Exhibit 4.1

 

MARKETO, INC.

 

AMENDED AND RESTATED

INVESTORS’ RIGHTS AGREEMENT

 

November 15, 2011

 











 

TABLE OF CONTENTS

 

	
 
    	
Page
    
	
 
    	
 
    	
 
    
	
1.  
    	
Registration Rights
    	
2
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
1.1
    	
Definitions
    	
2
    
	
 
    	
1.2
    	
Request for Registration
    	
2
    
	
 
    	
1.3
    	
Company Registration
    	
4
    
	
 
    	
1.4
    	
Form S-3 Registration
    	
5
    
	
 
    	
1.5
    	
Obligations of the Company
    	
7
    
	
 
    	
1.6
    	
Information from Holder
    	
8
    
	
 
    	
1.7
    	
Expenses of Registration
    	
8
    
	
 
    	
1.8
    	
Delay of Registration
    	
9
    
	
 
    	
1.9
    	
Indemnification
    	
9
    
	
 
    	
1.10
    	
Reports Under the 1934 Act
    	
11
    
	
 
    	
1.11
    	
Assignment of Registration Rights
    	
12
    
	
 
    	
1.12
    	
Limitations on Subsequent Registration Rights
    	
12
    
	
 
    	
1.13
    	
“Market Stand-Off” Agreement
    	
12
    
	
 
    	
1.14
    	
Termination of Registration Rights
    	
13
    
	
 
    	
 
    	
 
    	
 
    
	
2.
    	
Covenants of the Company
    	
14
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
2.1
    	
Delivery of Financial Statements
    	
14
    
	
 
    	
2.2
    	
Inspection
    	
14
    
	
 
    	
2.3
    	
Termination of Information and Inspection Covenants
    	
14
    
	
 
    	
2.4
    	
Right of First Offer
    	
15
    
	
 
    	
2.5
    	
Proprietary Information and Inventions Agreements
    	
16
    
	
 
    	
2.6
    	
Employee Agreements
    	
16
    
	
 
    	
2.7
    	
D&O Insurance
    	
17
    
	
 
    	
2.8
    	
HSR Expenses
    	
17
    
	
 
    	
2.9
    	
Termination of Certain Covenants
    	
17
    
	
 
    	
 
    	
 
    	
 
    
	
3.
    	
Miscellaneous
    	
17
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
3.1
    	
Successors and Assigns
    	
17
    
	
 
    	
3.2
    	
Governing Law
    	
17
    
	
 
    	
3.3
    	
Counterparts
    	
17
    
	
 
    	
3.4
    	
Titles and Subtitles
    	
17
    
	
 
    	
3.5
    	
Notices
    	
18
    
	
 
    	
3.6
    	
Expenses
    	
18
    
	
 
    	
3.7
    	
Entire Agreement; Amendments and Waivers
    	
18
    
	
 
    	
3.8
    	
Severability
    	
18
    
	
 
    	
3.9
    	
Aggregation of Stock
    	
18
    
	
 
    	
3.10
    	
Amendment and Restatement of Prior Agreement
    	
19
    


 











 

AMENDED AND RESTATED

INVESTORS’ RIGHTS AGREEMENT

 

THIS AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT (the “Agreement”) is made as of November 15, 2011, by and among Marketo, Inc., a Delaware corporation (the “Company”), and the investors listed on Schedule A hereto, each of which is herein referred to as an “Investor” and, collectively as the “Investors.”

 

RECITALS

 

WHEREAS, certain of the Investors (the “Existing Investors”) hold shares of the Company’s Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock and/or shares of Common Stock issued upon conversion thereof and possess registration rights, information rights, rights of first offer and other rights pursuant to an Amended and Restated Investors’ Rights Agreement dated as of November 15, 2010 by and among the Company and such Existing Investors (the “Prior Agreement”);

 

WHEREAS, the Prior Agreement may be amended, and any provision therein waived, with the consent of the Company and the holders of a majority of the outstanding Registrable Securities (as such term is defined in the Prior Agreement);

 

WHEREAS, the Existing Investors, as holders of a majority of the outstanding Registrable Securities (as such term is defined in the Prior Agreement) of the Company, desire to terminate the Prior Agreement and to accept the rights created pursuant hereto in lieu of the rights granted to them under the Prior Agreement; and

 

WHEREAS, certain of the Investors are party to the Series F Preferred Stock Purchase Agreement of even date herewith by and among the Company and such Investors (the “Series E Agreement”), which provides that as a condition to the closing of the sale of the Series F Preferred Stock (collectively with the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, the Series D Preferred Stock and the Series E Preferred Stock, the “Preferred Stock”), this Agreement must be executed and delivered by such Investors, Existing Investors holding a majority of the outstanding Registrable Securities (as such term is defined in the Prior Agreement) of the Company and the Company.

 

NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, the Existing Investors hereby agree that the Prior Agreement shall be superseded and replaced in its entirety by this Agreement, and the parties hereto further agree as follows:

 











 

1.             Registration Rights.  The Company covenants and agrees as follows:

 

1.1          Definitions.  For purposes of this Section 1:

 

(a)           The term “Act” means the Securities Act of 1933, as amended.

 

(b)           The term “Form S-3” means such form under the Act as in effect on the date hereof or any registration form under the Act subsequently adopted by the SEC that permits inclusion or incorporation of substantial information by reference to other documents filed by the Company with the SEC.

 

(c)           The term “Holder” means any person owning or having the right to acquire Registrable Securities or any assignee thereof in accordance with Section 1.11 hereof.

 

(d)           The term “Initial Offering” means the Company’s first firm commitment underwritten public offering of its Common Stock under the Act.

 

(e)           The term “1934 Act” means the Securities Exchange Act of 1934, as amended.

 

(f)            The terms “register,” “registered,” and “registration” refer to a registration effected by preparing and filing a registration statement or similar document in compliance with the Act, and the declaration or ordering of effectiveness of such registration statement or document.

 

(g)           The term “Registrable Securities” means (i) the Common Stock issuable or issued upon conversion of the Preferred Stock or (ii) any Common Stock of the Company issued as (or issuable upon the conversion or exercise of any warrant, right or other security that is issued as) a dividend or other distribution with respect to, or in exchange for, or in replacement of, the shares referenced in (i) above, excluding in all cases, however, any Registrable Securities sold by a person in a transaction in which his rights under this Section 1 are not assigned.

 

(h)           The number of shares of “Registrable Securities” outstanding shall be determined by the number of shares of Common Stock outstanding that are, and the number of shares of Common Stock issuable pursuant to then exercisable or convertible securities that are, Registrable Securities.

 

(i)            The term “Rule 144” shall mean Rule 144 under the Act.

 

(j)            The term “SEC” shall mean the Securities and Exchange Commission.

 

1.2          Request for Registration.

 

(a)           Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) three (3) years after the date of this Agreement or

 

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(ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders of fifty percent (50%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,000, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a).

 

(b)           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 this Section 1.2 and the Company shall include such information in the written notice referred to in Section 1.2(a).  In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein.  All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the Initiating Holders).  Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders).  In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded.  Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.

 

(c)           Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:

 

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

 

(ii)   after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or

 

(iii)  during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to

 

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Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or

 

(iv)  if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or

 

(v)   if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board 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 shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than one hundred twenty (120) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12)-month period and provided further that the Company shall not register any securities for the account of itself or any other shareholder during such one hundred twenty (120) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).

 

1.3          Company Registration.

 

(a)           If (but without any obligation to do so) the Company proposes to register (including for this purpose a registration effected by the Company for shareholders other than the Holders) any of its stock or other securities under the Act in connection with the public offering of such securities (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered), the Company shall, at such time, promptly give each Holder written notice of such registration.  Upon the written request of each Holder given within twenty (20) days after mailing of such notice by the Company in accordance with Section 3.5, the Company shall, subject to the provisions of Section 1.3(c), use all commercially reasonable efforts to cause to be registered under the Act all of the Registrable Securities that each such Holder requests to be registered.

 

(b)           Right to Terminate Registration.  The Company shall have the right to terminate or withdraw any registration initiated by it under this Section 1.3 prior to the effectiveness of such registration whether or not any Holder has elected to include securities in such registration.  The expenses of such withdrawn registration shall be borne by the Company in accordance with Section 1.7 hereof.

