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Kozmo Com Inc – IPO: ‘S-1’ on 3/20/00 – EX-4.1

On:  Monday, 3/20/00   ·   As of:  3/21/00   ·   Accession #:  912057-0-12562   ·   File #:  333-32864

Previous ‘S-1’:  None   ·   Next & Latest:  ‘S-1/A’ on 4/6/00

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  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

 3/21/00  Kozmo Com Inc                     S-1         3/20/00   15:637K                                   Merrill Corp/FA

Initial Public Offering (IPO):  Registration Statement (General Form)   —   Form S-1
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: S-1         Registration Statement (General Form)                102    483K 
 2: EX-3.1      Articles of Incorporation/Organization or By-Laws     19     72K 
 3: EX-3.2      Articles of Incorporation/Organization or By-Laws     21     74K 
 4: EX-4.1      Instrument Defining the Rights of Security Holders    74    237K 
10: EX-10.10    Material Contract                                      3     20K 
11: EX-10.11    Material Contract                                      9     39K 
12: EX-10.12    Material Contract                                      7     29K 
13: EX-10.13    Material Contract                                      6     29K 
 5: EX-10.5     Material Contract                                     14     59K 
 6: EX-10.6     Material Contract                                     14     59K 
 7: EX-10.7     Material Contract                                      2     14K 
 8: EX-10.8     Material Contract                                      2     11K 
 9: EX-10.9     Material Contract                                      2     13K 
14: EX-23.1     Consent of Experts or Counsel                          1      6K 
15: EX-27.1     Financial Data Schedule (Pre-XBRL)                     2      8K 


EX-4.1   —   Instrument Defining the Rights of Security Holders
Exhibit Table of Contents

Page (sequential) | (alphabetic) Top
 
11st Page   -   Filing Submission
"Section 1. Definitions
4Section 2. Required Registration
6Section 3. Piggyback Registration
7Section 4. Registrations on Form S-3
"Section 5. Holdback Agreement
8Section 6. Preparation and Filing
11Section 7. Expenses
"Section 8. Indemnification
14Section 9. Underwriting Agreement
"Section 10. Information by Holders of Registrable Shares
"Section 11. Exchange Act Compliance
15Section 12. No Conflict of Rights
"Section 13. Termination
"Section 14. Successors and Assigns
"Section 15. Assignment
"Section 16. Entire Agreement
"Section 17. Notices
17Section 18. Modifications; Amendments; Waivers
"Section 19. Counterparts; Facsimile Signatures
18Section 20. Headings
"Section 21. Severability; Governing Law
"Section 22. Amendment and Restatement of Existing Agreements
40Stockholders
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Exhibit 4.1 SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated as of March 16, 2000 (this "AGREEMENT"), among Kozmo.com, Inc., a Delaware corporation (the "CORPORATION"), and the stockholders of the Corporation identified on Annex I (each a "STOCKHOLDER" and, collectively, the "STOCKHOLDERS"). R E C I T A L S WHEREAS, the Corporation and the Stockholders except the New Investors (as defined herein) entered into a First Amended and Restated Registration Rights Agreement dated as of December 23, 1999 (the "EXISTING AGREEMENT"); WHEREAS, pursuant to a securities purchase agreement dated as of the date hereof (the "SECURITIES PURCHASE AGREEMENT"), the New Investors have agreed to purchase 11,353,107 newly issued shares of 8% Series F Convertible Preferred Stock, par value $.01 per share (the "SERIES F PREFERRED STOCK"), from the Corporation, and certain other Stockholders have agreed to purchase, in the aggregate, 3,918,974 newly issued shares of Series F Preferred Stock from the Corporation; WHEREAS, the parties wish to amend and restate the Existing Agreement by adding the New Investors as parties thereto and modifying certain other provisions thereof; NOW, THEREFORE, the parties hereby agree that the Existing Agreement is amended and restated in its entirety as follows: SECTION 1. DEFINITIONS. As used in this Agreement, the following terms shall have the following meanings: "COMMISSION" means the U.S. Securities and Exchange Commission or any successor agency. "COMMON STOCK" means the common stock, par value $.001 per share, of the Corporation. "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder, all as the same shall be in effect from time to time. "FOUNDERS" means Joseph Park and Yong Kang.
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"FOUNDERS' REGISTRABLE SHARES" means the shares of the Common Stock held by the Founders. "NEW INVESTORS" means, collectively, Starbucks Asset Management Corporation, Hikari Tsushin, Inc., Techvantage Partners, L.P., Techvantage Overseas Fund Inc., Techvantage Qualified Partners, L.P., Semper Ventures, LLC, Amerindo Technology Growth Fund II, Inc., Sands Brothers/Amerindo Technology Associates LLC, Sands Brothers/Amerindo Technology Associates Institution LLC, Sands Brothers/Amerindo Technology Offshore Associates LLC, Litton Master Trust, James Stableford, Joaquin Garcia-Larrieu, Marc Weiss, Axalon (Offshore) I, L.P, Hyosung Corporation, NeoCarta Ventures, L.P., NeoCarta Scout Fund, L.L.C., S. Taylor Glover, Sands Brothers Venture Capital LLC, SB e-Order Associates LLC, PCG Ventures, eTrillium, L.L.C., Gramercy Trust III, The Roosevelt Group, Time Warner Entertainment Company, L.P., Columbia TriStar Home Video and Liberty Digital, Inc. "OTHER SHARES" means at any time those shares of Common Stock which do not constitute Primary Shares or Registrable Shares. "PRIMARY SHARES" means at any time the authorized but unissued shares of Common Stock and shares of Common Stock held by the Corporation in its treasury. "REGISTRATION DATE" means the date upon which a registration statement pursuant to which the Corporation shall have initially registered shares of Common Stock under the Securities Act for sale to the public shall have been declared effective. "REGISTRABLE SHARES" means, collectively, the Series F Registrable Shares, the Series E Registrable Shares, the Series D Registrable Shares, the Series C Registrable Shares, the Series B Registrable Shares and the Founder's Registrable Shares. For purposes of this Agreement, any Registrable Shares shall cease to be Registrable Shares (i) when they have been registered under the Securities Act (the registration statement in connection therewith has been declared effective) and disposed of pursuant to such effective registration statement, (ii) when they are sold by a person in a transaction in which the rights under the provisions of this Agreement are not assigned, (iii) when they have been sold or distributed pursuant to Rule 144 (including, without limitation, Rule 144(k)) or (iv) on the last day of any three-month period within which they may be sold or distributed without registration pursuant to Rule 144. "RULE 144" means Rule 144 promulgated under the Securities Act or any successor rule thereto or any complementary rule thereto (such as Rule 144A). "SECURITIES ACT" means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder, all as the same shall be in effect from time to time. "SERIES B PREFERRED STOCK" means the 8% Series B Convertible Preferred Stock, par value $.01 per share, of the Corporation.
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"SERIES B PREFERRED STOCKHOLDERS" means the holders of the Series B Preferred Stock, and shall include any successor to, or assignee or transferee of, any of the Series B Preferred Stockholders who shall agree in writing to be treated as a Series B Preferred Stockholder and to be bound by the terms and to comply with the provisions of this Agreement. "SERIES B REGISTRABLE SHARES" means shares of Common Stock issuable upon the conversion of shares of the Series B Preferred Stock. "SERIES C PREFERRED STOCK" means the 8% Series C Convertible Preferred Stock, par value $.01 per share, of the Corporation. "SERIES C PREFERRED STOCKHOLDERS" means the holders of the Series C Preferred Stock, and shall include any successor to, or assignee or transferee of, any of the Series C Preferred Stockholders who shall agree in writing to be treated as a Series C Preferred Stockholder and to be bound by the terms and to comply with the provisions of this Agreement. "SERIES C REGISTRABLE SHARES" means shares of Common Stock issuable upon the conversion of the Series C Preferred Stock. "SERIES D MAJORITY IN INTEREST" means, at any point in time on an as-converted basis, holders of Series D Preferred Stock representing in the aggregate at least two-thirds of the Common Stock issuable upon the conversion of the Series D Preferred Stock. "SERIES D PREFERRED STOCK" means the 8% Series D Convertible Preferred Stock, par value $.01 per share, of the Corporation. "SERIES D PREFERRED STOCKHOLDERS" means the holders of the Series D Preferred Stock, and shall include any successor to, or assignee or transferee of, any of the Series D Preferred Stockholders who shall agree in writing to be treated as a Series D Preferred Stockholder and to be bound by the terms and to comply with the provisions of this Agreement. "SERIES D REGISTRABLE SHARES" means shares of Common Stock issuable upon the conversion of shares of the Series D Preferred Stock. "SERIES E MAJORITY IN INTEREST" means, at any point in time on an as-converted basis, holders of Series E Preferred Stock representing in the aggregate at least a majority of the Common Stock issuable upon the conversion of the Series E Preferred Stock (including, for purposes of this Agreement, those shares of Common Stock issuable upon conversion of those shares of Series E Preferred Stock issuable upon exercise of any warrants to acquire Series E Preferred Stock granted by the Corporation). "SERIES E PREFERRED STOCK" means the 8% Series E Convertible Preferred Stock, par value $.01 per share, of the Corporation.
