First Amendment to Amended and Restated Investor Rights Agreement



 EXHIBIT4.3 
  

FIRST AMENDMENT TO AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT 
  
 THIS FIRST AMENDMENT TO AMENDED AND RESTATED INVESTOR RIGHTS
AGREEMENT (the “Amendment”) is made and executed, dated for reference purposes as of February 12, 2004, and effective with respect to each provision hereof as of the “Effective Date”
specified for such provision in Section 5.1, below (the “Effective Date”), by and among CALLWAVE, INC., a California corporation (the “Company”),
and each holder of outstanding shares of the Company’s Preferred Stock (each, an “Investor”), with reference to the following facts: 
  
 RECITALS: 
  
 A. The Company and those persons (the “Prior Holders”) who then held outstanding shares of the Company’s Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, and Series E Preferred Stock (collectively, the “Prior Series”) previously executed that certain “Amended and Restated Investor Rights
Agreement” dated as of May 31, 2001 (the “Rights Agreement”), pursuant to which, inter alia, (i) the Company granted certain registration rights to the Prior Holders, (ii) the Prior Holders agreed that their shares of
Company capital stock subject to that Rights Agreement would be subject to a “market stand-off” restriction, and (iii) the Company granted certain information rights to the Investors. 
  
 B. Concurrently herewith, each person that is executing this Amendment as an
“Insight Investor” hereunder (each, an “Insight Investor,” and collectively, the “Insight Investors”) is purchasing certain shares of the Company’s Common Stock and certain shares of the
Company’s Series E Preferred Stock (the “Series E Preferred”), and the Company is agreeing that the Insight Investors hereafter may exchange such shares of Series E Preferred for shares of the Company’s Series E-1
Preferred Stock (the “Series E-1 Preferred”). 
  
 C. In connection with the Insight Investors’ purchase of the shares of Common Stock and Series E Preferred Stock, the Company has agreed to amend the Rights Agreement in order to confirm that: 
  
 (i) The first date for exercise of certain demand registration rights under
the Rights Agreement shall be deferred until June 30, 2007; 
  
 (ii) As of the date on which any Insight Investor first purchases any shares of the Company’s Series E Preferred, such Insight Investor shall become a party to the Rights Agreement, and thereupon (A) may exercise thereunder with
respect to the shares of Series E Preferred that such Insight Investor holds (and any other shares issued upon conversion or exchange thereof) all of the registration rights granted in Section 2 of the Rights Agreement, and (B) shall be entitled to
the information rights set forth in Section 3 of the Rights Agreement; and 
  
 (iii) As of the date on which this Amendment has been executed by all of the parties to the Rights Agreement, the Insight Investors shall be entitled to exercise with respect to the shares of Series E-1 Preferred (and
any other shares issued upon conversion or exchange thereof) that they may hold the registration rights set forth in Section 2 of the Rights Agreement. 
  
 C. The parties have agreed to execute this Amendment in order to memorialize their understandings with respect to the foregoing matters. 







 AGREEMENTS: 
  
 NOW, THEREFORE, the parties hereto, intending to be legally bound, do
hereby agree as follows: 
  
 1. AMENDMENT OF
REGISTRATION RIGHTS 
  
 1.1
AMENDMENT OF SECTION 1.6. Section 1.6 of the Rights Agreement is hereby amended in its entirety to read as follows: 
  
 1.6 “Preferred Stock” means, collectively, the Company’s (i) Series A Preferred
Stock, (ii) Series B Preferred Stock, (iii) Series C Preferred Stock, (iv) Series D Preferred Stock, (v) Series E Preferred Stock, and (vi) Series E-1 Preferred Stock. 
  
 1.2 AMENDMENT OF SECTION 2.1. Clause “(i)” of the first
paragraph of Section 2.1 of the Rights Agreement is hereby amended by deleting “April 30, 2002” therefrom, and inserting in its place the following: June 30, 2007. 
  
 2. INFORMATION RIGHTS TO INSIGHT INVESTORS.
Notwithstanding any provision of the Rights Agreement to the contrary, and as an inducement to the Insight Investors to purchase shares of the Company’s capital stock, the Company hereby agrees that each Insight Investor shall be entitled to
all of the information rights set forth in Section 3 of the Rights Agreement. 
  
