Company; (c) such disclosure by the Significant Holder was made in response to a valid order by a court or other governmental body, or (d) such disclosure by the Significant Holder was otherwise required by law, provided, however, that in those circumstances set forth in (c) and (d) of this subsection, Significant Holder shall provide prompt prior written notice thereof to Company to enable Company to seek a protective order or otherwise prevent such disclosure. Each Significant Holder further acknowledges and understands that any information so obtained which may be considered "inside" non-public information will not be utilized by such Significant Holder in connection with purchases and/or sales of the Company's securities except in compliance with applicable state and federal anti-fraud statutes.

        (a)   "New Securities" shall mean any Common Stock and Preferred Stock of the Company whether or not authorized on the date hereof, and rights, options, or warrants to purchase Common Stock or Preferred Stock and securities of any type whatsoever that are, or may become, convertible into Common Stock or Preferred Stock; provided, however, that "New Securities" does not include the following:

        (b)   In the event that the Company proposes to undertake an issuance of New Securities, it shall give each Offeree written notice of its intention, describing the type of New Securities, the price, and the general terms upon which the Company proposes to issue the same. Each Offeree shall have twenty (20) business days after receipt of such notice to agree to purchase its pro rata share of such New Securities at the price and upon the terms specified in the notice by giving written notice to the Company and stating therein the quantity of New Securities to be purchased. Such Offeree's obligation to purchase such New Securities under this Section 20 will be contingent upon the completion of the issuance of the New Securities substantially in the form as provided in the written notice.

        (c)   The Company shall have sixty (60) days after the twenty (20) business days specified above plus any over-allotment period to sell (or enter into an agreement pursuant to which the sale of New Securities covered thereby shall be closed, if at all, within twenty (20) days from the date of said agreement) the New Securities respecting which the rights of the Offerees were not exercised (or which were not subject to a right of first offer) at a price and upon terms no more favorable to the purchasers thereof than specified in the Company's notice. In the event the Company has not sold the New Securities within such sixty (60) day period (or sold and issued New Securities in accordance with the foregoing within twenty (20) days from the date of such agreement) the Company shall not thereafter issue or sell any New Securities, without first offering such New Securities to the Offerees in the manner provided above.

        (d)    Expiration.    The Right of First Offer granted under this Section 20 shall expire upon the first sale of Common Stock in a bona fide, firm commitment underwriting pursuant to a registration statement under the Securities Act with a pre-money valuation of $200,000,000 and with an aggregate offering price of not less than $40,000,000.

        (e)    Assignability.    This Right of First Offer is nonassignable except to any transferee to whom registration rights may be transferred pursuant to Section 15 of this Agreement.

        (a)    Proprietary Information and Inventions Agreement.    The Company and each person now or hereafter employed in any technical capacity by it or any subsidiary with access to confidential information will enter into a Proprietary Information and Inventions Agreement.

        (b)    Indemnification of Directors.    The Sixth Amended and Restated Certificate of Incorporation, as amended from time to time, or the Bylaws of the Company will at all times during which any nominee of any of the Preferred Holders serves as a director of the Company provide for indemnification of the directors and limitations on liability of the directors to the fullest extent permitted under applicable state law.

        (c)    Indemnification.    The Company, without limitation as to time, will indemnify and hold harmless and defend each Preferred Holder and its agents and representatives against, and hold each Preferred Holder and its agents and representatives harmless from, all losses, claims, damages, liabilities, and costs (including the costs of preparation and attorneys' fees and expenses) (collectively, "Losses") incurred pursuant to any investigation or proceeding by any Person other than the Company, against the Company, any Preferred Holder or any of their agents and representatives arising out of or in connection with this Agreement or the transactions contemplated herein and therein (or any other document or instrument executed pursuant hereto or thereto), which investigation or proceeding requires the participation of, or is commenced or filed against, such Preferred Holders or any of their agents or representatives because of this Agreement and the transactions contemplated herein and therein, other than to the extent that any Losses are finally determined in such proceeding to be the result of (i) the gross negligence or willful misconduct by such Preferred Holder, (ii) a breach of a fiduciary duty, if any, owed by such Preferred Holder to the Company, (iii) an act or omission that involves intentional misconduct or a knowing violation of law by such Preferred Holder, (iv) a material breach by such Preferred Holder of any material provision of this Agreement, (v) a transaction from which the Preferred Holder received an improper benefit or (vi) Losses incurred by or on behalf of a Preferred Holder's agent or representative who is party to a separate Indemnification Agreement with the Company as to which such Indemnification Agreement, rather than this Section 22(c), shall apply.