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"SERIES E PREFERRED STOCKHOLDERS" means the holders of the Series E Preferred Stock, and shall include any successor to, or assignee or transferee of, any of the Series E Preferred Stockholders who shall agree in writing to be treated as a Series E Preferred Stockholder and to be bound by the terms and to comply with the provisions of this Agreement. "SERIES E REGISTRABLE SHARES" means shares of Common Stock issuable upon the conversion of shares of the Series E Preferred Stock, including shares of Common Stock issuable upon conversion of shares of Series E Preferred Stock issuable upon exercise of any warrants granted by the Corporation to Amazon. "SERIES F MAJORITY IN INTEREST" means, at any point in time on an as-converted basis, holders of Series F Preferred Stock representing in the aggregate at least a majority of the Common Stock issuable upon the conversion of the Series F Preferred Stock. "SERIES F PREFERRED STOCK" shall have the meaning set forth in the recitals. "SERIES F PREFERRED STOCKHOLDERS" means the holders of the Series F Preferred Stock, and shall include any successor to, or assignee or transferee of, any of the Series F Preferred Stockholders who shall agree in writing to be treated as a Series F Preferred Stockholder and to be bound by the terms and to comply with the provisions of this Agreement. "SERIES F REGISTRABLE SHARES" means shares of Common Stock issuable upon the conversion of shares of the Series F Preferred Stock. "STOCKHOLDERS' AGREEMENT" means the Second Amended and Restated Stockholders' Agreement dated as of the date hereof among the Corporation and the other parties thereto. SECTION 2. REQUIRED REGISTRATION. (a) On any date after the Registration Date, if holders of not less than 33% of the Registrable Shares then outstanding shall in writing state that such holders desire to sell at least 20% of the Registrable Shares held by them in the public securities markets and request the Corporation to effect the registration under the Securities Act of such Registrable Shares, the Corporation shall promptly use its best efforts to effect the registration under the Securities Act of such Registrable Shares which the Corporation has been so requested to register. If the Corporation determines to have the Registrable Shares distributed by means of an underwritten offering, the Corporation and the requesting holders shall enter into an underwriting agreement with a major bracket or nationally known underwriter. (b) Anything contained in Section 2(a) to the contrary notwithstanding, the Corporation shall not be obligated to effect any registration under the Securities Act pursuant to Section 2(a) except in accordance with the following provisions:
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(i) The Corporation shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to this Section 2, or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares, Other Shares or Registrable Shares included pursuant to Section 3 are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days. (ii) The Corporation may delay or suspend the filing or effectiveness of any registration statement for a period of up to 90 days after the date of a request for registration pursuant to this Section 2 if at the time of such request (i) the Corporation is engaged, or has fixed plans to engage within 90 days of the time of such request, in a firm commitment underwritten public offering of Primary Shares in which the holders of Registrable Shares may include Registrable Shares pursuant to Section 3 or (ii) the Corporation reasonably determines that such registration and offering would interfere with any material transaction involving the Corporation, as approved by the Board of Directors, or if there exists at the time, material non-public information relating to the Corporation, which in the opinion of the Corporation, should not be disclosed or if the sale of shares thereunder would, in the opinion of the Corporation, be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in potential liability to the Corporation; PROVIDED, HOWEVER, that the Corporation may only delay or suspend the filing or effectiveness of a registration statement pursuant to this Section 2(b)(ii) for a total of 180 days after the date of a request for registration pursuant to this Section 2. (iii) With respect to any registration pursuant to this Section 2, the Corporation shall give notice of such registration to the holders of Registrable Shares who do not request registration hereunder. The Corporation shall include in such registration any Registrable Shares requested, within 10 days after the Corporation has given such notice, to be included by such holders and may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Corporation that the inclusion of all Registrable Shares, Primary Shares and/or Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of the Registrable Shares proposed to be included in such registration, then the number of Registrable Shares, Primary Shares and/or Other Shares proposed to be included in such registration shall be included in the following order: (A) first, the Registrable Shares requested to be included in such registration which are Series F Registrable Shares, Series E Registrable Shares and Series D Registrable Shares (or, if necessary, such Registrable Shares PRO RATA among the holders thereof based upon the number of Registrable Shares requested to be registered by each such holder); (B) second, the Registrable Shares requested to be included in such registration which are Founders' Registrable Shares (or, if necessary, such
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Registrable Shares PRO RATA among the holders thereof based upon the number of Registrable Shares requested to be registered by each such holder); (C) third, the Registrable Shares requested to be included which are Series C Registrable Shares and Series B Registrable Shares and the Primary Shares (or, if necessary, such Registrable Shares and Primary Shares PRO RATA among the holders thereof and the Corporation based upon the number of Registrable Shares and Primary Shares requested to be registered by each such holder and the Corporation); and (D) fourth, the Other Shares. (iv) Notwithstanding anything to the contrary contained in Section 2(b)(iii), with respect to any registration pursuant to this Section 2, the Corporation shall include no less than 15% of the Registrable Shares requested to be included in such registration. SECTION 3. PIGGYBACK REGISTRATION. (a) On any date after the Registration Date, if the Corporation proposes for any reason to register shares of Common Stock under the Securities Act (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto), it shall give written notice to the holders of Registrable Shares of its intention to so register such shares of Common Stock at least 30 days before the initial filing of such registration statement. Upon the written request of the holders of Registrable Shares to include Registrable Shares in such registration (which request (i) must be delivered to the Corporation within 20 days after delivery by the Corporation of any notice pursuant to this Section 3(a), (ii) shall specify the number of Registrable Shares proposed to be included in such registration and (iii) shall state that such holders of Registrable Shares desire to sell such Registrable Shares in the public securities markets), the Corporation shall use its best efforts to cause all such Registrable Shares to be included in such registration on the same terms and conditions as the securities otherwise being sold in such registration; PROVIDED, HOWEVER, that if the managing underwriter advises the Corporation that the inclusion of all Registrable Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of the Primary Shares or Other Shares proposed to be registered by the Corporation, then the number of Primary Shares, Registrable Shares and/or Other Shares proposed to be included in such registration shall be included in the following order: (i) first, the Primary Shares; (ii) second, the Registrable Shares requested to be included in such registration which are Series F Registrable Shares, Series E Registrable Shares and Series D Registrable Shares (or, if necessary, such Registrable Shares PRO RATA among the holders thereof based upon the number of Registrable Shares requested to be registered by each such holder);
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(iii) third, the Registrable Shares requested to be included in such registration which are Founders Registrable Shares (or, if necessary, such Registrable Shares PRO RATA among the holders thereof based upon the number of Registrable Shares requested to be registered by each such holder); (iv) fourth, the Registrable Shares requested to be included in such registration which are Series C Registrable Shares and Series B Registrable Shares (or, if necessary, such Registrable Shares PRO RATA among the holders thereof based upon the number of Registrable Shares requested to be registered by each such holder); and (v) fifth, the Other Shares. (b) Notwithstanding anything to the contrary contained in Section 3(a), with respect to any registration pursuant to this Section 3, the Corporation shall include no less than 15% of the Registrable Shares requested to be included in such registration. (c) The number of requests permitted by the holders of Registrable Shares pursuant to this Section 3 shall be unlimited. SECTION 4. REGISTRATIONS ON FORM S-3. (a) Anything contained in Section 2 to the contrary notwithstanding, at such time as the Corporation shall have qualified for the use of Form S-3 promulgated under the Securities Act or any successor form thereto, the holders of the Registrable Shares then outstanding shall have the right to request in writing that the Corporation effect the registration of Registrable Shares on Form S-3 or such successor form, which request or requests shall (i) specify the number of Registrable Shares intended to be sold or disposed of and the holders thereof and (ii) state the intended method of disposition of such Registrable Shares. A requested registration on Form S-3 or any such successor form in compliance with this Section 4 shall not count as a registration statement initiated pursuant to Section 2 but shall otherwise be treated as a registration initiated pursuant to, and shall, except as otherwise expressly provided in this Section 4, be subject to, Section 2, including, without limitation, Section 2(a). (b) The number of requests permitted by the holders of Registrable Shares pursuant to this Section 4 shall be unlimited. SECTION 5. HOLDBACK AGREEMENT. (a) If the Corporation at any time shall register shares of Common Stock under the Securities Act (including any registration pursuant to Sections 2, 3 or 4 hereof) for sale to the public, the Stockholders shall not sell publicly or privately, make any short sale of, grant any option for the purchase of, or otherwise dispose publicly of, any Registrable Shares (other than those shares of Common Stock included in such registration pursuant to Sections 2, 3 or 4 hereof) without the prior written consent of the Corporation, for a period as shall be determined by the relevant managing underwriters, which period shall begin not more than 10 days prior to