 3. JOINDER BY INSIGHT INVESTORS. Each of the Insight Investors is hereby added as a party to the Rights Agreement, effective as of the Effective Date set
forth in Section 5.1(a), below, and hereafter: 
  
 3.1
SERIES E PREFERRED RIGHTS. May exercise with respect to shares of the Series E Preferred held by such Insight Investor, all rights conferred upon “Investors” in the Rights
Agreement with respect to shares of Series E Preferred; 
  
 3.2
RESTRICTIONS. Shall be subject to all restrictions imposed upon the “Investors” therein (including the “market stand-off restriction” described therein); and 
  
 3.3 SERIES E-1 PREFERRED
RIGHTS. May exercise from and after the “Effective Date” specified in Section 5.1(b), below, with respect to shares of the Series E-1 Preferred held by such Insight Investor, all rights conferred upon
“Investors” in the Rights Agreement with respect to shares of Series E-1 Preferred. 
  
 4. AMENDMENT OF RIGHTS AGREEMENT 
  
 4.1 DELETION OF SECTION 2.11. Section 2.11 of the Rights Agreement is hereby deleted in its entirety.

  
 4.2 AMENDMENT OF
SECTION 4.7. Section 4.7 of the Rights Agreement is hereby amended to read as follows in its entirety: 
  
 4.7 ENTIRE AGREEMENT; AMENDMENTS. This Agreement represents the
entire understanding of the parties regarding the subject matter hereof, and supersedes and replaces all prior and contemporaneous understandings of the parties regarding such subject matter. Any term hereof may be amended, waived, discharged or
terminated by a written instrument signed by the Company and the holders of a majority of the Registrable 
  

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 Securities; provided that no amendment or waiver shall be adverse to the rights of any one or more
holders of Registrable Securities in a manner different than the manner in which the rights of other holders of Registrable Securities are affected, without the written consent of each such holder whose rights are affected in a more adverse manner.
Any amendment or waiver effected in accordance with this Section shall be binding upon each holder of Registrable Securities at the time outstanding, each future holder of all such securities, and the Company. 
  
 5. MISCELLANEOUS 
  
 5.1 EFFECTIVE DATE. This Effective Date
of this Amendment shall be as follows: 
  
 (a)
IMMEDIATE EFFECTIVE DATE. The provisions of Sections 1.2, 2, 3.1, 3.2, and this Section 5 hereof shall be effective as of February 12, 2004. 
  
 (b) DELAYED EFFECTIVE
DATE. The provisions of Sections 1.1, 3.3 and 4 hereof shall be effective as of the first date on which each Investor that is a party to the Rights Agreement has executed this Amendment. 
  
 5.2 COUNTERPARTS; FACSIMILE
SIGNATURES. This Amendment may be executed in counterparts, each of which shall be binding upon the signatories thereto and all of which, taken together, shall be treated as one and the same instrument, binding on each signatory
thereto. A copy of this Amendment that is executed by a party and transmitted to any other party by facsimile shall be binding upon the signatory to the same extent as a copy hereof containing that party’s original signature. Any party
executing this Amendment by facsimile agrees, upon the request of any other party, to execute and deliver a counterpart hereof containing that party’s original signature. 
  
 5.3 RATIFICATION. Except as expressly modified by the foregoing Sections hereof, the
Rights Agreement is hereby ratified and confirmed and remains in full force and effect. 
  
 [Signatures appear on the following page.] 
  

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 IN WITNESS WHEREOF, the undersigned
have executed this Amendment, effective as of the “Effective Date” set forth above. 
  
 “COMPANY:” 
  

					
	 	 	 CALLWAVE, INC., a California corporation

			
	 2/12/04

	 	 By
	 	 /s/ David F. Hofstatter


	Date	 	 	 	 David F. Hofstatter, President & CEO

		
	 	 	Address, Telephone, and Facsimile for Notices:
		
	 	 	 CallWave, Inc.
 ATTN: CEO
 136 West Canon Perdido Street
 Santa Barbara, California 93101
 Telephone No.: (805) 690-4111
 Facsimile No.: (805) 690-4211

		
	 	 	With a copy to:
		
	 	 	 Reicker, Pfau, Pyle, McRoy & Herman LLP
 ATTN: Michael E. Pfau, Esq.
 1421 State Street, Suite B
 Santa Barbara, California 93101
 Telephone No.: (805) 966-2440
 Facsimile No.: (805) 966-3320


  
 [Signatures of
Additional Investors appear on following pages.] 
  

