EXHIBIT 4.1
SIXTH AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
THIS SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT (this
"Agreement") is made as of the 14th day of January, 2000, by and among Wireless,
Inc., a California corporation (the "Company"), and the investors listed on the
signature pages hereto (each of which is herein referred to as a "Holder"), as
amended to include additional investors' pursuant to the Series F Purchase
Agreement (as defined below).
WHEREAS, certain of the investors (the "Existing Investors") have
heretofore possessed registration rights, information rights and other rights
pursuant to that certain Fifth Amended and Restated Investor Rights Agreement
dated as of September 30, 1999 (the "Prior Agreement");
WHEREAS, certain of the investors (the "New Investors") are purchasing
from the Company, and the Company is selling to the New Investors, shares of the
Company's Series F Preferred Stock pursuant to the terms and conditions set
forth in that certain Stock Purchase Agreement dated as of January 14, 2000 (the
"Series F Purchase Agreement");
WHEREAS, in order to induce the New Investors to invest funds in the
Company pursuant to the Series F Purchase Agreement, the parties have agreed to
enter into this Agreement;
WHEREAS, Section 9.3 of the Prior Agreement provides that the Prior
Agreement may be amended IF the Company and the holders of sixty-six percent
(66%) of the "Registrable Securities" and at least 51% of the "New Investor
Securities" (as defined in the Prior Agreement) consent in writing to the
proposed amendment and that any amendment effected in accordance with such
procedure is binding upon EACH Holder of "Registrable Securities" and the
Company.
WHEREAS, certain of the Existing Investors are holders of at least 66%
of the "Registrable Securities" and 51% of the "New Investor Securities" of the
Company (as defined in the Prior Agreement), and desire to terminate the Prior
Agreement and to accept the rights created pursuant hereto in lieu of the rights
granted to them under the Prior Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth herein, the parties hereby agree as follows:
SECTION 1
RESTRICTION ON TRANSFERABILITY OF SECURITIES;
REGISTRATION RIGHTS
1.1 CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the following respective meanings:
(a) "AFFILIATE" shall mean, with respect to any Investor, any
Person directly or indirectly controlling, controlled by or under direct or
indirect common control with such
Investor (or other specified Person) and shall include (a) any Person who is a
director or beneficial holder of at least 10% of the then outstanding capital
stock (or other shares of beneficial interest) of such Investor (or other
specified Person) and Family Members of any such Person, (b) any Person of which
such Investor (or other specified Person) or an Affiliate (as defined in clause
(a) above) of such Investor (or other specified Person) directly or indirectly,
either beneficially owns at least 10% of the then outstanding capital stock (or
other shares of beneficial interest) or constitutes at least a 10% equity
participant, (c) any Person of which an Affiliate (as defined in clause (a)
above) of such Investor is a partner, director, officer or executive employee,
and (d) in the case of a specified Person who is an individual, Family Members
of such Person.
(b) "AMT CONVERTIBLE NOTE" shall mean that certain Convertible
Promissory Note, dated August 17, 1999, in the principal amount of $1,000,000 by
and between the Company and AMT Capital, Ltd., a Texas limited partnership.
(c) "CLOSING" shall mean the Closing of the purchase of Series F
Preferred Stock as defined in the Series F Purchase Agreement.
(d) "COMMISSION" shall mean the Securities and Exchange Commission
or any other federal agency at the time administering the Securities Act.
(e) "COMMON SHARES" shall mean (a) shares of Common Stock issued or
issuable to the Investors, including upon conversion of any preferred stock and
the exercise of any warrant, (b) any shares of Common Stock into which such
shares of Common Stock have been converted, (c) any capital stock or other
securities into which or for which such Common Stock shall have been converted
or exchanged pursuant to any recapitalization, reorganization or merger of the
Company and (d) any shares of capital stock issued with respect to the foregoing
pursuant to a stock dividend or stock split; provided that no Common Shares
which have been sold pursuant to a Public Sale shall be considered to be
outstanding Common Shares hereunder.
(f) "COMMON STOCK" shall mean (a) the Company's common stock, and
(b) any shares of any other class of capital stock of the Company hereafter
issued which is (i) not preferred as to dividends or assets over any class of
stock of the Company, (ii) not subject to redemption pursuant to the terms
thereof, or (iii) issued to the holders of shares of Common Stock upon any
reclassification thereof.
(g) "CROSSROADS INVESTOR" shall mean Crossroads II, Crossroads III,
Crossroads Venture Investors VII, L.P., a California limited partnership,
Crossroads Venture Capital LLC, a Delaware limited liability company, and
Xxxxxxx X. Xxxxxx.
