Tender and Voting Agreement by and among ARRIS Group, Inc., Amsterdam Acquisition Sub, Inc. and certain stockholders of BigBand Networks, Inc

TENDER AND VOTING AGREEMENT

 

by and among

 

ARRIS GROUP, INC.,

 

AMSTERDAM ACQUISITION SUB, INC.

 

and

 

THE PERSONS LISTED ON SCHEDULE I HERETO

 

Dated as of October 10, 2011

 

 

 

This TENDER AND VOTING AGREEMENT, dated as of October 10, 2011 (this “Agreement”), is by and among ARRIS Group, Inc., a Delaware corporation (“Parent”), Amsterdam Acquisition Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“Acquisition Sub”), and the persons listed on Schedule I hereto (collectively, the “Company Stockholders”).

 

WHEREAS, as of the date hereof, each Company Stockholder is the record or “beneficial holder” (as defined under Rule 13d-3 under the Exchange Act) of the number of shares of common stock (the “Company Common Stock”), par value $0.001 per share, of BigBand Networks, Inc., a Delaware corporation (the “Company”), set forth opposite such Company Stockholder’s name on Schedule I hereto (all such shares of Company Common Stock together with any shares of Company Common Stock acquired by a Company Stockholder after the date hereof, the “Subject Shares”; provided that Company Options beneficially owned by such Company Stockholder (“Subject Options”) shall not be considered “Subject Shares” prior to their exercise, and shares of Company Common Stock issued upon exercise of Subject Options shall be considered “Subject Shares”);

 

WHEREAS, concurrently with the execution and delivery of this Agreement, Parent, Acquisition Sub and the Company are entering into an Agreement and Plan of Merger, dated as of the date hereof (as it may be amended from time to time, the “Merger Agreement”; capitalized terms used herein without definition shall have the respective meanings ascribed to them in the Merger Agreement), pursuant to which, among other things, (a) Acquisition Sub will commence a tender offer to purchase all of the outstanding shares of Company Common Stock (such offer as it may be amended from time to time as permitted by the Merger Agreement, the “Offer”), and (b) following the consummation of the Offer, Acquisition Sub will be merged with and into the Company (the “Merger”), with the Company being the surviving corporation, all upon the terms and subject to the conditions set forth in the Merger Agreement; and

 

WHEREAS, as a condition to their willingness to enter into and perform their obligations under the Merger Agreement, Parent and Acquisition Sub have requested that each Company Stockholder enter into this Agreement, and each Company Stockholder has agreed to do so in order to induce Parent and Acquisition Sub to enter into, and in consideration of their entering into, the Merger Agreement;

 

NOW, THEREFORE, in consideration of the foregoing and of the representations, warranties, covenants and agreements herein contained, and intending to be legally bound hereby, the parties hereto agree as follows:

 

 

 

Section 1.1             Agreement to Tender.

 

 

 

(b)           Each Company Stockholder agrees that once the Subject Shares are tendered into the Offer, such Company Stockholder shall not withdraw the tender of such Subject Shares unless (i) the Offer shall have been terminated or shall have expired, in each case, in accordance with the terms of the Merger Agreement, or the Merger Agreement has been terminated in accordance with its terms or (ii) this Agreement has been terminated in accordance with Section 5.1.

 

Section 1.2              Agreement to Vote.

 

(a)           From the date hereof until the termination of this Agreement in accordance with Section 5.1, except to the extent waived in writing by Parent in its sole and absolute discretion, at any meeting of the stockholders of the Company, however called, or at any adjournment thereof, or in connection with any written consent of the stockholders of the Company or in any other circumstances upon which a vote, consent or other approval of all or some of the stockholders of the Company is sought, each Company Stockholder shall vote (or cause to be voted) all of such Company Stockholder’s Subject Shares (to the extent the Subject Shares are not purchased in the Offer): (a) in favor of adoption of the Merger Agreement; and (b) against the following actions (other than the Merger and the transactions contemplated by the Merger Agreement): (i) any Acquisition Proposal or Acquisition Transaction; (ii) any change in the present capitalization of the Company or any amendment of the Company’s certificate of incorporation or by-laws; (iii) any reorganization, recapitalization, liquidation or winding-up of the Company or any other extraordinary transaction involving the Company; and (iv) any corporate action the consummation of which would prevent or delay the consummation of the transactions contemplated by the Merger Agreement.