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 “INSIGHT INVESTORS:” 
  

											
	INSIGHT VENTURE PARTNERS IV, L.P.	 	INSIGHT VENTURE PARTNERS (CAYMAN) IV, L.P.
				
	 By
	 	 INSIGHT VENTURE ASSOCIATES IV,

 L.L.C., its General Partner
	 	 By
	 	 INSIGHT VENTURE ASSOCIATES IV,

 L.L.C., its Investment General Partner

						
	 	 	 By
	 	 /s/ Jerry Murdock

	 	 	 	 By
	 	 /s/ Jerry Murdock


	 	 	 	 	 Name & title:
	 	 	 	 	 	 Name & title:

		
	INSIGHT VENTURE PARTNERS IV (CO-INVESTORS), L.P.	 	INSIGHT VENTURE PARTNERS IV (FUND B), L.P.
				
	 By
	 	 INSIGHT VENTURE ASSOCIATES IV,

 L.L.C., its General Partner
	 	 By
	 	 INSIGHT VENTURE ASSOCIATES IV, 
 L.L.C., its General Partner

						
	 	 	 	 	 	 	 	 	 By
	 	 /s/ Jerry Murdock


	 	 	 By
	 	 /s/ Jerry Murdock

	 	 	 	 	 	 Name & title:

	 	 	 	 	 Name & title:
	 	 
				
	 	 	 	 	 	 	Address And Facsimile No. for Each Insight Investor:
				
	 	 	 	 	 	 	 680 Fifth Avenue
 New York, New York 10019
 Telephone: 212-230-9200
 Facsimile: 212-230-9272
 Attn: George McCulloch

				
	 	 	 	 	 	 	With a copy to:
				
	 	 	 	 	 	 	 O’MELVENY & MYERS LLP
 30 Rockefeller Plaza
 New York, New York 10112
 Telephone: 212-408-2400
 Facsimile: 212-408-2420
 Attn: Ilan S. Nissan, Esq.


  
 [Signatures of
Additional Investors appear on following pages.] 
  

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 [Investor Signature Page to First Amendment to Amended and Restated Investor Rights Agreement.]

  

							
	     /s/    Scott Zelnick
	  	 	  	     /s/    Julie Zelnick
	  	 
	
	  	

	 Investor Signature
	  	Date	  	 Investor Signature
	  	Date
		
	
	  	

	 Investor Printed Name
	  	 Investor Printed Name

		
	
	  	

	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)	  	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)
		
	Address and Facsimile Number for Notices:	  	Address and Facsimile Number for Notices:
		
	
	  	

		
	
	  	

		
	
	  	

		
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	     /s/    Barry Fingerhut
	  	4/13/04	  	     /s/    Douglas Smith
	  	4/13/04
	
	  	

	 Investor Signature
	  	Date	  	 Investor Signature
	  	Date
		
	     Barry Fingerhut

	  	     Douglas Smith


	 Investor Printed Name
	  	 Investor Printed Name

		
	
	  	

	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)	  	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)
		
	Address and Facsimile Number for Notices:	  	Address and Facsimile Number for Notices:
		
	
	  	

		
	
	  	

		
	
	  	

		
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 [Investor Signature Page to First Amendment to Amended and Restated Investor Rights Agreement.]