 

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(c)           Underwriting Requirements.  In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under this Section 1.3 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company.  If the total amount of securities, including Registrable Securities, requested by shareholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in their sole discretion will not jeopardize the success of the offering.  In no event shall any Registrable Securities be excluded from such offering unless all other shareholders’ securities have been first excluded.  In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such offering, then the Registrable Securities that are included in such offering shall be apportioned pro rata among the selling Holders based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders.  Notwithstanding the foregoing, in no event shall (i) the amount of securities of the selling Holders included in the offering be reduced below twenty percent (20%) of the total amount of securities included in such offering, unless such offering is the initial public offering of the Company’s securities, in which case the selling Holders may be excluded if the underwriters make the determination described above and no other shareholder’s securities are included in such offering.  For purposes of the preceding sentence concerning apportionment, for any selling shareholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership or corporation, the affiliated venture capital funds, partners, retired partners and shareholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.

 

1.4          Form S-3 Registration.  In case the Company shall receive from the Holders of at least thirty percent (30%) of the Registrable Securities (for purposes of this Section 1.4, the “Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shall:

 

(a)           promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and

 

(b)           use all commercially reasonable efforts to effect, as soon as practicable, such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holders joining in such request as are specified in a written

 

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request given within fifteen (15) days after receipt of such written notice from the Company, provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.4:

 

(i)    if Form S-3 is not available for such offering by the Holders;

 

(ii)   if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $5,000,000;

 

(iii)  if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board 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 shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than one hundred twenty (120) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12)-month period and provided further that the Company shall not register any securities for the account of itself or any other shareholder during such one hundred twenty (120) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);

 

(iv)  if the Company has, within the twelve (12)-month period preceding the date of such request, already effected one registration on Form S-3 for the Holders pursuant to this Section 1.4; or

 

(v)   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.

 

(c)           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 this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a).  The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).

 

(d)           Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the Initiating Holders.  Registrations

 

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effected pursuant to this Section 1.4 shall not be counted as requests for registration effected pursuant to Sections 1.2.

 

1.5          Obligations of the Company.  Whenever required under this Section 1 to effect the registration of any Registrable Securities, the Company shall, as expeditiously as reasonably possible:

 

(a)           prepare and file with the SEC a registration statement with respect to such Registrable Securities and use all commercially reasonable efforts to cause such registration statement to become effective, and, upon the request of the Holders of a majority of the Registrable Securities registered thereunder, keep such registration statement effective for a period of up to one hundred twenty (120) days or, if earlier, until the distribution contemplated in the Registration Statement has been completed;

 

(b)           prepare and file with the SEC 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 Act with respect to the disposition of all securities covered by such registration statement;

 

(c)           furnish to the Holders such number of copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the Act, and such other documents as they may reasonably request in order to facilitate the disposition of Registrable Securities owned by them;

 

(d)           use all commercially reasonable efforts to register and qualify the securities covered by such registration statement under such other securities or Blue Sky laws of such jurisdictions as shall be reasonably requested by the Holders, 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;

 

(e)           in the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter of such offering;

 

(f)            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 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 the circumstances then existing;

 

(g)           cause all such Registrable Securities registered pursuant to this Section 1 to be listed on a national exchange or trading system and on each securities exchange and trading system on which similar securities issued by the Company are then listed; and

 

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(h)                                 provide a transfer agent and registrar for all Registrable Securities registered pursuant to this Agreement and a CUSIP number for all such Registrable Securities, in each case not later than the effective date of such registration.

 

Notwithstanding the provisions of this Section 1, the Company shall be entitled to postpone or suspend, for a reasonable period of time, the filing, effectiveness or use of, or trading under, any registration statement if the Company shall determine that any such filing or the sale of any securities pursuant to such registration statement would in the good faith judgment of the Board of Directors of the Company:

 

(i)                       materially impede, delay or interfere with any material pending or proposed financing, acquisition, corporate reorganization or other similar transaction involving the Company for which the Board of Directors of the Company has authorized negotiations;

 

(ii)                        materially adversely impair the consummation of any pending or proposed material offering or sale of any class of securities by the Company; or

 

(iii)                         require disclosure of material nonpublic information that, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders; provided, however, that during any such period all executive officers and directors of the Company are also prohibited from selling securities of the Company (or any security of any of the Company’s subsidiaries or affiliates).

 

In the event of the suspension of effectiveness of any registration statement pursuant to this Section 1.5, the applicable time period during which such registration statement is to remain effective shall be extended by that number of days equal to the number of days the effectiveness of such registration statement was suspended.

 

1.6                               Information from Holder.  It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 1 with respect to the Registrable Securities of any selling Holder that such Holder shall furnish to the Company such information regarding itself, the Registrable Securities held by it, and the intended method of disposition of such securities as shall be reasonably required to effect the registration of such Holder’s Registrable Securities.

 

1.7                               Expenses of Registration.  All expenses other than underwriting discounts and commissions incurred in connection with registrations, filings or qualifications pursuant to Sections 1.2, 1.3 and 1.4, including (without limitation) all registration, filing and qualification fees, printers’ and accounting fees, fees and disbursements of counsel for the Company and the reasonable fees and disbursements of one counsel for the selling Holders (not to exceed $25,000) shall be borne by the Company.  Notwithstanding the foregoing, the Company shall not be required to pay for any expenses of any registration proceeding begun pursuant to Section 1.2 or Section 1.4 if the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered (in which case all participating Holders shall bear such expenses pro rata based upon the number of Registrable Securities that were to be included

 

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in the withdrawn registration), unless, in the case of a registration requested under Section 1.2 or 1.4, the Holders of a majority of the Registrable Securities agree to forfeit their right to one demand registration pursuant to Section 1.2 or 1.4, and provided, however, that if at the time of such withdrawal, the Holders have learned of a material adverse change in the condition, business or prospects of the Company from that known to the Holders at the time of their request and have withdrawn the request with reasonable promptness following disclosure by the Company of such material adverse change, then the Holders shall not be required to pay any of such expenses and shall retain their rights pursuant to Section 1.2 and 1.4.

 

1.8                               Delay of Registration.  No Holder shall have any right to obtain or seek an injunction restraining or otherwise delaying any such registration as the result of any controversy that might arise with respect to the interpretation or implementation of this Section 1.

 

1.9                               Indemnification.  In the event any Registrable Securities are included in a registration statement under this Section 1:

 

(a)                                 To the extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Act or the 1934 Act, against any losses, claims, damages or liabilities (joint or several) to which they may become subject under the Act, the 1934 Act, any state securities laws or any rule or regulation promulgated under the Act, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively a “Violation”): (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state in such registration statement 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 Act, the 1934 Act, any state securities laws or any rule or regulation promulgated under the Act, the 1934 Act or any state securities laws, and the Company will reimburse each such Holder, underwriter, controlling person or other aforementioned person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this subsection 1.9(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 a Violation that occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person; provided further, however, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of any Holder or underwriter or other aforementioned person, or any person controlling such Holder or underwriter, from whom the person asserting any such losses, claims, damages or liabilities purchased shares in the offering, if a copy of the most current prospectus was not sent or given by or on behalf of such Holder or underwriter or other aforementioned person to such person,

 

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if required by law to have been so delivered, at or prior to the written confirmation of the sale of the shares to such person, and if the prospectus (as so amended or supplemented) would have cured the defect giving rise to such loss, claim, damage or liability.

 

(b)                                 To the extent permitted by law, each selling Holder will indemnify and hold harmless the Company, each of its directors, each of its officers who has signed the registration statement, each person, if any, who controls the Company within the meaning of the Act, legal counsel and accountants for the Company, any underwriter, any other Holder selling securities in such registration statement and any controlling person of any such underwriter or other Holder, against any losses, claims, damages or liabilities (joint or several) to which any of the foregoing persons may become subject, under the Act, the 1934 Act, any state securities laws or any rule or regulation promulgated under the Act, the 1934 Act or any state securities laws, insofar as such losses, claims, damages or liabilities (or actions in respect thereto) arise out of or are based upon any Violation, in each case to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished by such Holder expressly for use in connection with such registration; and each such Holder will reimburse any person intended to be indemnified pursuant to this subsection 1.9(b) for any legal or other expenses reasonably incurred by such person in connection with investigating or defending any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this subsection 1.9(b) 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 Holder (which consent shall not be unreasonably withheld), and provided that in no event shall any indemnity under this subsection 1.9(b) exceed the net proceeds from the offering received by such Holder.