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the initial filing of the registration statement pursuant to which such public offering shall be made and shall not last more than 180 days after the effective date of such registration statement; PROVIDED, HOWEVER, that the officers and directors of the Corporation who own capital stock of the Corporation and all other holders of 5% or more of the capital stock of the Corporation shall each be subject to similar restrictions. The Corporation shall obtain the agreement of any Person permitted to sell shares of stock in such registration to be bound by and to comply with this Section 5 as if such Person were a Stockholder hereunder. (b) If the Corporation shall at any time pursuant to Sections 2, 3 or 4 of this Agreement register under the Securities Act Registrable Shares for sale to the public pursuant to an underwritten offering, the Corporation shall not effect any public sale or distribution of securities similar to those being registered (excluding any registration statement on Form S-4 or S-8), or any securities convertible into or exercisable or exchangeable for such securities, for such period as shall be determined by the managing underwriters which period shall not extend more than 90 days after the effective date of such registration statement. SECTION 6. PREPARATION AND FILING. (a) If and whenever the Corporation is under an obligation pursuant to the provisions of this Agreement to use its best efforts to effect the registration of any Registrable Shares, the Corporation shall, as expeditiously as practicable: (i) use its best efforts to cause a registration statement that registers such Registrable Shares to become and remain effective for a period of 150 days or until all of such Registrable Shares have been disposed of (if earlier); (ii) furnish, at least five business days before filing a registration statement, to counsel designated by the Series F Preferred Stockholders, Series E Preferred Stockholders and Series D Preferred Stockholders ("INVESTORS' COUNSEL"), a copy of the registration statement proposed to be filed and the prospectus relating thereto or any amendments or supplements relating to such a registration statement or prospectus (it being understood that such five-business-day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to the Investors' Counsel in advance of the proposed filing by a period of time that is reasonable under the circumstances); (iii) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus relating thereto as may be necessary to keep such registration statement effective for at least a period of 150 days or until all of such Registrable Shares have been disposed of (if earlier) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such Registrable Shares; (iv) provide written notice to Investors' Counsel concerning (i) the receipt by the Corporation of any comments of the Commission with respect to such registration
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statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (ii) the receipt by the Corporation of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (iii) the receipt by the Corporation of any notification with respect to the suspension of the qualification of such Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes; (v) use its best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such jurisdictions as the holders of the Registrable Shares reasonably request and do any and all other acts and things which may be reasonably necessary or advisable to enable such holders to consummate the disposition in such jurisdictions of such holders' Registrable Shares; PROVIDED, HOWEVER, that the Corporation will not be required (i) to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this paragraph (v), (ii) to provide any material undertaking or make any changes in its by-laws or certificate of incorporation which the Board of Directors determines to be contrary to the best interests of the Corporation or (iii) to modify any of its contractual relationships then existing; (vi) furnish to the holders of such Registrable Shares such number of copies of a summary prospectus, if any, or other prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such holders may reasonably request in order to facilitate the public sale or other disposition of such Registrable Shares; (vii) without limiting subsection (v) above, use its best efforts to cause such Registrable Shares to be registered with or approved by such other governmental agencies or authorities as may be necessary (by virtue of the business and operations of the Corporation) to enable the holders of such Registrable Shares to consummate the disposition of such Registrable Shares; (viii) notify the holders of such Registrable Shares on a timely basis of the happening of any event as a result of which a prospectus included in the registration statement relating to such Registrable Shares, 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 light of the circumstances then existing and, at the request of such holders, prepare and furnish to such holders a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary to cause such prospectus, as so supplemented or amended, not to include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;
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(ix) subject to the execution of confidentiality agreements in form and substance satisfactory to the Corporation and upon reasonable notice and during normal business hours, make available for inspection by the holders of such Registrable Shares, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by the Series F Preferred Stockholders, Series E Preferred Stockholders, Series D Preferred Stockholders or underwriter (collectively, the "INSPECTORS"), all pertinent financial and other records, pertinent corporate documents and properties of the Corporation (collectively, the "RECORDS"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Corporation's officers, directors and employees to supply all information (together with the Records, the "INFORMATION") reasonably requested by any such Inspector in connection with such registration statement. Notwithstanding the foregoing, any of the Information which the Corporation determines in good faith to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed to or by the Inspectors unless (i) the disclosure of such Information is necessary to avoid or correct a misstatement or omission in the registration statement, (ii) the release of such Information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction or (iii) such Information is generally available to the public other than as a result of disclosure by the Inspectors; the holders of such Registrable Shares agree that they will, upon learning that disclosure of such Information is sought in a court of competent jurisdiction, give notice to the Corporation and allow the Corporation, at the Corporation's expense, to undertake appropriate action to prevent disclosure of the Information deemed confidential; and the Inspectors shall use best efforts to maintain the confidentiality of all information disclosed pursuant to this Section 6(a)(ix); (x) use its best efforts to obtain from its independent certified public accountants "cold comfort" letters in customary form, at customary times and covering matters of the type customarily covered by cold comfort letters; (xi) obtain from its counsel an opinion or opinions in customary form; (xii) provide a transfer agent and registrar (which may be the same entity and which may be the Corporation) for such Registrable Shares; (xiii) issue to any underwriter to which the holders of such Registrable Shares may sell shares in such offering certificates evidencing such Registrable Shares; (xiv) list such Registrable Shares on any national securities exchange on which any shares of the Common Stock are listed or, if the Common Stock is not listed on a national securities exchange, use its best efforts to qualify such Registrable Shares for listing on the Nasdaq National Market, or such other national securities exchange as the holders of a majority of such Registrable Shares shall reasonably request;
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(xv) otherwise use its best efforts to comply with all applicable rules and regulations of the Commission and make available to its security holders, as soon as reasonably practicable, earnings statements (which need not be audited) covering a period of 12 months beginning within three months after the effective date of the registration statement, which earnings statements shall satisfy the provisions of Section 11(a) of the Securities Act; and (xvi) subject to all the other provisions of this Agreement, use its best efforts to take all other steps necessary to effect such registration of such Registrable Shares contemplated hereby (including, without limitation, if the method of distribution is by means of an underwriting agreement in customary form). (b) Each holder of the Registrable Shares, upon receipt of any notice from the Corporation of any event of the kind described in Section 6(a)(viii) hereof, shall forthwith discontinue disposition of the Registrable Shares pursuant to the registration statement covering such Registrable Shares until such holder's receipt of the copies of the supplemented or amended prospectus contemplated by Section 6(a)(viii) hereof, and, if so directed by the Corporation, such holder shall deliver to the Corporation all copies, other than permanent file copies then in such holder's possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. SECTION 7. EXPENSES All expenses (other than underwriting discounts and commissions relating to the Registrable Shares, as provided in the last sentence of this Section 7) incurred by the Corporation in complying with Section 6, including, without limitation, all registration and filing fees (including all expenses incident to filing with the National Association of Securities Dealers, Inc.), fees and expenses of complying with securities and blue sky laws, printing expenses, fees and expenses of the Corporation's counsel and accountants and reasonable fees and expenses of the Investors' Counsel, shall be paid by the Corporation; PROVIDED, HOWEVER, that all underwriting discounts and selling commissions applicable to the Registrable Shares and Other Shares shall be borne by the holders selling such Registrable Shares and Other Shares, in proportion to the number of Registrable Shares and Other Shares sold by each such holder. SECTION 8. INDEMNIFICATION (a) In connection with any registration of any Registrable Shares under the Securities Act pursuant to this Agreement, the Corporation shall indemnify and hold harmless the holders of Registrable Shares, each underwriter, broker or any other Person acting directly on behalf of the holders of Registrable Shares in connection with the distribution thereof and each other Person, if any, who controls any of the foregoing Persons within the meaning of the Securities Act against any losses, claims, damages or liabilities, joint or several (or actions in respect thereof), to which any of the foregoing Persons may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or allegedly untrue statement of a
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material fact contained in the registration statement under which such Registrable Shares were registered under the Securities Act, any preliminary prospectus or final prospectus contained therein or otherwise filed with the Commission, any amendment or supplement thereto or any document incident to registration or qualification of any Registrable Shares, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading or, with respect to any prospectus, necessary to make the statements therein in light of the circumstances under which they were made not misleading, or any violation by the Corporation of the Securities Act or state securities or blue sky laws applicable to the Corporation and relating to action or inaction required of the Corporation in connection with such registration or qualification under such state securities or blue sky laws; and shall reimburse the holders of Registrable Shares, such underwriter, such broker or such other Person acting on behalf of the holders of Registrable Shares and each such controlling Person for any legal or other expenses reasonably incurred by any of them in connection with investigating or defending any such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the Corporation shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action (including any legal or other expenses incurred) arises out of or is based upon an untrue statement or allegedly untrue statement or omission or alleged omission made in said registration statement, preliminary prospectus, final prospectus, amendment, supplement or document incident to registration or qualification of any Registrable Shares in reliance upon and in conformity with written information furnished to the Corporation through an instrument duly executed by the holders of Registrable Shares or their counsel or underwriter specifically for use in the preparation thereof; PROVIDED FURTHER, HOWEVER, that the foregoing indemnity agreement is subject to the condition that, insofar as it relates to any untrue statement, allegedly untrue statement, omission or alleged omission made in any preliminary prospectus but eliminated or remedied in the final prospectus (filed pursuant to Rule 424 of the Securities Act), such indemnity agreement shall not inure to the benefit of any holder of Registrable Shares, underwriter, broker or other Person acting on behalf of holders of Registrable Shares from whom the Person asserting any loss, claim, damage, liability or expense purchased the Registrable Shares which are the subject thereof, if a copy of such final prospectus had been made available to such holder of Registrable Shares, underwriter, broker or other Person acting on behalf of holders of the Registrable Shares and such final prospectus was not delivered to such Person with or prior to the written confirmation of the sale of such Registrable Shares to such Person, and the legal effect of delivery of such final prospectus would have been to eliminate the liability otherwise suffered or incurred by the Person asserting such loss, claim, damage, liability or expense. (b) In connection with any registration of Registrable Shares under the Securities Act pursuant to this Agreement, each holder of Registrable Shares shall severally and not jointly indemnify and hold harmless the Corporation, each director of the Corporation, each officer of the Corporation who shall sign such registration statement, each underwriter, broker or other Person acting on behalf of the holders of Registrable Shares and each Person who controls any of the foregoing Persons within the meaning of the Securities Act against any losses, claims, damages or liabilities, joint or several (or actions in respect thereof), to which any of the foregoing Persons may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon
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an untrue statement or allegedly untrue statement of a material fact contained in the registration statement under which such Registrable Shares were registered under the Securities Act, any preliminary prospectus or final prospectus contained therein or otherwise filed with the Commission, any amendment or supplement thereto or any document incident to registration or qualification of any Registrable Shares, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading or, with respect to any prospectus, necessary to make the statements therein in light of the circumstances under which they were made not misleading, if such untrue statement or allegedly untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Corporation or such underwriter by or on behalf of such holder of Registrable Shares specifically for use in connection with the preparation of such registration statement, preliminary prospectus, final prospectus, amendment, supplement or document; PROVIDED, HOWEVER, that the maximum amount of liability in respect of such indemnification shall be limited, in the case of each seller of Registrable Shares, to an amount equal to the net proceeds actually received by such seller from the sale of Registrable Shares effected pursuant to such registration. (c) Promptly after receipt by an indemnified party of notice of the commencement of any action involving a claim referred to in the preceding paragraphs of this Section 8, such indemnified party will, if a claim in respect thereof is made against an indemnifying party, give written notice to the latter of the commencement of such action. The failure of any indemnified party to notify an indemnifying party of any such action shall not (unless such failure shall have a material adverse effect on the indemnifying party) relieve the indemnifying party from any liability in respect of such action that it may have to such indemnified party on account of this Section 8. In case any such action is brought against an indemnified party, the indemnifying party will be entitled to participate in and to assume the defense thereof, jointly with any other indemnifying party similarly notified to the extent that it may wish, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be responsible for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof; PROVIDED, HOWEVER, that if any indemnified party shall have reasonably concluded that there may be one or more legal or equitable defenses available to such indemnified party which are additional to or conflict with those available to the indemnifying party, or that such claim or litigation involves or could have an effect upon matters beyond the scope of the indemnity agreement provided in this Section 8, the indemnifying party shall not have the right to assume the defense of such action on behalf of such indemnified party (but shall have the right to participate therein with counsel of its choice) and such indemnifying party shall reimburse such indemnified party for that portion of the reasonable fees and expenses of any counsel retained by the indemnified party which is reasonably related to the matters covered by the indemnity agreement provided in this Section 8. If the indemnifying party is not entitled to, or elects not to, assume the defense of a claim or series of claims of all indemnified parties, it will not be obligated to pay the fees and expenses of more than one counsel with respect to all indemnified parties as to any claim or series of related claims. The indemnifying party may not settle any such claim without the consent of the indemnified party.
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(d) If the indemnification provided for in this Section 8 is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or action referred to herein, then the indemnifying party, in lieu of indemnifying such indemnified party hereunder, shall contribute to the amounts paid or payable by such indemnified party as a result of such loss, claim, damage, liability or action in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the indemnified party on the other in connection with the statements or omissions which resulted in such loss, claim, damage, liability or action as well as any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties agree that it would not be just and equitable if contribution pursuant hereto were determined by PRO RATA allocation or by any other method or allocation which does not take account of the equitable considerations referred to herein. No Person guilty of fraudulent misrepresentation shall be entitled to contribution from any Person. SECTION 9. UNDERWRITING AGREEMENT Notwithstanding the provisions of Sections 5, 6, 7 and 8, to the extent that the holders of Registrable Shares shall enter into an underwriting or similar agreement, which agreement contains provisions covering one or more issues addressed in such Sections, the provisions contained in such agreement addressing such issue or issues shall control; PROVIDED, HOWEVER, that any such agreement to which the Corporation is not a party shall not be binding upon the Corporation. No holder may participate in any underwritten registration hereunder unless such holder (a) agrees to sell such holders' securities on the basis provided in any underwriting arrangements and (b) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably and customarily required under the terms of such underwriting arrangements. SECTION 10. INFORMATION BY HOLDERS OF REGISTRABLE SHARES Each holder of Registrable Shares shall furnish to the Corporation such written information regarding such Person and the distribution proposed by such Person as the Corporation may reasonably request in writing and as shall be reasonably required in connection with any registration, qualification or compliance referred to in this Agreement. SECTION 11. EXCHANGE ACT COMPLIANCE From the Registration Date or such earlier date as a registration statement filed by the Corporation pursuant to the Exchange Act relating to any class of the Corporation's securities shall have become effective, the Corporation shall comply with all of the reporting
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requirements of the Exchange Act applicable to it and shall comply with all other public information reporting requirements of the Commission which are conditions to the availability of Rule 144 for the sale of the Common Stock. The Corporation shall cooperate with each holder of Registrable Shares in supplying such information as may be necessary for such holder to complete and file any information reporting forms presently or hereafter required by the Commission as a condition to the availability of Rule 144. SECTION 12. NO CONFLICT OF RIGHTS The Corporation shall not, after the date hereof, grant any registration rights unless such registration rights are substantially similar to and no more favorable than those registration rights granted hereby and do not conflict with or otherwise impair any registration rights contained herein. SECTION 13. TERMINATION This Agreement shall terminate and be of no further force or effect on December 23, 2006. SECTION 14. SUCCESSORS AND ASSIGNS This Agreement shall bind and inure to the benefit of the Corporation and the Stockholders and, subject to Section 15, their respective successors and assigns. SECTION 15. ASSIGNMENT Each holder of Registrable Shares may assign its rights hereunder to any purchaser or transferee of such Registrable Shares; PROVIDED, HOWEVER, that such purchaser or transferee shall, as a condition to the effectiveness of such assignment, be required to execute a counterpart to this Agreement agreeing to be treated as a holder of Series F Registrable Shares, Series E Registrable Shares, Series D Registrable Shares, Series C Registrable Shares, Series B Registrable Shares or Founders Registrable Shares, as applicable, whereupon such purchaser or transferee shall have the benefits of, and shall be subject to the restrictions contained in, this Agreement as if such purchaser or transferee had originally been a party hereto; and PROVIDED, FURTHER, that such purchaser or transferee shall not be a competitor of the Corporation (as determined by the Board). SECTION 16. ENTIRE AGREEMENT This Agreement, the Securities Purchase Agreement, the Stockholders' Agreement and the other writings referred to herein and therein or delivered pursuant hereto or thereto, contain the entire agreement among the Stockholders, the Corporation and any other parties to each of the foregoing with respect to the subject matter hereof and supersede all prior and contemporaneous arrangements or understandings with respect thereto. SECTION 17. NOTICES
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(a) All notices, requests, consents and other communications hereunder to any party shall be deemed to be sufficient if contained in a written instrument delivered in person or sent by telecopy, nationally-recognized overnight courier or first class registered or certified mail, return receipt requested, postage prepaid, addressed to such party at the address set forth below or such other address as may hereafter be designated in writing by such party to the other parties: (i) if to the Corporation or the Founders, to: Kozmo.com, Inc. 80 Broad Street 18th Floor New York, NY 10004 Telephone: (212) 797-1330 Telecopy: (212) 797-1400 Attention: Joseph Park with a copy to: Shearman & Sterling 599 Lexington Avenue New York, New York, 10022 Telephone: (212) 848-8000 Telecopy: (212) 848-7179 Attention: Spencer D. Klein, Esq.; (ii) if to the Series F Preferred Stockholders, to their respective addresses set forth on ANNEX I hereto, with a copy to: Davis Wright Tremaine LLP 1300 S.W. Fifth Avenue Suite 2300 Portland, Oregon 97201 Telephone: 503-241-2300 Telecopy: 503-778-5299 Attention: Benjamin G. Wolff, Esq. (iii) if to the Series E Preferred Stockholders, to their respective addresses set forth on ANNEX I hereto, with a copy to: Perkins Coie LLP 1201 Third Avenue Seattle, Washington 98101 Telephone: (206) 583-8888 Telecopy: (206) 583-8500
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Attention: Scott L. Gelband, Esq.; (iii) if to the Series D Preferred Stockholders, to their respective addresses set forth on ANNEX I hereto, with a copy to: O'Sullivan Graev & Karabell, LLP 30 Rockefeller Plaza New York, New York 10112 Telephone: (212) 408-2400 Telecopy: (212) 408-2420 Attention: Michael J. O'Brien, Esq.; and (iv) if to the Series B Preferred Stockholders and Series C Preferred Stockholders, to their respective addresses set forth on ANNEX I hereto. (b) All such notices, requests, consents and other communications shall be deemed to have been delivered (a) in the case of personal delivery or delivery by telecopy, on the date of such delivery, (b) in the case of dispatch by nationally-recognized overnight courier, on the next business day following such dispatch and (c) in the case of mailing, on the third business day after the posting thereof. SECTION 18. MODIFICATIONS; AMENDMENTS; WAIVERS The terms and provisions of this Agreement may not be modified or amended, nor may any provision be waived, except pursuant to a writing signed by the Corporation, the Series F Majority in Interest, the Series E Majority in Interest and the Series D Majority in Interest. SECTION 19. COUNTERPARTS; FACSIMILE SIGNATURES This Agreement may be executed in any number of counterparts (including by telecopy), and each such counterpart hereof shall be deemed to be an original instrument, but all such counterparts together shall constitute but one agreement.
