Exhibit 4.2


 


OPENTABLE,
INC.


 


AMENDED
AND RESTATED

INVESTORS’ RIGHTS AGREEMENT


 


October 28,
2004


 

















 


TABLE
OF CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  1.

  	
  Registration Rights

  	
  1

  
	
   

  	
  1.1

  	
  Definitions

  	
  1

  
	
   

  	
  1.2

  	
  Request for Registration

  	
  2

  
	
   

  	
  1.3

  	
  Company Registration

  	
  4

  
	
   

  	
  1.4

  	
  Form S-3 Registration

  	
  4

  
	
   

  	
  1.5

  	
  Obligations of the Company

  	
  6

  
	
   

  	
  1.6

  	
  Furnish Information

  	
  7

  
	
   

  	
  1.7

  	
  Expenses of Registration

  	
  7

  
	
   

  	
  1.8

  	
  Underwriting Requirements

  	
  8

  
	
   

  	
  1.9

  	
  Delay of Registration

  	
  9

  
	
   

  	
  1.10

  	
  Indemnification

  	
  9

  
	
   

  	
  1.11

  	
  Reports Under Securities
  Exchange Act of 1934

  	
  11

  
	
   

  	
  1.12

  	
  Assignment of Registration
  Rights

  	
  12

  
	
   

  	
  1.13

  	
  Limitations on Subsequent
  Registration Rights

  	
  12

  
	
   

  	
  1.14

  	
  “Market Stand-Off”
  Agreement

  	
  12

  
	
   

  	
  1.15

  	
  Termination of
  Registration Rights

  	
  13

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  Covenants

  	
  13

  
	
   

  	
  2.1

  	
  Delivery of Financial
  Statements

  	
  13

  
	
   

  	
  2.2

  	
  Right of First Offer

  	
  14

  
	
   

  	
  2.3

  	
  Proprietary Information
  and Inventions Agreements

  	
  16

  
	
   

  	
  2.4

  	
  Stock Vesting

  	
  16

  
	
   

  	
  2.5

  	
  Termination of Covenants

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  Miscellaneous

  	
  16

  
	
   

  	
  3.1

  	
  Successors and Assigns

  	
  16

  
	
   

  	
  3.2

  	
  Governing Law

  	
  16

  
	
   

  	
  3.3

  	
  Counterparts

  	
  16

  
	
   

  	
  3.4

  	
  Titles and Subtitles

  	
  17

  
	
   

  	
  3.5

  	
  Notices

  	
  17

  
	
   

  	
  3.6

  	
  Expenses

  	
  17

  
	
   

  	
  3.7

  	
  Amendments and Waivers

  	
  17

  
	
   

  	
  3.8

  	
  Severability

  	
  18

  
	
   

  	
  3.9

  	
  Aggregation of Stock

  	
  18

  
	
   

  	
  3.10

  	
  Additional Closings

  	
  18

  
	
   

  	
  3.11

  	
  Facsimile Execution and
  Delivery

  	
  18

  
	
   

  	
  3.12

  	
  Prior Agreement

  	
  18

  
					



 

















 


OPENTABLE,
INC.


 


AMENDED
AND RESTATED INVESTORS’ RIGHTS AGREEMENT


 


This Amended and Restated
Investors’ Rights Agreement (the “Agreement”) is made as of the 28th day
of October 2004, by and among OpenTable, Inc. (the “Company”)
and the investors listed on Exhibit A hereto, each of which is herein
referred to as an “Investor.”


 


RECITALS


 


WHEREAS, the Company desires
IAC/InterActiveCorp to purchase shares of the Company’s Series B Preferred
Stock pursuant to that certain Series B Preferred Stock Purchase Agreement
of even date herewith (the “Purchase Agreement”);


 


WHEREAS, the Investors who
hold shares of the Company’s Series A Preferred Stock (the “Series A
Holders”) and the Company are party to that certain Investors’ Rights Agreement
dated February 7, 2003 (the “Prior Agreement”) and wish to amend
and restate such agreement in favor of this Agreement; and


 


WHEREAS, in order to induce
the Company and the Series A Holders to approve the issuance of the Series B
Preferred Stock and to induce IAC/InterActiveCorp to invest funds in the
Company pursuant to the Purchase Agreement, the Investors and the Company
hereby agree that this Agreement shall govern the rights of the Investors to
cause the Company to register shares of Common Stock issued or issuable to them
and certain other matters as set forth herein.