  

							
	     /s/    Terry L. Scott
	  	4/12/04	  	     /s/    Cliff R. Schoelle
	  	4/13/04
	
	  	

	 Investor Signature
	  	Date	  	 Investor Signature
	  	Date
		
	     Terry L. Scott

	  	     Cliff R. Schoelle


	 Investor Printed Name
	  	 Investor Printed Name

		
	
	  	     Trustee


	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)	  	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)
		
	Address and Facsimile Number for Notices:	  	Address and Facsimile Number for Notices:
		
	
	  	

		
	
	  	

		
	
	  	

		
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	     /s/    Michael D. Grable
	  	4/12/04	  	     /s/    Diane M. Schoelle
	  	4/13/04
	
	  	

	 Investor Signature
	  	Date	  	 Investor Signature
	  	Date
		
	
	  	     Diane M. Schoelle


	 Investor Printed Name
	  	 Investor Printed Name

		
	
	  	     Trustee


	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)	  	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)
		
	Address and Facsimile Number for Notices:	  	Address and Facsimile Number for Notices:
		
	
	  	

		
	
	  	

		
	
	  	

		
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 [Investor Signature Page to First Amendment to Amended and Restated Investor Rights Agreement.]

  

							
	     /s/    Albert Vitale
	  	4/16/04	  	     /s/    John D. Markel
	  	 
	
	  	

	 Investor Signature
	  	Date	  	 Investor Signature
	  	Date
		
	     Albert Vitale

	  	     John D. Markel


	 Investor Printed Name
	  	 Investor Printed Name

		
	
	  	

	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)	  	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)
		
	Address and Facsimile Number for Notices:	  	Address and Facsimile Number for Notices:
		
	
	  	

		
	
	  	

		
	
	  	

		
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	     /s/    Patrick McBrien
	  	4/16/04	  	     /s/    Irwin Lieber
	  	4/10/04
	
	  	

	 Investor Signature
	  	Date	  	 Investor Signature
	  	Date
		
	
	  	

	 Investor Printed Name
	  	 Investor Printed Name

		
	
	  	

	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)	  	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)
		
	Address and Facsimile Number for Notices:	  	Address and Facsimile Number for Notices:
		
	
	  	

		
	
	  	

		
	
	  	

		
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 [Investor Signature Page to First Amendment to Amended and Restated Investor Rights Agreement.]

  

							
	     /s/    Charles F. Schwartz
	  	4/14/04	  	     /s/    Christine Schwartz
	  	4/14/04
	
	  	

	 Investor Signature
	  	Date	  	 Investor Signature
	  	Date
		
	     Charles F. Schwartz

	  	     Christine Schwartz


	 Investor Printed Name
	  	 Investor Printed Name

		
	
	  	

	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)	  	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)
		
	Address and Facsimile Number for Notices:	  	Address and Facsimile Number for Notices:
		
	
	  	

		
	
	  	

		
	
	  	

		
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	     /s/    Michael F. Whalen, Jr.
	  	4/13/04	  	     /s/    Dr. Josephine Whalen
	  	4/16/04
	
	  	

	 Investor Signature
	  	Date	  	 Investor Signature
	  	Date
		
	     Michael F. Whalen, Jr.

	  	     Dr. Josephine Whalen


	 Investor Printed Name
	  	 Investor Printed Name

		
	
	  	

	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)	  	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)
		
	Address and Facsimile Number for Notices:	  	Address and Facsimile Number for Notices:
		
	
	  	

		
	
	  	

		
	
	  	

		
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 [Investor Signature Page to First Amendment to Amended and Restated Investor Rights Agreement.]

  

							
	     /s/    William J. Kaszeta
	  	 	  	     /s/    Sandra W. Kaszeta
	  	4/12/04
	
	  	

	 Investor Signature
	  	Date	  	 Investor Signature
	  	Date
		
	     William J. Kaszeta

	  	     Sandra W. Kaszeta


	 Investor Printed Name
	  	 Investor Printed Name

		
	     Trustee

	  	     Trustee


	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)	  	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)
		
	Address and Facsimile Number for Notices:	  	Address and Facsimile Number for Notices:
		
	
	  	

		
	
	  	

		
	
	  	

		
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	     /s/    M. H. Gray
	  	4/9/04	  	     /s/    G. Dale Gray and Mary Gray
	  	4/9/04
	
	  	

	 Investor Signature
	  	Date	  	 Investor Signature
	  	Date
		
	     M. H. Gray

	  	     G. Dale Gray and Mary Gray


	 Investor Printed Name
	  	 Investor Printed Name

		
	
	  	

	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)	  	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)
		
	Address and Facsimile Number for Notices:	  	Address and Facsimile Number for Notices:
		
	
	  	

		
	
	  	

		
	
	  	

		
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 [Investor Signature Page to First Amendment to Amended and Restated Investor Rights Agreement.]

