HYBRID NETWORKS, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SEPTEMBER 18, 1997
TABLE OF CONTENTS
Page
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1. Registration Rights...................................................2
1.1 Definitions......................................................2
1.2 Company Registration.............................................3
1.3 Obligations of the Company.......................................4
1.4 Furnish Information..............................................5
1.5 Expenses of Company Registration.................................5
1.6 Underwriting Requirements........................................5
1.7 Delay of Registration............................................6
1.8 Indemnification..................................................6
1.9 Reports Under Securities Exchange Act of 1934....................8
1.10 Form S-3 Registration............................................8
1.11 Assignment of Registration Rights...............................11
1.12 "Market Stand-Off" Agreement....................................12
1.13 Termination of Registration Rights..............................12
2. Covenants of the Company.............................................12
2.1 Delivery of Financial Statements................................12
2.2 Termination and Assignment of Information Covenants.............13
2.3 Right of First Offer............................................13
3. Miscellaneous........................................................16
3.1 Successors and Assigns..........................................16
3.2 Governing Law...................................................16
3.3 Counterparts....................................................16
3.4 Titles and Subtitles............................................16
3.5 Notices.........................................................16
3.6 Expenses........................................................16
3.7 Amendments and Waivers..........................................17
3.8 Severability....................................................17
3.9 Aggregation of Stock............................................17
3.10 Entire Agreement; Amendment; Waiver.............................17
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
THIS AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT is entered into as
of September 18, 1997 by and among Hybrid Networks, Inc., a Delaware
corporation (the "COMPANY"), the investors listed on Schedule A hereto (each
of which is herein referred to as a "SERIES A INVESTOR"), the investors
listed on Schedule B hereto (each of which is herein referred to as a "SERIES
B INVESTOR"), General Instrument Corporation of Delaware, a Delaware
corporation (the "SERIES C INVESTOR"), the investors listed on Schedule C
hereto (each of which is herein referred to as a "SERIES D INVESTOR"), Intel
Corporation ("INTEL"), Xxxxxx X. Xxxxxxxxx ("XXXXXXXXX"), Xxxxxxx X. Xxxxx
(Xx. Xxxxx and Xxxxxxxxx are referred to collectively as the "FOUNDERS"), the
current holders of the Company's Series G Preferred Stock (each of which is
herein referred to as a "SERIES G INVESTOR"), Alex. Xxxxx & Sons Incorporated
(the "AGENT"), ITOCHU Corporation ("ITOCHU"), BG Services Limited ("BG") and
the investors listed in Schedule D hereto (each of which is herein referred
to as a "NOTE WARRANT INVESTOR").
RECITALS
WHEREAS, the Company, the Series A Investors and the Founders entered
into the Investor Rights Agreement dated as of September 16, 1992 (the
"AGREEMENT") whereby, among other things, the Company granted rights
thereunder to the Series A Investors;
WHEREAS, the Agreement was amended in October and November 1994 whereby,
among other things, the Company granted rights thereunder to the Series B
Investors ;
WHEREAS, the Agreement was further amended as of February 28, 1995
whereby, among other things, the Company granted certain registration rights
to the Series C Investor;
WHEREAS, the Agreement was further amended in May and June 1995 whereby,
among other things, the Company granted rights thereunder to the Series D
Investors;
WHEREAS, the Agreement was further amended in December 1995 whereby,
among other things, the Company granted rights thereunder to Intel
(concurrently therewith the Company and Intel entered into the Series E/F
Preferred Stock Purchase Agreement dated in December 1995 -- the "SERIES E/F
AGREEMENT");
WHEREAS, the Agreement was further amended in February 1996 whereby,
among other things, the Company granted Xxxxxxxxx certain rights of first
offer thereunder;
WHEREAS, the parties to the Convertible Note and Warrant Purchase
Agreement among the Company and certain Series B Investors and Series D
Investors dated in June 1996 (the "CONVERTIBLE NOTE AGREEMENT") and the
parties to the Agreement For Sale of COMMON STOCK among the Company, the
Founders and Certain Series D Investors dated in June 1996 (the "Common Stock
Agreement"), which parties constituted the holders of at least a majority of
the then Registrable Securities (as defined below), acknowledged that the
holders of the securities issued pursuant to the
Convertible Note Agreement and the shares of Common Stock sold by Xxxxxxxxx
pursuant to the Common Stock Agreement were entitled to certain rights under
this Agreement with respect to such securities and shares;
WHEREAS, the Agreement was further amended in July 1996 whereby, among
other things, the Company granted rights thereunder to the Series G Investors
and the Agents;
WHEREAS, the Agreement was further amended in February 1997 whereby,
among other things, the Company granted rights thereunder to Itochu;
WHEREAS, the Agreement was further amended in April 1997 whereby, among
other things, the Company granted rights to London Pacific Life & Annuity
Company ("London") in connection with the Company's issuance to London of the
Company's Senior Secured Convertible Debenture due 2002 (the "DEBENTURE");
London subsequently transferred to BG the Debenture and London's rights under
this Agreement;
WHEREAS, pursuant to a Subordinated Note Purchase Agreement (the
"SUBORDINATED NOTE AGREEMENT"), the Company is issuing to the Note Warrant
Investors the Company's Subordinated Promissory Notes (the "SUBORDINATED
NOTES") and warrants to purchase shares of the Company's Common Stock (the
"NOTE WARRANTS"); and
WHEREAS, pursuant to the Agreement, the holders of a majority of the
Registrable Securities (as defined below) desire to amend the Agreement
further to provide for, among other things, the grant of rights thereunder to
the Note Warrant Investors as required under the terms of the Subordinated
Note Agreement and to restate the Agreement as amended by this amendment and
to supersede all prior amendments so that the Agreement as amended is set
forth in its entirety in this Amended and Restated Investor Rights Agreement,
and the Note Warrant Investors desire to obtain such rights and to enter into
this Amended and Restated Investor Rights Agreement.