 

(b)           In the event that a meeting of the stockholders of the Company is held, each Company Stockholder shall, or shall cause the holder of record of its Subject Shares on any applicable record date to, appear at such meeting or otherwise cause its Subject Shares to be counted as present thereat for purposes of establishing a quorum.

 

(c)           Each Company Stockholder shall not enter into any agreement or understanding with any Person to vote or give instructions in any manner inconsistent with the terms of this Section 1.2.

 

 

 

Each Company Stockholder hereby severally, and not jointly, represents and warrants to Parent and Acquisition Sub (as to such Company Stockholder) as follows:

 

Section 2.1             Organization; Authority.  Such Company Stockholder (if not a natural person) is an entity duly organized, validly existing and in good standing under applicable Laws of the jurisdiction in which it is incorporated or constituted.  Such Company Stockholder has all necessary legal capacity, power, and authority to execute and deliver this Agreement and to consummate the transactions contemplated by this Agreement. The execution and delivery of this Agreement by such Company Stockholder and the consummation of the transactions contemplated by this Agreement have been duly authorized by all necessary action on the part of such Company Stockholder and, assuming the due authorization, execution, and delivery of this Agreement by Parent, Acquisition Sub and each other Company Stockholder, this Agreement constitutes a legal, valid, and binding obligation of such Company Stockholder, enforceable against such Company Stockholder in accordance with its terms.

 

 

Section 2.2             Ownership of Subject Shares; Total Shares.  As of the date hereof, such Company Stockholder is the record or beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of, and has good title to, the Subject Shares listed beside such Company Stockholder’s name on Schedule I attached hereto, free and clear of all claims, liens, encumbrances and security interests of any nature whatsoever (including any restriction on the right to vote or otherwise transfer such Subject Shares), except as provided hereunder or pursuant to any applicable restrictions on transfer under the Securities Act. As of the date hereof, such Company Stockholder does not own, beneficially or otherwise, any Company Shares, Company Options or other securities of the Company other than as set forth opposite such Company Stockholder’s name in Schedule I hereto.

 

Section 2.3             Voting Power.  Such Company Stockholder has sole voting power and sole power to issue instructions with respect to the matters set forth in this Agreement, sole power of disposition with respect to dispositions contemplated by this Agreement, and sole power to agree to all of the matters set forth in this Agreement, in each case with respect to all of such Company Stockholder’s Subject Shares, with no material limitations, qualifications, or restrictions on such rights, subject only to applicable securities laws and the terms of this Agreement.

 

Section 2.4             Consents and Approvals; No Violation.  (i) Except as may be set forth in the Merger Agreement (including, without limitation, filings as may be required under applicable securities laws) and any filing required under Section 13 or 16 under the Exchange Act, no filing with, and no permit, authorization, consent, or approval of, any Governmental Authority is necessary for the execution of this Agreement by such Company Stockholder and the consummation by such Company Stockholder of the transactions contemplated by this Agreement, and (ii) none of the execution and delivery of this Agreement by such Company Stockholder, the consummation by such Company Stockholder of the transactions contemplated by this Agreement or compliance by such Company Stockholder with any of the provisions of this Agreement shall (A) conflict with or result in any breach of the organizational documents, if applicable, of such Company Stockholder, (B) result in a violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to any third party right of termination, cancellation, amendment, or acceleration) under any of the terms, conditions, or provisions of any note, bond, mortgage, indenture, license, contract, commitment, arrangement, understanding, agreement, or other instrument or obligation of any kind to which such Company Stockholder is a party, or (C) subject to compliance with filing requirements as may be required under applicable securities laws, violate any order, writ, injunction, decree, judgment, statute, rule, or regulation applicable to such Company Stockholder, except in each case under clauses (B) and (C), where the absence of filing or authorization, conflict, violation, breach, or default would not materially impair or materially adversely affect the ability of such Company Stockholder to perform such Company Stockholder’s obligations hereunder.