 


NOW, THEREFORE, in
consideration of the mutual promises and covenants hereinafter set forth, the
Company and Investors agree as follows:


 


AGREEMENT


 


1.                                      REGISTRATION
RIGHTS.


 


The Company and the
Investors covenant and agree as follows:


 


1.1                               Definitions.


 


For purposes of this Section 1:


 


(a)                                  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 Securities Act of 1933, as
amended (the “Securities Act”), and the declaration or ordering of
effectiveness of such registration statement or document;


 


(b)                                 The term “Registrable Securities” means (i) the shares
of Common Stock issuable or issued upon conversion of the Series A
Preferred Stock and Series B Preferred Stock issued pursuant to the
Purchase Agreement; (ii) any other shares of Common Stock of the Company
issued as (or issuable upon the conversion or exercise of any warrant, right or
other


 

















 


security which is issued as) a dividend or other distribution
with respect to, or in exchange for or in replacement of, the shares listed
above; and (iii) any shares of Common Stock or other securities issued or
issuable in respect of the shares described in (i) or (ii) above upon
any stock split, stock dividend, recapitalization or similar event, 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.  Notwithstanding the foregoing,
Common Stock or other securities shall only be treated as Registrable
Securities if and so long as they have not been (A) sold to or through a
broker or dealer or underwriter in a public distribution or a public securities
transaction, or (B) sold in a transaction exempt from the registration and
prospectus delivery requirements of the Securities Act under Section 4(1) thereof
so that all transfer restrictions, and restrictive legends with respect
thereto, if any, are removed upon the consummation of such sale;


 


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


 


(d)                                 The term “Holder” means any person owning or having the right
to acquire Registrable Securities or any assignee thereof in accordance with Section 1.12
hereof;


 


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


 


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


 


(g)                                 The term “SEC” means 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) five years from
the date of this Agreement, or (ii) six (6) months after the
effective date of the first registration statement for a public offering of
securities of the Company (other than a registration statement relating either
to the sale of securities to employees of the Company pursuant to a stock
option, stock purchase or similar plan or an SEC Rule 145 transaction), a
written request from the Holders of a majority of the Registrable Securities
then outstanding that the Company file a registration statement under the
Securities Act covering the registration of at least thirty-five percent (35%)
of the Registrable Securities then outstanding (or a lesser percent if the
anticipated aggregate offering price, net of underwriting discounts and
commissions, would exceed $15,000,000), then the Company shall, within ten (10) days
of the receipt thereof, give written notice of such request to all Holders and
shall, subject to the limitations of subsection 1.2(b), use its reasonable best
efforts to effect as soon as practicable, and in any event within ninety (90)
days of the receipt of such request, the registration under the Securities Act
of all Registrable Securities which the Holders request to be


 


2

















 


registered within twenty (20) days of the mailing of such
notice by the Company in accordance with this Section 1.2 and Section 3.5.


 


(b)                                 If the Holders initiating the registration request hereunder
(“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
subsection 1.2(a).  The underwriter will
be selected by a majority in interest of the Initiating Holders and shall be
reasonably acceptable to the Company.  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 (together with the Company as
provided in subsection 1.5(e)) enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwriting by a majority in interest of the Initiating Holders.  Notwithstanding any other provision of this Section 1.2,
if the underwriter advises the Initiating Holders in writing that marketing
factors require a limitation of the number of shares to be underwritten
(including Registrable Securities), then the Initiating Holders shall so advise
all Holders of Registrable Securities which would otherwise be underwritten
pursuant hereto, and the number of shares of Registrable Securities that may be
included in the underwriting shall be allocated among all Holders thereof,
including the Initiating Holders, in proportion (as nearly as practicable) to
the amount of Registrable Securities of the Company owned by each Holder; provided,
however, that the number of shares of Registrable Securities to be
included in such underwriting shall not be reduced unless all other securities
are first entirely excluded from the underwriting.  Any Registrable Securities excluded or
withdrawn from such underwriting shall be withdrawn from the registration.


 


(c)                                  In addition, the Company shall not be obligated to effect, or
to take any action to effect, any registration pursuant to this Section 1.2:


 


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


 


(ii)                                  During the period starting with the date sixty (60) days
prior to the Company’s good faith estimate of the date of filing of, and ending
on a date one hundred eighty (180) days after the effective date of, a
registration subject to Section 1.3 hereof; provided that the
Company is actively employing in good faith all reasonable efforts to cause
such registration statement to become effective;


 


(iii)                               If the Initiating Holders propose to dispose of shares of
Registrable Securities that may be immediately registered on Form S-3
pursuant to a request made pursuant to Section 1.4 below; or


 


(iv)                              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 


 


3

















 


Directors of the Company, it would be seriously detrimental
to the Company and its stockholders 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 stockholder 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 stockholders other than the Holders) any of its stock under the Securities
Act in connection with the public offering of such securities (other than a
registration relating solely to the sale of securities to participants in a
Company stock plan or a transaction covered by Rule 145 under the
Securities Act, a registration in which the only stock being registered is
Common Stock issuable upon conversion of debt securities which are also being
registered, or any registration on any form which 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), 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 1.8, cause to be registered under the Securities
Act all of the Registrable Securities that each such Holder has requested to be
registered.  If a Holder decides not to
include all of its Registrable Securities in any registration statement
thereafter filed by the Company, such Holder shall nevertheless continue to
have the right to include any Registrable Securities in any subsequent
registration statement or registration statements as may be filed by the
Company with respect to offerings of its securities, all upon the terms and
conditions set forth herein.