NOW, THEREFORE, THE PARTIES HEREBY AGREE that this Amended and Restated
Investor Rights Agreement amends the Agreement and restates in its entirety and
supersedes all previous amendments to the Agreement so that the Agreement, as
amended hereby ("THIS AGREEMENT"), is set forth herein in its entirety, and
further agree as follows:
1. REGISTRATION RIGHTS. The Company covenants and agrees as follows:
1.1 DEFINITIONS. For purposes of this Section 1:
(a) The term "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 "Act"), and the declaration or ordering of effectiveness of
such registration statement or document;
(b) The term "Registrable Securities" means (1) shares of
Common Stock of the Company issuable or issued upon exercise of the Note
Warrants or conversion of the Subordinated Notes, the Debenture or shares of
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock, Series E Preferred Stock, Series F Preferred
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Stock, Series G Preferred Stock or Series H Preferred Stock of the Company
(including, without limitation, shares of Series B Preferred Stock or Series
D Preferred Stock issuable or issued upon exercise of any warrants issued or
extended pursuant to the Convertible Note Agreement, the shares of Series G
Preferred Stock issued upon conversion of the convertible notes issued
pursuant to the Convertible Note Agreement, shares of Series B Preferred
Stock issuable or issued upon exercise of any warrants issued pursuant to the
Series E/F Agreement and shares of Series G Preferred Stock issuable or
issued upon exercise of the warrant issued to the Agent pursuant to the
engagement letter between the Company and the Agent relating to the offer and
sale of Series G Preferred Stock), (2) any 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, such Note Warrants,
Subordinated Notes, Debenture, Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred
Stock, Series F Preferred Stock, Series G Preferred Stock, Series H Preferred
Stock or Common Stock, excluding in all cases, however, any Registrable
Securities sold, transferred or otherwise assigned by a person or entity in a
transaction in which his rights under this Section 1 are not assigned and (3)
shares of Common Stock issuable upon conversion or exchange of securities
convertible into, or exchangeable for, Common Stock upon conversion of the
Subordinated Notes;
(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 which 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 1.11 hereof; and
(e) The term "FORM S-3" means such form under the Act as in
effect on the date hereof or any registration form under the Act subsequently
adopted by the Securities and Exchange Commission ("SEC") which permits
inclusion of incorporation of substantial information by reference to other
documents filed by the Company with the SEC.
1.2 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 Common Stock
under the Act in connection with the public offering of such securities
solely for cash (other than a registration relating solely to the sale of
securities to participants in a Company stock plan, a registration on Form
S-4 (or any successor form) or a registration on any form which does not
include substantially the same information (other than information as would
be required under Item 507 of Regulation S-K under the Act with respect to
selling stockholders) 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 20 days
after mailing of such notice by the Company in accordance with Section 3.5,
the Company shall,
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subject to the provisions of Section 1.6, cause to be registered under the
Act all of the Registrable Securities that each such Holder has requested to
be registered.
(b) Upon any sale by the Company of shares of its Common
Stock to the public in a firmly underwritten public offering, the Founders
(and the Series B Investors and Series D Investors, to the extent they
purchased shares of Common Stock from Xxxxxxxxx), on the date notice is
provided to each Holder pursuant to subsection 1.2(a), shall be entitled to
include any of their shares of Common Stock in any registration by the
Company under this Section 1.2, if such persons agree to be bound by all
other provisions of this Agreement and participate in any such registration
on the same basis as each Holder in accordance with all applicable provisions
of this Agreement.
1.3 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 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 120 days.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection with such registration statement as may be necessary to comply
with the provisions of the Act with respect to the disposition of all
securities covered by such registration statement.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may reasonably
request in order to facilitate the disposition of Registrable Securities
owned by them.
(d) Use its 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. Each
Holder participating in such underwriting shall also enter into and perform
its obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by
such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event as a
result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
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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) 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.
1.4 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.
1.5 EXPENSES OF COMPANY REGISTRATION. The Company shall bear
and pay all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
pursuant to Section 1.2 and Section 1.10 for each Holder (which right may be
assigned as provided in Section 1.11), including (without limitation) all
registration, filing, and qualification fees, printers and accounting fees
relating or apportionable thereto and the reasonable fees and disbursements
of one counsel for the selling Holders selected by them, but excluding
underwriting discounts and commissions relating to Registrable Securities.
1.6 UNDERWRITING REQUIREMENTS. In connection with any offering
involving an underwriting of shares of the Company's Common Stock, the
Company shall not be required under Section 1.2 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. 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 first apportioned pro rata among
the selling stockholders other than the Founders according to the total
amount of securities entitled to be included therein owned by each selling
stockholder other than the Founders or in such other proportions as shall
mutually be agreed to by such selling stockholders, and the remaining
securities, if any, to be so apportioned between the Founders). As a result
of the
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immediately preceding sentence, no securities owned by a Founder shall be
entitled to be included in such offering unless the total amount of
securities entitled to be included therein owned by each selling stockholder
other than the Founders has not been reduced to less than the amount of
Registrable Securities requested by such selling stockholders to be included
in such offering in accordance with Section 1.2. 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 carrying registration rights owned by all entities and
individuals included in such "selling stockholder," as defined in this
sentence.
1.7 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.
1.8 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, any underwriter (as defined in the
Act) for such Holder and each person, if any, who controls such Holder or
underwriter within the meaning of the Act or the Securities Exchange Act of
1934, as amended (the "1934 ACT"), against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject under the
Act, the 1934 Act 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 Act, the 1934 Act, any state
securities law or any rule or regulation promulgated under the Act, the 1934
Act or any state securities law; and the Company will pay to each such
Holder, underwriter or controlling person, 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 1.8(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 severally indemnify and hold harmless the Company, each of its
directors, each of its officers who has signed
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the registration statement, each person, if any, who controls the Company
within the meaning of the 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, damages, or
liabilities (joint or several) to which any of the foregoing persons may
become subject, under the Act, the 1934 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 any legal or other expenses reasonably incurred by any person
intended to be indemnified pursuant to this subsection 1.8(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 1.8(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 1.8(b) exceed the gross proceeds from the offering received by
such Holder.
(c) Promptly after receipt by an indemnified party under
this Section 1.8 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 1.8,
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 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 1.8, 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
1.8.
(d) If the indemnification provided for in this Section 1.8
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. 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
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indemnifying party or by the indemnified party and the parties' relative
intent, knowledge, access to information, and opportunity to correct or
prevent such statement or omission.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering
are in conflict with the foregoing provisions, the provisions in the
underwriting agreement shall control.
(f) The obligations of the Company and Holders under this
Section 1.8 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and otherwise.
1.9 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view
to making available to the Holders the benefits of Rule 144 promulgated under
the 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 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;
(b) take such action, including the voluntary registration
of its Common Stock under Section 12 of the 1934 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 Act and the 1934 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 90 days after the effective date of the first registration
statement filed by the Company), the Act and the 1934 Act (at any time after
it has become subject to such reporting requirements), or that it qualifies
as a registrant whose securities may be resold pursuant to Form S-3 (at any
time after it so qualifies), (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed
by the Company, and (iii) such other information as may be reasonably
requested 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.
1.10 FORM S-3 REGISTRATION.
(a) In case the Company shall receive from any Holder or
Holders who own, in the aggregate, at least 30% of the outstanding shares of
Registrable Securities, a written request or requests that the Company effect
a registration on Form S-3 and any related qualification
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or compliance with respect to all or a part of the Registrable Securities
owned by such Holder or Holders, the Company will:
(i) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all other
Holders; and
(ii) 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 1.10(a): (1) if Form S-3 is not available for such offering by
the Holders; (2) 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 $500,000; (3) 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 1.10(a); provided, however, that the Company
shall not utilize this right more than once in any 12-month period; (4) if
the Company has, within the 12-month period preceding the date of such
request, already effected one registration on Form S-3 for the Holders
pursuant to this Section 1.10(a); (5) 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.