 

Section 2.5             No Finder’s Fees.  Except as contemplated by the Merger Agreement, no broker, investment banker, financial advisor, or other person is entitled to any broker’s, finder’s, financial advisor’s, or other similar fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of such Company Stockholder.

 

Section 2.6             Acknowledgement.  Such Company Stockholder understands and acknowledges that each of Parent and Acquisition Sub is entering into the Merger Agreement in reliance upon such Company Stockholder’s execution, delivery and performance of this Agreement.

 

 

 

Parent and Acquisition Sub hereby represent and warrant to the Company Stockholders as follows:

 

 

Section 3.1             Organization.  Each of Parent and Acquisition Sub is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware.

 

Section 3.2             Corporate Authorization; Validity of Agreement; Necessary Action.  Each of Parent and Acquisition Sub has the corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated by this Agreement.  The execution and delivery of this Agreement by Parent and Acquisition Sub and the consummation of the transactions contemplated by this Agreement have been duly authorized by all necessary action on the part of Parent and Acquisition Sub, and, assuming the due authorization, execution and delivery of this Agreement by each of the Company Stockholders, this Agreement constitutes a legal, valid and binding obligation of each of Parent and Acquisition Sub, enforceable against each in accordance with its terms.

 

Section 3.3             Consents and Approvals; No Violation.  (i) Except as may be set forth in the Merger Agreement (including, without limitation, filings as may be required under applicable securities laws) and any filing required under Section 13 or 16 under the Exchange Act, no filing with, and no permit, authorization, consent, or approval of, any Governmental Authority is necessary for the execution of this Agreement by each of Parent and Acquisition Sub and the consummation by each of Parent and Acquisition Sub of the transactions contemplated by this Agreement, and (ii) none of the execution and delivery of this Agreement by each of Parent and Acquisition Sub, the consummation by each of Parent and Acquisition Sub of the transactions contemplated by this Agreement or compliance by each of Parent and Acquisition Sub with any of the provisions of this Agreement shall (A) conflict with or result in any breach of the organizational documents Parent or Acquisition Sub, (B) result in a violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to any third party right of termination, cancellation, amendment, or acceleration) under any of the terms, conditions, or provisions of any note, bond, mortgage, indenture, license, contract, commitment, arrangement, understanding, agreement, or other instrument or obligation of any kind to which Parent or Acquisition Sub is a party, or (C) subject to compliance with filing requirements as may be required under applicable securities laws, violate any order, writ, injunction, decree, judgment, statute, rule, or regulation applicable to Parent or Acquisition Sub, except in each case under clauses (B) or (C), where the absence of filing or authorization, conflict, violation, breach, or default would not materially impair or materially adversely effect the ability of each of Parent and Acquisition Sub to perform its respective obligations hereunder.

 

 

 

Each Company Stockholder severally covenants and agrees as follows:

 

Section 4.1             Restriction on Transfer, Proxies, and Non-Interference.  Except as contemplated by this Agreement or the Merger Agreement, during the period beginning from the execution and delivery by the parties of this Agreement through the earlier of (1) the Effective Time, (2) the termination of the Merger Agreement, or (3) the termination of this Agreement in accordance with Section 5.1, each Company Stockholder shall not (i) directly or indirectly, offer for sale, sell, transfer, tender, pledge, encumber, assign, or otherwise dispose of (each, a “Transfer”), or enter into any contract, option, or other arrangement or understanding (including any profit sharing arrangement) with respect to the Transfer of, any or all of such Company Stockholder’s Subject Shares, Subject Options, Company RSUs or any other securities of the Company or any interest therein to any Person, other than (A) pursuant to the Merger Agreement or the Offer, (B) in connection with the exercise of any Company Options or vesting Company RSUs (it being understood and agreed that any shares of Company Common Stock issued upon the exercise of Company Options or the vesting of Company RSUs shall be subject to the restrictions set forth in this Section 4.1), (C) Transfers from a brokerage account maintained by such Company Stockholder to such Company Stockholder or to a bona fide custodian in the name of such Company Stockholder, or (D) Transfers to any Affiliate of such Company Stockholder, provided that as a condition to the effectiveness of such Transfer, such Affiliate shall have executed and delivered to Parent and Acquisition Sub a written instrument agreeing to be bound by the terms of this Agreement as a Company Stockholder for all purposes hereunder; (ii) grant any proxies or powers of attorney, or any other authorization or consent with respect to any or all of such Company Stockholder’s Subject Shares that could reasonably be expected to impede, interfere with or prevent the Merger; or (iii) deposit any of such Company Stockholder’s Subject Shares or Subject Options into a voting trust or enter into a voting agreement with respect to any of such Company Stockholder’s Subject Shares or Subject Options, other than pursuant to this Agreement.