(h) "CROSSROADS PARTIES" shall mean Crossroads Venture Investors
II, L.P., a California limited partnership ("Crossroads II"), Crossroads Venture
Investors III, L.P., a California limited partnership ("Crossroads III"), and
each of the individual investors in such entities, including, without
limitation, Xxxxxxx X. Xxxxxx and Xxxxxxx X. Xxx.
(i) "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended, or any similar successor federal statute and the rules and
regulations thereunder, all as the same shall be in effect from time to time.
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(j) "EXISTING INVESTOR SECURITIES" shall mean (a) the Series A,
Series B, Series C Series D and Series E Preferred Stock of the Company, (b) the
Common Shares issued to Existing Investors, (c) all other Securities purchased
by or issued from time to time to Existing Investors and (d) all shares of the
Company's capital stock issued with respect to such Securities by way of stock
dividend or stock split or in connection with any merger, consolidation,
recapitalization or other reorganization affecting the Company's capital stock.
Existing Investor Securities will continue to be Existing Investor Securities in
the hands of any holder and each transferee thereof will succeed to the rights
and obligations of a holder of Existing Investor Securities hereunder, provided
that shares of Existing Investor Securities will cease to be Existing Investor
Securities when transferred (i) to the Company, (ii) pursuant to a Public Sale
or (iii) to New Investors.
(k) "EXISTING INVESTOR SHAREHOLDER" shall mean each Existing
Investor as defined on page 1 hereto for so long as such Existing Investor
Shareholder holds Existing Investor Securities and any other Person who holds
Existing Investor Securities for so long as such Person holds any Existing
Investor Securities.
(l) "FAMILY MEMBERS" shall mean, as applied to any individual, any
parent, spouse, child, grandchildren, spouse of a child, and each trust created
for the benefit of one or more of such Persons and each custodian of a property
of one or more such Persons.
(m) "FAMILY TRANSFEREE" shall mean any Family Member of a
Shareholder (i) to whom such Shareholder has transferred shares of Common Stock
pursuant to Section 3.1 and (ii) who has executed an Instrument of Accession.
(n) "HOLDER" shall mean any Investor who holds Registrable
Securities and any holder of Registrable Securities to whom the registration
rights conferred by this Agreement have been transferred in compliance with
Section 1.11 hereof.
(o) "INSTRUMENT OF ACCESSION" shall mean an Instrument of Accession
in the form of Schedule 1 hereto.
(p) "INITIATING HOLDERS" shall mean any Holder or Holders who in
the aggregate hold not less than thirty percent (30%) of the outstanding
Registrable Securities. For purposes of such calculation, holders of Preferred
Shares shall be considered to hold the shares of Common Stock then issuable upon
conversion of such Preferred Shares and holders of Warrants shall be considered
to hold the shares of Warrant Stock then issuable upon the exercise of such
Warrants.
(q) "INVESTOR" shall mean an Existing Investor or a New Investor
for so long as such Existing Investor or New Investor holds Existing Investor or
New Investor Securities and any other Person to whom such Investor transfers
Existing Investor or New Investor Securities for so long as such Person holds
such Securities.
(r) "MAJORITY HOLDERS" shall mean the holder or holders at the
relevant time of determination (excluding the Company) of 51% or more of the
Common Shares.
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(s) "MATERIAL INVESTORS" shall mean the investors listed on the
signature pages hereto who hold at least 300,000 shares of Registrable
Securities.
(t) "NEW INVESTOR SECURITIES" shall mean (a) the Series F Preferred
Stock of the Company, (b) the Common Shares issued to the New Investors, (c) all
other Securities purchased by or issued from time to time to the New Investors
and (d) all shares of the Company's capital stock issued with respect to such
Securities by way of stock dividend or stock split or in connection with any
merger, consolidation, recapitalization or other reorganization affecting the
Company's capital stock. New Investor Securities will continue to be New
Investor Securities in the hands of any holder and each transferee thereof will
succeed to the rights and obligations of a holder of New Investor Securities
hereunder, provided that shares of New Investor Securities will cease to be New
Investor Securities when transferred (i) to the Company, (ii) pursuant to a
Public Sale or (iii) to Existing Investors.
(u) "NEW INVESTOR SHAREHOLDER" shall mean each New Investor for so
long as such New Investor holds New Investor Securities and any other Person who
holds New Investor Securities for so long as such Person holds any New Investor
Securities.
(v) "NON-TRANSFERRING SHAREHOLDER". See Section 3.2.
(w) "OFFER NOTICE". See Section 3.2.
(x) "PERSON" shall mean an individual, partnership, corporation,
limited liability company, association, trust, joint venture, unincorporated
organization, or any government, governmental department or agency or political
subdivision thereof.