(iii) 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.
Notwithstanding anything to the contrary in this Section 1.10(a), the Series
C Investor will have rights under this Section 1.10(a), and any Holder of any
shares of Series C Preferred Stock or any Registrable Securities issued with
respect thereto will have rights under this Section 1.10(a) with respect to
such shares or Registrable Securities, only for so long as the Series A
Investors and the Series B Investor have rights under this Section 1.10(a).
(b) In addition to the registration rights provided for in
Sections 1.1, 1.2 and 1.10(a), the Note Warrant Investors that own any Note
Warrants, Subordinated Notes or shares of Common Stock of the Company that
have been issued upon exercise of any Note Warrants or conversion of any
Subordinated Notes (such Note Warrant Investors are referred to herein as
"NOTE/WARRANT HOLDERS") shall be entitled, collectively, to one demand
shelf-registration as provided in this Section 1.10(b). For the purposes of
this Section 1.10(b), (1) the term "NOTE/WARRANT SHARES" refers to shares of
Common Stock of the Company that have been issued, or are issuable,
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upon exercise of any Note Warrants or conversion of any Subordinated Notes,
and (2) a Note/Warrant Holder shall be deemed to own the number of
Note/Warrant Shares that are issuable upon the exercise of Note Warrants
owned by such Note/Warrant Holder as well as the number of Note/Warrant
Shares that are currently issued and outstanding and owned by such
Note/Warrant Holder. In the event that, after the first anniversary of the
consummation of the initial sale of securities pursuant to a registration
statement filed by the Company under the Act in connection with the firm
underwritten offering of its securities to the general public, the Company
shall receive from Note/Warrant Holders that own, in the aggregate, a
majority of the Warrant Shares a written request or requests that the Company
effect a registration on Form S-3 and any related qualification or compliance
with respect to all or a part of the Note/Warrant Shares owned by such
Note/Warrant Holder or Note/Warrant Holders, the Company will:
(i) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all
Note/Warrant Holders; and
(ii) as soon as practicable effect such registration and
all 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
Note/Warrant Holder's or Note Warrant Holders' Note/Warrant Shares as are
specified in such request, together with all or such portion of the
Note/Warrant Shares of any Note/Warrant Holder or Note/Warrant 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 1.10(b):
(1) if Form S-3 is not available for such offering by the Note/Warrant
Holders other than as a result of a failure of the Company to comply with the
reporting requirements of Sections 13 and 15 of the 1934 Act; (2) if the
Company shall furnish to the Note/Warrant Holders requesting such
registration 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 until, in the good faith judgment of the Board of Directors of the
Company, it would no longer be seriously detrimental to the Company and its
stockholders for such Form S-3 registration to be effected (but in no event
for a period of more than 90 days after receipt of the request of the
Note/Warrant Holder or Note Warrant Holders under this Section 1.10(b)); (3)
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. If Form S-3 is
not available for such offering by the Note/Warrant Holders as a result of a
failure of the Company to comply with the reporting requirements of Sections
13 and 15 of the 1934 Act, the Company shall effect such registration on Form
S-1.
(iii) Subject to the foregoing, the Company shall file a
registration statement on Form S-3 covering the Note/Warrant Shares so
requested to be registered as soon as practicable after receipt of the
request or requests of the Note/Warrant Holder or Note/Warrant Holders and
shall use its best efforts to cause the registration statement to become
effective under the Act and to keep the registration statement continuously
effective under the Act and available for the offer and sale of the
Note/Warrant Shares covered thereby for 180 days (or such shorter period
10
ending when all Note/Warrant Shares covered by the registration statement
have been sold or are no longer entitled to registration under this Section
1.10(b)). The Company will be deemed not to have used its best efforts to
keep the registration statement effective and available for such offer and
sale during the requisite period if the Company voluntarily takes any action
that would result in Note/Warrant/Holders of Note/Warrant Shares covered
thereby not being able to offer and sell such Note/Warrant Shares thereunder
during any portion of that period unless (1) such action is required by
applicable law or (2) such action is taken by the Company in good faith and
for valid business reasons (not including avoidance of the Company's
obligations hereunder), including the acquisition or divestiture of assets,
so long as the Company promptly thereafter causes the registration to become
effective under the Act and available for such offer and sale. In the event
that the effectiveness or availability of the registration statement is
suspended during the requisite period, the Company will be obligated to
extend the period of effectiveness and availability of the registration
statement for a period that is at least equal to the period during which such
effectiveness or availability was suspended.
(iv) Each Note/Warrant Holder that causes the Company to
register any of such Note/Warrant Shares and under this Section 1.10(b) shall
immediately notify the Company in writing of any sales of Note/Warrant Sales
under the registration statement and, if the effectiveness of the
registration statement is terminated in accordance with this Section 1.10(b),
shall return to the Company's transfer agent all stock certificates that
represent any unsold Note Warrant Shares so that the transfer agent may affix
any appropriate securities legends thereto.
(v) Notwithstanding anything to the contrary in Section
3.7, any term of this Section 1.10(b) may be amended, and the observance of
any term of this Section 1.10(b) 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 Note/Warrant Holders that then own a
majority of all Note/Warrant Shares then owned by Note/Warrant Holders. Any
amendment or waiver effected in accordance with this paragraph shall be
binding upon the Company, each Note Warrant Holder and each future holder of
any Note/Warrant Shares.
(vi) Any Form S-3 registration statement required
pursuant to this Section 1.10(b) shall not be required to include any
Registrable Securities that are freely tradable by the Holders thereof without
registration under the Act (including shares as to which paragraph (k) of Rule
144 under the Act applies but not shares that are subject to applicable holding
period, volume limitation or manner of sale and notice requirements of
paragraphs (d), (e), (f), (g), (h) and (i) of Rule 144).
1.11 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the
Company to register Registrable Securities pursuant to this Section 1 may be
assigned (but only with all related obligations) by a Holder to a transferee
or assignee of such securities who, (i) after such assignment or transfer,
holds at least 50,000 shares of Registrable Securities (subject to
appropriate adjustment for stock splits, stock dividends, combinations and
other recapitalizations), and (ii) is not a person or entity deemed by the
Board of Directors of the Company in its best judgment, to be a competitor or
potential competitor of the Company; provided 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; and provided,
further,
11
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 Act. 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 this Section 1. For the
purposes of determining the number of shares of Registrable Securities held
by any Note Warrant Investor, the shares of Registrable Securities held by
such Note Warrant Investor shall be aggregated with the shares of Registrable
Securities held by affiliates of the Note Warrant Investor or any entities
for which the Note Warrant Investor or its affiliates serve as general
partner and/or investment adviser or in a similar capacity, all mutual funds
or other pooled investment vehicles or entities under the common control or
management of such Note Warrant Investor, or the general partner or
investment adviser thereof, or any affiliate of the foregoing.