 

(c)                                  Promptly after receipt by an indemnified party under this Section 1.9 of notice of the commencement of any action (including any governmental action), such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section 1.9, deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party (together with all other indemnified parties that may be represented without conflict by one counsel) shall have the right to retain one separate counsel, with the fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding.  The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 1.9, but the omission to so deliver written notice to the indemnifying party will not relieve it of any liability that it may have to any indemnified party otherwise than under this Section 1.9.

 

(d)                                 If the indemnification provided for in this Section 1.9 is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, liability, claim, damage 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

 

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such indemnified party as a result of such loss, liability, claim, damage or expense in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party on the other hand in connection with the statements or omissions that resulted in such loss, liability, claim, damage or expense, as well as any other relevant equitable considerations; provided, however, that no contribution by any Holder, when combined with any amounts paid by such Holder pursuant to Section 1.9(b), shall exceed the net proceeds from the offering received by such Holder.  The relative fault of the indemnifying party and 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.

 

(e)                                  Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with the underwritten public offering are in conflict with the foregoing provisions, the provisions in the underwriting agreement shall control; provided, however that the failure of the underwriting agreement to address a provision covered herein shall not be deemed a conflict.

 

(f)                                   The obligations of the Company and Holders under this Section 1.9 shall survive the completion of any offering of Registrable Securities in a registration statement under this Section 1 and otherwise.

 

1.10                        Reports Under the 1934 Act.  With a view to making available to the Holders the benefits of Rule 144 and any other rule or regulation of the SEC that may at any time permit a Holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3, the Company agrees to:

 

(a)                                 make and keep public information available, as those terms are understood and defined in Rule 144, at all times after the effective date of the Initial Offering;

 

(b)                                 file with the SEC in a timely manner all reports and other documents required of the Company under the Act and the 1934 Act; and

 

(c)                                  furnish to any Holder, so long as the Holder owns any Registrable Securities, forthwith upon request (i) a written statement by the Company that it has complied 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), the Act and the 1934 Act (at any time after it has become subject to such reporting requirements), or that it qualifies as a registrant whose securities may be resold pursuant to Form S-3 (at any time after it so qualifies), (ii) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company, and (iii) such other information as may be reasonably requested to avail any Holder of any rule or regulation of the SEC that permits the selling of any such securities without registration or pursuant to such form.

 

11











 

1.11                        Assignment of Registration Rights.  The rights to cause the Company to register Registrable Securities pursuant to this Section 1 may be assigned (but only with all related obligations) by a Holder to a transferee or assignee of such securities that (i) is an affiliate, subsidiary, parent, partner, limited partner, retired partner, affiliated venture fund or stockholder of a Holder or (ii) is a Holder’s family member or trust for the benefit of an individual Holder, provided: (a) the Company is, within a reasonable time after such transfer, furnished with written notice of the name and address of such transferee or assignee and the securities with respect to which such registration rights are being assigned; (b) such transferee or assignee agrees in writing to be bound by and subject to the terms and conditions of this Agreement, including, without limitation, the provisions of Section 1.13 below; and (c) such assignment shall be effective only if immediately following such transfer the further disposition of such securities by the transferee or assignee is restricted under the Act.

 

1.12                        Limitations on Subsequent Registration Rights.  From and after the date of this Agreement, the Company shall not, without the prior written consent of the Holders of a majority of the Registrable Securities, enter into any agreement with any holder or prospective holder of any securities of the Company that would allow such holder or prospective holder (a) to include any of such securities in any registration filed under Section 1.2, Section 1.3 or Section 1.4 hereof, unless under the terms of such agreement, such holder or prospective holder may include such securities in any such registration only to the extent that the inclusion of such securities will not reduce the amount of the Registrable Securities of the Holders that are included or (b) to demand registration of their securities.  In addition to the foregoing, in the event any such agreement would treat any Investor in a disproportionately adverse manner relative to the other Investors, the prior written consent of such Investor shall also be required.

 

1.13                        “Market Stand-Off” Agreement.

 

(a)                                 Each Holder hereby agrees that it will not, without the prior written consent of the managing underwriter, during the period commencing on the date of the final prospectus relating to the Company’s Initial Offering and ending on the date specified by the Company and the managing underwriter (such period not to exceed one hundred eighty (l80) days) (the “Lock-Up Period”)) (i) lend, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock (whether such shares or any such securities are then owned by the Holder or are thereafter acquired), or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise.  The foregoing provisions of this Section 1.13 shall apply only to the Company’s initial offering of equity securities, shall not apply to the sale of any shares to an underwriter pursuant to an underwriting agreement, and shall only be applicable to the Holders if all officers, directors and greater than one percent (1%) shareholders of the Company enter into similar agreements.  The underwriters in connection with the Company’s Initial Offering are intended third-party beneficiaries of this Section 1.13 and shall have the right, power and authority to enforce the provisions hereof as though they were a party hereto.  Each Holder further agrees to execute such agreements as may be reasonably requested by the

 

12











 

underwriters in the Company’s Initial Offering that are consistent with this Section 1.13 or that are necessary to give further effect thereto.  Any discretionary waiver or termination of the restrictions of any or all of such agreements by the Company or the underwriters shall apply to all Holders subject to such agreements pro rata based on the number of shares subject to such agreements.

 

(b)                                 If, (i) during the last seventeen (17) days of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company is publicly announced; or (ii) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last date of the Lock-Up Period; the Lock-Up Period shall be extended until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event.  The Lock-Up Period may only be extended once for material news or a material event relating to the Company, which material news or material event is publicly announced by a person or entity other than the Company.  For the avoidance of doubt, in no event shall the Lock-Up Period extend past 214 days after the date of the prospectus.

 

In order to enforce the foregoing covenant, the Company may impose stop-transfer instructions with respect to the Registrable Securities of each Holder (and the shares or securities of every other person subject to the foregoing restriction) until the end of such period.

 

(c)                                  Each Holder agrees that a legend reading substantially as follows shall be placed on all certificates representing all Registrable Securities of each Holder (and the shares or securities of every other person subject to the restriction contained in this Section 1.13):

 

THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A LOCK-UP PERIOD OF UP TO 214 DAYS AFTER THE EFFECTIVE DATE OF THE ISSUER’S REGISTRATION STATEMENT FILED UNDER THE ACT, AS AMENDED, AS SET FORTH IN AN AGREEMENT BETWEEN THE COMPANY AND THE ORIGINAL HOLDER OF THESE SECURITIES, A COPY OF WHICH MAY BE OBTAINED AT THE ISSUER’S PRINCIPAL OFFICE.  SUCH LOCK-UP PERIOD IS BINDING ON TRANSFEREES OF THESE SHARES.

 

1.14                        Termination of Registration Rights.  No Holder shall be entitled to exercise any right provided for in this Section 1 (i) after five (5) years following the consummation of the Initial Offering, (ii) as to any Holder, such earlier time after the Initial Offering at which such Holder holds one percent (1%) or less of the Company’s outstanding Common Stock and all Registrable Securities held by such Holder (together with any affiliate of the Holder with whom such Holder must aggregate its sales under Rule 144) can be sold in any three (3)-month period without registration in compliance with Rule 144 or (iii) after the consummation of a Liquidation Event, as that term is defined in the Company’s Amended and Restated Certificate of Incorporation (as amended from time to time), in which the consideration paid to the shareholders is cash or publicly traded securities.  Upon such termination, such shares shall cease to be “Registrable Securities” hereunder for all purposes

 

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2.                                      Covenants of the Company.