 


(b)                                 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.


 


1.4                               Form S-3
Registration.


 


In case the Company shall
receive from any Holder or Holders of not less than Thirty-Five percent (35%)
of the Registrable Securities then outstanding a written request or requests
that the Company effect a registration on Form S-3 and any related
qualification or 


 


4

















 


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)                                 as soon as practicable, effect 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 Holder’s or
Holders’ Registrable Securities as are specified in such request, together with
all or such portion of the Registrable Securities of any other Holder or
Holders joining in such request as are specified in a written request given
within 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 $3,000,000; (iii) if the Company
shall furnish to the Holders a certificate signed by the President of the
Company stating that in the good faith judgment of the Board of Directors of
the Company, it would be seriously detrimental to the Company and its
stockholders for such Form S-3 Registration to be effected at such time,
in which event the Company shall have the right to defer the filing of the Form S-3
registration statement for a period of not more than 120 days after receipt of
the request of the Holder or Holders under this Section 1.4; provided,
however, that the Company shall not utilize this right more than once in any
twelve month period; or (iv) 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)                                  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 Holders. 
Registrations effected pursuant to this Section 1.4 shall not be
counted as demands for registration or registrations effected pursuant to
Sections 1.2 or 1.3, respectively.


 


(d)                                 If, from time to time after a registration statement has been
declared effective, the Company shall furnish to the Holders a certificate
signed by the President of the Company stating that in the good faith judgment
of the Board of Directors of the Company there exist material non-disclosed
information or events that render such registration statement inaccurate, then
the Company may suspend further open market offers and sales of Registrable
Securities under such registration statement (the “Suspension Right”).  In the event the Company exercises the
Suspension Right, such suspension shall continue for the period of time
reasonably necessary for disclosure to occur at a time that is not materially
detrimental to the Company, or until such time as the information or event is
no longer material, each as determined in good faith by the Company.  The Company shall promptly give each Holder
written notice of (i) any such suspension and (ii) the termination of
such suspension.  The period during which
the Company is required to keep the registration statement effective shall be
extended by a period equal in length to any and all periods during which open
market offers and sales of Registrable Securities are


 


5

















 


suspended pursuant to exercise of the Suspension Right.  If the registration statement is suspended
indefinitely or the effectiveness of the registration statement is withdrawn,
the Holders shall be reimbursed for any expenses paid.


 


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 its reasonable best 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 up to one hundred twenty (120)
days.  The Company shall not be required
to file, cause to become effective or maintain the effectiveness of any
registration statement that contemplates a distribution of securities on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act.


 


(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
Securities Act with respect to the disposition of all securities covered by
such registration statement.


 


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


 


(d)                                 Use its reasonable best 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 Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.


 


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


 


6

















 


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


 


(i)                                     Use its best efforts to furnish, at the request of any Holder
requesting registration of Registrable Securities pursuant to this Section 1,
on the date that such Registrable Securities are delivered to the underwriters
for sale in connection with a registration pursuant to this Section 1, if
such securities are being sold through underwriters, or, if such securities are
not being sold through underwriters, on the date that the registration
statement with respect to such securities becomes effective, (i) an
opinion, dated such date, of the counsel representing the Company for the
purposes of such registration, in form and substance as is customarily given to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and to the Holders requesting registration of Registrable Securities
and (ii) a letter dated such date, from the independent certified public
accountants of the Company, in form and substance as is customarily given by
independent certified public accountants to underwriters in an underwritten
public offering, addressed to the underwriters, if any, and to the Holders
requesting registration of Registrable Securities.


 


1.6                               Furnish
Information.


 


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 required to effect the registration
of such Holder’s Registrable Securities. 
The Company shall have no obligation with respect to any registration
requested pursuant to Section 1.2 or Section 1.4 of this Agreement
if, as a result of the application of the preceding sentence, the number of
shares or the anticipated aggregate offering price of the Registrable
Securities to be included in the registration does not equal or exceed the
number of shares or the anticipated aggregate offering price required to
originally trigger the Company’s obligation to initiate such registration as
specified in subsection 1.2(a) or subsection 1.4(b)(2), whichever is
applicable.


 


1.7                               Expenses
of Registration.


 


(a)                                  Demand Registration.  All expenses other
than underwriting discounts and commissions incurred in connection with
registrations, filings or qualifications pursuant to Section 1.2,
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 selected by them with the approval of the Company, which
approval shall not be unreasonably withheld, shall be borne by the Company; provided,
however, that the Company shall not be required to pay for any expenses
of any registration proceeding begun pursuant to Section 1.2 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 registered in the withdrawn
registration), unless the Holders of a majority of the Registrable Securities
agree to forfeit their right to one demand registration pursuant to Section 1.2,
provided, however, that if at the time of


 


7

















 


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 or
1.4.