1.12 "MARKET STAND-OFF" AGREEMENT. Each signatory to the
Agreement or hereto or any prior or subsequent amendment to the Agreement or
hereto hereby agrees that, during the period of duration specified by the
Company and an underwriter of Common Stock of the Company not to exceed 180
days following the effective date of a registration statement of the Company
filed under the Act (unless otherwise required by an underwriter), such
signatory shall not, 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 and
except to the extent otherwise consented to by the Company and such
underwriter. To the extent that any officer or director of the Company has
not entered into a market stand-off agreement of equivalent duration and
effect with respect to any Company securities beneficially owned by such
officer or director, the Company shall use best efforts to require each
officer and director of the Company to enter into such an agreement.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Registrable Securities of each
Investor (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period.
1.13 TERMINATION OF REGISTRATION RIGHTS. No Holder shall be
entitled to exercise any right provided for in this Section 1 after 6 years
following the consummation of the sale of securities pursuant to a
registration statement filed by the Company under the Act in connection with
the initial firm commitment underwritten offering of its securities to the
general public. Notwithstanding anything to the contrary in this Section 1,
except as provided otherwise in Section 1.10(b)(v), no Holder shall be
entitled to cause the Company to register the sale or other transfer of
Restricted Securities if and so long as the intended sale or other transfer
may then be effectuated by such Holder in compliance with Rule 144 under the
Act without violating the holding period, volume limitations or other
restrictions of Rule 144.
12
2. COVENANTS OF THE COMPANY.
2.1 DELIVERY OF FINANCIAL STATEMENTS. The Company shall deliver to
each Series A Investor, Series B Investor, Series C Investor, Series D
Investor, Intel, Series G Investor, Note Warrant Investor, Itochu and BG
(each, for the purposes of this Section 2.1, an "INVESTOR"):
(a) as soon as practicable, but in any event within 90 days
after the end of each fiscal year of the Company, an income statement and
statement of cash flows for such fiscal year, a balance sheet of the Company,
and a statement of stockholder's equity as of the end of such year, such
year-end financial reports to be in reasonable detail, prepared in accordance
with generally accepted accounting principles ("GAAP"), and audited and
certified by independent public accountants selected by the Company;
(b) as soon as practicable, but in any event within 45 days
after the end of each of the first 3 quarters of each fiscal year of the
Company, an unaudited profit or loss statement, statement of cash flows for
such fiscal quarter and an unaudited balance sheet as of the end of such
fiscal quarter.
(c) only to Investors who hold more than 350,000 shares of
Registrable Securities, within 30 days of the end of each month, an unaudited
income statement, a statement of cash flows and an unaudited balance sheet
for and as of the end of such month, prepared internally, in reasonable
detail;
(d) only to Investors who hold more than 350,000 shares of
Registrable Securities, as soon as practicable, but in any event 90 days
after the end of each fiscal year, a budget for the then current fiscal year,
prepared on a monthly basis, including balance sheets and statements of cash
flows for such months; and
(e) with respect to the financial statements called for in
subsections (b) and (c) of this Section 2.1, an instrument executed by the
Chief Financial Officer or President of the Company certifying that such
financials fairly present the financial condition of the Company and its
results of operation for the period specified, subject to year-end audit
adjustment.
For the purposes of determining the number of shares of Registrable
Securities held by any Note Warrant Investor, the shares of Registrable
Securities held by such Note Warrant Investor shall be aggregated with the
shares of Registrable Securities held by affiliates of the Note Warrant
Investor or any entities for which the Note Warrant Investor or its
affiliates serve as general partner and/or investment adviser or in a similar
capacity, all mutual funds or other pooled investment vehicles or entities
under the common control or management of such Note Warrant Investor, or the
general partner or investment adviser thereof, or any affiliate of the
foregoing.
2.2 TERMINATION AND ASSIGNMENT OF INFORMATION COVENANTS. The
covenants set forth in Section 2.1 shall terminate and be of no further force
or effect when the sale of securities pursuant to a registration statement
filed by the Company under the Act in connection with the firm commitment
underwritten offering of its securities to the general public is consummated
or when the Company first becomes subject to the periodic reporting
requirements of Sections 12(g) or 15(d) of the 1934 Act, whichever event
shall first occur. The information rights set forth in Section 2.1
13
may be assigned (but only with all related obligations) by an Investor to a
transferee or assignee of Registrable Securities who, (a) after such
assignment or transfer, holds at least 350,000 shares of Registrable
Securities (subject to appropriate adjustment for stock splits, stock
dividends, combinations and other recapitalizations), and (b) is not a person
or entity deemed by the Board of Directors of the Company in its best
judgment, to be a competitor or potential competitor of the Company; provided
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 information rights are being assigned;
and provided, further, 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 Act. For
the purposes of determining the number of shares of Registrable Securities
held by a transferee or assignee, (i) 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 and (ii) the holdings of a Note Warrant Investor shall be
aggregated with the holdings of affiliates of the Note Warrant Investor or
any entities for which the Note Warrant Investor or its affiliates serve as
general partner and/or investment adviser or in a similar capacity, all
mutual funds or other pooled investment vehicles or entities under the common
control or management of such Note Warrant Investor, or the general partner
or investment adviser thereof, or any affiliate of the foregoing.
2.3 RIGHT OF FIRST OFFER. Subject to the terms and conditions
specified in this Section 2.3, the Company hereby grants to each Series A
Investor, each Series B Investor, Intel, each Series D Investor, each Series
G Investor, Itochu, BG, Xxxxxxxxx and each Note Warrant Holder a right of
first offer with respect to future sales by the Company of its Shares (as
hereinafter defined). For purposes of this Section 2.3, the term "INVESTOR"
includes each Series A Investor, each Series B Investor, Intel, each Series D
Investor, each Series G Investor, Itochu, BG, Xxxxxxxxx and each Note/Warrant
Holder, and any general or limited partners and affiliates of any Series A
Investor, any Series B Investor, Intel, any Series D Investor or any
Note/Warrant Holder. Each Series A Investor, each Series B Investor, Intel
and each Series D Investor shall be entitled to apportion the right of first
offer hereby granted to such Investor among itself and its general or limited
partners and affiliates in such proportions as such Investor deems
appropriate.
Each time the Company proposes to offer any shares of, or securities
convertible into 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 Investor in accordance with the following provisions:
(a) The Company shall deliver a written notice ("NOTICE") to
the Investors stating (i) its bona fide intention to offer such Shares, (ii)
the number of such Shares to be offered, and (iii) the price and terms, if
any, upon which it proposes to offer such Shares.