(y) "PERSONAL REPRESENTATIVE" shall mean the successor or legal
representative (including without limitation, a guardian, executor,
administrator or conservator) of a dead or incompetent Shareholder.
(z) "PREFERRED SHARES" shall mean the Company's Series A, Series B,
Series C, Series D, Series E, Series E-1 and Series F Preferred Stock.
(aa) "PUBLIC SALE" shall mean any sale of Common Stock to the
public pursuant to a public offering registered under the Securities Act of
1933, as amended, or to the public through a broker or market-maker pursuant to
the provisions of Rule 144 (or any successor rule) adopted under the Securities
Act of 1933, as amended.
(bb) "QUALIFIED IPO" shall mean a firm commitment underwritten
public offering of Common Stock at a price per share exceeding $7.50 pursuant to
an effective registration statement under the Securities Act resulting in at
least $25,000,000 in gross proceeds.
(cc) "REGISTRABLE SECURITIES" shall mean (i) shares of Common Stock
(ii) shares of Common Stock issued or issuable pursuant to the conversion of the
Preferred Shares and the exercise of the Warrants and (iii) any Common Stock
issued as a dividend or other distribution with respect to or in exchange for or
in replacement of the Common Stock or
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Preferred Shares referenced in (i) and (ii) above, provided, however,
that Registrable Securities shall not include any shares of Common Stock that
have been sold in a Public Sale.
(dd) The Terms "REGISTER," "REGISTERED" and "REGISTRATION" shall
refer to a registration effected by preparing and filing a registration
statement in compliance with the Securities Act and applicable rules and
regulations thereunder, and the declaration or ordering of the effectiveness of
such registration statement.
(ee) "REGISTRATION EXPENSES" shall mean all expenses incurred in
effecting any registration pursuant to this Agreement, including, without
limitation, all registration, qualification and filing fees, printing expenses,
escrow fees, fees and disbursements of counsel for the Company, blue sky fees
and expenses, accounting fees, expenses of any regular or special audits
incident to or required by any such registration, but shall not include Selling
Expenses and fees and disbursements of counsel for the Holders.
(ff) "RESTRICTED SECURITIES" shall mean Restricted Securities as
such term is defined under Rule 144.
(gg) "RESTRUCTURING DATE" shall mean the effective date of the
Restructuring and Release Agreement, dated as of June 4, 1998, between the
Company, Wi-LAN, Crossroads Venture Investors II, L.P., and Crossroads Venture
Investors III, L.P.
(hh) "RULE 144" shall mean Rule 144 as promulgated by the
Commission under the Securities Act, as such Rule may be amended from time to
time, or any similar successor rule that may be promulgated by the Commission.
(ii) "RULE 145" shall mean Rule 145 as promulgated by the
Commission under the Securities Act, as such Rule may be amended from time to
time, or any similar successor rule that may be promulgated by the Commission.
(jj) "SECURITIES" shall mean all outstanding shares of the
Company's capital stock or rights to purchase the Company's capital stock which
have not been sold in a Public Sale, including, without limitation, the Existing
Investor Securities and the New Investor Securities.
(kk) "SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, or similar successor federal statute and the rules and regulations
thereunder, all as the same shall be in effect from time to time, corresponding
to such Act.
(ll) "SELLING EXPENSES" shall mean all underwriting discounts and
selling commissions applicable to the sale of Registrable Securities and all
fees and disbursements of counsel of any Holder (other than the fees and
disbursements of counsel as provided in Section 1.4).
(mm) "SERIES E INVESTORS" shall mean the certain investors who
purchased from the Company shares of the Company's Series E Preferred stock and
Warrants pursuant to the terms and conditions set forth in that certain
Securities Purchase Agreement dated as of September 30, 1999 (the "Series E
Purchase Agreement").
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(nn) "SERIES E INVESTOR SECURITIES" shall mean (a) the Series E
Preferred Stock of the Company, (b) the Common Shares issued to the Series E
Investor Shareholders, (c) all other Securities purchased by or issued from time
to time to the Series E Investor Shareholders and (d) all shares of the
Company's capital stock issued with respect to such Securities by way of stock
dividend or stock split or in connection with any merger, consolidation,
recapitalization or other reorganization affecting the Company's capital stock.
Series E Investor Securities will continue to be Series E Investor Securities in
the hands of any holder and each transferee thereof will succeed to the rights
and obligations of a holder of Series E Investor Securities hereunder, provided
that shares of Series E Investor Securities will cease to be Series E Investor
Securities when transferred (i) to the Company, (ii) pursuant to a Public Sale
or (iii) to Existing Investors.
(oo) "SERIES E INVESTOR SHAREHOLDER" shall mean the Series E
Investors for so long as they holds Series E Investor Securities.