 


(b)                                 Other Registrations.  All expenses other
than underwriting discounts and commissions incurred in connection with
registrations, filings or qualifications of Registrable Securities pursuant to
Sections 1.3 and 1.4 for each Holder (which right may be assigned as provided
in Section 1.12), 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 Holder or Holders selected by them with the approval of
the Company, which approval shall not be unreasonably withheld, shall be borne
by the Company.


 


1.8                               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 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 it (or by other persons entitled to select the 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.  All Holders proposing to distribute their
Securities through such underwriting shall (together with the Company as
provided in Subsection 1.5(e)) enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwriting.  If the total amount of
securities, including Registrable Securities, requested by stockholders 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, which the underwriters determine in their sole discretion
will not jeopardize the success of the offering (the securities so included to
be apportioned pro rata among the selling stockholders according to the total
amount of securities entitled to be included therein owned by each selling
stockholder or in such other proportions as shall mutually be agreed to by such
selling stockholders) but 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 stockholders may be excluded if the underwriters make the
determination described above and no other stockholder’s securities are
included or (ii) notwithstanding (i) above, any shares being sold by
a stockholder exercising a demand registration right similar to that granted in
Section 1.2 be excluded from such offering.  For purposes of the preceding parenthetical
concerning apportionment, for any selling stockholder which is a Holder of
Registrable Securities and which is a partnership or corporation, the partners,
retired partners and stockholders 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
stockholder,” and any pro-rata reduction with respect to such “selling
stockholder” shall be based upon the aggregate amount of shares


 


8

















 


carrying
registration rights owned by all entities and individuals included in such “selling
stockholder,” as defined in this sentence.


 


1.9                               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.


 


1.10                        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 Securities Act) for such Holder and each person,
if any, who controls such Holder or underwriter within the meaning of the
Securities Act or the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), against any losses, claims, damages, or liabilities (joint or
several) to which they may become subject under the Securities Act, the
Exchange Act or other federal or state law, 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 therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading, or (iii) any
violation or alleged violation by the Company of the Securities Act; the
Exchange Act, any state securities law or any rule or regulation
promulgated under the Securities Act, the Exchange Act or any state securities
law; and the Company will pay to each such Holder, partner, officer, director
or stockholder of such Holder, legal counsel or accountants for each such
Holder, underwriter or controlling person, as incurred, any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided, however,
that the indemnity agreement contained in this subsection 1.10(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
which occurs in reliance upon and in conformity with written information
furnished expressly for use in connection with such registration by any such
Holder, underwriter or controlling person.


 


(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 Securities Act, 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,


 


9

















 


damages, or liabilities (joint or several) to which any of
the foregoing persons may become subject, under the Securities Act, the
Exchange Act or other federal or state law, 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 pay, as incurred, any legal or other
expenses reasonably incurred by any person intended to be indemnified pursuant
to this subsection 1.10(b), in connection with investigating or defending any
such loss, claim, damage, liability, or action; provided, however,
that the indemnity agreement contained in this subsection 1.10(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; provided, that
in no event shall any indemnity under this subsection 1.10(b) exceed the
net proceeds from the offering received by such Holder.


 


(c)                                  Promptly after receipt by an indemnified party under this Section 1.10
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 1.10, 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 which may be
represented without conflict by one counsel) shall have the right to retain one
separate counsel, with the reasonable 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 1.10,
but the omission so to 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 1.10.


 


(d)                                 If the indemnification provided for in this Section 1.10
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 therein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such loss, 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 of the indemnified party on the
other 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, that in no event shall any
contribution by a Holder under this Subsection 1.10(d) exceed the net
proceeds from the offering received by such Holder.  The relative fault of the indemnifying party
and of the indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission to state a material fact relates to information supplied by the
indemnifying 


 


10

















 


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.


 


(f)                                    The obligations of the Company and Holders under this Section 1.10
shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 1, and otherwise.


 


1.11                        Reports
Under Securities Exchange Act of 1934.


 


With a view to making
available to the Holders the benefits of Rule 144 promulgated under the
Securities Act 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 SEC Rule 144, at all times after ninety (90)
days after the effective date of the first registration statement filed by the
Company for the offering of its securities to the general public so long as the
Company remains subject to the periodic reporting requirements under Sections
13 or 15(d) of the Exchange Act;


 


(b)                                 take such action, including the voluntary registration of its
Common Stock under Section 12 of the Exchange Act, as is necessary to
enable the Holders to utilize Form S-3 for the sale of their Registrable
Securities, such action to be taken as soon as practicable after the end of the
fiscal year in which the first registration statement filed by the Company for
the offering of its securities to the general public is declared effective;


 


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


 


(d)                                 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 SEC Rule 144
(at any time after ninety (90) days after the effective date of the first
registration statement filed by the Company), the Securities Act and the
Exchange 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 in availing any Holder of any rule or
regulation of the SEC which permits the selling of any such securities without
registration or pursuant to such form.