        (d)    Qualified Small Business Stock.    The Company will use reasonable efforts to comply with the reporting and record-keeping requirements of Section 1202 of the Internal Revenue Code, any regulations promulgated thereunder and any similar state laws and regulations, and agrees not to repurchase any stock of the Company if such repurchase would cause such shares not to so qualify as "Qualified Small Business Stock." The provisions of this Section 21(d) may be waived only by the vote or written consent of the holders of at least two-thirds of the then outstanding shares of Preferred Stock.

        (e)    Additional Board Approvals.    Prior to taking any of the following actions, the Company shall first be required to obtain the approval of its Board of Directors:

        (f)    Board Meetings.    Board of Directors meetings will be held at least four times per year; provided, however, until the Company is profitable or the Board of Directors otherwise determines, meetings of the Board of Directors will be held every two months, or six times per year.

        (g)    Vesting of Certain Securities.    Unless otherwise agreed to by the Board of Directors of the Company, all stock and other securities issued after the Closing to employees and directors of and consultants and other service providers to the Company shall be subject to the following vesting schedule: twenty-five percent (25%) of such securities shall vest on the one-year anniversary of the issuance of such securities, with the remaining seventy-five percent (75%) to vest in equal monthly installments over the next three (3) years.

        (h)    Option Plan.    The Company will not issue options permitting exercise prior to vesting unless such early exercise provision and any corresponding right of repurchase provision are specifically discussed with the Company's Board of Directors and the Board of Directors approve such provision.

        (i)    Issuance of Common Stock.    The Company will not issue shares of Common Stock unless (i) such shares are subject to a right of first refusal by the Company and (ii) such right of first refusal is not materially different from the Company's right of first refusal as set forth in that certain form of Stock Purchase Agreement and that certain form of Stock Issuance Agreement as approved by the Board of Directors of the Company.

        (j)    Payment of Taxes and Trade Debt.    The Company will pay and discharge all taxes, assessments and governmental charges or levies imposed upon it or upon its income, profits or business, or upon any properties belonging to it, prior to the date on which penalties attach thereto, and all lawful claims which, if unpaid, might become a lien or charge upon any properties of the Company; provided, however, that the Company shall not be required to pay any such tax, assessment, charge, levy or claim which is being contested in good faith and by appropriate proceedings if the Company shall have set aside on its books sufficient reserves, if any, with respect thereto.

        (k)    Preservation of Corporate Existence.    The Company will preserve and maintain its corporate existence, rights, franchises and privileges in the jurisdiction of its incorporation, and qualify and remain qualified as a foreign corporation in each jurisdiction in which such qualification is necessary or desirable in view of its business and operations or the ownership or lease of its properties. Secure, preserve and maintain all licenses and other rights to use Intellectual Property Rights owned or possessed by it and deemed by the Company to be necessary to the conduct of its business.

        (l)    Compliance with Laws.    The Company will comply with the requirements of all applicable laws, rules, regulations and orders of any governmental authority, where noncompliance would have a Material Adverse Effect.

        (m)    Keeping of Records and Books of Account.    The Company will keep adequate records and books of account in which complete entries will be made in accordance with generally accepted accounting principles consistently applied, reflecting all financial transactions of the Company, and in which, for each fiscal year, all proper reserves for depreciation, depletion, returns of merchandise, obsolescence, amortization, taxes, bad debts and other purposes in connection with its business shall be made.

        (n)    Maintenance of Properties.    The Company will maintain and preserve all of its properties and assets, necessary for the proper conduct of its business, in good repair, working order and condition, ordinary wear and tear excepted.

        (o)    Bylaws.    The Company will at all times, cause the bylaws of the Company to provide that, unless otherwise required by the laws of the State of Delaware, (i) any two directors and (ii) any holder or holders of at least 25% of the outstanding Preferred Shares, shall have the right to call a meeting of the Board of Directors or stockholders.

