Common use of Waiver of Conflict of Interest Clause in Contracts

Waiver of Conflict of Interest. Parent and Merger Sub understand that the Company has been represented by Xxxxxxxx & Xxxxxxxx LLP as counsel to the Company, including in the preparation, negotiation and execution of this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby, and that Xxxxxxxx & Xxxxxxxx LLP has not represented any director or employee of the Company or any Company Securityholder in the preparation, negotiation and execution of this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Parent, Merger Sub and the Company acknowledge and agree that Xxxxxxxx & Xxxxxxxx LLP may after the Closing represent one or more of the Shareholders’ Representative, the Effective Time Holders and/or their Affiliates in matters related to the transactions contemplated by this Agreement and the Escrow Agreement including the representation of such Persons or their Affiliates in matters related to post-Closing claims made by Parent, the Surviving Corporation and any other Indemnitees under the indemnification provisions in Article 9 and other claims that may arise out of or relate to this Agreement. Parent and the Company hereby acknowledge, on behalf of themselves and their Affiliates, that they have had an opportunity to ask for and have obtained information relevant to such representation, including disclosure of the reasonably foreseeable adverse consequences of such representation, and they hereby waive any conflict arising out of such future representation with respect to the matters contemplated by this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby. The parties hereto have caused this Agreement to be executed and delivered as of the date first set forth above. SEMTECH CORPORATION a Delaware corporation By: /s/ Xxxxx Xxxxxxxxxx Name: Xxxxx Xxxxxxxxxx Title: President and Chief Executive Officer SIERRA MONOLITHICS, INC. a California corporation By: /s/ Xxxxx Xxxxx Name: Xxxxx Xxxxx Title: President and Chief Executive Officer By: /s/ Trevor Roots Name: Trevor Roots Title: Chief Financial Officer, Secretary and Senior Vice President, Finance SMI MERGER CORP. a California corporation By: /s/ Xxxxx Xxxxxxxxxx Name: Xxxxx Xxxxxxxxxx Title: President and Chief Executive Officer By: /s/ Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx Title: Secretary SHAREHOLDER REPRESENTATIVE SERVICES, LLC, Solely in its capacity as Shareholders’ Representative By: /s/ Xxxx Xxxxxx Name: Xxxx Xxxxxx Title: Manager [SIGNATURE PAGE TO AGREEMENT AND PLAN OF MERGER] EXHIBIT A CERTAIN DEFINITIONS For purposes of the Agreement (including this Exhibit A):

Waiver of Conflict of Interest. Parent and Merger Sub understand that F&W Investments LLC, an ------------------------------ affiliate of Fenwick & West LLP, may invest as an Investor under the Company has been represented by Xxxxxxxx & Xxxxxxxx LLP as counsel to the Company, including in the preparation, negotiation and execution of this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby, and that Xxxxxxxx & Xxxxxxxx LLP has not represented any director or employee of the Company or any Company Securityholder in the preparation, negotiation and execution terms of this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Parent, Merger Sub and the Company acknowledge and agree that Xxxxxxxx & Xxxxxxxx LLP may after the Closing represent one or more of the Shareholders’ Representative, the Effective Time Holders and/or their Affiliates in matters related to the transactions contemplated by this Agreement and the Escrow Agreement including the representation of such Persons or their Affiliates in matters related to post-Closing claims made by Parent, the Surviving Corporation and any other Indemnitees under the indemnification provisions in Article 9 and other claims that may arise out of or relate to By signing this Agreement. Parent , each Investor and the Company hereby acknowledge, on behalf acknowledges that the terms of themselves this Agreement were negotiated between the Investors and their Affiliates, the Company and are fair and reasonable and consents to the investment by F&W Investments LLC. Each Investor and the Company further represents that they have it has had an the opportunity to ask for and have obtained information relevant to such representationbe, including disclosure or has been, represented by independent counsel in giving the