 


11














 


1.12                        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 (i) a
subsidiary, parent, partner, limited partner, retired partner, or a stockholder
of a Holder, or (ii) a transferee or assignee that after such assignment,
holds at least 2,000,000 shares of Registrable Securities (as adjusted for
recapitalizations, stock splits, stock dividends and the like), provided
that:  (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) that 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 Securities Act; and (c) such transferee or assignee
agrees in writing to be bound by and be subject to the terms of this Agreement,
including without limitation, the provisions of Section 1.14 below.  For the purposes of determining the number of
shares of Registrable Securities held by a transferee or assignee, the holdings
of transferees and assignees of a partnership who are partners or retired
partners of such partnership (including spouses and ancestors, lineal
descendants and siblings of such partners or spouses who acquire Registrable
Securities by gift, will or intestate succession) shall be aggregated together
and with the partnership; provided that all assignees and transferees
who would not qualify individually for assignment of registration rights shall
have a single attorney-in-fact for the purpose of exercising any rights,
receiving notices or taking any action under Section 1.


 


1.13                        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 outstanding Registrable Securities, enter into any
agreement with any holder or prospective holder of any securities of the
Company which would allow such holder or prospective holder (a) to include
such securities in any registration filed under Section 1.2 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 its securities will not reduce the amount of the Registrable
Securities of the Holders which is included or (b) to make a demand
registration which could result in such registration statement being declared
effective prior to the earlier of either of the dates set forth in subsection
1.2(a) or within one hundred twenty (120) days of the effective date of
any registration effected pursuant to Section 1.2.


 


1.14                        “Market
Stand-Off” Agreement.


 


Each Holder hereby agrees
that, during the period of duration specified by the Company and an underwriter
of Common Stock or other securities of the Company (such period not to exceed
180 days), following the effective date of a registration statement of the
Company filed under the Securities Act, it shall not, to the extent requested
by the Company and such underwriter, directly or indirectly sell, offer to
sell, contract to sell (including, without limitation, any short sale), grant
any option to purchase or otherwise transfer or dispose of (other than to
donees who agree to be similarly bound) any securities of the Company held by
it at any time during such period except Common Stock included in such
registration; provided, however, that this Section 1.14
shall only be applicable to the Holders if and only if all officers, directors
and


 


12

















 


5%
stockholders of the Company enter into similar agreements.  This Section 1.14 shall be of no further
force and effect after the Company’s Initial Offering.


 


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, and each Holder agrees that, if so requested, such
Holder will execute an agreement in the form provided by the underwriter
containing terms which are essentially consistent with the provisions of this Section 1.14.


 


Notwithstanding the
foregoing, the obligations described in this Section 1.14 shall not apply
to a registration relating solely to employee benefit plans on Form S-1, Form S-3
or Form S-8 or similar forms which may be promulgated in the future, or a
registration relating solely to an SEC Rule 145 transaction on Form S-4
or similar forms which may be promulgated in the future.


 


1.15                        Termination
of Registration Rights.


 


No Holder shall be entitled
to exercise any right provided for in this Section 1 after the earlier of (i) five
(5) years following the consummation of the Initial Offering; (ii) such
time as Rule 144 or another similar exemption under the Securities Act is
available for the sale of all of such Holder’s shares during a three (3) month
period without registration; and (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).


 


2.                                      COVENANTS.


 


2.1                               Delivery
of Financial Statements.


 


(a)                                  The Company will maintain true books and records of account
in which full and correct entries will be made of all its business transactions
pursuant to a system of accounting established and administered in accordance
with generally accepted accounting principles consistently applied, and will
set aside on its books all such proper accruals and reserves as shall be
required under generally accepted accounting principles consistently applied.


 


(b)                                 As soon as practicable after the end of each fiscal year of
the Company, the Company will furnish each Investor holding at least ten
million (10,000,000) shares of Series A Preferred Stock (as adjusted for
recapitalizations, stock splits, stock dividends and the like) (each, a “Major
Investor”) and IAC/InterActiveCorp a balance sheet of the Company, as at the
end of such fiscal year, and a statement of income and a statement of cash
flows of the Company, for such year, all prepared in accordance with generally
accepted accounting principles consistently applied and setting forth in each
case in comparative form the figures for the previous fiscal year, all in
reasonable detail.  Such financial
statements shall be audited and certified by independent public accountants of
national standing selected by the Company’s Board of Directors.