  

							
	     /s/    Robert V. D’Aiello
	  	4/11/04	  	     /s/    Marie Ann D’Aiello
	  	4/11/04
	
	  	

	 Investor Signature
	  	Date	  	 Investor Signature
	  	Date
		
	     Robert V. D’Aiello

	  	     Marie Ann D’Aiello


	 Investor Printed Name
	  	 Investor Printed Name

		
	
	  	

	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)	  	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)
		
	Address and Facsimile Number for Notices:	  	Address and Facsimile Number for Notices:
		
	
	  	

		
	
	  	

		
	
	  	

		
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	     /s/    JoEtta McClintock
	  	4/12/04	  	     /s/    RM Crill
	  	 
	
	  	

	 Investor Signature
	  	Date	  	 Investor Signature
	  	Date
		
	
	  	     RM Crill


	 Investor Printed Name
	  	 Investor Printed Name

		
	
	  	

	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)	  	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)
		
	Address and Facsimile Number for Notices:	  	Address and Facsimile Number for Notices:
		
	
	  	

		
	
	  	

		
	
	  	

		
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 [Investor Signature Page to First Amendment to Amended and Restated Investor Rights Agreement.]

  

							
	     /s/    FW Albershardt
	  	5/6/04	  	     /s/    Joan S. Albershardt
	  	5/6/04
	
	  	

	 Investor Signature
	  	Date	  	 Investor Signature
	  	Date
		
	     Fritz W. Albershardt

	  	     Joan S. Albershardt


	 Investor Printed Name
	  	 Investor Printed Name

		
	
	  	

	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)	  	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)
		
	Address and Facsimile Number for Notices:	  	Address and Facsimile Number for Notices:
		
	
	  	

		
	
	  	

		
	
	  	

		
	 Telephone No.: (            )
                            
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	     /s/    Kelly Masuda
	  	4/8/04	  	     /s/    Monica Masuda
	  	4/8/04
	
	  	

	 Investor Signature
	  	Date	  	 Investor Signature
	  	Date
		
	     Kelly Masuda

	  	     Monica Masuda


	 Investor Printed Name
	  	 Investor Printed Name

		
	
	  	

	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)	  	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)
		
	Address and Facsimile Number for Notices:	  	Address and Facsimile Number for Notices:
		
	
	  	

		
	
	  	

		
	
	  	

		
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 [Investor Signature Page to First Amendment to Amended and Restated Investor Rights Agreement.]

  

							
	     /s/    Abood Family Trust
	  	4/12/04	  	 	  	 
	
	  	

	 Investor Signature
	  	Date	  	 Investor Signature
	  	Date
		
	     Nick Abood

	  	

	 Investor Printed Name
	  	 Investor Printed Name

		
	     Trustee

	  	

	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)	  	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)
		
	Address and Facsimile Number for Notices:	  	Address and Facsimile Number for Notices:
		
	
	  	

		
	
	  	

		
	
	  	

		
	 Telephone No.: (            )
                            
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	     /s/    David L. Oster
	  	4/11/04	  	     /s/    Nancy M. Oster
	  	4/11/04
	
	  	

	 Investor Signature
	  	Date	  	 Investor Signature
	  	Date
		
	     David L. Oster

	  	     Nancy M. Oster


	 Investor Printed Name
	  	 Investor Printed Name

		
	
	  	

	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)	  	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)
		
	Address and Facsimile Number for Notices:	  	Address and Facsimile Number for Notices:
		
	
	  	

		
	
	  	

		
	
	  	

		
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 [Investor Signature Page to First Amendment to Amended and Restated Investor Rights Agreement.]