(b) Within 20 calendar days after receipt of the Notice, the
Investor may elect to purchase or obtain, at the price and on the terms
specified in the Notice, up to that portion of such Shares which equals the
proportion that the number of shares of Common Stock issued and held, or
issuable upon exercise of the Note Warrants or conversion of the Debenture,
Series A Preferred Stock, the Series B Preferred Stock, the Series D
Preferred Stock, the Series E Preferred Stock, the Series F Preferred Stock,
the Series G Preferred Stock or the Series H Preferred Stock
14
then held, by such Investor bears to the total number of shares of Common
Stock of the Company then outstanding (assuming full conversion of all
convertible securities). The Company shall promptly, in writing, inform each
Investor which purchases all the shares available to it ("FULLY-EXERCISING
INVESTOR") of any other Investor's failure to do likewise. During the 5-day
period commencing after delivery of such information to such Fully-Exercising
Investor(s), each Fully-Exercising Investor shall be entitled to obtain that
portion of the Shares not subscribed for by the Investors which is equal to
the proportion that the number of shares of shares of Common Stock issued and
held, or issuable upon exercise of the Note Warrants or conversion of the
Debenture, Series A Preferred Stock, Series B Preferred Stock, Series D
Preferred Stock, Series E Preferred Stock, Series F Preferred Stock, Series G
Preferred Stock or Series H Preferred Stock, as the case may be, then held,
by such Fully-Exercising Investor bears to the total number of shares of
Common Stock issued and held, or issuable upon exercise of the Note Warrants
or conversion of the Debenture, Series A Preferred Stock, the Series B
Preferred Stock, the Series D Preferred Stock, the Series E Preferred Stock,
the Series F Preferred Stock, the Series G Preferred Stock or the Series H
Preferred Stock, as the case may be, then held, by all Fully-Exercising
Investors who wish to purchase some of the unsubscribed Shares. The rights
of first offer in this Section 2.3 shall not be applicable to the
Subordinated Notes or any securities that may be issued or issuable upon
conversion of any Subordinated Notes, although the issuance of any securities
upon conversion of the Subordinated Notes shall not reduce the number of
Shares that any Note Warrant Holder shall be entitled to purchase, as
compared to any other Investor, pursuant to such rights of first offer.
(c) If all Shares which Investors are entitled to obtain
pursuant to subsection 2.3(b) are not elected to be obtained as provided in
subsection 2.3(b) hereof, the Company may, during the 120-day period
following the expiration of the period provided in subsection 2.3(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 120 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 Investors in accordance
herewith.
(d) The rights of first offer in this Section 2.3 shall not be
applicable:
(i) to the issuance or sale of shares of the Company's Common
Stock (or options therefor) to service providers for the primary purpose of
soliciting or retaining their services as approved by the vote or written
consent of a majority of the Board of Directors.
(ii) to consummation of a bona fide, firmly underwritten
public offering of shares of common stock, registered under the Act pursuant
to a registration statement on Form S-1;
(iii) to the issuance of securities pursuant to the conversion
or exercise of convertible or exercisable securities;
(iv) to securities of the Company issued pursuant to the
acquisition of (A) another corporation by the Company by merger or other
reorganization whereby the
15
Company owns more than 50% of the voting power of such other corporation, or
(B) substantially all the assets of another corporation;
(v) to the issuance of securities pursuant to transactions
involving technology licensing, research and development activities,
distribution or manufacture of the company's products, lease of equipment by
the Company, or any transactions with corporate partners, provided that each
of the foregoing transactions is primarily for non-equity financing purposes
and is approved by the Company's Board of Directors;
(vi) to shares of the Company's Common Stock or Preferred
Stock issued in connection with any stock split, stock dividend,
recapitalization and the like by the Company following approval by the Board
of Directors; or
(vii) to the issuance of up to 255,000 shares of Common Stock
to service providers for services performed for the benefit of the Company,
which services were performed prior to the first issuance of the Series A
Preferred Stock.
(e) The rights of first offer in this Section 2.3 shall
terminate and be of no further force or effect when the sale of securities
pursuant to a registration statement filed by the Company under the Act in
connection with the firm commitment underwritten offering of its securities
to the general public is consummated or when the Company first becomes
subject to the periodic reporting requirements of Sections 12(g) or 15(d) of
the 1934 Act, whichever shall first occur.
(f) The rights of first offer in this Section 2.3 and/or the
right to register Registrable Securities pursuant to this Agreement or to
register shares of Common Stock subject to registration rights pursuant to
Section 1.2(b) ("1.2(b) SHARES") may be assigned (but only with all related
obligations) by any Series A Investor, any Series B Investor, Intel, any
Series D Investor, Xxxxxxxxx, any Series G Investor, Itochu, BG or any
Note/Warrant Investor to a transferee or assignee from such person of
Registrable Securities or Section 1.2(b) Shares who, (i) after such
assignment or transfer, holds at least 350,000 shares of Registrable
Securities or Section 1.2(b) Shares (subject in each case to appropriate
adjustment for stock splits, stock dividends, combinations and other
recapitalizations), and (ii) is not a person or entity deemed by the Board of
Directors of the Company in its best judgment, to be a competitor or
potential competitor of the Company; provided 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 rights are being assigned; and provided, further, 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 Act. For the purposes of determining the
number of shares of Registrable Securities or Section 1.2 Shares held by a
transferee or assignee for the purposes of this Section 2.3(f), (i) 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 or Section 1.2 Shares by gift, will or intestate succession) shall
be aggregated together and with the partnership and (ii) the holdings of a
Note Warrant Investor shall be aggregated with the holdings of affiliates of
the Note Warrant Investor or any entities for which the Note Warrant Investor
or its affiliates serve as general
16
partner and/or investment adviser or in a similar capacity, all mutual funds
or other pooled investment vehicles or entities under the common control or
management of such Note Warrant Investor, or the general partner or
investment adviser thereof, or any affiliate of the foregoing.
3. MISCELLANEOUS.
3.1 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties (including
transferees of any shares of Registrable Securities or Section 1.2(b)
Shares). Nothing in this Agreement, express or implied, is intended to
confer upon any party other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations, or liabilities
under or by reason of this Agreement, except as expressly provided in this
Agreement.
3.2 GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of California as applied to agreements among
California residents entered into and to be performed entirely within
California.
3.3 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
3.4 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
3.5 NOTICES. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or
facsimile transmission to such party to the facsimile number for such party
on the signature page hereof (or, for parties not executing this Agreement,
the facsimile number of such party on the stock records of the Company) or
upon deposit with the United States Post Office, by registered or certified
mail, postage prepaid and addressed to the party to be notified at the
address indicated for such party on the signature page hereof (or, for
parties not executing this Agreement, the address of such party on the stock
records of the Company), or at such other facsimile number or address as such
party may designate by ten days' advance written notice to the other parties.
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 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. 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.
17
3.8 SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
3.9 AGGREGATION OF STOCK. All shares of Registrable Securities held
or acquired by affiliated entities or persons shall be aggregated together
for the purpose of determining the availability of any rights under this
Agreement.
3.10 ENTIRE AGREEMENT. This Amended and Restated Investor Rights
Agreement (including the Schedules hereto) constitutes the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof.