(pp) "SHAREHOLDER ELECTION PERIOD". See Section 3.2.
(qq) "SUBSIDIARY" shall mean any corporation, association, trust,
or other business entity, of which the designated parent shall at any time own
or control directly or indirectly through a Subsidiary or Subsidiaries at least
a majority (by number of votes) of the outstanding shares of capital stock (or
other shares of beneficial interest) entitled ordinarily to vote for the
election of such business entity's directors (or in the case of a business
entity that is not a corporation, for those Persons exercising functions similar
to directors of a corporation).
(rr) "THIRD PARTY SALE" shall mean a bona fide sale by any Existing
Investor Shareholder of Securities to a third party that is not an Affiliate of
the selling Existing Investor Shareholder or the Company, pursuant to a
transaction that is not a Public Sale.
(ss) "TRANSFER". See Section 3.1.
(tt) "TRANSFERRING SHAREHOLDER". See Section 3.2.
(uu) "WARRANTS" shall mean the warrants of the Company issued to
the Series E Investors pursuant to Section 2.1 of the Series E Purchase
Agreement and any other warrants transferred to any other holders pursuant to
Section 12 thereof, as well as warrants issuable upon conversion of the AMT
Convertible Note.
(vv) "WARRANT STOCK" shall mean Common Stock issuable upon exercise
of the Warrants in accordance with their terms and any capital stock or other
securities into which or for which such Common Stock shall have been converted
or exchanged pursuant to any recapitalization, reorganization or merger of the
Company.
(ww) "WI-LAN" shall mean Wi-LAN, Inc., an Alberta Canada
corporation.
1.2 REQUESTED REGISTRATION.
(a) REQUEST FOR REGISTRATION. If the Company shall receive from
Initiating Holders at any time or times not earlier than the earlier of (i)
January 31, 2001 or (ii) three (3)
6
months after the effective date of the first registration statement filed by the
Company covering an underwritten offering of any of its securities to the
general public, a written request specifying that it is made pursuant to this
Section 1.2 that the Company effect a registration with respect to all or a part
of the Registrable Securities having a reasonably anticipated aggregate offering
price, net of underwriting discounts and commissions, that exceeds $10,000,000,
the Company will:
(i) promptly give written notice of the proposed registration
to all other Holders; and
(ii) as soon as practicable, use its diligent best efforts to
effect such registration (including, without limitation, filing post-effective
amendments, appropriate qualifications under applicable blue sky or other state
securities laws and appropriate compliance with the Securities Act) as would
permit or facilitate the sale and distribution of all or such portion of such
Registrable Securities as are specified in such request, together with all or
such portion of the Registrable Securities of any Holder or Holders joining in
such request as are specified in a written request received by the Company
within twenty (20) days after such written notice from the Company is effective.
The Company shall not be obligated to effect, or to take any action to
effect, any such registration pursuant to this Section 1.2:
(A) In any particular jurisdiction in which the Company
would be required to execute a general consent to service of process in
effecting such registration, qualification or compliance, unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Securities Act;
(B) After the Company has effected three such
registrations pursuant to this Section 1.2(a) and such registrations have been
declared or ordered effective; further, with respect to the second of such
registrations, the Company need take no action pursuant to this Section 1.2
within one year of the date the first has been declared or ordered effective;
(C) During the period starting with the date sixty (60)
days prior to the Company's good faith estimate of the date of filing of, and
ending on a date one hundred eighty (180) days after the effective date of, a
registration pursuant to Section 1.3 hereof; provided that the Company is
actively employing in good faith all reasonable efforts to cause such
registration statement to become effective;
(D) If the Initiating Holders propose to dispose of shares
of Registrable Securities that may be immediately registered on Form S-3
pursuant to a request made under Section 1.5 hereof.
(b) Subject to the foregoing clauses (A) through (D), the Company
shall file a registration statement covering the Registrable Securities so
requested to be registered as soon as practicable after receipt of the request
or requests of the Initiating Holders; provided, however, that if (i) in the
good faith judgment of the Board of Directors of the Company, such registration
would be seriously detrimental to the Company and the Board of Directors of the
Company
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concludes, as a result, that it is essential to defer the filing of such
registration statement at such time, and (ii) the Company shall furnish to such
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 for such registration statement to be filed
in the near future and that it is, therefore, essential to defer the filing of
such registration statement, then the Company shall have the right to defer such
filing for the period during which such disclosure would be seriously
detrimental, provided, that the Company may not defer the filing for a period of
more than sixty (60) days after receipt of the request of the Initiating
Holders, and, provided further, that (except as provided in clause (C) above)
the Company shall not defer its obligation in this manner more than once in any
twelve-month period.