 

2.1                               Delivery of Financial Statements.  The Company shall, upon request, deliver to each Investor (or transferee of an Investor) that holds at least 1,000,000 shares of Registrable Securities (subject to appropriate adjustment for stock splits, stock dividends, combinations or the like and assuming the conversion of all outstanding Preferred Stock) (a “Major Investor”):

 

(a)                                 as soon as practicable, but in any event within one hundred fifty (150) days after the end of each fiscal year of the Company, an income statement for such fiscal year, a balance sheet of the Company and statement of shareholders’ equity as of the end of such year, and a statement of cash flows for such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and audited and certified by independent public accountants of nationally recognized standing selected by the Company;

 

(b)                                 as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited income statement, statement of cash flows for such fiscal quarter and an unaudited balance sheet as of the end of such fiscal quarter;

 

(c)                                  within thirty (30) days of the end of each month, an unaudited income statement and statement of cash flows and balance sheet for and as of the end of such month, in reasonable detail;

 

(d)                                 upon reasonable request by a Major Investor, furnish to such Major Investor as soon as practicable, a capitalization table setting forth the Company’s fully-diluted capitalization as of the end of the most recent quarter; and

 

(e)                                  such other information relating to the financial condition, business or corporate affairs of the Company as the Major Investor may from time to time request, provided, however, that the Company shall not be obligated under this subsection (d) or any other subsection of Section 2.1 to provide information that it deems in good faith to be a trade secret or similar confidential information.

 

2.2                               Inspection.  The Company shall permit each Major Investor, at such Major Investor’s expense, to visit and inspect the Company’s properties, to examine its books of account and records and to discuss the Company’s affairs, finances and accounts with its officers, all at such reasonable times as may be requested by the Major Investor; provided, however, that the Company shall not be obligated pursuant to this Section 2.2 to provide access to any information that it reasonably considers to be a trade secret or similar proprietary confidential information.

 

2.3                               Termination of Information and Inspection Covenants.  The covenants set forth in Sections 2.1 and 2.2 shall terminate and be of no further force or effect upon the earlier to occur of (i) the consummation of the sale of securities pursuant to a registration statement filed by the Company under the Act in connection with the firm commitment underwritten offering of its

 

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securities to the general public, (ii) when the Company first becomes subject to the periodic reporting requirements of Sections 12(g) or 15(d) of the 1934 Act, whichever event shall first occur or (iii) the consummation of a Liquidation Event, as that term is defined in the Company’s Amended and Restated Certificate of Incorporation (as amended from time to time), in which the consideration paid to the shareholders is cash or publicly traded securities.

 

2.4                               Right of First Offer.  Subject to the terms and conditions specified in this Section 2.4, the Company hereby grants to each Major Investor a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined).  For purposes of this Section 2.4, the term “Major Investor” includes any general partners and affiliates of a Major Investor.  A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and affiliates in such proportions as it deems appropriate.

 

Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, its capital stock (“Shares”), the Company shall first make an offering of such Shares to each Major Investor in accordance with the following provisions:

 

(a)                                 The Company shall deliver a notice in accordance with Section 3.5 (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered and (iii) the price and terms upon which it proposes to offer such Shares.

 

(b)                                 By written notification received by the Company within twenty (20) calendar days after the giving of Notice, each Major Investor may elect to purchase, at the price and on the terms specified in the Notice, up to that portion of such Shares that equals the proportion that the number of shares of Common Stock issued and held by such Major Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) issued and held, or issuable upon conversion of the Preferred Stock then held, by all the Major Investors.  The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise.  During the ten (10) day period commencing after such information is given, each Fully-Exercising Investor may elect to purchase that portion of the Shares for which Major Investors were entitled to subscribe, but which were not subscribed for by the Major Investors, that is equal to the proportion that the number of shares of Common Stock issued and held by such Fully-Exercising Investor (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to the total number of shares of Common Stock issued and held by all Fully-Exercising Investors (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) who wish to purchase some of the unsubscribed shares.

 

(c)                                  If all Shares that Major Investors are entitled to obtain pursuant to subsection 2.4(b) are not elected to be obtained as provided in subsection 2.4(b) hereof, the Company may, during the ninety (90) day period following the expiration of the period provided in subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than that, and upon terms no more favorable to the offeree than those,

 

15











 

specified in the Notice.  If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Major Investors in accordance herewith.

 

(d)                                 The right of first offer in this Section 2.4 shall not be applicable to (i) the issuance or sale of Common Stock (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors; (ii) the issuance of securities pursuant to a Qualified Public Offering (as such term is defined in the Company’s Amended and Restated Certificate of Incorporation, as amended form time to time), (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise approved by the Company’s Board of Directors, (v) the issuance and sale of Series F Preferred Stock pursuant to the Series F Agreement, (vi) the issuance of stock, warrants or other securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for other than equity financing purposes and are approved by the Company’s Board of Directors; or (vii) the issuance of securities that, with unanimous approval of the Company’s Board of Directors, are not offered to any existing shareholder of the Company.  In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Major Investor in any subsequent offering of Shares if (i) at the time of such offering, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.

 

(e)                                  The rights provided in this Section 2.4 may not be assigned or transferred by any Major Investor; provided, however, that a Major Investor that is a venture capital fund may assign or transfer such rights to an affiliate or affiliated venture capital fund.

 

(f)                                   The covenants set forth in this Section 2.4 shall terminate and be of no further force or effect upon the consummation of (i) the Company’s sale of its Common Stock or other securities pursuant to Registration Statement under the Act (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to its stock option, stock purchase or similar plan or a SEC Rule 145 transaction) or (ii) a Liquidation Event, as that term is defined in the Company’s Amended and Restated Certificate of Incorporation (as amended from time to time).

 

2.5                               Proprietary Information and Inventions Agreements.  The Company shall require all employees and consultants with access to confidential information to execute and deliver a Proprietary Information and Inventions Agreement in substantially the form approved by the Company’s Board of Directors.

 

2.6                               Employee Agreements.  Unless approved by the Board of Directors of the Company, all future employees of the Company who shall purchase, or receive options to purchase, shares of the Company’s Common Stock following the date hereof shall be required to execute stock purchase or option agreements providing for (i) vesting of shares over a four-year

 

16











 

period with the first 25% of such shares vesting following twelve (12) months of continued employment or services, and the remaining shares vesting in equal monthly installments over the following 36 months thereafter and (ii) a 180-day lockup period in connection with the Company’s initial public offering.  The Company shall retain a right of first refusal on transfers until the Company’s initial public offering and the right to repurchase unvested shares at cost.

 

2.7                               D&O Insurance.  The Company shall use its commercially reasonable efforts to maintain Directors and Officers and Errors and Omissions insurance in force in such amounts as the Company’s Board of Directors deems appropriate.

 

2.8                               HSR Expenses.  The Company shall promptly reimburse Institutional Venture Partners (“IVP”) for all expenses, including filing fees and attorney fees, incurred in connection with any Hart Scott Rodino filings required in connection with the transactions contemplated by the Series F Preferred Stock Purchase Agreement and any future transactions involving the Company and affiliates of IVP.

 

2.9                               Termination of Certain Covenants.  The covenants set forth in Sections 2.5 through 2.8 shall terminate and be of no further force or effect upon (i) the consummation of the Company’s sale of its Common Stock or other securities pursuant to Registration Statement under the Act (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to its stock option, stock purchase or similar plan or a SEC Rule 145 transaction) or (ii) Liquidation Event, as that term is defined in the Company’s Amended and Restated Certificate of Incorporation (as amended from time to time), in which the consideration paid to the shareholders is cash or publicly traded securities.

 

3.                                      Miscellaneous.

 

3.1                               Successors and Assigns.  Except as otherwise provided herein, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties (including transferees of any shares of Registrable Securities).  Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.

 

3.2                               Governing Law.  This Agreement shall be governed by and construed under the laws of the State of California as applied to agreements among California residents entered into and to be performed entirely within California.

 

3.3                               Counterparts.  This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

 

3.4                               Titles and Subtitles.  The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.

 

17









 

3.5                               Notices.  All notices and other communications given or made pursuant hereto shall be in writing and shall be deemed effectively given: (i) upon personal delivery to the party to be notified, (ii) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient; if not, then on the next business day, (iii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (iv) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt.  All communications shall be sent to the respective parties at the addresses set forth on the signature pages attached hereto (or at such other addresses as shall be specified by notice given in accordance with this Section 3.5).