 

 

Section 4.2              Stop Transfer; Changes in Subject Shares.  Each Company Stockholder agrees with, and covenants to, Parent and Acquisition Sub that (i) this Agreement and the obligations hereunder shall attach to such Company Stockholder’s Subject Shares and Subject Options and shall be binding upon any person or entity to which legal or beneficial ownership shall pass, whether by operation of law or otherwise, including, without limitation, such Company Stockholder’s successors or assigns and (ii) such Company Stockholder shall not request that the Company register the transfer (book-entry or otherwise) of any certificate or uncertificated interest representing any or all of the Company Stockholder’s Subject Shares or Subject Options, unless such transfer is made in compliance with this Agreement. Notwithstanding any Transfer of Subject Shares or Subject Options, the transferor shall remain liable for the performance of all of the obligations of the applicable Company Stockholder under this Agreement, except for any such Transfer pursuant to the Merger Agreement or the Offer.

 

Section 4.3             Appraisal Rights.  Except in the event of the termination of this Agreement in accordance with Section 5.1, each Company Stockholder hereby waives any rights of appraisal or rights to dissent from the Merger that such Company Stockholder may have (including, without limitation, under Section 262 of the DGCL).

 

 

Section 4.5             Stockholder Capacity.  Each Company Stockholder enters into this Agreement solely in its capacity as the record or beneficial owner of its Subject Shares. Nothing contained in this Agreement shall limit the rights and obligations of any Company Stockholder, any of its Affiliates, Representatives or any employee of any of its Affiliates in his or her capacity as a director or officer of the Company, and the agreements set forth herein shall in no way restrict any director or officer of the Company in the exercise of his or her fiduciary duties as a director or officer of the Company.

 

Section 4.6             Documentation and Information.  Each Company Stockholder (i) consents to and authorizes the publication and disclosure by Parent and its Affiliates of its identity and holding of such Company Stockholder’s Subject Shares and the nature of its commitments and obligations under this Agreement in any announcement or disclosure required by the SEC or other Governmental Authority, the Offer Documents, or any other disclosure document in connection with the Offer, the Merger or any of the other transactions contemplated by the Merger Agreement or this Agreement, and (ii) agrees promptly to give to Parent any information it may reasonably require for the preparation of any such disclosure documents.  Each Company Stockholder agrees to promptly notify Parent of any required corrections with respect to any written information supplied by it specifically for use in any such disclosure document, if and to the extent that any shall have become false or misleading in any material respect.

 

 

Section 4.7             No Solicitation.  Each Company Stockholder agrees, solely in its capacity as such, that it shall not, and shall not authorize or permit any of its representatives to, directly or indirectly, take any action with respect to any Acquisition Proposal that the Company is prohibited from taking under Section 6.2 of the Merger Agreement; provided that, in the event that the Company takes permissible action under Section 6.2 of the Merger Agreement, each Company Stockholder will be entitled to participate in all actions that the Company is or would be entitled to take under Section 6.2 of the Merger Agreement so long as such actions are taken in compliance with such Section 6.2 and the provisions of this Agreement.