        (p)    Expenses of Directors.    The Company will promptly reimburse in full, each director of the Company who is not an employee of the Company for all of his reasonable out-of-pocket expenses incurred in attending each meeting of the Board of Directors of the Company or any committee thereof.

        (q)    Assignment Agreements.    The Company will obtain from each named inventor for any patent application filed by or on behalf of the Company an assignment reasonably acceptable to counsel for the Company which assigns to the Company all rights in and to any such patent application and patent issuing therefrom.

        (r)    Termination of Covenants.    The covenants of the Company set forth in Sections 21(d), (h), (i) and (j) shall terminate in all respects on the date of the closing of an initial firm commitment underwritten public offering pursuant to an effective registration statement under the Securities Act, covering the offer and sale of the Company's Common Stock.

        (s)    Registration Rights of Comerica Bank.    The parties hereto acknowledge that pursuant to that certain warrant to purchase shares of the Company's Series A Preferred Stock and Series P Common Stock, issued by the Company to Comerica Bank—California ("Comerica") in accordance with the Loan and Security Agreement, dated April 3, 2003, by and between the Company and Comerica, Comerica is entitled to "piggy back" registration rights in accordance with the terms of this Agreement and shall be deemed a "Holder" under this Agreement for purposes of Section 6 of this Agreement. The Company, upon the request of Comerica, may provide Comerica with a joinder agreement deeming Comerica a "Holder" for purposes of Section 6 of this Agreement.

        (t)    Assignment of Purchase Rights.    In the event that the Company obtains a right to purchase shares of its capital stock held by Environmental Defense Fund or its affiliates in connection with a proposed transfer of such shares, and the Company does not intend to exercise such right in full, then the Company shall, in a timely manner, notify each Preferred Holder who holds shares of Series C Preferred Stock (the "Series C Holders") of such fact and assign such right to the Series C Holders pro rata based on the number of shares of Series C Preferred Stock held by such Series C Holders, with a full oversubscription right such that any shares not subscribed for by any Series C Holders shall be available for purchase by the Series C Holders exercising such rights in full.

        (i)    except as set forth in Section 22(vi) below, three (3) persons designated by the holders of a majority of the Company's Series P Common holders and Series A Convertible Preferred holders, voting on an as-if-converted to Series P Common Stock basis (the "Series P Directors"), one (1) of whom shall be designated by Adams Street V, L.P. (who shall initially be George Spencer), one (1) of whom shall be designated by Granite Ventures (who shall initially be Chris Hollenbeck), and one (1) of whom shall be designated by Austin Ventures (who shall initially be Tom Ball);

        (ii)   one (1) person designated by the Stockholders' Agent (as defined in that certain Merger Agreement, dated January 10, 2007, between the Company, GetActive Software, Inc. and Robert Epstein, as Stockholders' Agent (the "Merger Agreement")) who shall represent the holders of the Series Q Common Stock, Series R Common Stock and Series S Common Stock, and who shall initially be Sheeraz Haji (the "QRS Director");

        (iii)  one (1) person designated by a majority of the Board of Directors, including the approval of at least one of the Series P Directors and either the QRS Director or the Series C Director, and who shall initially be Vinay Bhagat;

        (iv)  one (1) person who shall at all times be the then current Chief Executive Officer of the Company (the "CEO Director");

        (v)   one (1) person designated by El Dorado Ventures VI, L.P. (the "Series C Director") and who shall initially be Scott Irwin; and

        (vi)  after the date hereof, the Board of Directors shall undertake the process of identifying one (1) person approved by a majority of the existing Board of Directors, including the approval of at least one of the Series P Directors and the QRS Director, who shall have relevant experience in the industry and have no affiliation with the Company and who shall replace one (1) Series P Director (the "Industry Director") (and the entity previously entitled to designate such Series P Director shall no longer retain such right. Thereafter, the Industry Director shall be designated by a majority of the existing Board of Directors, including the approval of at least one of the Series P Directors and the QRS Director, who shall have relevant experience in the industry and have no affiliation with the Company.