waivers contained in this Section 8.18. [Remainder of this page intentionally left blank] 20 <PAGE> In Witness Whereof, the reasonably foreseeable adverse consequences of such representation, and they hereby waive any conflict arising out of such future representation with respect to the matters contemplated by this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby. The parties hereto have caused executed this Securities Purchase Agreement to be executed and delivered as of the date first set forth written above. SEMTECH CORPORATION a Delaware corporation THE COMPANY: ----------- Kintana, Inc. By:/s/ Xxxx XxXxxxxxx ----------------------------------- Xxxx XxXxxxxxx Chief Financial Officer SIGNATURE PAGE TO KINTANA, INC SECURITIES PURCHASE AGREEMENT <PAGE> In Witness Whereof, the parties hereto have executed this Securities Purchase Agreement as of the date first written above. INVESTORS: --------- Camelot Ventures/Kintana, L.L.C. By: /s/ Xxxxx Xxxxxxxxxx Xxxxxxx ---------------------------- Name: Xxxxx Xxxxxxxxxx Xxxxxxx -------------------------- Title: President and Chief Executive Officer SIERRA MONOLITHICS------------------------- SIGNATURE PAGE TO KINTANA, INCINC SECURITIES PURCHASE AGREEMENT <PAGE> In Witness Whereof, the parties hereto have executed this Securities Purchase Agreement as of the date first written above. a California corporation INVESTORS: --------- By: /s/ Xxxxx X. Plug ---------------------------- Xxxxx NameX. Plug SIGNATURE PAGE TO KINTANA, INC SECURITIES PURCHASE AGREEMENT <PAGE> In Witness Whereof, the parties hereto have executed this Securities Purchase Agreement as of the date first written above. INVESTORS: Xxxxx Xxxxx Title--------- TA/Advent VIII L.P. By: President and Chief Executive Officer TA Associates VIII LLC, its General Partner By: TA Associates, Inc., its Manager By: /s/ Trevor Roots Xxxx Xxxxxxx ----------------------------- Xxxx Xxxxxxx Advent Atlantic & Pacific III L.P. By: TA Associates AAP III Partners, its General Partner By: TA Associates, Inc., its General Partner By: /s/ Xxxx Xxxxxxx ----------------------------- Xxxx Xxxxxxx TA Executives Fund LLC By: TA Associates, Inc., its Manager By: /s/ Xxxx Xxxxxxx ----------------------------- Xxxx Xxxxxxx TA Investors LLC By: TA Associates, Inc., its Manager By: /s/ Xxxx Xxxxxxx ----------------------------- Xxxx Xxxxxxx SIGNATURE PAGE TO KINTANA, INC SECURITIES PURCHASE AGREEMENT In Witness Whereof, the parties hereto have executed this Securities Purchase Agreement as of July 6, 2001, as amended by that certain Amendment to Securities Purchase Agreement dated April 5, 2001, that certain Second Amendment to Securities Purchase Agreement dated June 20, 2001, and that certain Third Amendment to Securities Purchase Agreement dated June 26, 2001. INVESTORS: ---------- MCP Global Corp. Ltd. By: /s/ Xxx X. Xxxxx -------------------------- Name: Trevor Roots Xxx X. Xxxxx ------------------------ Its: Director ------------------------- Coditec International Ltd. By: /s/ Xxx X. Xxxxx -------------------------- Name: Xxx X. Xxxxx ------------------------ Its: Investment Manager ------------------------- SIGNATURE PAGE TO KINTANA, INC., SECURITIES PURCHASE AGREEMENT In Witness Whereof, the parties hereto have executed this Securities Purchase Agreement as of the date first written above. INVESTORS: --------- Xxxxxxxx New Technologies Fund II, Inc. By: J. & X. Xxxxxxxx & Co. Incorporated, its investment advisor By: /s/ Storm Boswick -------------------------- Name: Storm Boswick ------------------------ Title: Chief Financial OfficerManaging Director ----------------------- Xxxxxxxx Technologies Venture Fund LLC By: J. & X. Xxxxxxxx & Co. Incorporated, Secretary and Senior Vice Presidentits investment advisor By: /s/ Storm Boswick -------------------------- Name: Storm Boswick ------------------------ Title: Managing Director ----------------------- SIGNATURE PAGE TO KINTANA, Finance SMI MERGER CORPINC., SECURITIES PURCHASE AGREEMENT In Witness Whereof, the parties hereto have executed this Securities Purchase Agreement as of the date first written above. a California corporation INVESTORS: --------- Fenwick & West Investments LLC By: /s/ Xxxxx Xxxxxxxxxx X. Xxxxxx Name: Xxxxx Xxxxxxxxxx X. Xxxxxx Title: President and Chief Executive Officer Partner In Witness Whereof, the parties hereto have executed this Securities Purchase Agreement as of the date first written