 

3.6                               Expenses.  If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.

 

3.7                               Entire Agreement; Amendments and Waivers.  This Agreement (including the Exhibits hereto, if any) constitutes the full and entire understanding and agreement among the parties with regard to the subjects hereof and thereof.  Any term of this Agreement (other than Section 2.1, Section 2.2, Section 2.3, Section 2.4, Section 2.7 and Section 2.10) may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) only with the written consent of the Company and the holders of a majority of the Registrable Securities outstanding.  The provisions of Section 2.1, Section 2.2, Section 2.3 and Section 2.4 may be amended or waived (either generally or in a particular instance and either retroactively or prospectively) only with the written consent of the Company and the holders of a majority of the Registrable Securities outstanding that are held by Major Investors; provided, however, that notwithstanding anything to the contrary contained herein, the observance of the terms of Section 2.4 of this Agreement shall not be waived, as they apply to any Major Investor, in connection with any offering of Shares by the Company, without the prior written consent of such Major Investor, if any Major Investor approving such waiver is purchasing Shares in such offering.  Any amendment or waiver effected in accordance with this paragraph shall be binding upon each holder of any Registrable Securities, each future holder of all such Registrable Securities, and the Company.  Notwithstanding the foregoing, any amendment or waiver to this Agreement that by its stated terms treats an Investor in a disproportionately adverse manner relative to the other Investors will require such Investor’s written consent.

 

3.8                               Severability.  If one or more provisions of this Agreement are held to be unenforceable under applicable law, such provision(s) shall be excluded from this Agreement and the balance of the Agreement shall be interpreted as if such provision(s) were so excluded and shall be enforceable in accordance with its terms.

 

3.9                               Aggregation of Stock.  All shares of Registrable Securities held or acquired by affiliates and affiliated entities (including affiliated venture capital funds) or persons shall be aggregated together for the purpose of determining the availability of any rights under this Agreement.

 

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3.10                        Amendment and Restatement of Prior Agreement.  Upon the effectiveness of this Agreement, the Prior Agreement shall terminate and be of no further force and effect, and shall be superseded and replaced in its entirety by this Agreement.

 

[Remainder of Page Intentionally Left Blank.]

 

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IN WITNESS WHEREOF, the parties have executed this Amended and Restated Investors’ Rights Agreement as of the date first above written.

 

	
 
    	
MARKETO, INC.
    
	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Phillip M. Fernandez
    
	
 
    	
Name:   
    	
Phillip   M. Fernandez
    
	
 
    	
Title:   
    	
President
    
	
 
    	
 
    
	
 
    	
Address:   
    	
901   Mariners Island Boulevard
    
	
 
    	
 
    	
Suite 200
    
	
 
    	
 
    	
San   Mateo, CA 94404
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
INVESTOR:
    
	
 
    	
 
    
	
 
    	
Philip   M. Fernandez
    
	
 
    	
 
    
	
 
    	
/s/   Phillip M. Fernandez
    
	
 
    	
 
    
	
 
    	
Address:
    
				


 











 

IN WITNESS WHEREOF, the parties have executed this Amended and Restated Investors’ Rights Agreement as of the date first above written.

 

	
 
    	
INVESTOR:
    
	
 
    	
 
    
	
 
    	
INTERWEST   PARTNERS IX, L.P.
    
	
 
    	
 
    
	
 
    	
By:   
    	
InterWest   Management Partners IX, LLC
    
	
 
    	
 
    
	
 
    	
By:   
    	
[illegible]
    
	
 
    	
 
    	
Venture   Member
    
	
 
    	
 
    
	
 
    	
Address:   
    	
2710   Sand Hill Road
    
	
 
    	
 
    	
Second   Floor
    
	
 
    	
 
    	
Menlo   Park, CA 94025
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
MAYFIELD   XIII,
    
	
 
    	
a   Cayman Islands Exempted Limited Partnership
    
	
 
    	
 
    
	
 
    	
By:   
    	
MAYFIELD   XIII MANAGEMENT (EGP), L.P.,
    
	
 
    	
 
    	
a   Cayman Islands Exempted Limited Partnership
    
	
 
    	
Its:   
    	
General   Partner
    
	
 
    	
 
    
	
 
    	
By:   
    	
MAYFIELD   XIII MANAGEMENT (UGP), LTD.,
    
	
 
    	
 
    	
a   Cayman Islands Exempted Company
    
	
 
    	
Its:   
    	
General   Partner
    
	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Robin Vasan
    
	
 
    	
Name:   
    	
Robin   Vasan
    
	
 
    	
Title:   
    	
Authorized   Signatory
    
	
 
    	
 
    
	
 
    	
Address:   
    	
2800   Sand Hill Road; Suite 250
    
	
 
    	
 
    	
Menlo   Park, CA 94025
    
				


 











 

IN WITNESS WHEREOF, the parties have executed this Amended and Restated Investors’ Rights Agreement as of the date first above written.

 

	
 
    	
INVESTORS:
    
	
 
    	
 
    
	
 
    	
STORM   VENTURES FUND III, L.P.
    
	
 
    	
by   Storm Venture Associates III, L.L.C.
    
	
 
    	
its   General Partner
    
	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Tae Hea Nahm
    
	
 
    	
Title:   
    	
Managing   Member
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
STORM   VENTURES AFFILIATES FUND III, L.P.
    
	
 
    	
by   Storm Venture Associates III, L.L.C.
    
	
 
    	
its   General Partner
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Tae Hea Nahm
    
	
 
    	
Title:
    	
Managing   Member
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
STORM   VENTURES PRINCIPALS FUND III, L.L.C.
    
	
 
    	
by   Storm Venture Associates III, L.L.C.
    
	
 
    	
its   Managing Member
    
	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Tae Hea Nahm
    
	
 
    	
Title:   
    	
Managing   Member
    
	
 
    	
 
    
	
 
    	
Address:   
    	
2440   Sand Hill Road; Suite 301
    
	
 
    	
 
    	
Menlo   Park, CA 94025
    
				


 











 

IN WITNESS WHEREOF, the parties have executed this Amended and Restated Investors’ Rights Agreement as of the date first above written.

 

	
 
    	
INVESTOR:
    
	
 
    	
 
    
	
 
    	
Institutional   Venture Partners XII, L.P.
    
	
 
    	
 
    
	
 
    	
By:   
    	
Institutional   Venture Management XII LLC
    
	
 
    	
Its:   
    	
General   Partner
    
	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Norman A. Fogelsong
    
	
 
    	
 
    	
Managing   Director
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Institutional   Venture Partners XIII, L.P.
    
	
 
    	
 
    
	
 
    	
By:   
    	
Institutional   Venture Management XIII LLC
    
	
 
    	
Its:   
    	
General   Partner
    
	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Norman A. Fogelsong
    
	
 
    	
 
    	
Managing   Director
    
	
 
    	
 
    
	
 
    	
Address:   
    	
3000   Sand Hill Road
    
	
 
    	
 
    	
Building   2, Suite 250
    
	
 
    	
 
    	
Menlo   Park, CA 94025
    
				


 











 

IN WITNESS WHEREOF, the parties have executed this Amended and Restated Investors’ Rights Agreement as of the date first above written.

 

	
 
    	
INVESTOR:
    
	
 
    	
 
    
	
 
    	
Battery   Ventures IX, L.P.
    
	
 
    	
 
    
	
 
    	
By:   
    	
Battery   Partners IX, LLC
    
	
 
    	
 
    	
General   Partner
    
	
 
    	
 
    
	
 
    	
/s/   Neeraj Agrawal
    
	
 
    	
Name:   
    	
Neeraj   Agrawal
    
	
 
    	
Title:   
    	
Member   Manager
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Battery   Investment Partners IX, LLC
    
	
 
    	
 
    
	
 
    	
By:   
    	
Battery   Partners IX, LLC
    
	
 
    	
 
    	
Managing   Member
    
	
 
    	
 
    
	
 
    	
/s/   Neeraj Agrawal
    
	
 
    	
Name:   
    	
Neeraj   Agrawal
    
	
 
    	
Title:   
    	
Member   Manager
    
	
 
    	
 
    
	
 
    	
Address:   
    	
Reservoir   Woods
    
	
 
    	
 
    	
930   Winter Street
    
	
 
    	
 
    	
Suite 2500
    
	
 
    	
 
    	
Waltham,   MA 02451
    
					


 











 

IN WITNESS WHEREOF, the parties have executed this Amended and Restated Investors’ Rights Agreement as of the date first above written.