 


(c)                                  The Company will furnish each Major Investor, as soon as
practicable after the end of the first, second and third quarterly accounting
periods in each fiscal year of the 


 


13

















 


Company, and in any event within sixty (60) days thereafter,
an unaudited balance sheet of the Company as of the end of each such quarterly
period, and an unaudited statement of income and an unaudited statement of cash
flows of the Company for such period and for the current fiscal year to date,
including a comparison to plan figures for such period, prepared in accordance
with generally accepted accounting principles, with the exception that no notes
need be attached to such statements and year-end audit adjustments may not have
been made.


 


(d)                                 The Company will furnish each Major Investor at least thirty
(30) days prior to the beginning of each fiscal year an annual budget and
operating plans for such fiscal year (and as soon as available, any subsequent
revisions thereto).


 


(e)                                  Each Major Investor shall have the right to visit and inspect
any of the properties of the Company or any of its subsidiaries, and to discuss
the affairs, finances and accounts of the Company or any of its subsidiaries
with its officers, and to review such information as is reasonably requested
all at such reasonable times and as often as may be reasonably requested; provided, however, that the Company shall not be obligated
under this Section 2.1(d) with respect to a competitor of the Company
or with respect to information which the Board of Directors determines in good
faith is confidential and should not, therefore, be disclosed.


 


2.2                               Right
of First Offer.


 


Subject to the terms and
conditions specified in this paragraph 2.2, the Company hereby grants to each
Investor holding at least four million (4,000,000) shares of Registrable
Securities (as adjusted for recapitalizations, stock splits, stock dividends
and the like) (each, a “Senior 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 2.2,
shares of Registrable Securities held by general partners or affiliates of an
Investor shall be aggregated with shares held by such Investor.  An 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, any class of its capital stock (“Shares”),
the Company shall first make an offering of such Shares to each Senior Investor
in accordance with the following provisions.


 


(a)                                  The Company shall deliver a notice in accordance with Section 3.5
(the “Notice”) to the Senior Investor 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 receipt of the Notice, each Senior Investor may by delivery
of written notice to the Company elect to purchase or obtain, 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 Registrable Securities
issued and held, or issuable upon exercise and/or conversion of other
securities then held, by such Senior Investor bears to the total number of
shares of Common 


 


14

















 


Stock of the Company then outstanding (assuming full conversion
and exercise of all convertible or exercisable securities).  The Company shall promptly, in writing,
inform each Senior Investor that elects to purchase all the shares available to
it (a “Fully-Exercising Senior Investor”) of any other Senior Investor’s
failure to do likewise.  During the ten (10) day
period commencing after such information is given, each Fully Exercising Senior
Investor may elect to purchase that portion of the Shares for which the other
Senior Investors were entitled to subscribe but which were not subscribed for
by such Senior Investors that is equal to the proportion that the number of
shares of Common Stock issued and held, or issuable upon conversion of
Registrable Securities then held, by such Fully Exercising Senior Investor bears
to the total number of shares of Common Stock issued and held, or issuable upon
conversion of the Registrable Securities then held, by all Fully Exercising
Senior Investors who wish to purchase some of the unsubscribed shares.


 


(c)                                  If all Shares that Senior Investors are entitled to obtain or
purchase pursuant to subsection 2.2(b) are not elected to be obtained or
purchased as provided in subsection 2.2(b) hereof, the Company may, during
the ninety (90) day period following the expiration of the period provided in
subsection 2.2(b) hereof, offer the remaining unsubscribed portion of such
Shares to any person or persons at a price not less than, and upon terms no
more favorable to the offeree than, those 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 ninety (90) 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 Senior Investors in accordance herewith.


 


(d)                                 The right of first offer in this paragraph 2.2 shall not be
applicable:  (i) to the issuance of
Common Stock issued pursuant to a transaction described in Article IV(B)(4)(d)(iii) of
the Company’s Certificate of Incorporation; (ii) to the issuance or sale
of shares of Common Stock issuable or issued to employees, consultants,
directors and other service providers for the primary purpose of soliciting or
retaining their services pursuant to plans or agreements approved by the
Company Board of Directors; (iii) to the issuance or sale 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; (iv) to the issuance or sale of securities to financial
institutions or lessors in connection with bona fide, arms length commercial
credit arrangements, equipment financings, or similar transactions approved by
the Board of Directors; (v) to shares issued upon conversion or exercise
of any of the Company’s convertible or exercisable securities; (vi) to the
issuance or sale of the Series B Preferred Stock pursuant to and as
contemplated by the Purchase Agreement as of even date herewith; (vii) to
the issuance of Common Stock issued or deemed issued pursuant to Article IV
(B)(4)(d)(i)(E) as a result of a decrease in the conversion price of Series A
Preferred Stock or Series B Preferred Stock; and (viii) to the
issuance of Common Stock issued, in the aggregate amount of up to twenty-five
percent (25%) of the fully-diluted capital stock of the Company, in connection
with strategic commercial relationships that are unanimously approved by the
Board of Directors.