  

							
	     /s/    Bradley I. Sobel
	  	4/9/04	  	     /s/    Howard Sobel
	  	4/10/04
	
	  	

	 Investor Signature
	  	Date	  	 Investor Signature
	  	Date
		
	     Bradley I. Sobel

	  	     Howard Sobel


	 Investor Printed Name
	  	 Investor Printed Name

		
	
	  	

	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)	  	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)
		
	Address and Facsimile Number for Notices:	  	Address and Facsimile Number for Notices:
		
	
	  	

		
	
	  	

		
	
	  	

		
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	     /s/    Scott C. Brittingham
	  	4/12/04	  	     /s/    Michael S. Nicassio
	  	4/9/04
	
	  	

	 Investor Signature
	  	Date	  	 Investor Signature
	  	Date
		
	     Scott C. Brittingham

	  	     Michael S. Nicassio


	 Investor Printed Name
	  	 Investor Printed Name

		
	     Trustee

	  	

	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)	  	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)
		
	Address and Facsimile Number for Notices:	  	Address and Facsimile Number for Notices:
		
	
	  	

		
	
	  	

		
	
	  	

		
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 [Investor Signature Page to First Amendment to Amended and Restated Investor Rights Agreement.]

  

							
	     /s/    Michael S. Nicassio
	  	4/9/04	  	     /s/    Kurt E. Albershardt
	  	4/9/04
	
	  	

	 Investor Signature
	  	Date	  	 Investor Signature
	  	Date
		
	     Michael S. Nicassio

	  	     Kurt E. Albershardt


	 Investor Printed Name
	  	 Investor Printed Name

		
	     Trustee Nicassio Family Trust

	  	

	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)	  	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)
		
	Address and Facsimile Number for Notices:	  	Address and Facsimile Number for Notices:
		
	
	  	

		
	
	  	

		
	
	  	

		
	 Telephone No.: (            )
                            
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	     /s/    Thomas Murphy
	  	4/10/04	  	     /s/    David McClintock
	  	4/13/04
	
	  	

	 Investor Signature
	  	Date	  	 Investor Signature
	  	Date
		
	     Thomas Murphy

	  	     David McClintock


	 Investor Printed Name
	  	 Investor Printed Name

		
	
	  	

	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)	  	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)
		
	Address and Facsimile Number for Notices:	  	Address and Facsimile Number for Notices:
		
	
	  	

		
	
	  	

		
	
	  	

		
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 [Investor Signature Page to First Amendment to Amended and Restated Investor Rights Agreement.]

  

							
	     /s/    Andrew Winchester
	  	4/14/04	  	     /s/    Sunil Kripalani
	  	4/18/04
	
	  	

	 Investor Signature
	  	Date	  	 Investor Signature
	  	Date
		
	     Andrew Winchester

	  	     Sunil Kripalani


	 Investor Printed Name
	  	 Investor Printed Name

		
	
	  	

	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)	  	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)
		
	Address and Facsimile Number for Notices:	  	Address and Facsimile Number for Notices:
		
	
	  	

		
	
	  	

		
	
	  	

		
	 Telephone No.: (            )
                            
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	     /s/    Warren Bloss
	  	4/18/04	  	     /s/    Lorraine Ivanditto-Bloss
	  	 
	
	  	

	 Investor Signature
	  	Date	  	 Investor Signature
	  	Date
		
	     Warren Bloss

	  	     Lorraine Ivanditto-Bloss


	 Investor Printed Name
	  	 Investor Printed Name

		
	
	  	

	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)	  	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)
		
	Address and Facsimile Number for Notices:	  	Address and Facsimile Number for Notices:
		
	
	  	

		
	
	  	

		
	
	  	

		
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 [Investor Signature Page to First Amendment to Amended and Restated Investor Rights Agreement.]

  

							
	     /s/    Todd A. Rowley
	  	4/17/04	  	     /s/    John Petote
	  	4/20/04
	
	  	

	 Investor Signature
	  	Date	  	 Investor Signature
	  	Date
		
	     Todd A. Rowley

	  	     John Petote


	 Investor Printed Name
	  	 Investor Printed Name

		
	
	  	

	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)	  	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)
		
	Address and Facsimile Number for Notices:	  	Address and Facsimile Number for Notices:
		
	
	  	

		
	
	  	

		
	
	  	

		
	 Telephone No.: (            )
                            