18
IN WITNESS WHEREOF, the parties have executed this Amended and
Restated Investor Rights Agreement as of the date first above written.
COMPANY:
HYBRID NETWORKS, INC.
By:/s/ Xxxx X Xxxxxxxxx
---------------------------
Xxxx X. Xxxxxxxxx, Chief Executive
Officer
Address: 00000 Xxxx Xxxx
Xxxxxxxxx, XX 00000-0000
Facsimile Number: (000) 000-0000
19
IN WITNESS WHEREOF, the parties have executed this Amended and
Restated Investor Rights Agreement as of the date first above written.
COMPANY:
HYBRID NETWORKS, INC.
By:___________________________
Xxxx X. Xxxxxxxxx, Chief Executive
Officer
Address: 00000 Xxxx Xxxx
Xxxxxxxxx, XX 00000-0000
Facsimile Number: (000) 000-0000
INTEL CORPORATION
By: /s/Company Officer
---------------------------
Its: VP and Treasurer
--------------------------
Address: 0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, XX 00000-0000
Facsimile Number: (000) 000-0000
20
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
TUDOR BVI FUTURES, LTD.
By: Tudor Investment Corporation,
Investment Adviser
By:/s/ Xxxxxx X. Xxxxxxxx
----------------------
Xxxxxx X. Xxxxxxxx,
Vice President
Address: c/o Tudor Global Trading, Inc.
00 Xxxxx Xxxxx
Xxxxxx, XX 00000
TUDOR ARBITRAGE PARTNERS, L.P.
By: Tudor Global Trading, Inc.,
General Partner
By:/s/ Xxxxxx X Xxxxxxxx
---------------------
Xxxxxx X. Xxxxxxxx,
Vice President
Address same as immediately above
RAPTOR GLOBAL FUND, LTD.
By: Tudor Investment Corporation,
Investment Adviser
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------
Xxxxxx X. Xxxxxxxx,
Vice President
Address same as immediately above
RAPTOR GLOBAL FUND, L.P.
By: Tudor Investment Corporation,
General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------
Xxxxxx X. Xxxxxxxx,
Vice President
Address same as immediately above
21
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
INVESTORS:
__________________________
Xxxxxxxxx X. Xxxxxxxx
Address: 0000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Facsimile Number: (000) 000-0000
22
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
X.X. XXXX CO., INC.,
By: /s/ Xxxxxx Xxxx, Xx.
---------------------------------
Xxxxxx Xxxx, Xx.
Address: 000 Xxxx Xxxxxx Xxxx
X. X. Xxx 000
Xxxxxx, XX 00000-0000
Facsimile Number: (000) 000-0000
23
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
OSCCO III, L.P.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxx
Address: Xxx Xxxxx Xxxxxx, #00
Xxx Xxxxx, XX 00000
Facsimile Number: (000) 000-0000
24
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
/s/ Xxxx X. Xxxxxx
-------------------------------------
(Executing this Agreement as a Series B
Investor)
Address: 00 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Facsimile Number: (000) 000-0000
25
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
AT&T VENTURE COMPANY, L.P.
By: AT&T Venture Partners,
Its: General Partner
By: /s/ Xxxx Xxxxxxx
------------------------------
Its: General Partner
-----------------------------
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Facsimile Number: (000) 000-0000
26
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SEQUOIA CAPITAL VI
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Its:
----------------------------------
Address: 0000 Xxxx Xxxx Xxxx,
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Facsimile Number: (000) 000-0000
SEQUOIA TECHNOLOGY PARTNERS VI
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Its:
----------------------------------
Address: 0000 Xxxx Xxxx Xxxx,
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Facsimile Number: (000) 000-0000
SEQUOIA XXIV
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Its:
----------------------------------
Address: 0000 Xxxx Xxxx Xxxx,
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Facsimile Number: (000) 000-0000
27
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
ACCEL IV L.P. ACCEL KEIRETSU L.P.
By: Accel IV Associates L.P. By: Accel Partners & Co., Inc.
Its: General Partner Its: General Partner
By: /s/ X. Xxxxxx Sednaoui By: /s/ X. Xxxxxx Sednaoui
----------------------- -----------------------
Its: General Partner Its: Chief Financial Officer
---------------------- ----------------------
Address: One Xxxxxx Square Address: Xxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Facsimile Number: (000) 000-0000 Facsimile Number: (000) 000-0000
ACCEL INVESTORS '95 X.X. XXXXXXX X. XXXXXXXXX PARTNERS
By: /s/ X. Xxxxxx Sednaoui By: /s/ Company Officer
----------------------- -----------------------
Its: General Partner Its: General Partner
---------------------- ----------------------
Address: One Xxxxxx Square Address: Xxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Facsimile Number: (000) 000-0000 Facsimile Number: (000) 000-0000
28
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
/s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxxx
Address: c/o Ultracom Communications
00000 Xxxxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, XX 00000
Facsimile Number: (000) 000-0000
29
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
/s/ Xxxxxxx X. Xxxxx
------------------------------------
Xxxxxxx X. Xxxxx
Address: 00000 Xxxx Xxxx
Xxxxxxxxx, XX 00000-0000
Facsimile Number: (000) 000-0000
30
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
ITOCHU Corporation
By:
---------------------------------
Its:
--------------------------------
Address: 5-1, Xxxx-Xxxxxx 0-xxxxx
Xxxxxx-xx, Xxxxx 000-00
Xxxxx
Facsimile Number: 011-81-3-3497-3131
31
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
BG SERVICES LIMITED
By:
---------------------------------
Its:
--------------------------------
Address: x/x Xxxxxx Xxxxx
0 Xxxxxx Xxxxx
Xx. Helier
Jersey, Channel Islands
Attention: Xxx Xxxxx
Facsimile Number: (0) 0000-000000
32
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
/s/ Xxxxxx X. Xxxxxxx
-----------------------------
Xxxxxx X. Xxxxxxx
33
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
888 GROUP
/s/ Xxxxx Xxxxx
By: /s/ Company Officer
---------------------------
Its: /s/ Company Officer
---------------------------
34
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
/s/ Xxxxxxxx X. Xxxxxx
------------------------------
Xxxxxxxx X. Xxxxxx
35
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
/s/ K. Xxxxxx Xxxxx
------------------------------
K. Xxxxxx Xxxxx
36
SCHEDULE A
Hybrid Networks, Inc.
Series A Investors
------------------
------------------
# of Shares of
Name Series A Preferred Stock
---- ------------------------
Xxxxxxxxx X. Xxxxxxxx 63,090
X.X. Xxxx Co., Inc. 378,541
Xxxxxxx Xxx 25,236
Xxxxxxx X. Xxxxxxxxxx 63,090
Xxxxx Xxxxxx 25,236
Xxxxxx Xxxxxxxxxxx 63,090
The Cypress Fund
Xxxxxxxxx Xxxxxxx 63,090
Krivonos Fmly Lv Tst 50,472
XXX FBO Xxxxx Xxxxxx Neithold 62,926
OSCCO III, L.P. 752,404
TOTAL 1,547,175
SCHEDULE B
Hybrid Networks, Inc.