 

 

 

Section 5.1             This Agreement and the covenants and agreements set forth in this Agreement shall terminate automatically (without any further action of the parties) upon the earlier to occur of (i) the termination of the Merger Agreement in accordance with its terms, including, without limitation, termination in the event that the Company Board shall have effected a Company Board Recommendation Change, (ii) the termination or expiration of the Offer, without any shares being accepted for payment thereunder, (iii) the Effective Time, (iv) the amendment of the terms of the Offer to reduce the price for the Company Shares and (v) March 31, 2012.  In the event of termination of this Agreement pursuant to this Section 5.1, this Agreement shall become void and of no effect with no liability on the part of any party; provided, however, no such termination shall relieve any party from liability for any breach hereof prior to such termination.

 

 

 

Section 6.1             Governing Law; Jurisdiction; Waiver of Jury Trial.

 

(a)           This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof.

 

(b)           Each of the parties hereto (i) irrevocably consents to the service of the summons and complaint and any other process in any action or proceeding relating to the transactions contemplated by this Agreement, for and on behalf of itself or any of its properties or assets, in accordance with Section 6.5 or in such other manner as may be permitted by applicable Law, and nothing in this Section 6.1(b) shall affect the right of any party to serve legal process in any other manner permitted by applicable Law; (ii) irrevocably and unconditionally consents and submits itself and its properties and assets in any action or proceeding to the exclusive jurisdiction of the Court of Chancery of the State of Delaware (or, only if the Court of Chancery of the State of Delaware declines to accept jurisdiction over a particular matter, any federal court within the State of Delaware) in the event any dispute or controversy arises out of this Agreement or the transactions contemplated hereby, or for recognition and enforcement of any judgment in respect thereof; (iii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court; (iv) agrees that any actions or proceedings arising in connection with this Agreement or the transactions contemplated hereby shall be brought, tried and determined only in the Court of Chancery of the State of Delaware (or, only if the Court of Chancery of the State of Delaware declines to accept jurisdiction over a particular matter, any federal court within the State of Delaware); (v) waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same; and (vi) agrees that it will not bring any action relating to this Agreement or the transactions contemplated hereby in any court other than the aforesaid courts. Each of Parent, Acquisition Sub and the Company Stockholders agrees that a final judgment in any action or proceeding in such courts as provided above shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law.

 

 

(c)           EACH OF PARENT, ACQUISITION SUB AND THE COMPANY STOCKHOLDERS HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF PARENT, ACQUISITION SUB OR THE COMPANY STOCKHOLDERS IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.

 

Section 6.2             Specific Performance.  Each Company Stockholder acknowledges and agrees that (a) the covenants, obligations and agreements of such Company Stockholder contained in this Agreement relate to special, unique and extraordinary matters, (b) Parent is and will be relying on such covenants, obligations and agreements in connection with entering into the Merger Agreement and the performance of Parent’s obligations under the Merger Agreement, and (c) a violation of any of the covenants, obligations or agreements of such Company Stockholder contained in this Agreement will cause Parent irreparable injury for which adequate remedies are not available at law. Therefore, each Company Stockholder agrees that Parent shall be entitled to an injunction, restraining order or such other equitable relief as a court of competent jurisdiction may deem necessary or appropriate to restrain such Company Stockholder, as the case may be, from committing any violation of such covenants, obligations or agreements and to specifically enforce the terms of this Agreement. These injunctive remedies are cumulative and in addition to any other rights and remedies Parent may have under applicable law.

 

Section 6.3             Assignment; No Third Party Beneficiaries.  This Agreement shall not be assignable or otherwise transferable by a party without the prior consent of the other parties, and any attempt to so assign or otherwise transfer this Agreement without such consent shall be void and of no effect; provided, however, that (a) Parent may, in its sole discretion, assign or transfer all or any of its rights, interests and obligations under this Agreement to any direct or indirect wholly owned subsidiary of Parent, but no such assignment shall relieve Parent from its obligations under this Agreement and (b) any Company Stockholder may, in its sole discretion, assign or transfer all or any of its rights, interests and obligations under this Agreement to any Affiliate of such Company Stockholder in connection with a Transfer made in accordance with clause (i)(D) of Section 4.1. This Agreement shall be binding upon the respective heirs, successors, legal representatives and permitted assigns of the parties hereto. Nothing in this Agreement shall be construed as giving any Person, other than the parties hereto and their heirs, successors, legal representatives and permitted assigns, any right, remedy or claim under or in respect of this Agreement or any provision hereof.