 


15

















 


2.3                               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.


 


2.4                               Stock
Vesting.


 


Except as otherwise
determined by the Company’s Board of Directors, all grants of options under the
Company’s 1999 Stock Option Plan made following the date of this Agreement
shall be subject to the following vesting schedule:  25% shall vest on the 12 month anniversary of
the employment relationship of the grantee, and the remaining unvested portion
shall vest over the 36 months following the 12 month anniversary of such
relationship.


 


2.5                               Termination
of Covenants.


 


The covenants set forth in
Sections 2.1, 2.2, 2.3 and 2.4 shall terminate and be of no further force or
effect (i) immediately prior to the consummation of the Company’s public
offering of shares of its Common Stock registered under the Securities Act
resulting in net proceeds to the Company of at least $30,000,000, or (ii) upon
a Liquidation Event, as that term is defined in the Company’s Restated
Certificate of Incorporation (as amended from time to time).  The covenants set forth in Section 2.1
shall terminate as to each Investor and be of no further force or effect when
the Company first becomes subject to the periodic reporting requirements of
Sections 13 or 15(d) of the Exchange Act, if this occurs earlier than the
events described in (i) or (ii) above.


 


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 of the 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 and all acts
and transactions pursuant hereto shall be governed, construed and interpreted in
accordance with the laws of the State of California, without giving effect to
principles of conflicts of laws.


 


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.


 


16

















 


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.


 


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                               Amendments
and Waivers.


 


Any term of this Agreement
(other than Section 2.1, Section 2.2 and Section 2.5) 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 then outstanding.  Section 2.1 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 held by Major Investors; provided that
Section 2.1 (b) may only be amended or waived (either generally or in
a particular instance and either retroactively or prospectively) with the
written consent of the Company, the holders of a majority of the Registrable
Securities held by Major Investors and the holders of a majority of the
Registrable Securities held by IAC/InterActiveCorp or its transferee authorized
pursuant to the Purchase Agreement.  Section 2.2
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, the holders of a majority of the Registrable Securities held by Senior
Investors.  Section 2.5 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 held by (i) Major
Investors in the event that the termination provisions related to Section 2.1
are being amended or waived, provided that if the termination provisions
related to Section 2.1(b) are being amended or waived in a manner
that adversely affects IAC/InterActiveCorp., the written consent of the holders
of a majority of the Registrable Securities held by IAC/InterActiveCorp or its
transferee authorized pursuant to the Purchase Agreement shall be required, or (ii) Senior
Investors in the event that the termination provisions 


 


17

















 


of
Section 2.2 are being amended or waived. 
Any amendment or waiver effected in accordance with this paragraph shall
be binding upon each holder of any Registrable Securities then outstanding,
each future holder of all such Registrable Securities, and the Company.


 


3.8                               Severability.


 


If one or more provisions of
this Agreement are held to be unenforceable under applicable law, the parties
agree to renegotiate such provision in good faith.  In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (a) such
provision shall be excluded from this Agreement, (b) the balance of the
Agreement shall be interpreted as if such provision were so excluded, and (c) the
balance of the Agreement shall be enforceable in accordance with its terms.


 


3.9                               Aggregation
of Stock.


 


All shares of the
Registrable Securities held or acquired by affiliated entities or persons shall
be aggregated together for the purpose of determining the availability of any
rights under this Agreement.


 


3.10                        Additional
Closings.


 


Any purchasers who acquire
shares of the Company’s Series B Preferred Stock pursuant to the Purchase
Agreement after the date hereof may become parties to this Investors’ Rights
Agreement by executing a signature page hereto.


 


3.11                        Facsimile
Execution and Delivery.


 


A facsimile, telecopy or
other reproduction of this Agreement may be executed by one or more parties
hereto, and an executed copy of this Agreement may be delivered by one or more
parties hereto by facsimile or similar electronic transmission device pursuant
to which the signatures of or on behalf of such party can be seen, and such
execution and delivery, shall be considered valid, binding and effective for
all purposes.  At the request of any
party hereto, all parties agree to execute an original of this Agreement as
well as any facsimile, telecopy or other reproduction hereof.


 


3.12                        Prior
Agreement.


 


The Prior Agreement is
hereby amended and restated in its entirety and shall be of no further force or
effect.


 


[Signature
Pages Follow]


 


18

















 


The parties have executed
this Investors’ Rights Agreement as of the date first above written.