 

	
 
    	
INVESTOR:
    
	
 
    	
 
    
	
 
    	
Eastern   Advisors Private Equity Fund, LP
    
	
 
    	
 
    
	
 
    	
By:   
    	
EA   Private Fund GP, LP, its general partner
    
	
 
    	
 
    
	
 
    	
By:
    	
EAGP   Advisors LLC, its general partner
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Scott V. Booth
    
	
 
    	
Name:
    	
Scott   V. Booth
    
	
 
    	
Title:
    	
Managing   Partner
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Eastern   Advisors Private Equity Fund QP, LP
    
	
 
    	
 
    
	
 
    	
By:
    	
EA   Private Fund GP, LP, its general partner
    
	
 
    	
 
    
	
 
    	
By:
    	
EAGP   Advisors LLC, its general partner
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Scott V. Booth
    
	
 
    	
Name:
    	
Scott   V. Booth
    
	
 
    	
Title:
    	
Managing   Partner
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
GLYNN   PARTNERS II, L.P.
    
	
 
    	
by   Glynn Management II, LLC
    
	
 
    	
its   General Partner
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   David Glynn
    
	
 
    	
Title:
    	
Managing   Director
    
	
 
    	
 
    
	
 
    	
Address:   
    	
3000   Sand Hill Road
    
	
 
    	
 
    	
Building   3; Suite 230
    
	
 
    	
 
    	
Menlo   Park, CA 94025
    
					


 











 

Schedule A

 

Investors

 

Mayfield XIII, a Cayman Islands Exempted Limited Partnership

Storm Ventures Fund III, L.P.

Storm Ventures Affiliates Fund III, L.P.

Storm Ventures Principals Fund III, L.L.C.

InterWest Partners IX, L.P.

Phillip Fernandez

The Board of Trustees of the Leland Stanford Junior University (SEVF II)

David Lewis

The Pedowitz Group, LLC

Institutional Venture Partners XII, L.P.

Institutional Venture Partners XIII, L.P.

Battery Ventures IX, L. P.

Battery Investment Partners IX, LLC

Eastern Advisors Private Equity Fund, LP

Eastern Advisors Private Equity Fund QP, LP

Glynn Partners II, L.P.

 









 

AMENDMENT AND JOINDER AGREEMENT

 

THIS AMENDMENT AND JOINDER AGREEMENT, dated this 17th day of April, 2012, by and among Marketo, Inc., a Delaware corporation (the “Company”), and the undersigned holders of the Company’s capital stock.

 

WHEREAS, the Company and Crowd Factory, Inc., a Delaware corporation (“Crowd Factory”) and certain other parties have entered into an Agreement and Plan of Reorganization dated of even date herewith pursuant to which the Company shall acquire Crowd Factory (the “Merger”);

 

WHEREAS, in connection with the Merger, the holders of Crowd Factory Series A Preferred Stock and Series A-1 Preferred Stock will be issued shares of Company Series G Preferred Stock, par value $0.0001 (the “Series G Stock”);

 

WHEREAS, the Company and each of the parties set forth in Section 4 below (each, a “Joining Party” and together, the “Joining Parties”) wish to join each of (i) the Amended and Restated Investors’ Rights Agreement among the Company and the Investors (the “Investor Rights Agreement”), (ii) the Amended and Restated First Refusal and Co-Sale Agreement among the Company, the Investors and certain other parties thereto (the “ROFR Agreement”), and (iii) the Amended and Restated Voting Agreement among the Company, the Investors and certain other parties thereto (the “Voting Agreement” and together with the Investor Rights Agreement and the ROFR Agreement, the “Stockholder Agreements”), each such agreement dated as of November 15, 2011; and

 

WHEREAS, the Company and the undersigned holders of the requisite number of shares of Company capital stock under each of the Investor Rights Agreement, the ROFR Agreement and the Voting Agreement wish to amend each such agreement as provided herein.

 

NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, the parties hereto agree as follows:

 

1.                                      Amendment of Investor Rights Agreement. The Company and the holders of the requisite number of shares of Company capital stock under the Investor Rights Agreement, on behalf of all parties to such agreement, hereby agree that upon the consummation of the Merger, the Investor Rights Agreement shall be amended as set forth in Exhibit A hereto.

 

2.                                      Amendment of ROFR Agreement. The Company and the holders of the requisite number of shares of Company capital stock under the ROFR Agreement, on behalf of all parties to such agreement, hereby agree that upon the consummation of the Merger, the ROFR Agreement shall be amended as set forth in Exhibit B hereto.

 

3.                                      Amendment of Voting Agreement. The Company and the holders of the requisite number of shares of Company capital stock under the Voting Agreement, on behalf of all parties to such agreement, hereby agree that upon the consummation of the Merger, the Voting Agreement shall be amended as set forth in Exhibit C hereto.

 











 

4.                                      Joinder to Investor Rights Agreement, ROFR Agreement and Voting Agreement. By executing this Amendment and Joinder Agreement, each of the Joining Parties acknowledges and agrees that (i) such Joining Party shall join each of the Investor Rights Agreement, the ROFR Agreement and the Voting Agreement, as applicable, as the type of party indicated next to their name in the table below and as if such Joining Party was an original signatory thereto and that joining such agreements is a condition to receipt of Company capital stock in the Merger and (ii) such Joining Party shall hold all shares of Company capital stock (now owned or hereafter acquired), including, without limitation, the Series G Stock, subject to the terms and restrictions contained in each of the Stockholder Agreements.

 

Joining the following agreements as (as each such term is defined therein):

 

	
Joining Party
    	
 
    	
Investor Rights
   Agreement
    	
 
    	
ROFR
   Agreement
    	
 
    	
Voting
   Agreement
    
	
Alexander   Mouldovan
    	
 
    	
Investor
    	
 
    	
Investor
    	
 
    	
Investor
    
	
Hummer Winblad Venture Partners   VI, Investor L.P.
    	
 
    	
 
    	
 
    	
Investor
    	
 
    	
Investor
    
	
Peninsula   Technology Ventures, L.P.
    	
 
    	
Investor
    	
 
    	
Investor
    	
 
    	
Investor
    
	
Peninsula Venture Principals, L.P.
    	
 
    	
Investor
    	
 
    	
Investor
    	
 
    	
Investor
    
	
Ernie Chung
    	
 
    	
Investor
    	
 
    	
Investor
    	
 
    	
Investor
    
	
Andy   Halliday
    	
 
    	
Investor
    	
 
    	
Investor
    	
 
    	
Investor
    
	
The   Andrew and Lori Halliday Family Trust dated August 10, 2007
    	
 
    	
Investor
    	
 
    	
Investor
    	
 
    	
Investor
    
	
Paul   Martino
    	
 
    	
Investor
    	
 
    	
Investor
    	
 
    	
Investor
    
	
Marcus   Pelham-Webb
    	
 
    	
Investor
    	
 
    	
Investor
    	
 
    	
Investor
    
	
MPC   Global Corp, LTD
    	
 
    	
Investor
    	
 
    	
Investor
    	
 
    	
Investor
    
	
The   Pogue Grandchildren Trust
    	
 
    	
Investor
    	
 
    	
Investor
    	
 
    	
Investor
    
	
Anthony   W. Scott
    	
 
    	
Investor
    	
 
    	
Investor
    	
 
    	
Investor
    
	
The   Board of Trustees of the Leland Stanford University
    	
 
    	
Investor
    	
 
    	
Investor
    	
 
    	
Investor
    
	
Storm   Ventures Fund III, L.P.
    	
 
    	
Investor
    	
 
    	
Investor
    	
 
    	
Investor
    
	
Storm   Ventures Affiliates Fund III, L.P.
    	
 
    	
Investor
    	
 
    	
Investor
    	
 
    	
Investor
    
	
Storm   Ventures Principals Fund III, L.L.C.
    	
 
    	
Investor
    	
 
    	
Investor
    	
 
    	
Investor
    


 

5.                                      Condition to Effectiveness. The effectiveness of this Agreement shall be conditioned upon the consummation of the Merger.

 

2











 

6.                                      Miscellaneous.

 

(a)                                 Governing Law. This Agreement shall be governed by and construed in accordance with the General Corporation Law of the State of Delaware as to matters within the scope thereof, and as to all other matters shall be governed by and construed in accordance with the internal laws of California, without regard to conflicts of law principles thereof.

 

(b)                                 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may also be executed and delivered by facsimile signature and in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

 

(c)                                  Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.

 

(d)                                 Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision.