The registration statement filed pursuant to the request of the
Initiating Holders may, subject to the provisions of Sections 1.2(d) and 1.16
hereof, include other securities of the Company and may include securities of
the Company being sold for the account of the Company.
(c) UNDERWRITING. If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request made pursuant to
Section 1.2 and the Company shall include such information in the written notice
referred to in Section 1.2(a)(i) above. The right of any Holder to registration
pursuant to Section 1.2 shall be conditioned upon such Holder's participation in
such underwriting and the inclusion of such Holder's Registrable Securities in
the underwriting (unless otherwise mutually agreed by a majority in interest of
the Initiating Holders and such Holder with respect to such participation and
inclusion) to the extent provided herein.
(d) PROCEDURES. If the Company shall request inclusion in any
registration pursuant to Section 1.2 of securities being sold for its own
account, or if other Holders shall request inclusion in any registration
pursuant to Section 1.2, the Initiating Holders shall, on behalf of all Holders,
offer to include such securities in the underwriting and may condition such
offer on their acceptance of the further applicable provisions of this Section
1. The Company shall (together with all Holders proposing to distribute their
securities through such underwriting) enter into an underwriting agreement in
customary form with the representative of the underwriter or underwriters
selected for such underwriting by a majority in interest of the Initiating
Holders, which underwriter(s) shall be reasonably acceptable to the Company.
Notwithstanding any other provision of this Section 1.2, if the representative
of the underwriters advises the Initiating Holders in writing that marketing
factors require a limitation on the number of shares to be underwritten, the
number of shares to be included in the underwriting or registration shall be
allocated as set forth in Section 1.16 hereof. If a Holder who has requested
inclusion in such registration as provided above does not agree to the terms of
any such underwriting, such Holder shall be excluded therefrom by written notice
from the Company, the underwriter or the Initiating Holders. The securities so
excluded pursuant to Section 1.16 shall also be withdrawn from registration. Any
Registrable Securities or other securities excluded shall also be withdrawn from
such registration. If shares are so withdrawn from the registration and if the
number of shares to be included in such registration was previously reduced as a
result of marketing factors pursuant to this Section 1.2(d), then the Company
shall offer to all Holders who have retained rights to include securities in the
registration the right to include additional securities in the registration in
an aggregate amount equal to the number of shares withdrawn,
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with such shares to be allocated among such Holders requesting additional
inclusion in accordance with Section 1.16.
1.3 COMPANY REGISTRATION.
(a) If the Company shall determine to register any of its
securities either for its own account or the account of a security holder or
holders exercising their respective demand registration rights (other than
pursuant to Section 1.2 hereof), other than a registration relating solely to
employee benefit plans, or a registration relating solely to a Commission Rule
145 transaction, or a registration on any registration form which does not
permit secondary sales, the Company will:
(i) promptly give to each Holder written notice thereof; and
(ii) use its best efforts to include in such registration (and
any related qualification under blue sky laws or other compliance), except as
set forth in Section 1.3(b) below, and in any underwriting involved therein, all
the Registrable Securities specified in a written request or requests, made by
any Holder within twenty (20) days after the written notice from the Company
described in clause (i) above is effective. Such written request may specify all
or part of a Holder's Registrable Securities.
(b) UNDERWRITING. If the registration of which the Company gives
notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 1.3(a)(i). In such event the right of any Holder to
registration pursuant to Section 1.3 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their securities through such underwriting shall
(together with the Company and the holders of other securities of the Company
distributing their securities through such underwriting) enter into an
underwriting agreement in customary form with the representative of the
underwriter or underwriters selected by the Company.
Notwithstanding any other provision of this Section 1.3, if the
representative of the underwriters advises the Company in writing that marketing
factors require a limitation on the number of shares to be underwritten, the
representative may (subject to the limitations set forth below) exclude all
Registrable Securities from, or limit the number of Registrable Securities to be
included in, the registration and underwriting. The Company shall so advise all
Holders of securities requesting registration, and the number of shares of
securities that are entitled to be included in the registration and underwriting
shall be allocated as set forth in Section 1.15 or 1.16, as applicable. If any
Holder does not agree to the terms of any such underwriting, such Holder shall
be excluded therefrom by written notice from the Company or the underwriter. Any
Registrable Securities or other securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration.
If shares are so withdrawn from the registration or if the number of
shares of Registrable Securities to be included in such registration was
previously reduced as a result of marketing factors, the Company shall then
offer to all persons who have retained the right to include
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securities in the registration the right to include additional securities in the
registration in an aggregate amount equal to the number of shares so withdrawn,
with such shares to be allocated among the persons requesting additional
inclusion in accordance with Section 1.15 or 1.16, as applicable hereof.