 


 


	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
  OpenTable, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas H. Layton

  
	
   

  	
   

  	
  Name:

  	
  Thomas H. Layton

  
	
   

  	
   

  	
  Title:

  	
  Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  799 Market Street,
  No. 400

  
	
   

  	
   

  	
  San Francisco, CA 94103

  
					



 


SIGNATURE PAGE TO AMENDED AND INVESTORS’ RIGHTS AGREEMENT


 














 


	
   

  	
  Impact Venture Partners, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Adam Dell

  
	
   

  	
   

  	
  Name:

  	
  Adam Dell

  
	
   

  	
   

  	
  Title:

  	
  General Partner

  
					



 


 


	
   

  	
  Impact Entrepreneurs Fund, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Adam Dell

  
	
   

  	
   

  	
  Name:

  	
  Adam Dell

  
	
   

  	
   

  	
  Title:

  	
  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  600 Madison, 25th Floor

  
	
   

  	
   

  	
  New York, New York 10022

  
					



 


 


	
   

  	
  With a copy to:

  
	
   

  	
   

  
	
   

  	
  Jenkens &
  Gilchrist

  
	
   

  	
  Attn: John A. Menchaca, 11

  
	
   

  	
  2200 One American Center

  
	
   

  	
  600 Congress Avenue

  
	
   

  	
  Austin, Texas 78701

  



 


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  Benchmark Capital Partners IV,
  L.P.  

  
	
   

  	
  as nominee for

  
	
   

  	
  Benchmark Capital Partners
  IV, L.P. 

  
	
   

  	
  Benchmark Founders Fund
  IV, L.P. 

  
	
   

  	
  Benchmark Founders Fund
  IV-A, L.P. 

  
	
   

  	
  Benchmark Founders Fund
  IV-B, L.P. 

  
	
   

  	
  and related individuals

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Benchmark Capital
  Management Co. IV,

  
	
   

  	
  L.L.C.

  
	
   

  	
  its general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven M. Spurlock

  
	
   

  	
   

  	
  Name:

  	
  Steven M. Spurlock

  
	
   

  	
   

  	
  Title:

  	
  Managing Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  2480 Sand Hill Road

  
	
   

  	
   

  	
  Menlo Park,
  California  94082

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  With a copy to:

  
	
   

  	
   

  
	
   

  	
  Jenkens &
  Gilchrist

  
	
   

  	
  Attn:  John A. Menchaca, II

  
	
   

  	
  2200 One American Center

  
	
   

  	
  600 Congress Avenue

  
	
   

  	
  Austin, Texas 78701

  



 


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  IAC/InterActiveCorp

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Eric Korman

  
	
   

  	
   

  
	
   

  	
  Its:

  	
  VP, M&A

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  152 West 57th Street, 42nd
  Floor

  
	
   

  	
   

  	
  New York, New York 10019

  
					



 


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  Integral Capital Partners V,
  L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Integral Capital
  Management V, L.L.C.

  
	
   

  	
   

  	
  Its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Pamela K. Hagenah

  
	
   

  	
   

  	
  Managing Member

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  3000 Sand Hill Road, Bldg
  3, Ste 240 

  
	
   

  	
   

  	
  Menlo Park, California
  94025

  
					



 


 


	
   

  	
  Integral Capital Partners V
  Side Fund, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Integral Capital
  Management V, L.L.C.

  
	
   

  	
   

  	
  Its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Pamela K. Hagenah

  
	
   

  	
   

  	
  Managing Member

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  3000 Sand Hill Road, Bldg
  3, Ste 240 

  
	
   

  	
   

  	
  Menlo Park, California
  94025

  
					



 


 


	
   

  	
  Integral Capital Partners V SLP
  Side Fund, 

  L.L.C.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Integral Capital
  Management V, L.L.C.

  
	
   

  	
   

  	
  Its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Pamela K. Hagenah

  
	
   

  	
   

  	
  Managing Member

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  3000 Sand Hill Road, Bldg
  3, Ste 240 

  
	
   

  	
   

  	
  Menlo Park, California
  94025

  
					



 


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  Thomas
  H. Layton Separate Property Trust

  
	
   

  	
  Dated
  November 29, 1999, as amended

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Thomas H. Layton

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  	
   

  
	
   

  	
   

  	
   

  
						



 


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EXHIBIT A


 


INVESTORS


 


Impact
Venture Partners, L.P.


 


Impact
Entrepreneurs Fund, L.P.


 


Benchmark
Capital Partners IV, L.P.


 


IAC/InterActiveCorp


 


Integral
Capital Partners V, L.P.


 


Integral
Capital Partners Side Fund, L.P.


 


Integral
Capital Partners SLP Side Fund, L.L.C.


 


Draper
Richards L.P.


 


David
V. Crowder and Alisyn Y. Crowder, trustees u/a/d 6/30/99


 


Horesy
Family Living Trust


 


Arba,
L.L.C.


 


Andrew
John England


 


Michael
D. Dellar and Leslye L. Dellar Trustees of the Michael D. Dellar and Leslye L.
Dellar Revocable Trust, Dated 11/5/96


 


Hospitality
Investments, G.P.


 


Thomas
H. Layton Separate Property Trust Dated November 29, 1999, as amended