 

(e)                                  Delays or Omissions. No delay or omission to exercise any right, power or remedy accruing to any party under this Agreement, upon any breach or default of any other party under this Agreement, shall impair any such right, power or remedy of such non-breaching or non-defaulting party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any breach or default under this Agreement, or any waiver on the part of any party of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement or by law or otherwise afforded to any party, shall be cumulative and not alternative.

 

(f)                                   Entire Agreement. This Agreement (including the Exhibits hereto) and the Stockholder Agreements, as amended hereby, constitute the full and entire understanding and agreement between the parties with respect to the subject matter hereof, and any other written or oral agreement relating to the subject matter hereof existing between the parties are expressly canceled.

 

3











 

IN WITNESS HEREOF, as of the date first set forth above, the undersigned, by its duly authorized representatives (if applicable), have executed this Amendment and Joinder Agreement.

 

	
 
    	
THE   COMPANY:
    
	
 
    	
 
    
	
 
    	
MARKETO, INC.
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Phillip M. Fernandez
    
	
 
    	
 
    	
Name:   Phillip M. Fernandez
    
	
 
    	
 
    	
Title:   President
    


 











 

IN WITNESS HEREOF, as of the date first set forth above, the undersigned, by its duly authorized representatives (if applicable), have executed this Amendment and Joinder Agreement.

 

	
 
    	
STOCKHOLDERS:
    
	
 
    	
 
    
	
 
    	
THE   PHILLIP M. FERNANDEZ LIVING TRUST,
   DATED AUGUST 4, 2010
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Phillip M Fernandez
    
	
 
    	
 
    	
Phillip M.   Fernandez, Trustee
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Jonathan   Miller and Tamar Miller,
   Trustees of The Miller Family Trust Agreement,
   Dated July 12, 2011
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Jonathan M. Miller
    
	
 
    	
 
    	
Jonathan M.   Miller
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
/s/   David Morandi
    
	
 
    	
David   Morandi
    


 











 

IN WITNESS HEREOF, as of the date first set forth above, the undersigned, by its duly authorized representatives (if applicable), have executed this Amendment and Joinder Agreement.

 

	
 
    	
 
    
	
 
    	
STOCKHOLDERS:
    
	
 
    	
 
    
	
 
    	
INTERWEST   PARTNERS IX, L.P.
    
	
 
    	
 
    
	
 
    	
By:
    	
InterWest   Management Partners IX, LLC
    
	
 
    	
 
    
	
 
    	
By:
    	
[illegible]
    
	
 
    	
 
    	
Venture   Member
    
	
 
    	
 
    
	
 
    	
STORM   VENTURES FUND III, L.P.
    
	
 
    	
by   Storm Venture Associates III, L.L.C.
    
	
 
    	
its   General Partner
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Tae Hea Nahm
    
	
 
    	
 
    	
Title: Managing   Member
    
	
 
    	
 
    
	
 
    	
STORM   VENTURES AFFILIATES FUND III, L.P.
    
	
 
    	
by   Storm Venture Associates III, L.L.C.
    
	
 
    	
its   General Partner
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Tae Hea Nahm
    
	
 
    	
 
    	
Title: Managing   Member
    
	
 
    	
 
    
	
 
    	
STORM   VENTURES PRINCIPALS FUND III, L.L.C.
    
	
 
    	
by   Storm Venture Associates III, L.L.C.
    
	
 
    	
its   Managing Member
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Tae Hea Nahm
    
	
 
    	
 
    	
Title: Managing   Member
    


 











 

IN WITNESS HEREOF, as of the date first set forth above, the undersigned, by its duly authorized representatives (if applicable), have executed this Amendment and Joinder Agreement.

 

	
 
    	
STOCKHOLDERS:
    
	
 
    	
 
    
	
 
    	
Institutional   Venture Partners XII, L.P.
    
	
 
    	
 
    
	
 
    	
By:
    	
Institutional   Venture Management XII LLC
    
	
 
    	
Its:
    	
General   Partner
    
	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Norman A. Fogelsong
    
	
 
    	
 
    	
Managing   Director
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Institutional   Venture Partners XIII, L.P.
    
	
 
    	
 
    
	
 
    	
By:
    	
Institutional   Venture Management XIII LLC
    
	
 
    	
Its:
    	
General   Partner
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Norman A. Fogelsong
    
	
 
    	
 
    	
Managing   Director
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Battery   Ventures IX, L. P.
    
	
 
    	
 
    
	
 
    	
By:
    	
Battery   Partners IX, LLC
    
	
 
    	
 
    	
General   Partner
    
	
 
    	
 
    
	
 
    	
/s/   Christopher A. Hansen
    
	
 
    	
Name:
    	
Christopher A.   Hansen
    
	
 
    	
Title:
    	
Attorney-in-fact   for Neeraj Agrawal
    
	
 
    	
 
    
	
 
    	
Battery   Investment Partners IX, LLC
    
	
 
    	
 
    
	
 
    	
By:
    	
Battery   Partners IX, LLC
    
	
 
    	
 
    	
Managing   Member
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
/s/   Christopher A. Hansen
    
	
 
    	
Name:
    	
Christopher A.   Hansen
    
	
 
    	
Title:
    	
Attorney-in-fact   for Neeraj Agrawal
    
				


 











 

IN WITNESS HEREOF, as of the date first set forth above, the undersigned, by its duly authorized representatives (if applicable), have executed this Amendment and Joinder Agreement.

 

	
 
    	
JOINING   PARTIES:
    
	
 
    	
 
    
	
 
    	
Peninsula Ventures Principals, L.P.
    
	
 
    	
 
    
	
 
    	
/s/   Gregory T. Robinson
    
	
 
    	
(Signature)
    
	
 
    	
 
    
	
 
    	
Gregory T.   Robinson
    
	
 
    	
(Print   Name)
    
	
 
    	
 
    
	
 
    	
Managing   Director
    
	
 
    	
(Print   title if signing on behalf of an entity)
    
	
 
    	
 
    
	
 
    	
04/16/12
    
	
 
    	
(Date)
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Peninsula   Technology Ventures, L.P.
    
	
 
    	
 
    
	
 
    	
/s/   Gregory T. Robinson
    
	
 
    	
(Signature)
    
	
 
    	
 
    
	
 
    	
Gregory T.   Robinson
    
	
 
    	
(Print   Name)
    
	
 
    	
 
    
	
 
    	
Managing   Director
    
	
 
    	
(Print   title if signing on behalf of an entity)
    
	
 
    	
 
    
	
 
    	
04/16/12
    
	
 
    	
(Date)
    


 











 

IN WITNESS HEREOF, as of the date first set forth above, the undersigned, by its duly authorized representatives (if applicable), have executed this Amendment and Joinder Agreement.

 

	
 
    	
JOINING   PARTIES:
    
	
 
    	
 
    
	
 
    	
/s/   Mark Gorenberg
    
	
 
    	
(Signature)
    
	
 
    	
 
    
	
 
    	
Mark   Gorenberg
    
	
 
    	
(Print   Name)
    
	
 
    	
 
    
	
 
    	
Hummer   Winblad Equity Partners VI
    
	
 
    	
Managing   Director
    
	
 
    	
(Print   title if signing on behalf of an entity)
    
	
 
    	
 
    
	
 
    	
04/16/2012
    
	
 
    	
(Date)
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
The   Board of Trustees of the Leland Stanford Junior University (DAPER I)
    
	
 
    	
 
    
	
 
    	
/s/ Martina S. Poquet
    
	
 
    	
(Signature)
    
	
 
    	
 
    
	
 
    	
Martina S. Poquet
    
	
 
    	
(Print   Name)
    
	
 
    	
 
    
	
 
    	
Managing   Director — Separate Investments
    
	
 
    	
(Print   title if signing on behalf of an entity)
    
	
 
    	
 
    
	
 
    	
April 16,   2012
    
	
 
    	
(Date)
    


 









 

IN WITNESS HEREOF, as of the date first set forth above, the undersigned, by its duly authorized representatives (if applicable), have executed this Amendment and Joinder Agreement.