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SECTION 20. HEADINGS The headings of the various sections of this Agreement have been inserted for convenience of reference only and shall not be deemed to be a part of this Agreement. SECTION 21. SEVERABILITY; GOVERNING LAW It is the desire and intent of the parties that the provisions of this Agreement be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular provision of this Agreement shall be adjudicated by a court of competent jurisdiction to be invalid, prohibited or unenforceable for any reason, such provision, as to such jurisdiction, shall be ineffective, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed wholly therein. SECTION 22. AMENDMENT AND RESTATEMENT OF EXISTING AGREEMENTS (a) The form, terms and provisions of (i) the Stockholders' Agreement, dated as of December 7, 1998, among the Corporation and the holders of the Series B Preferred Stock listed on the signature pages thereof, and (ii) the Stockholders' Agreement, dated as of April 15, 1999, among the Corporation and the holders of Series C Preferred Stock listed in the signature pages thereof, were deemed amended and restated in their entirety by the Registration Rights Agreement and the Stockholders' Agreement, each dated as of October 4, 1999, among the Corporation and the other parties thereto. (b) The form, terms and provisions of the Registration Rights Agreement, dated as of October 4, 1999, among the Corporation and the other parties thereto, were deemed amended and restated in their entirety by the Existing Agreement, and the form, terms and provisions of the Stockholders' Agreement, dated as of October 4, 1999, among the Corporation and the other parties thereto, were deemed amended and restated in their entirety by the First Amended and Restated Stockholders' Agreement, dated as of December 23, 1999, among the Corporation and the other parties thereto. (c) The form, terms and provisions of the Existing Agreement and the First Amended and Restated Stockholders' Agreement, dated as of December 23, 1999, between the Corporation and the other parties thereto, are deemed amended and restated in their entirety by this Agreement and the Stockholders' Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first written above. KOZMO.COM, INC. By: ----------------------------------- Name: Joseph Park Title: Chief Executive Officer
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CHASE VENTURE CAPITAL ASSOCIATES, L.P. By: CHASE CAPITAL PARTNERS, Its General Partner By: ----------------------------------- Name: Title:
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THE FLATIRON FUND 1998/99, LLC By: ----------------------------------- Name: I. Robert Greene Title: Managing Member THE FLATIRON FUND 2000, LLC By: ----------------------------------- Name: I. Robert Greene Title: Managing Member FLATIRON ASSOCIATES, LLC By: ----------------------------------- Name: I. Robert Greene Title: Managing Member
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OAK INVESTMENT PARTNERS VIII LIMITED PARTNERSHIP By: OAK ASSOCIATES VIII, LLC, Its General Partner By: ----------------------------------- Name: Gerald R. Gallagher Title: Managing Member OAK VIII AFFILIATES FUND LIMITED PARTNERSHIP By: OAK VIII AFFILIATES LLC, Its General Partner By: ----------------------------------- Name: Gerald R. Gallagher Title: Managing Member
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AMAZON.COM, INC. By: ----------------------------------- Name: Title:
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STARBUCKS ASSET MANAGEMENT CORPORATION By: ----------------------------------- Name: Title:
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HIKARI TSUSHIN, INC. By: ----------------------------------- Name: Masahide Saito Title: Managing Director, Corporate Strategy and Investment Headquarters
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TECHVANTAGE PARTNERS, L.P. By: ----------------------------------- Name: Title: TECHVANTAGE OVERSEAS FUND INC. By: ----------------------------------- Name: Title: TECHVANTAGE QUALIFIED PARTNERS, L.P. By: ----------------------------------- Name: Title:
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SEMPER VENTURES, LLC By: ----------------------------------- Name: Title:
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AMERINDO TECHNOLOGY GROWTH FUND II, INC. By: ----------------------------------- Name: Title: SANDS BROTHERS/AMERINDO TECHNOLOGY ASSOCIATES LLC By: ----------------------------------- Name: Title: SANDS BROTHERS/AMERINDO TECHNOLOGY ASSOCIATES INSTITUTION LLC By: ----------------------------------- Name: Title: SANDS BROTHERS/AMERINDO TECHNOLOGY OFFSHORE ASSOCIATES LLC By: ----------------------------------- Name: Title:
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LITTON MASTER TRUST By: ----------------------------------- Name: Title: --------------------------------------- James Stableford --------------------------------------- Joaquin Garcia-Larrieu --------------------------------------- Marc Weiss
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AXALON (OFFSHORE) I, L.P. By: AXALON VENTURES, LLC, its General Partner By: ----------------------------------- Name: Edward J. Ryeom Title: Member
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HYOSUNG CORPORATION By: ----------------------------------- Name: Title: --------------------------------------- Joon Cho
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NEOCARTA VENTURES, L.P. By: ----------------------------------- Name: Title: NEOCARTA SCOUT FUND, L.L.C. By: ----------------------------------- Name: Title: --------------------------------------- S. Taylor Glover
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SANDS BROTHERS VENTURE CAPITAL LLC By: SB VENTURE CAPITAL MANAGEMENT ASSOCIATES LLC, its Manager By: ----------------------------------- Name: Title: SB E-ORDER ASSOCIATES LLC By: ----------------------------------- Name: Title:
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PCG VENTURES By: ----------------------------------- Name: Title: PCG VENTURES By: ----------------------------------- Name: Title:
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ETRILLIUM, L.L.C. By: ----------------------------------- Name: Title:
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GRAMERCY TRUST III By: ----------------------------------- Name: Title: THE ROOSEVELT GROUP By: ----------------------------------- Name: Title:
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TIME WARNER ENTERTAINMENT COMPANY, L.P. By: ----------------------------------- Name: Title:
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COLUMBIA TRISTAR HOME VIDEO By: ----------------------------------- Name: Title:
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LIBERTY DIGITAL, INC. By: ----------------------------------- Name: Title:
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ANNEX I STOCKHOLDERS I. SERIES F PREFERRED STOCKHOLDERS Amerindo Technology Growth Fund II, Inc. c/o Amerindo Investment Advisors 399 Park Avenue, 22nd Floor New York, NY 10022 Attn: Jessica Caruso Argossy Limited Bermuda Commercial Bank Building 44 Church Street Hamilton HM 12 Bermuda Attn: Antionette Drinkwater Axalon (Offshore) I, L.P. c/o Axalon Ventures 575 8th Avenue 17th Floor New York, NY 10018 Attn: Steve Hall Chase Venture Capital Associates, L.P. c/o Chase Capital Partners 380 Madison Avenue New York, NY 10017 Attn: I. Robert Greene Jack Chen 15 East Putnam Avenue # 3250 Greenwich, CT 06830
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Joon Cho c/o Harry Sung Yoon Nam Hyosung Building, 12th Floor 450 Kongduk-Dong, Mapo-Ku Seoul, Korea 121-020 Columbia TriStar Home Video 10202 W. Washington Boulevard SPP 8402 Culver City, CA 90232 Attn: Robin Russell Critical Mass Ventures LLC c/o Russ Pillar Virgin Entertainment Group, Inc. 4751 Wilshire Boulevard 3rd Floor Los Angeles, CA 90010 Eric Dobkin Goldman Sachs One New York Plaza 50th Floor New York, NY 10004 Flatiron Associates, LLC c/o Flatiron Partners 257 Park Avenue South New York, NY 10010 Attn: Jerry Colonna The Flatiron Fund 2000, LLC c/o Flatiron Partners 257 Park Avenue South New York, NY 10010 Attn: Jerry Colonna Joaquin Garcia-Larrieu c/o Amerindo Investment Advisors 399 Park Avenue, 22nd Floor New York, NY 10022 Attn: Jessica Caruso