Series B Preferred Investors
----------------------------
----------------------------
# of Shares of Series B Preferred Stock
---------------------------------------
Subject to Issuance on
Name Issued Exercise of Warrants
---- ------ -----------------------
Xxxx X. Xxxxxx 442,857 171,429
OSCCO III, L.P. 72,426 16,213
X.X. Xxxx Co., Inc. 36,438 18,219
Intel 248,187 --
TOTAL 799,908 205,861
SCHEDULE C
Hybrid Networks, Inc.
Series D Investors
------------------
------------------
# of Shares of Series D Preferred Stock
-------------------------------------------------
Subject to
Subject to Issuance Issuance on # of Shares
on Exercise of Exercise of of Series G # of
Issued Original Warrants New Warrants Preferred Stock* 1.2(b) Shares
------ -------------------- ------------- ---------------- --------------
AT&T Venture Company, L.P. 571,428 285,714 71,355 130,548 58,015
Sequoia Capital VI 1,040,001 520,000 129,866 237,598 105,587
Sequoia Technology Partners VI 57,143 28,572 7,136 13,055 5,802
Sequoia 1995 45,714 22,857 5,708 10,444 4,641
Accel Investors '95 L.P. 49,153 24,571 6,137 11,227 4,989
Accel IV L.P. 1,046,858 523,429 130,722 239,164 106,283
Accel Keiretsu L.P. 21,714 10,857 2,711 4,961 2,205
Xxxxxxx X. Xxxxxxxxx Partners 25,143 12,572 3,140 5,744 2,553
OSCCO III, L.P. 223,444 111,722 31,951 58,456 22,685
X.X. Xxxx Co., Inc. 112,414 56,207 18,587 34,007 11,413
Xxxxx Xxxxxx Niethold 7,000 3,500 874 1,599 710
Xxxx X. Xxxxxx -- -- 42,813 78,329 --
TOTALS 3,200,002 1,600,001 451,000 825,132 324,883
-------------------
* Issued upon conversion of convertible notes at the closing of the sale of
shares of Series G Preferred Stock to the purchasers pursuant to the Series G
Agreement.
SCHEDULE D
Hybrid Networks, Inc.
Note Warrant Investors
----------------------
# of Shares of Common Stock for which
Name Note Warrants May Become Exercisable
---- -------------------------------------
Tudor BVI Futures, Ltd. 182,440-456,106
Tudor Arbitrage Partners, L.P. 46,667-116,667
Raptor Global Fund, Ltd. 120,593-301,486
Raptor Global Fund, L.P. 46,336-115,841
Sequoia Capital VI 27,029-67,574
Sequoia Technology Partners VI 1,485-3,713
Sequoia XXIV 1,188-2,970
Accel IV L.P. 22,673-56,683
Accel Investors '95 L.P. 1,064-2,661
Accel Keiretsu L.P. 470-1,176
Xxxxxxx X. Xxxxxxxxx Partners 545-1,361
AT&T Ventures 25,465-63,664
OSCCO III, L.P. 19,802-49,505
Xxxx X. Xxxxxx 9,901-24,753
888 Group 12,376-30,941
Xxxxxx X. Xxxxxxx 49,505-123,763
Xxxxxxxx X. Xxxxxx 4,950-12,376
X.X. Xxxx Co., Inc. 9,901-24,753
K. Xxxxxx Xxxxx 99,009-247,525
HYBRID NETWORKS, INC.
AMENDMENT TO
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
The Amended and Restated Investor Rights Agreement dated as of September
18, 1997 among Hybrid Networks, Inc. (the "COMPANY") and certain holders of
securities of the Company (the "ORIGINAL AGREEMENT") is hereby amended by this
amendment (this "AMENDMENT") dated as of October 13, 1997 among the Company,
Venture Banking Group, a division of Cupertino National Bank (the "BANK"), and
the holders of a majority of the Registrable Securities outstanding immediately
prior to this Amendment. Except as provided otherwise herein, the terms used in
this Amendment that are defined in the Original Agreement have the same meanings
as those terms have in the Original Agreement.
1. The Original Agreement is hereby amended as follows:
(a) The Bank will have the same registration rights under the
Original Agreement as amended by this Amendment (the "AGREEMENT"), with respect
to the shares of Common Stock of the Company issued or issuable upon exercise of
the warrants issued by the Company to the Bank in October 1997 to purchase up to
7,178 shares of Common Stock of the Company (the "BANK WARRANTS"), as the Note
Warrant Investors have with respect to the shares of Common Stock that are
issued or issuable upon exercise of the Note Warrants.
(b) The definition of "Registrable Securities" in Section 1.1(b) of
the Original Agreement is amended to include (i) shares of Common Stock of the
Company issuable or issued upon exercise of any Bank Warrants and (ii) any
Common Stock of the Company issued as (or issuable upon 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, any Bank
Warrants.
(c) The Bank will have, with respect to the Bank Warrants or shares
of Common Stock of the Company that have been issued upon exercise of any Bank
Warrants, the same right as any Note/Warrant Holder has to participate in the
one demand shelf-registration provided for in Section 1.10(b) of the Original
Agreement.
(d) As signatory of this Amendment, the Bank will be bound by the
provisions of Section 1.12 of the Original Agreement (Market Stand-Off
Agreement).
(e) The Company shall deliver financial statements to the Bank as
provided in Sections 2.1 and 2.2 of the Original Agreement.
(f) Section 3.5 of the Original Agreement is amended to replace the
words "registered or certified" with "first class."
2. Except as amended as provided in Section 1 above, the Original
Agreement continues in full force and effect.
3. This Amendment may be executed in two or more counterparts, each of
which will be deemed an original but, all of which together will constitute one
and the same instrument.
SIGNATURE PAGE
DATED AS OF OCTOBER 13, 1997 TO THE
Hybrid Networks, Inc. Amended and Restated Investor Rights Agreement
--------------------------------------------------------------------------------
IN WITNESS WHEREOF, EACH OF THE UNDERSIGNED EXECUTES AND DELIVERS THIS
AMENDMENT AS OF THE DATE SET FORTH IMMEDIATELY ABOVE.
THE COMPANY:
HYBRID NETWORKS, INC.
By /S/ Xxxx X. Xxxxxxxxx
----------------------------------------
Its: President and CEO
--------------------------------------
THE BANK:
VENTURE BANKING GROUP,
A DIVISION OF CUPERTINO NATIONAL BANK
By /S/ Company Officer
----------------------------------------
Its:
--------------------------------------
SIGNATURE PAGE
DATED AS OF OCTOBER __, 1997 TO THE
HYBRID NETWORKS, INC. AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
--------------------------------------------------------------------------------
TUDOR BVI FUTURES, LTD.