 

	
 
    	
JOINING   PARTIES:
    
	
 
    	
 
    
	
 
    	
/s/   Ernest Chung & Mary A. Lee
    
	
 
    	
(Signature)
    
	
 
    	
 
    
	
 
    	
Ernest   Chung & Mary A. Lee
    
	
 
    	
(Print   Name)
    
	
 
    	
 
    
	
 
    	
April 16,   2012
    
	
 
    	
(Date)
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
/s/   Andy Halliday
    
	
 
    	
(Signature)
    
	
 
    	
 
    
	
 
    	
Andy   Halliday
    
	
 
    	
(Print   Name)
    
	
 
    	
 
    
	
 
    	
April 16,   2012
    
	
 
    	
(Date)
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
/s/   Andy Halliday
    
	
 
    	
(Signature)
    
	
 
    	
 
    
	
 
    	
The   Andrew and Lori Halliday Family Trust
   Dated August 10, 2007
    
	
 
    	
(Print   Name)
    
	
 
    	
 
    
	
 
    	
Trustee
    
	
 
    	
(Print   title if signing on behalf of an entity)
    
	
 
    	
 
    
	
 
    	
April 16,   2012
    
	
 
    	
(Date)
    


 











 

IN WITNESS HEREOF, as of the date first set forth above, the undersigned, by its duly authorized representatives (if applicable), have executed this Amendment and Joinder Agreement.

 

	
 
    	
JOINING   PARTIES:
    
	
 
    	
 
    
	
 
    	
/s/   Paul Martino
    
	
 
    	
(Signature)
    
	
 
    	
 
    
	
 
    	
Paul   Martino
    
	
 
    	
(Print   Name)
    
	
 
    	
 
    
	
 
    	
April 16,   2012
    
	
 
    	
(Date)
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
/s/   Marcus Pelham-Webb
    
	
 
    	
(Signature)
    
	
 
    	
 
    
	
 
    	
Marcus   Pelham-Webb
    
	
 
    	
(Print   Name)
    
	
 
    	
 
    
	
 
    	
April 16,   2012
    
	
 
    	
(Date)
    


 











 

IN WITNESS HEREOF, as of the date first set forth above, the undersigned, by its duly authorized representatives (if applicable), have executed this Amendment and Joinder Agreement.

 

	
 
    	
JOINING PARTIES:
    
	
 
    	
 
    
	
 
    	
/s/ Mai N. Pogue
    
	
 
    	
(Signature)
    
	
 
    	
 
    
	
 
    	
Mai N. Pogue
    
	
 
    	
(Print Name)
    
	
 
    	
 
    
	
 
    	
President,   MCP Global Corp. LTD
    
	
 
    	
(Print   title if signing on behalf of an entity)
    
	
 
    	
 
    
	
 
    	
April 16,   2012
    
	
 
    	
(Date)
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
The   Pogue Grandchildren Trust
    
	
 
    	
 
    
	
 
    	
/s/   Mai N. Pogue
    
	
 
    	
(Signature)
    
	
 
    	
 
    
	
 
    	
Mai N. Pogue
    
	
 
    	
(Print Name)
    
	
 
    	
 
    
	
 
    	
Trustee
    
	
 
    	
(Print   title if signing on behalf of an entity)
    
	
 
    	
 
    
	
 
    	
April 16,   2012
    
	
 
    	
(Date)
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
/s/   Anthony W. Scott
    
	
 
    	
(Signature)
    
	
 
    	
 
    
	
 
    	
Anthony W.   Scott
    
	
 
    	
(Print   Name)
    
	
 
    	
 
    
	
 
    	
April 16,   2012
    
	
 
    	
(Date)
    


 











 

EXHIBIT A

 

Amendments to the Amended and Restated Investors’ Rights Agreement.

 

1.                                      The fourth recital to the Investors’ Rights Agreement are hereby amended and restated in its entirety as follows:

 

WHEREAS, certain of the Investors are party to the Series F Preferred Stock Purchase Agreement of even date herewith by and among the Company and such Investors (the “Series F Agreement”), which provides that as a condition to the closing of the sale of the Series F Preferred Stock, this Agreement must be executed and delivered by such Investors, Existing Investors holding a majority of the outstanding Registrable Securities (as such term is defined in the Prior Agreement) of the Company and the Company.

 

2.                                      A new recital to the Investors’ Rights Agreement is hereby added immediately following the fourth recital above:

 

WHEREAS, the Company is a party to that certain Agreement and Plan of Reorganization among the Company, Crystal Acquisition Corporation, a Delaware corporation, Crowd Factory, Inc., a Delaware corporation, and [      ], solely in its capacity as Stockholders’ Agent (the “Merger Agreement”), which provides for the issuance of the Company’s Series G Preferred Stock (collectively with the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock and Series F Preferred Stock, the “Preferred Stock”) and Common Stock as merger consideration.

 

3.                                      Section 2.4(d) of the Investor Rights Agreement is hereby amended and restated in its entirety as follows:

 

The right of first offer in this Section 2.4 shall not be applicable to (i) the issuance or sale of Common Stock (or options therefor) to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their services pursuant to plans or agreements approved by the Company’s Board of Directors; (ii) the issuance of securities pursuant to a Qualified Public Offering (as such term is defined in the Company’s Amended and Restated Certificate of Incorporation, as amended form time to time), (iii) the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities, (iv) the issuance of securities in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise approved by the Company’s Board of Directors, (v) the issuance and sale of Series F Preferred Stock pursuant to the Series F Agreement, (vi) the issuance of Series G Preferred Stock and Common Stock pursuant to the Merger Agreement, (vii) the issuance of stock, warrants or other

 











 

securities or rights to persons or entities with which the Company has business relationships, provided such issuances are primarily for other than equity financing purposes and are approved by the Company’s Board of Directors; or (viii) the issuance of securities that, with unanimous approval of the Company’s Board of Directors, are not offered to any existing shareholder of the Company. In addition to the foregoing, the right of first offer in this Section 2.4 shall not be applicable with respect to any Major Investor in any subsequent offering of Shares if (i) at the time of such offering, the Major Investor is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Act and (ii) such offering of Shares is otherwise being offered only to accredited investors.

 

4.                                      Schedule A of the Investor Rights Agreement is hereby amended to include the parties listed on Exhibit D.

 

In all other respects, the Investor Rights Agreement is hereby ratified and confirmed.

 











 

EXHIBIT B

 

Amendments to the First Refusal and Co-Sale Agreement.

 

1.                                      Exhibit A of the ROFR Agreement is hereby amended to include the parties listed on Exhibit D.

 

In all other respects, the ROFR Agreement is hereby ratified and confirmed.

 











 

EXHIBIT C

 

Amendments to the Amended and Restated Voting Agreement.

 

1.                                      The paragraph immediately prior to Section 5(b) of the Voting Agreement is hereby amended and restated in its entirety as follows:

 

Notwithstanding the foregoing, no Investor or Founder shall be required to vote in the manner described by this Section 5 unless (i) the net proceeds of such Sale of the Company are to be distributed to stockholders of the Company in accordance with the Company’s Amended and Restated Certificate of Incorporation then in effect and (ii) any earnouts or other contingent consideration payable to the stockholders in such Sale of the Company is payable in the same form and under the same terms to all stockholders. No holder of Series C Stock, Series D Stock, Series E Stock, Series F Stock or Series G Preferred Stock (the “Series G Stock”) shall be required to vote in the manner described by this Section 5 unless such holder receives the full amount of the liquidation preference of the Series C Stock, Series D Stock, Series E Stock, Series F Stock or Series G Stock, as applicable, set forth in the Company’s Amended and Restated Certificate of Incorporation then in effect in such Sale of the Company.

 

2.                                      Schedule A of the Voting Agreement is hereby amended to include the parties listed on Exhibit D.

 

In all other respects, the Voting Agreement is hereby ratified and confirmed.

 











 

EXHIBIT D

 

INVESTORS

 

Alexander Mouldovan

Hummer Winblad Venture Partners VI, L.P.

Peninsula Technology Ventures, L.P.

Peninsula Venture Principals, L.P.

Ernie Chung

Andy Halliday

The Andrew and Lori Halliday Family Trust dated August 10, 2007

Paul Martino

Marcus Pelham-Webb

MPC Global Corp, LTD

The Pogue Grandchildren Trust

Anthony W. Scott

The Board of Trustees of the Leland Stanford University

Storm Ventures Fund III, L.P.

Storm Ventures Affiliates Fund III, L.P.

Storm Ventures Principals Fund III, L.L.C.