1.4 EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to
Section 1.2 hereof shall be borne by the Company, and reasonable fees and
expenses of one counsel for the selling shareholders shall also be borne by the
Company. All Registration Expenses incurred in connection with any registration,
qualification or compliance pursuant to Section 1.3 hereof shall be borne by the
Company, and reasonable fees and expenses of one counsel for the selling
shareholders shall also be borne by the Company. Registration Expenses incurred
in connection with any registration, qualification or compliance pursuant to
Section 1.5 hereof and reasonable fees and expenses of one counsel for the
selling shareholders shall be borne by the Company. All Selling Expenses
relating to securities so registered shall be borne by the holders of such
securities pro rata on the basis of the number of shares of securities so
registered on their behalf.
1.5 REGISTRATION ON FORM S-3.
(a) After its initial public offering, the Company shall use its
best efforts to qualify for registration on Form S-3 or any comparable or
successor form or forms. After the Company has qualified for the use of Form
S-3, in addition to the rights contained in the foregoing provisions of this
Section 1, the Holders of Registrable Securities shall have the right to request
one registration on Form S-3 per annum (such requests shall be in writing and
shall state the number of shares of Registrable Securities to be disposed of and
the intended methods of disposition of such shares by such Holder or Holders),
provided, however, that the Company shall not be obligated to effect any such
registration if (i) 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) on Form S-3 at an
aggregate price to the public of less than $2,000,000, or (ii) in the event that
the Company shall furnish the certification described in paragraph 1.2(b) (but
subject to the limitations set forth therein) or (iii) in a given twelve-month
period, after the Company has effected two (2) such registration in any such
period.
(b) If a request complying with the requirements of Section 1.5(a)
hereof is delivered to the Company, the provisions of Sections 1.2(a)(i) and
(ii) and Section 1.2(b) hereof shall apply to such registration. If the
registration is for an underwritten offering, the provisions of Sections 1.2(c)
and 1.2(d) hereof shall also apply to such registration.
1.6 REGISTRATION PROCEDURES. In the case of each registration effected
by the Company pursuant to Section 1, the Company will keep each Holder advised
in writing as to the initiation of each registration and as to the completion
thereof. At its expense, the Company will use its best efforts to:
(a) Keep such registration effective for a period of one hundred
twenty (120) days or until the Holder or Holders have completed the distribution
described in the registration statement relating thereto, whichever first
occurs; provided, however, that (i) such 120-day
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period shall be extended for a period of time equal to the period the Holder
refrains from selling any securities included in such registration at the
request of an underwriter of Common Stock (or other securities) of the Company;
and (ii) in the case of any registration of Registrable Securities on Form S-3
which are intended to be offered on a continuous or delayed basis, such 120-day
period shall be extended, if necessary, to keep the registration statement
effective until all such Registrable Securities are sold, provided that Rule
415, or any successor rule under the Securities Act, permits an offering on a
continuous or delayed basis, and provided further that applicable rules under
the Securities Act governing the obligation to file a post-effective amendment
permit, in lieu of filing a post-effective amendment which (I) includes any
prospectus required by Section 10(a)(3) of the Securities Act or (II) reflects
facts or events representing a material or fundamental change in the information
set forth in the registration statement, the incorporation by reference of
information required to be included in (I) and (II) above to be contained in
periodic reports filed pursuant to Section 13 or 15(d) of the Exchange Act in
the registration statement;
(b) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement;
(c) Furnish such number of prospectuses and other documents
incident thereto, including any amendment of or supplement to the prospectus, as
a Holder from time to time may reasonably request;
(d) Cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange on which similar securities
issued by the Company are then listed;
(e) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration;
(f) Otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering the
period of at least twelve months, but not more than eighteen months, beginning
with the first month after the effective date of the Registration Statement,
which earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act; and
(g) In connection with any underwritten offering pursuant to a
registration statement filed pursuant to Section 1.2 hereof, the Company will
enter into an underwriting agreement reasonably necessary to effect the offer
and sale of Common Stock, provided such underwriting agreement contains
customary underwriting provisions and provided further that if the underwriter
so requests the underwriting agreement will contain customary contribution
provisions.
11
(h) Furnish, at the request of any Holder, on the date that the
Common Stock is delivered to the underwriters for sale in connection with a
registration being sold through underwriters, (i) an opinion, if any, 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 and to the
Holders 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.