 

Section 6.4             Amendments, Waivers, etc.  Neither this Agreement nor any term hereof may be amended other than by an instrument in writing signed by Parent, Acquisition Sub and the Company Stockholders. No provision of this Agreement may be waived, discharged or terminated other than by an instrument in writing signed by the party against whom the enforcement of such waiver, discharge or termination is sought, except that this Agreement may be terminated as set forth in Section 5.1.

 

 

Section 6.5             Notices.  All notices, requests and other communications to any party hereunder shall be in writing and shall be deemed given if delivered either personally, by facsimile transmission (with acknowledgment received), by electronic mail (with receipt confirmed) or by overnight courier (providing proof of delivery) to the parties at the following addresses:

 

If to the Company Stockholders: At the address set forth beside each Company Stockholder’s name listed on Schedule I.

 

If to Parent or Acquisition Sub, to:

ARRIS Group, Inc.

3871 Lakefield Dr.

Suwanee, Georgia  30024

Attention: Lawrence A. Margolis

Facsimile No.: (678) 473-8470

 

or such other address, facsimile number or email address as such party may hereafter specify by notice to the other parties hereto. All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5 P.M. in the place of receipt and such day is a Business Day in the place of receipt.  Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding Business Day in the place of receipt.

 

Section 6.6             Expenses.  Except as otherwise provided herein, all costs and expenses incurred in connection with the transactions contemplated by this Agreement shall be paid by the party incurring such costs and expenses.

 

Section 6.7             Remedies.  No failure or delay by any party in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies provided herein shall be cumulative and not exclusive of any rights or remedies provided by law.

 

Section 6.8             Severability.  If any term or provision of this Agreement is held to be invalid, illegal, incapable of being enforced by any rule of law, or public policy, or unenforceable for any reason, it shall be adjusted rather than voided, if possible, in order to achieve the intent of the parties hereto to the maximum extent possible. In any event, the invalidity or unenforceability of any provision of this Agreement in any jurisdiction shall not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability of this Agreement, including that provision, in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the terms of this Agreement remain as originally contemplated to the fullest extent possible.

 

Section 6.9             Entire Agreement.  This Agreement constitutes the entire agreement among the parties with respect to the subject matter of this Agreement and supersedes all other prior agreements and understandings, both written and oral, between the parties with respect to the subject matter of this Agreement.

 

Section 6.10           Section Headings.  The article and section headings used in this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.

 

 

Section 6.11           Public Announcements.  From the date hereof until the termination of this Agreement in accordance with Section 5.1, no Company Stockholder shall issue any press release or make any other public statement with respect to the transactions contemplated by this Agreement and the Merger Agreement without the prior written consent of Parent, except as such release or statement may be required by applicable Law or the rules and regulations of any applicable United States securities exchange or regulatory or Governmental Authority to which the relevant Company Stockholder is subject or submits.

 

Section 6.12           Counterparts.  This Agreement may be executed in two or more counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by telecopier shall be effective as delivery of a manually executed counterpart of this Agreement.

 

[SIGNATURE PAGES FOLLOW]

 

 

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

 

 

 

 

 

 

 

 

 

 

 

 

Company Stockholder (Name and Address)		Shares of Company Common Stock				Other Securities of the Company
ValueAct SmallCap Master Fund, L.P. 435 Pacific Avenue, Fourth Floor, San Francisco, CA  94133			10,008,635
“Redpoint Ventures”
Redpoint Omega Associates, LLC			65,255
Redpoint Omega, LLC			2,307,624
Redpoint Associates I, LLC			283,824
Redpoint Technology Partners A-1, L.P.			141,831
Redpoint Technology Partners Q-I, L.P.			887,613
Redpoint Ventures I, L.P.			8,984,679
3000 Sand Hill Road, Suite 290, Menlo Park, CA 94025