above. INVESTORS: --------- U.S. Bancorp Xxxxx Xxxxxxx ECM Fund I, LLC By: /s/ Xxxxxxx X. Xxxxxxxx illegible Name: Xxxxxxx X. Xxxxxxxx illegible Title: Secretary SHAREHOLDER REPRESENTATIVE SERVICESPartner U.S. Bancorp Xxxxx Xxxxxxx ECM Fund I - Investors 02, LLCLLC By: /s/ illegible Name: illegible Title: Partner In Witness Whereof, Solely in its capacity the parties hereto have executed this Securities Purchase Agreement as Shareholders’ Representative of the date first written above. INVESTORS: --------- DRW Venture Partners LP By: /s/ Xxxx Xxxxxx Name: Xxxx Xxxxxx TitleIts: Manager [Director, DRW Finance and Administration <PAGE> In Witness Whereof, the parties hereto have executed this Securities Purchase Agreement as of June 28, 2001, as amended by that certain Amendment to Securities Purchase Agreement dated April 5, 2001, that certain Second Amendment to Securities Purchase Agreement dated June 20, 2001, and that certain Third Amendment to Securities Purchase Agreement dated June 26, 2001. INVESTORS: --------- Granite Global Ventures L.P. By: Granite Global Ventures, L.L.C., its General Partner By: /s/ Hany Nada ------------------------------------ Hany Nada, Managing Director SIGNATURE PAGE TO KINTANA, INC. SECURITIES PURCHASE AGREEMENT AND PLAN <PAGE> SECURITIES PURCHASE AGREEMENT LIST OF MERGER] EXHIBITS ---------------- Exhibit A - Schedule of Investors Exhibit B - Restated Certificate of Incorporation Exhibit C - Schedule of Exceptions Exhibit D - Employment Agreement Exhibit E - Financial Statements Exhibit F - Opinion of Company Counsel Exhibit G - Restated Rights Agreement Exhibit H - Restated Stockholders' Agreement Exhibit I - Restated Voting Agreement Exhibit J - Warrant to Camelot Exhibit K - Board Observation Side Letter Exhibit L - SBA Side Letter <PAGE> EXHIBIT A CERTAIN DEFINITIONS For purposes Schedule of Investors --------------------- <PAGE> EXHIBIT B Restated Certificate of Incorporation <PAGE> EXHIBIT C Schedule of Exceptions <PAGE> EXHIBIT D Employee Invention Assignment Agreement <PAGE> EXHIBIT E Financial Statements <PAGE> EXHIBIT F Opinion of Company Counsel <PAGE> EXHIBIT G Restated Rights Agreement <PAGE> EXHIBIT H Restated Stockholders' Agreement <PAGE> EXHIBIT I Restated Voting Agreement <PAGE> EXHIBIT J Warrant to Camelot <PAGE> EXHIBIT K Board Observation Side Letter <PAGE> EXHIBIT L SBA Side Letter <PAGE> AMENDMENT TO SECURITIES PURCHASE AGREEMENT This Amendment to the Securities Purchase Agreement (the "Amendment") is made and entered into as of April 5, 2001 by and among Kintana, Inc., a Delaware corporation (the "Company"), and the parties listed on the Schedule of Investors attached to this Amendment as Exhibit A (each hereinafter individually referred --------- to as an "Investor" and collectively referred to as the "Investors"). Capitalized terms not defined herein shall have the meanings ascribed to them in the Agreement (including this Exhibit A):as defined below).

Waiver of Conflict of Interest. Parent Each Purchaser and Merger Sub understand that the Company has been represented by Xxxxxxxx is aware that Fenwick & Xxxxxxxx West LLP as counsel (“F&W”) may have an investment in certain of the Purchasers or may have previously performed and may continue to perform certain legal services for certain of the Purchasers in matters unrelated to F&W’s representation of the Company. In connection with its Purchaser representation, including in the preparation, negotiation and execution F&W may have obtained confidential information of this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby, and such Purchasers that Xxxxxxxx & Xxxxxxxx LLP has not represented any director or employee could be material to F&W’s representation of the Company or any Company Securityholder in the preparationconnection with negotiation, negotiation execution and execution performance of this Agreement. In addition, the Escrow Agreement or the transactions contemplated hereby or thereby. Parentan affiliate of F&W, Merger Sub and the Company acknowledge and agree that Xxxxxxxx & Xxxxxxxx LLP may after the Closing represent one or more of the Shareholders’ Representative, the Effective Time Holders and/or their Affiliates in matters related to the transactions contemplated by this Agreement and the Escrow Agreement including the representation of such Persons or their Affiliates in matters related to post-Closing claims made by Parent, the