1.7 INDEMNIFICATION.
(a) The Company will indemnify each Holder, each of its officers,
directors and partners, legal counsel and accountants and each person
controlling such Holder within the meaning of Section 15 of the Securities Act,
with respect to which registration, qualification or compliance has been
effected pursuant to this Section 1, and each underwriter, if any, and each
person who controls within the meaning of Section 15 of the Securities Act any
underwriter, against all expenses, claims, losses, damages and liabilities (or
actions, proceedings or settlements in respect thereof) arising out of or based
on any untrue statement of a material fact contained in any prospectus, offering
circular or other document (including any related registration statement,
notification or the like) incident to any such registration, qualification or
compliance, or based on any omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or any violation by the Company of the Securities Act or any rule or regulation
thereunder, applicable to the Company and relating to action or inaction
required of the Company in connection with any such registration, qualification
or compliance, and will reimburse each such Holder, each of its officers,
directors, partners, legal counsel and accountants and each person controlling
such Holder, each such underwriter and each person who controls any such
underwriter, for any legal and any other expenses reasonably incurred in
connection with investigating and defending or settling any such claim, loss,
damage, liability or action, provided that the Company will not be liable in any
such case to the extent that any such claim, loss, damage, liability or expense
arises out of or is based on any untrue statement or omission based upon written
information furnished to the Company by such Holder (and regarding such Holder)
or underwriter and stated to be specifically for use therein. It is agreed that
the indemnity agreement contained in this Section 1.7(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
has not been unreasonably withheld).
(b) Each Holder will, if Registrable Securities held by him are
included in the securities as to which such registration, qualification or
compliance is being effected, indemnify the Company, each of its directors,
officers, partners, legal counsel and accountants and each underwriter, if any,
of the Company's securities covered by such a registration statement, each
person who controls the Company or such underwriter within the meaning of
Section 15 of the Securities Act, each other such Holder and each of their
officers, directors and partners, and each person controlling such Holder,
against all claims, losses, damages and liabilities (or actions in respect
thereof) arising out of or based on any untrue statement of a material fact
contained in any such registration statement, prospectus, offering circular or
other document, or any omission
12
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse the Company and
such Holders, directors, officers, partners, legal counsel and accountants,
persons, underwriters or control persons for any legal or any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability or action, in each case to the extent, but only
to the extent, that such untrue statement or omission is made in such
registration statement, prospectus, offering circular or other document in
reliance upon and in conformity with written information regarding such Holder
furnished to the Company by such Holder specifically for inclusion therein;
provided, however, that the obligations of such Holder hereunder (i) shall not
apply to amounts paid in settlement of any such claims, losses, damages or
liabilities (or actions in respect thereof) if such settlement is effected
without the consent of such Holder (which consent shall not be unreasonably
withheld), and (ii) shall be limited in amount to the net proceeds received by
such Holder from the sale of shares pursuant to such registration, qualification
or compliance.
(c) Any person entitled to indemnification hereunder (an
"Indemnified Party") will (i) give prompt written notice to the party required
to provide indemnification (an "Indemnifying Party") of any claim with respect
to which it seeks indemnification and (ii) permit such Indemnifying Party to
assume the defense of such claim with counsel reasonably satisfactory to the
Indemnified Party, provided, however, that any person entitled to
indemnification hereunder shall have the right to employ separate counsel and to
participate in the defense of such claim, but the fees and expenses of such
counsel shall be at the expense of such person unless (x) the Indemnifying Party
has agreed in writing to pay such fees or expenses, or (y) the Indemnifying
Party shall have failed to assume the defense of such claim and employ counsel
reasonably satisfactory to such person or (z) in the reasonable judgment of any
such person and the Indemnifying Party, based upon advice of their respective
counsel, a conflict of interest may exist between such person and the
Indemnifying Party with respect to such claims (in which case, if the person
notifies the Indemnifying Party in writing that such person elects to employ
separate counsel at the expense of the Indemnifying Party, the Indemnifying
Party shall not have the right to assume the defense of such claim on behalf of
such person). If such defense is not assumed by the Indemnifying Party, the
Indemnifying Party will not be subject to any liability for any settlement made
without its consent (but such consent will not be unreasonably withheld). No
Indemnifying Party shall consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to the Indemnified Party of a release from all
liability in respect to such claim or litigation without the consent of the
Indemnified Party. The failure of any Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party of its obligations
under this Section 1.7 unless the Indemnifying Party is materially prejudiced
thereby. An Indemnifying Party who is not entitled to, or elects not to, assume
the defense of a claim will not be obligated to pay the fees and expenses of
more than one counsel for all parties indemnified by such Indemnifying Party
with respect to such claim, unless in the reasonable judgment of any Indemnified
Party a conflict of interest may exist between such Indemnified Party and any
other of such Indemnified Parties with respect to such claim, in which event the
Indemnifying Party shall be obligated to pay the fees and expenses of such
additional counsel or counsels. Each Indemnified Party shall furnish such
information regarding itself or the claim in question as an Indemnifying Party
may reasonably request in writing and as shall be reasonably required in
connection with the defense of such claim and litigation resulting therefrom.