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Gramercy Trust III c/o Sam Pai 27 Maple Street Roslyn Heights, NY 11577 S. Taylor Glover 468 Blackland Road Atlanta, GA 30342 Hikari Tsushin, Inc. 1285 Avenue of the Americas 35th Floor New York, NY 10019 Attn: Steve Lammers Hyosung Corporation c/o Harry Sung Yoon Nam Hyosung Building, 12th Floor 450 Kongduk-Dong, Mapo-Ku Seoul, Korea 121-020 Liberty Digital, Inc. 12312 Olympic Boulevard Los Angeles, CA 90064 Attn: Director of Business Development and Strategy Litton Master Trust c/o Amerindo Investment Advisors 399 Park Avenue, 22nd Floor New York, NY 10022 Attn: Jessica Caruso Moriah Fund 1 Farragut Square South 1634 I Street, NW Ste. 1000 Washington, DC 20006 Attention: Mary Ann Stein NeoCarta Scout Fund, L.L.C. Two Embarcadero Center Ste. 460 San Francisco, CA 94111 NeoCarta Ventures, L.P. Two Embarcadero Center Ste. 460 San Francisco, CA 94111
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Oak VIII Affiliates Fund, Limited Partnership c/o Oak Investment Partners 90 South 7th Street Ste. 4550 Minneapolis, MN 55402 Attn: Gerald R. Gallagher Oak Investment Partners VIII, Limited Partnership c/o Oak Investment Partners 90 South 7th Street Ste. 4550 Minneapolis, MN 55402 Attn: Gerald R. Gallagher Odyssey Venture Partners L.P. Bermuda Commercial Bank Building 44 Church Street Hamilton HM 12 Bermuda Attn: Antionette Drinkwater PGC Ventures 360 N. Crescent Drive Beverly Hills, CA 90210 Attn: Chad Brownstein The Roosevelt Group c/o Ted Malloch 615 Blackbeard Road Queens Town, MD 21658 Sands Brothers/Amerindo Technology Associates LLC c/o Amerindo Investment Advisors 399 Park Avenue, 22nd Floor New York, NY 10022 Attn: Jessica Caruso
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Sands Brothers/Amerindo Technology Associates Institution LLC c/o Amerindo Investment Advisors 399 Park Avenue, 22nd Floor New York, NY 10022 Attn: Jessica Caruso Sands Brothers/Amerindo Technology Offshore Associates LLC c/o Amerindo Investment Advisors 399 Park Avenue, 22nd Floor New York, NY 10022 Attn: Jessica Caruso Sands Brothers Venture Capital LLC 90 Park Avenue 39th Floor New York, NY 10016 Attn: Alan Bluestine SB e-Order Associates LLC 90 Park Avenue 39th Floor New York, NY 10016 Attn: Alan Bluestine Seligman Investment Opportunities (Master) Fund - NTV Portfolio 100 Park Avenue New York, NY 10017 Attn: James Curtis Seligman New Technologies Fund, Inc. 100 Park Avenue New York, NY 10017 Attn: James Curtis Semper Ventures, LLC 325 M. Sharon Park Drive Ste. 220 Menlo Park, CA 94025 Attn: Victor Lee SOFTBANK Capital Advisors Fund LP 10 Langely Road Suite 403 Newton Center, MA 02459 Attn: Steve Murray
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SOFTBANK Capital Partners LP 10 Langely Road Suite 403 Newton Center, MA 02459 Attn: Steve Murray James Stableford c/o Amerindo Investment Advisors 43 Upper Grosvenor Street London, England W1X 9PG Starbucks Asset Management Corporation c/o Starbucks Corporation 2401 Utah Ave. South Seattle, WA 98134-1431 Attn: General Counsel Dorothy Stein 666 Greenwich Street Apt. 934 New York, NY 10014 Gideon Stein 666 Greenwich Street Apt. 828 New York, NY 10014 Mary Ann Stein 1 Farragut Square South 1634 I Street, NW Ste. 1000 Washington, DC 20006 Noah Stein 441 West 22nd Street Apt. 202 New York, NY 10011 Lawson & Judith Stiff 132 Marion Street Denver, CO 80218
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Ravi Swamy 2300 Walnut Street Apt. 302 Philadelphia, PA 19103 TechVantage Overseas Fund Inc. c/o Westway Capital 16 Bridge Square Westport, CT 06880 Attn: Steven Suss TechVantage Partners, L.P. c/o Westway Capital 16 Bridge Square Westport, CT 06880 Attn: Steven Suss TechVantage Qualified Partners, L.P. c/o Westway Capital 16 Bridge Square Westport, CT 06880 Attn: Steven Suss Cornelius Thornton Goldman Sachs One New York Plaza 46th Floor New York, NY 10004 Time Warner Entertainment Company, L.P. Building 166 Room 203 4000 Warner Boulevard Burbank, CA 91522 Attn: Clarissa Weirwick eTrillium, L.L.C. c/o Hugh Evans Stonington Partners 767 Fifth Avenue, 48th Floor New York, NY 10153
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TWB Investment Partnership c/o Robert Giles Perkins Coie LLP 1201 Third Avenue 40th Floor Seattle, WA 98101 Marc Weiss c/o Amerindo Investment Advisors 399 Park Avenue, 22nd Floor New York, NY 10022 Attn: Jessica Caruso
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II. SERIES E PREFERRED STOCKHOLDERS Patricia Abramson 3005 O Street NW Washington, DC 20007 Access Technology Partners, L.P. One Bush Street San Francisco, CA 94104 Attn: Isaac Ruiz Access Technology Partners Brokers Fund, L.P. One Bush Street San Francisco, CA 94104 Attn: Isaac Ruiz Amazon.com, Inc. 1200 12th Avenue South Suite 1200 Seattle, Washington 98144 Attention: General Counsel Argossy Limited Bermuda Commercial Bank Building 44 Church Street Hamilton HM 12 Bermuda Attn: Antionette Drinkwater Aurora Investment II LLC c/o Henry Kravis Kravis Partners/KKR 9 West 57th Street 42nd Floor New York, NY 10019 Attn: James Goldrick
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Larry Benn Goldman Sachs One New York Plaza 45th Floor New York, NY 10004 Gerry Burdo 80 Broad Street 18th Floor New York, NY 10004 Bob Burkett Gilman Strategic Development Inc. 111 West 50th Street New York, NY 10020 Lawrence Calcano 10 Lauder Way Greenwich, CT 06830 Chase Venture Capital Associates, L.P. c/o Chase Capital Partners 380 Madison Avenue New York, NY 10017 Attn: I. Robert Greene Jack Chen 18 Montgomery Lane Greenwich, CT 06830 Joon Cho c/o Harry Sung Yoon Nam Hyosung Building, 12th Floor 450 Kongduk-Dong, Mapo-Ku Seoul, Korea 121-020 Critical Mass Ventures LLC c/o Russ Pillar Virgin Entertainment Group, Inc. 4751 Wilshire Boulevard 3rd Floor Los Angeles, CA 90010
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Domenic Davi 163 Third Avenue DMB 140 New York, NY 10013 Eric Dobkin Goldman Sachs One New York Plaza 50th Floor New York, NY 10004 Kevin Eilian 2025 Broadway Suite 30H New York, NY 10023 Flatiron Associates, LLC c/o Flatiron Partners 257 Park Avenue South New York, NY 10010 Attn: Jerry Colonna The Flatiron Fund 2000, LLC c/o Flatiron Partners 257 Park Avenue South New York, NY 10010 Attn: Jerry Colonna Elisabeth Fontenelli 420 East 80th Street New York, NY 10021 Yaccov Gorsd CIBOX Zl du bois de l'Epine 11 Ave. Joliot Curie 91130 Ris Orangis Gracie Partners LLC 610 Fifth Avenue 7th Floor New York, NY 10020
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Gramercy Trust II c/o Sam Pai 27 Maple Street Roslyn Heights, NY 11577 H&Q Employee Venture Fund 2000, L.P. c/o Access Technology Partners, L.P. One Bush Street San Francisco, CA 94104 Attn: Isaac Ruiz H&Q Kozmo.com Investors, LLC c/o Access Technology Partners, L.P. One Bush Street San Francisco, CA 94104 Attn: Isaac Ruiz Hambrecht & Quist California c/o Access Technology Partners, L.P. One Bush Street San Francisco, CA 94104 Attn: Isaac Ruiz Ingram Capital Inc. Two Ingram Boulevard LaVergne, TN 37089 Attn: Donnie Daniel ISM Consulting c/o Sam Pai 27 Maple Street Roslyn Heights, NY 11577 Bernhard S. Kluger 314 East 6th Street Apt. 1 New York, NY 10003 Daniella Koren 571 Wayne Drive River Vale, NJ 07675
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Levy Group Investment Fund, LLC 1321 1/2 Wisconsin Avenue, NW Washington, DC 20007 Attention: Richard Levy Jean-Pierre Millet The Carlyle Group 112 Ave. Kleber 75016 Paris France Moriah Fund 1 Farragut Square South 1634 I Street, NW Ste. 1000 Washington, DC 20006 Attention: Mary Ann Stein New York City Investment Fund, LLC 1 Battery Park Plaza 5th Floor New York, NY 10004 Attn: Janice Roberts George Nicolau 125 East 10th Street New York, NY 10003 Siobhan Nicolau 36 East 22nd Street 9th Floor New York, NY 10010 Oak VIII Affiliates Fund Limited Partnership c/o Oak Investment Partners 90 South 7th Street Ste. 4550 Minneapolis, MN 55402 Attn: Gerald R. Gallagher