Surviving Corporation and any other Indemnitees be investing as a Purchaser under the indemnification provisions in Article 9 and other claims that may arise out terms of or relate to this Agreement. Parent By signing this Agreement, each Purchaser and the Company hereby acknowledge(a) acknowledges that the terms of this Agreement were negotiated between the Purchasers and the Company, on behalf (b) waives any potential conflict of themselves and their Affiliates, that they have had an opportunity to ask for and have obtained information relevant to such representation, including disclosure of the reasonably foreseeable adverse consequences of such representation, and they hereby waive any conflict interest arising out of such representation (including any future representation with respect of such parties) or such possession of confidential information and (c) consents to the matters contemplated investment by this Agreement such affiliate of F&W. Each Purchaser and the Escrow Agreement and Company further represents that it has had the transactions contemplated hereby and therebyopportunity to be, or has been, represented by independent counsel in giving the waivers contained in this Section 6.18. The In Witness Whereof, the parties hereto have caused this executed the Series D Preferred Stock Purchase Agreement to be executed and delivered as of the date first set forth abovein the first paragraph hereof. SEMTECH CORPORATION COMPANY: LendingClub Corporation Signature: /s/ Xxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxxxxx Title: President & CEO In Witness Whereof, the parties hereto have executed the Series D Preferred Stock Purchase Agreement as of the date set forth in the first paragraph hereof. PURCHASERS: UNION SQUARE VENTURES OPPORTUNITY FUND, L.P., a Delaware corporation limited partnership By: Union Square Opportunity GP, L.L.C., its general partner and a Delaware limited liability company By: /s/ Xxxxx Xxxxxxxxxx Xxxx Xxxxxxxx Name: Xxxxx Xxxxxxxxxx Xxxx Xxxxxxxx Title: President and Chief Executive Officer SIERRA MONOLITHICSManaging Member Address: 000 Xxxxxxxx, INC00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 In Witness Whereof, the parties hereto have executed the Series D Preferred Stock Purchase Agreement as of the date set forth in the first paragraph hereof. a California corporation PURCHASERS: Foundation Capital VI, L.P. By: /s/ Xxxxx Xxxxx Name: Xxxxx Xxxxx Title: President and Chief Executive Officer By: /s/ Trevor Roots Name: Trevor Roots Title: Chief Financial OfficerFoundation Capital Management Co. VI, Secretary and Senior Vice PresidentLLC, Finance SMI MERGER CORP. a California corporation By: /s/ Xxxxx Xxxxxxxxxx Name: Xxxxx Xxxxxxxxxx Title: President and Chief Executive Officer its Manager By: /s/ Xxxxxxx X. Xxxxxxxx Xxxxxx Name: Xxxxxxx X. Xxxxxxxx Xxxxxx Title: Secretary SHAREHOLDER REPRESENTATIVE SERVICESGeneral Partner Address: 000 Xxxxxxxxxxx Xxxx Xxxxx Xxxx, XX 00000 Foundation Capital VI Principals Fund, LLC By: Foundation Capital Management Co. VI, LLC, Solely in its capacity as Shareholders’ Representative Manager By: /s/ Xxxx Xxxxxxx Xxxxxx Name: Xxxx Xxxxxxx Xxxxxx Title: Manager [SIGNATURE PAGE TO AGREEMENT AND PLAN OF MERGER] EXHIBIT A CERTAIN DEFINITIONS For purposes General Partner Address: 000 Xxxxxxxxxxx Xxxx Xxxxx Xxxx, XX 00000 In Witness Whereof, the parties hereto have executed the Series D Preferred Stock Purchase Agreement as of the date set forth in the first paragraph hereof. PURCHASER: Xxxxxxxxxxxx Ventures IX, L.P. By: Xxxxxxxxxxxx Management Partners IX, LLC, Its Managing Partner Signature: /s/ Xxxxxxx Xxxx Print Name: Title: Member Address: 0000 Xxxx Xxxx Xxxx, Xxx. 000 Xxxxx Xxxx, XX 00000 In Witness Whereof, the parties hereto have executed the Series D Preferred Stock Purchase Agreement (including this Exhibit A):as of the date set forth in the first paragraph hereof. PURCHASER: Norwest Venture Partners X, LP by: genesis vc partners x, llc, its general partner Signature: /s/ Xxxx Xxxxx Print Name: Title: General Partner Address: 000 Xxxxxxxxxx Xxxxxx, Xxx. 000 Xxxx Xxxx, XX 00000 In Witness Whereof, the parties hereto have executed the Series D Preferred Stock Purchase Agreement as of the date set forth in the first paragraph hereof. PURCHASER: Canaan VII L.P. By: Canaan Partners VII LLC Signature: /s/ Xxxxxx Xxxxxxx Print Name: Title:

Waiver of Conflict of Interest. Parent Each Purchaser and Merger Sub understand that the Company has been represented by Xxxxxxxx is aware that Fenwick & Xxxxxxxx West LLP as counsel (“F&W”) may have an investment in certain of the Purchasers or may have previously performed and may continue to perform certain legal services for certain of the Purchasers in matters unrelated to F&W’s representation of the Company. In connection with its Purchaser representation, including in the preparation, negotiation and execution F&W may have obtained confidential information of this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby, and such Purchasers that Xxxxxxxx & Xxxxxxxx LLP has not represented any director or employee could be material to F&W’s representation of the Company or any Company Securityholder in the preparationconnection with negotiation, negotiation execution and execution performance of this Agreement. In addition, the Escrow Agreement or the transactions contemplated hereby or thereby. Parentan affiliate of F&W, Merger Sub and the Company acknowledge and agree that Xxxxxxxx & Xxxxxxxx LLP may after the Closing represent one or more of the Shareholders’ Representative, the Effective Time Holders and/or their Affiliates in matters related to the transactions contemplated by this Agreement and the Escrow Agreement including the representation of such Persons or their Affiliates in matters related to post-Closing claims made by Parent, the Surviving Corporation and any other Indemnitees be investing as a Purchaser under the indemnification provisions in Article 9 and other claims that may arise out terms of or relate to this Agreement. Parent By signing this Agreement, each Purchaser and the Company hereby acknowledge(a) acknowledges that the terms of this Agreement were negotiated between the Purchasers and the Company, on behalf (b) waives any potential conflict of themselves and their Affiliates, that they have had an opportunity to ask for and have obtained information relevant to such representation, including disclosure of the reasonably foreseeable adverse consequences of such representation, and they hereby waive any conflict interest arising out of such representation (including any future representation with respect of such parties) or such possession of confidential information and (c) consents to the matters contemplated investment by this Agreement such affiliate of F&W. Each Purchaser and the Escrow Agreement and Company further represents that it has had the transactions contemplated hereby and therebyopportunity to be, or has been, represented by independent counsel in giving the waivers contained in this Section 6.18. The In Witness Whereof, the parties hereto have caused this executed the Series C Preferred Stock Purchase Agreement to be executed and delivered as of the date first set forth abovein the first paragraph hereof. SEMTECH CORPORATION a Delaware corporation ByCOMPANY: LendingClub Corporation Signature: /s/ Xxxxx Xxxxxxxxxx Xxxxxx Xxxxxxxxx Name: Xxxxx Xxxxxxxxxx Xxxxxx Xxxxxxxxx Title: President and Chief Executive Officer SIERRA MONOLITHICS& CEO Signature Page to Series C Preferred Stock In Witness Whereof, INCthe parties hereto have executed the Series C Preferred Stock Purchase Agreement as of the date set forth in the first paragraph hereof. a California corporation PURCHASERS: Foundation Capital VI, L.P. By: /s/ Xxxxx Xxxxx Name: Xxxxx Xxxxx Title: President and Chief Executive Officer By: /s/ Trevor Roots Name: Trevor Roots Title: Chief Financial OfficerFoundation Capital Management Co. VI, Secretary and Senior Vice PresidentLLC, Finance SMI MERGER CORP. a California corporation By: /s/ Xxxxx Xxxxxxxxxx Name: Xxxxx Xxxxxxxxxx Title: President and Chief Executive Officer its Manager By: /s/ Xxxxxxx X. Xxxxxxxx Xxxxxx Name: Xxxxxxx X. Xxxxxxxx Xxxxxx Title: Secretary SHAREHOLDER REPRESENTATIVE SERVICESGeneral Partner Address: 000 Xxxxxxxxxxx Xxxx Xxxxx Xxxx, XX 00000 Foundation Capital VI Principals Fund, LLC By: Foundation Capital Management Co. VI, LLC, Solely in its capacity as Shareholders’ Representative Manager By: /s/ Xxxx Xxxxxxx Xxxxxx Name: Xxxx Xxxxxxx Xxxxxx Title: Manager [SIGNATURE PAGE TO AGREEMENT AND PLAN OF MERGER] EXHIBIT A CERTAIN DEFINITIONS For purposes of the Agreement (including this Exhibit A):General Partner Address: 000 Xxxxxxxxxxx Xxxx Xxxxx Xxxx, XX 00000 Signature Page to Series C Preferred Stock Purchase Agreement