By: Tudor Investment Corporation,
Investment Adviser
By:
---------------------------------
Xxxxxx X. Xxxxxxxx,
Vice President
Address: c/o Tudor Global Trading, Inc.
00 Xxxxx Xxxxx
Xxxxxx, XX 00000
Facsimile No.: x/x Xxxxxxx, Xxxx & Xxxxx LLP
(000) 000-0000
Attn: Xxxxxx X. Xxxx, Esq.
TUDOR ARBITRAGE PARTNERS, L.P.
By: Tudor Global Trading, Inc.,
General Partner
By:
---------------------------------
Xxxxxx X. Xxxxxxxx,
Vice President
Address and facsimile no. same as immediately
above
RAPTOR GLOBAL FUND, LTD.
By: Tudor Investment Corporation,
Investment Adviser
By:
---------------------------------
Xxxxxx X. Xxxxxxxx,
Vice President
Address and facsimile no. same as immediately
above
RAPTOR GLOBAL FUND, L.P.
By: Tudor Investment Corporation,
General Partner
By:
---------------------------------
Xxxxxx X. Xxxxxxxx,
Vice President
Address and facsimile no. same as immediately
above
SIGNATURE PAGE
DATED AS OF OCTOBER __, 1997 TO THE
HYBRID NETWORKS, INC. AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
--------------------------------------------------------------------------------
X.X. XXXX CO., INC.,
By:
---------------------------------
Xxxxxx Xxxx, Xx.
Address: 000 Xxxx Xxxxxx Xxxx
P. O. Xxx 000
Xxxxxx, XX 00000-0000
Facsimile Number: (000) 000-0000
SIGNATURE PAGE
DATED AS OF OCTOBER __, 1997 TO THE
HYBRID NETWORKS, INC. AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
--------------------------------------------------------------------------------
OSCCO III, L.P.
By:
---------------------------------
Xxxxxxx X. Xxxxxxx
Address: Xxx Xxxxx Xxxxxx, #00
Xxx Xxxxx, XX 00000
Facsimile Number: (000) 000-0000
SIGNATURE PAGE
DATED AS OF OCTOBER __, 1997 TO THE
HYBRID NETWORKS, INC. AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
--------------------------------------------------------------------------------
-----------------------------------
Xxxx X. Xxxxxx
Address: 00 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Facsimile Number: (000) 000-0000
SIGNATURE PAGE
DATED AS OF OCTOBER __, 1997 TO THE
HYBRID NETWORKS, INC. AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
--------------------------------------------------------------------------------
AT&T VENTURE COMPANY, L.P.
By: AT&T Venture Partners,
Its: General Partner
By:
--------------------------------
Its:
-------------------------------
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Facsimile Number: (000) 000-0000
SIGNATURE PAGE
DATED AS OF OCTOBER __, 1997 TO THE
HYBRID NETWORKS, INC. AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
--------------------------------------------------------------------------------
SEQUOIA CAPITAL VI
By:
-----------------------------------
Its:
----------------------------------
Address: 0000 Xxxx Xxxx Xxxx,
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Facsimile Number: (000) 000-0000
SEQUOIA TECHNOLOGY PARTNERS VI
By:
-----------------------------------
Its:
----------------------------------
Address: 0000 Xxxx Xxxx Xxxx,
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Facsimile Number: (000) 000-0000
SEQUOIA XXIV
By:
-----------------------------------
Its:
----------------------------------
Address: 0000 Xxxx Xxxx Xxxx,
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Facsimile Number: (000) 000-0000
SIGNATURE PAGE
DATED AS OF OCTOBER __, 1997 TO THE
HYBRID NETWORKS, INC. AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
--------------------------------------------------------------------------------
ACCEL IV L.P. ACCEL KEIRETSU L.P.
By: Accel IV Associates L.P. By: Accel Partners & Co., Inc.
Its: General Partner Its: General Partner
By: By:
---------------------- ----------------------
Its: Its:
--------------------- ---------------------
Address: One Xxxxxx Square Address: Xxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Facsimile Number: (000) 000-0000 Facsimile Number: (000) 000-0000
ACCEL INVESTORS '95 X.X. XXXXXXX X. XXXXXXXXX PARTNERS
By: By:
---------------------------- ----------------------------
Its: Its:
--------------------------- ---------------------------
Address: One Xxxxxx Square Address: Xxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Facsimile Number: (000) 000-0000 Facsimile Number: (000) 000-0000
SIGNATURE PAGE
DATED AS OF OCTOBER __, 1997 TO THE
HYBRID NETWORKS, INC. AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
--------------------------------------------------------------------------------
INTEL CORPORATION
By:
-------------------------------
Its:
-------------------------------
Address: 0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, XX 00000-0000
Facsimile Number: (000) 000-0000
SIGNATURE PAGE
DATED AS OF OCTOBER __, 1997 TO THE
HYBRID NETWORKS, INC. AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
--------------------------------------------------------------------------------
ITOCHU Corporation
By:
-------------------------------
Its:
-------------------------------
Address: 5-1, Xxxx-Xxxxxx 0-xxxxx
Xxxxxx-xx, Xxxxx 000-00
Xxxxx
Facsimile Number: 011-81-3-3497-3131
SIGNATURE PAGE
DATED AS OF OCTOBER __, 1997 TO THE
HYBRID NETWORKS, INC. AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
--------------------------------------------------------------------------------
BG SERVICES LIMITED
By:
-------------------------------
Its:
-------------------------------
Address: x/x Xxxxxx Xxxxx
0 Xxxxxx Xxxxx
Xx. Helier
Jersey, Channel Islands
Attention: Xxx Xxxxx
Facsimile Number: (0) 0000-000000
SIGNATURE PAGE
DATED AS OF OCTOBER __, 1997 TO THE
HYBRID NETWORKS, INC. AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
--------------------------------------------------------------------------------
-----------------------------------
Xxxxxx X. Xxxxxxx
Address: P. O. Xxx 000
Xxxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
SIGNATURE PAGE
DATED AS OF OCTOBER __, 1997 TO THE
HYBRID NETWORKS, INC. AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
--------------------------------------------------------------------------------
888 GROUP
By:
-------------------------------
Its:
------------------------------
Address: 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
Facsimile No.: (000) 000-0000
SIGNATURE PAGE
DATED AS OF OCTOBER __, 1997 TO THE
HYBRID NETWORKS, INC. AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
--------------------------------------------------------------------------------
-----------------------------------
Xxxxxxxx X. Xxxxxx
Address: Heartport, Inc.
000 Xxxxxxxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
SIGNATURE PAGE
DATED AS OF OCTOBER __, 1997 TO THE
HYBRID NETWORKS, INC. AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
--------------------------------------------------------------------------------
-----------------------------------
K. Xxxxxx Xxxxx
Address: 0000 Xxxxxx Xxx
Xxx Xxxx, XX 00000-0000
Facsimile: (000) 000-0000