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Oak Investment Partners VIII Limited Partnership c/o Oak Investment Partners 90 South 7th Street Ste. 4550 Minneapolis, MN 55402 Attn: Gerald R. Gallagher Odyssey Venture Partners L.P. Bermuda Commercial Bank Building 44 Church Street Hamilton HM 12 Bermuda Attn: Antionette Drinkwater Megan Oppenheimer c/o George Nicolau 125 East 10th Street New York, NY 10003 RF Ventures LLC c/o Joseph Rosenberg 1085 Park Avenue Apt. 7B New York, NY 10128 Alexander Rabb 61 Antrim Street Cambridge, MA 02139 Katherine Rabb 1625 S Street, NW Apt. 5 Washington, DC 20009 Lawrence Robins 239 Park Avenue South Apt. 2C New York, NY 10003
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David Rockefeller 30 Rockefeller Plaza Room 5600 New York, NY 10112 Attn: Richard Cataldo David Rubinstein The Carlyle Group 1001 Pennsylvania Avenue, N.W. Suite 220 South Washington, DC 20004-2505 Peter Sabesan Hunter Realty 61 Broadway Room 2215 New York, NY 10006 Seligman Investment Opportunities (Master) Fund - NTV Portfolio 100 Park Avenue New York, NY 10017 Attn: James Curtis Seligman New Technologies Fund, Inc. 100 Park Avenue New York, NY 10017 Attn: James Curtis Shearman & Sterling 599 Lexington Avenue New York, NY 10022 Attn: Managing Partner Chris Shimojima 80 Broad Street 18th Floor New York, NY 10004 Christopher Siragusa 80 Broad Street 18th Floor New York, NY 10004
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Katarina Sjoblom 1105 First Avenue Apt. 15 New York, NY 10021 SOFTBANK Capital Partners LP 10 Langely Road Suite 403 Newton Center, MA 02459 Attention: Steve Murray SOFTBANK Capital Advisors Fund LP 10 Langely Road Suite 403 Newton Center, MA 02459 Attention: Steve Murray Dorothy Stein 666 Greenwich Street Apt. 934 New York, NY 10014 Gideon Stein 666 Greenwich Street Apt. 828 New York, NY 10014 Mary Ann Stein 1 Farragut Square South 1634 I Street, NW Ste. 1000 Washington, DC 20006 Noah Stein 441 West 22nd Street Apt. 202 New York, NY 10011 Robert Stein 3016 43rd Street, NW Washington, DC 20016
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Todd Steinberg (1996) Long Term Trust 166 Duane Street Apt. 3B New York, NY 10013 Lawson & Judith Stiff 132 Marion Street Denver, CO 80218 Beatriz Tacla 245 East 50th Street Apt. 3A New York, NY 10022 Tailwind Capital Partners, L.P. 1 Montgomery Street 37th Floor San Francisco, CA 91404 Attn: Mark Lieberman Jean-Bernard Tellio 57 Berkeley Square London W1X 5DH Cornelius Thornton Goldman Sachs One New York Plaza 46th Floor New York, NY 10004 Trimtab Ventures, LLC c/o David Pensky 1054 31st Street, NW Ste. 110 Washington, DC 20007 Triad Media Ventures 177 Broad Street Stamford, CT 06901
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TWB Investment Partners c/o Perkins Coie LLP 1201 Third Avenue 40th Floor Seattle, WA 98101 Attn: Robert Giles
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II. SERIES D PREFERRED STOCKHOLDERS The 2003 Fund, Inc. c/o Gramercy Trust 100 Wall Street; 2nd Floor New York, NY 10005 Attn: Philip S. Kampe Patty Abramson 3005 O Street NW Washington, DC 20007 Access Technology Partners, L.P. One Bush Street San Francisco, CA 94104 Attn: Isaac Ruiz Access Technology Partners Brokers Fund, L.P. One Bush Street San Francisco, CA 94104 Attn: Isaac Ruiz Argossy Limited Bermuda Commercial Bank Building 44 Church Street Hamilton HM 12 Bermuda Attn: Antionette Drinkwater David Bowen 323 Sterling Place Brooklyn, NY 11238 Bob Burkett Gilman Strategic Development Inc. 111 West 50th Street New York, NY 10020 Chase Venture Capital Associates, L.P. c/o Chase Capital Partners 380 Madison Avenue New York, NY 10017 Attn: I. Robert Greene
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Jack Chen 18 Montgomery Lane Greenwich, CT 06830 Charles Crockett One Astor Place, Apt. 2C New York, NY 10003 Steven Einhorn 115 Central Park West Apt 10D New York, NY 10023 Flatiron Associates, LLC c/o Flatiron Partners 257 Park Avenue South New York, NY 10010 Attn: Jerry Colonna The Flatiron Fund 1998/99, LLC c/o Flatiron Partners 257 Park Avenue South New York, NY 10010 Attn: Jerry Colonna Jeffrey Gossett 77 West 15th Street Apt. 3E New York, NY 10011 Gracie Partners LLC c/o Richard E. Salomon 610 Fifth Avenue 7th Floor New York, NY 10020 H&Q Kozmo.com Investors, LLC c/o Access Technology Partners, L.P. One Bush Street San Francisco, CA 94104 Attn: Isaac Ruiz Hambrecht & Quist California c/o Access Technology Partners, L.P. One Bush Street San Francisco, CA 94104 Attn: Isaac Ruiz Hambrecht & Quist Employee Venture Fund, L.P. II c/o Access Technology Partners, L.P. One Bush Street San Francisco, CA 94104 Attn: Isaac Ruiz
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Leon Henderson, Jr. 18 Old Quarry Road Englewood, NJ 07631 ISM Consulting, Inc. c/o Gramercy Trust 100 Wall Street; 2nd Floor New York, NY 10005 Attn: Sam Pai Henry Kravis Kravis Partners/KKR 9 West 57th Street 42nd Floor New York, NY 10019 Attn: James Goldrick Levy Group Investment Fund, LLC c/o Richard Levy 1321 1/2 Wisconsin Avenue, NW Washington, DC 20007 Roszell Mack III 155 West 70th Street Apt 7G New York, NY 10023 Georgianna McGuire c/o Gideon Stein 666 Greenwich Street #828 New York, NY 10014 Elaine McKay Revocable Trust c/o Rob McKay 303 Sacramento Street San Francisco, CA 94103
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Moriah Fund c/o Mary Ann Stein 1 Farragut Square South 1634 I Street, NW Ste. 1000 Washington, DC 20006 Adele M. Morrissette 70 East 88th Street, Suite 2E New York, NY 10128 Eric Mullins 3350 Parkwood Drive Houston, TX 77021 New York City Investment Fund 1 Battery Park Plaza 5th Floor New York, NY 10004 Attn: Janice Roberts Anthony Nicolau c/o George Nicolau 125 East 10th Street New York, NY 10003 Brien Nicolau c/o George Nicolau 125 East 10th Street New York, NY 10003 George Nicolau 125 East 10th Street New York, NY 10003 Siobhan Nicolau 36 East 22nd Street; 9th Floor New York, NY 10010 Oak VIII Affiliates Fund Limited Partnership c/o Oak Investment Partners 90 South 7th Street Ste. 4550 Minneapolis, MN 55402 Attn: Gerald R. Gallagher
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Oak Investment Partners VIII Limited Partnership c/o Oak Investment Partners 90 South 7th Street Ste. 4550 Minneapolis, MN 55402 Attn: Gerald R. Gallagher Odyssey Venture Partners L.P. Bermuda Commercial Bank Building 44 Church Street Hamilton HM 12 Bermuda Attn: Antionette Drinkwater Megan Oppenheimer c/o George Nicolau 125 East 10th Street New York, NY 10003 R. Scot Perlin and Martha Perlin, Tenants in Common 40 East 94th Street #11A New York, NY 10128 Alexander Rabb 61 Antrim Street Cambridge, MA 02139 Katherine Rabb 1625 S Street, NW Apt. 5 Washington, DC 20009 E. John Rice, Jr. 2332 Massachusetts Avenue NW Washington, DC 20008
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David Rockefeller 30 Rockefeller Plaza Room 5600 New York, NY 10112 Attn: Richard Cataldo David Schlessinger 125 Lincoln Avenue #400 Santa Fe, NM 87501 Seligman Investment Opportunities (Master) Fund - NTV Portfolio 100 Park Avenue New York, NY 10017 Attn: James Curtis Seligman New Technologies Fund, Inc. 100 Park Avenue New York, NY 10017 Attn: James Curtis Shearman & Sterling 599 Lexington Avenue New York, NY 10022 Dorothy Stein 1001 Gardenview Drive Apt 807 Atlanta, GA 30319 Gideon Stein 666 Greenwich Street #828 New York, NY 10014 Mary Ann Stein 1 Farragut Square South 1634 I Street, NW Ste. 1000 Washington, DC 20006 Noah Stein 441 West 22nd Street Apt. 202 New York, NY 10011
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Robert Stein 3016 43rd Street, NW Washington, DC 20016 Todd Steinberg and Lisa Barry, Tenants in Common 166 Duane Street #3B New York, NY 10013 Todd Steinberg (1996) Long Term Trust 166 Duane Street #3B New York, NY 10013 Tailwind Capital Partners, L.P. 1 Montgomery Street 37th Floor San Francisco, CA 91404 Attn: Mark Lieberman Cornelius Thornton One New York Plaza Goldman Sachs 46th Floor New York, NY 10004 Triad Media Ventures 177 Broad Street Stamford, CT 06901 Trimtab Ventures, LLC c/o David Pensky 1054 31st Street, NW Ste. 110 Washington, DC 20007 Harold Vogel 4525 Henry Hudson Parkway Bronx, NY 10471 Darryl Wash 61 West 62nd Street #9D New York, NY 10023