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	     /s/    Ian Mausner
	  	4/16/04	  	     /s/    James Thomas McClintock
	  	4/22/04
	
	  	

	 Investor Signature
	  	Date	  	 Investor Signature
	  	Date
		
	     Ian Mausner, Trustee

	  	     James Thomas McClintock


	 Investor Printed Name
	  	 Investor Printed Name

		
	     The Enterprise Trust

	  	

	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)	  	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)
		
	Address and Facsimile Number for Notices:	  	Address and Facsimile Number for Notices:
		
	
	  	

		
	
	  	

		
	
	  	

		
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 [Investor Signature Page to First Amendment to Amended and Restated Investor Rights Agreement.]

  

							
	     /s/    Michael A. Kramer
	  	4/18/04	  	     /s/    M. Oristano
	  	 
	
	  	

	 Investor Signature
	  	Date	  	 Investor Signature
	  	Date
		
	
	  	     Alda Limited Partnership


	 Investor Printed Name
	  	 Investor Printed Name

		
	
	  	     President of General Partner


	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)	  	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)
		
	Address and Facsimile Number for Notices:	  	Address and Facsimile Number for Notices:
		
	
	  	

		
	
	  	

		
	
	  	

		
	 Telephone No.: (            )
                            
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	     /s/    Matthew Oristano
	  	4/26/04	  	     /s/    Matthew Oristano
	  	4/26/04
	
	  	

	 Investor Signature
	  	Date	  	 Investor Signature
	  	Date
		
	     Matthew Oristano

	  	     Oristano Foundation


	 Investor Printed Name
	  	 Investor Printed Name

		
	
	  	     VP-Treasurer


	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)	  	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)
		
	Address and Facsimile Number for Notices:	  	Address and Facsimile Number for Notices:
		
	
	  	

		
	
	  	

		
	
	  	

		
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 [Investor Signature Page to First Amendment to Amended and Restated Investor Rights Agreement.]

  

							
	     /s/    Matthew Oristano
	  	4/26/04	  	     /s/    Maureen Laughlin
	  	4/23/04
	
	  	

	 Investor Signature
	  	Date	  	 Investor Signature
	  	Date
		
	     OREOS3 LP

	  	     Maureen Laughlin


	 Investor Printed Name
	  	 Investor Printed Name

		
	     General Partner

	  	     Trustee


	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)	  	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)
		
	Address and Facsimile Number for Notices:	  	Address and Facsimile Number for Notices:
		
	
	  	

		
	
	  	

		
	
	  	

		
	 Telephone No.: (            )
                            
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	     /s/    Palmer Jackson
	  	5/5/04	  	     /s/    John Vidovich
	  	5/3/04
	
	  	

	 Investor Signature
	  	Date	  	 Investor Signature
	  	Date
		
	     Palmer Jackson

	  	     John Vidovich


	 Investor Printed Name
	  	 Investor Printed Name

		
	
	  	     DeAnza Properties


	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)	  	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)
		
	Address and Facsimile Number for Notices:	  	Address and Facsimile Number for Notices:
		
	
	  	

		
	
	  	

		
	
	  	

		
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 [Investor Signature Page to First Amendment to Amended and Restated Investor Rights Agreement.]

  

							
	     /s/    John Vidovich
	  	5/3/04	  	 	  	 
	
	  	

	 Investor Signature
	  	Date	  	 Investor Signature
	  	Date
		
	     John Vidovich

	  	

	 Investor Printed Name
	  	 Investor Printed Name

		
	     General Partner—VG Investments

	  	

	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)	  	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)
		
	Address and Facsimile Number for Notices:	  	Address and Facsimile Number for Notices:
		
	
	  	

		
	
	  	

		
	
	  	

		
	 Telephone No.: (            )
                            
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	 Investor Signature
	  	Date	  	 Investor Signature
	  	Date
		
	
	  	

	 Investor Printed Name
	  	 Investor Printed Name

		
	
	  	

	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)	  	Title of Person Signing (for Investors that are entities or fiduciaries) (e.g., “Trustee”)
		
	Address and Facsimile Number for Notices:	  	Address and Facsimile Number for Notices:
		
	
	  	

		
	
	  	

		
	
	  	

		
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