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III. SERIES C PREFERRED STOCKHOLDERS Patty Abramson 3005 O Street NW Washington, DC 20007 Argossy Limited Bermuda Commercial Bank Building 44 Church Street Hamilton HM 12 Bermuda Attn: Antionette Drinkwater David Bolotsky 500A Grand Street #5A New York, NY 10002 David Bowen 323 Sterling Place Brooklyn, NY 11238 Walter Boyles 34 Parkview Road Cranbury, NJ 08512 A. Donald & Katherine Bramante 6343 31st Street NW Washington, DC 20015 Derek Brown 215 West 109th Street New York, NY 10025 Jack Chen 18 Montgomery Lane Greenwich, CT 06830 Jonathan Cohen 33 West 93rd Street #5-B New York, NY 10025
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Colrain Associates c/o Bruce Rabb 919 Third Avenue; 40th Floor New York, NY 10022 Charles Crockett One Astor Place, Apt. 2C New York, NY 10003 Frank Davi 163 Third Avenue Suite 814 New York, NY 10003 Richard Davies 119 Corbett Avenue San Fransisco, CA 94114 Matthew DeGanon 375 South End Avenue #27M New York, NY 10280 Wendell Doke, Jr. c/o Wendell Doke 5201 S. Cornell #20C Chicago, IL 60615 Marc Edelman and Debora S. Munczek 116 Pinehurst Avenue Apt. F61 New York, NY 10033-1755 John Egan, Jr. 80 Harmon Road Mickleton, NJ 08056 Steven Einhorn 115 Central Park West Apt 10D New York, NY 10023 Elisabeth Fontenelli 420 East 80th Street New York, NY 10021
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Gramercy Trust 100 Wall Street; 2nd Floor New York, NY 10005 Attn: Sam Pai John Green 52 Haller Drive Cedar Grove, NJ 07009 Leon Henderson, Jr. 18 Old Quarry Road Englewood, NJ 07631 Gary Hoffman 20747 Scenic Vista Drive San Jose, CA 95120 Levy Group Investment Fund, LLC c/o Richard Levy 1321 1/2 Wisconsin Avenue, NW Washington, DC 20007 Mark Lieberman Thomas Weisel Partners One Montgomery Street Suite 3700 San Francisco, CA 94104 Roszell Mack III 155 West 70th Street Apt 7G New York, NY 10023 Elaine McKay Revocable Trust c/o Rob McKay 303 Sacramento Street San Francisco, CA 94103 Elizabeth O'Kane McLaury 4263 Navajo Street Toluka Lakes, CA 91602 Reed R. Menefee 12101 Glen Mill Road Potomac, MD 20854 Sara R. Menefee; 12101 Glen Mill Road Potomac, MD 20854
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Christopher Miller 13-17 Laight Street New York, NY 10013 Robert G. Miller 0305 S.W. Montgomery #F508 Portland, OR 97201 Adele M. Morrissette 170 East 88th Street, Suite 2E New York, NY 10128 Michael Mrkulic 40 Oaktree Lane Bloomfield, NJ 07003 Eric Mullins 3350 Parkwood Drive Houston, TX 77021 Herman Munczek 1205 Schwarz Road Lawrence, KS 66049 Oasis Direct Venture #3 9424 Mountain Ridge Drive Boulder, CO 80302 Attn: Marwan Al-Baward Odyssey Venture Partners L.P. Bermuda Commercial Bank Building 44 Church Street Hamilton HM 12 Bermuda Attn: Antionette Drinkwater R. Scot Perlin and Martha Perlin, Tenants in Common 40 East 94th Street #11A New York, NY 10128 R. Scot Perlin Cust. Ross Adam Perlin UGMA 40 East 94th Street #11A New York, NY 10128
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Harriet Rabb 580 West End Avenue New York, NY 10024 Maxwell Rabb 480 Park Avenue Apartment 4G New York, NY 10022 E. John Rice, Jr. 2332 Massachusetts Avenue NW Washington, DC 20008 David Schlessinger 125 Lincoln Avenue #400 Santa Fe, NM 87501 Mario Shiloloski 144 Sullivan Street #2 New York, NY 10012 James Snider 1405 McCrae Trail Southlake, TX 76092 Dorothy Stein 1001 Gardenview Drive Apt 807 Atlanta, GA 30319 Gideon Stein 666 Greenwich Street #828 New York, NY 10014 Mary Ann Stein 1 Farragut Square South 1634 I Street, NW Ste. 1000 Washington, DC 20006
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Noah Stein 441 West 22nd Street Apt. 202 New York, NY 10011 Robert Stein 3016 43rd Street, NW Washington, DC 20016 Todd Steinberg and Lisa Barry, Tenants in Common 166 Duane Street #3B New York, NY 10013 Ravi Swamy 2300 Walnut Street Apt. 302 Philadelphia, PA 19103 Cornelius Thornton One New York Plaza Goldman Sachs 46th Floor New York, NY 10004 Trimtab Ventures, LLC c/o David Pensky 1054 31st Street, NW Ste. 110 Washington, DC 20007 Harold Vogel 4525 Henry Hudson Parkway Bronx, NY 10471 Darryl Wash 61 West 62nd Street #9D New York, NY 10023 Zoey T. Zebedee c/o Gideon Stein 666 Greenwich Street #828 New York, NY 10014
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IV. SERIES B PREFERRED STOCKHOLDERS John Bartholdson Stonington Partners 767 Fifth Avenue, 48th Floor New York, NY 10153 Rob Cihra ING Baring Furnan Selz LLC 230 Park Avenue New York, NY 10169 Colrain Associates c/o Bruce Rabb 919 Third Avenue; 40th Fl New York, NY 10022 Hugh Evans Stonington Partners 767 Fifth Avenue, 48th Floor New York, NY 10153 John Fitzgibbons KMOC 152 West 57th Street, 29th Floor New York, NY 10019 Levy Group Investment Fund, LLC c/o Richard Levy 1321 1/2 Wisconsin Avenue, NW Washington, DC 20007 Merion Partners c/o Arena Capital Partners 540 Madison Avenue 25th Floor New York, NY 10022 Attn: Jackie Bajart Monkey Rock Ventures, LLC 41 East 11th Street, Suite 1100 New York, NY 10003 Attn: Gideon Stein Bob Mylod Priceline.com 5 High Ridge Road Stamford, CT 06905
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George Nicolau 125 East 10th Street New York, NY 10003 Siobhan Nicolau 36 East 22nd Street; 9th Floor New York, NY 10010 Harriet Rabb 580 West End Avenue New York, 10024 Maxwell Rabb 480 Park Avenue #4-G New York, NY 10022 Scott Shaw Stonington Partners 767 Fifth Avenue, 48th Floor New York, NY 10153 Dorothy Stein 1001 Gardenview Drive Apt 807 Atlanta, GA 30319 Gideon Stein 666 Greenwich Street #828 New York, NY 10014 Noah Stein 441 West 22nd Street Apt. 202 New York, NY 10011 Robert Stein 3016 43rd Street, NW Washington, DC 20016 Trimtab Ventures, LLC c/o David Pensky 1054 31st Street, NW Ste. 110 Washington, DC 20007
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------------------------------- SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT ------------------------------- Among KOZMO.COM, INC. and the STOCKHOLDERS IDENTIFIED HEREIN Dated as of March 14, 2000
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TABLE OF CONTENTS [Download Table] PAGE SECTION 1. Definitions ................................................... 1 SECTION 2. Required Registration ......................................... 4 SECTION 3. Piggyback Registration ........................................ 6 SECTION 4. Registrations on Form S-3 ..................................... 7 SECTION 5. Holdback Agreement ............................................ 7 SECTION 6. Preparation and Filing ........................................ 8 SECTION 7. Expenses ...................................................... 11 SECTION 8. Indemnification ............................................... 11 SECTION 9. Underwriting Agreement ........................................ 14 SECTION 10. Information by Holders of Registrable Shares .................. 14 SECTION 11. Exchange Act Compliance ....................................... 15 SECTION 12. No Conflict of Rights ......................................... 15 SECTION 13. Termination ................................................... 15 SECTION 14. Successors and Assigns ........................................ 15 SECTION 15. Assignment .................................................... 15 SECTION 16. Entire Agreement .............................................. 16 SECTION 17. Notices ....................................................... 16 SECTION 18. Modifications; Amendments; Waivers ............................ 17 SECTION 19. Counterparts; Facsimile Signatures ............................ 17 SECTION 20. Headings ...................................................... 18 SECTION 21. Severability; Governing Law ................................... 18 SECTION 22. Amendment and Restatement of Existing Agreements .............. 18

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