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(d) If the indemnification provided for in this Section 1.7 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 which resulted in such loss,
liability, claim, damage or expense as well as any other relevant equitable
considerations, provided, however, that the amount of contribution by such
Indemnifying Party where such Indemnifying Party is a Holder shall be limited to
the net proceeds received by such Holder from the sale of shares pursuant to
such registration, qualification or compliance. The relative fault of the
Indemnifying Party and of the Indemnified Party shall be determined by reference
to, among other things, whether the untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
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.
1.8 INFORMATION BY HOLDER. Each Holder of Registrable Securities shall
furnish to the Company such information regarding such Holder and the
distribution proposed by such Holder as the Company may reasonably request and
as shall be reasonably required in connection with any registration,
qualification or compliance referred to in this Section 1.
1.9 LIMITATIONS ON REGISTRATION OF ISSUES OF SECURITIES. From and after
the date of this Agreement, the Company shall not, without the prior written
consent of a majority in interest of the Holders, enter into any agreement with
any holder or prospective holder of any securities of the Company giving such
holder or prospective holder any registration rights the terms of which are not
subordinate to the rights of the Holders hereunder or which grant such holder or
prospective holder demand registration rights exercisable prior to those of the
Holders under Section 1.2 hereof.
1.10 RULE 144 REPORTING. With a view to making available the benefits
of certain rules and regulations of the Commission which may permit the sale of
the Restricted Securities to the public without registration, the Company agrees
to use its best efforts to:
(a) Make and keep public information available as those terms are
understood and defined in Rule 144 under the Securities Act, at all times from
and after ninety (90) days following the effective date of the first
registration under the Securities Act filed by the Company for an offering of
its securities to the general public; and
(b) File with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act at any time after it has become subject to such reporting
requirements.
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1.11 TRANSFER OR ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause
the Company to register Registrable Securities granted to a Holder by the
Company pursuant to this Section 1 may be transferred or assigned by a Holder to
(i) any transferee or assignee of not less than 200,000 shares of Registrable
Securities (as presently constituted and subject to subsequent adjustments for
stock splits, stock dividends, reverse stock splits and the like), (ii) any
constituent partner or member of a partnership or limited liability company
Holder, respectively, (iii) any direct or indirect subsidiary or parent of a
corporate Holder, (iv) any person, trust or other entity if beneficial ownership
or the power to vote or dispose of the Registrable Securities resides in the
same person after the transfer as immediately prior to such transfer or (v) any
Holder; provided, however, that the Company is given written notice at the time
of or within a reasonable time after such a transfer or assignment, stating the
name and address of said transferee or assignee and identifying the securities
with respect to which such registration rights are being transferred or
assigned, and provided further that the transferee or assignee of such rights
assumes in a written instrument provided to the Company the obligations of such
Holder under this Section 1. For purposes of clause (iv) of the foregoing
sentence, where two or more persons share beneficial ownership or power to vote
or dispose of Registrable Securities and such persons take as transferees a
distributive share equal to all or less than all of the Registrable Securities
to which they shared voting or dispositive power prior to the transfer, with
respect to each such person beneficial ownership or the power to vote or dispose
of the Registrable Securities held by them shall be deemed to reside in the same
person as prior to the transfer. In addition, subject to the approval of the
Board of Directors in its sole discretion, the right to cause the Company to
register Registrable Securities granted to a Holder pursuant to this Section 1
hereof may be assigned or transferred by a Holder to any other transferee who is
an affiliated person or entity of a Holder where such transfer is of the type
intended to be permitted by this Section 1.11. Any transferee or assignee under
the foregoing sentence must assume in a written instrument provided to the
Company the obligations of the transferring Holder under this Section 1.
1.12 "MARKET STAND-OFF" AGREEMENT. If requested by the Company and an
underwriter of Common Stock (or other securities) of the Company, an Investor
shall not sell or otherwise transfer or dispose of any Common Stock (or other
securities) of the Company held by such Investor (other than those included in
the registration) during the one hundred eighty (180) day period following the
effective date of a registration statement of the Company filed under the
Securities Act, provided that all officers, directors and 5% shareholders of the
Company, who are not parties to this Agreement, enter into similar agreements.
The obligations described in this Section 1.12 shall not apply to a
registration relating solely to employee benefit plans on Form S-1 or Form S-8
or similar forms which may be promulgated in the future, or a registration
relating solely to a Commission Rule 145 transaction on Form S-4 or similar
forms which may be promulgated in the future. The Company may impose
stop-transfer instructions with respect to the shares (or securities) subject to
the foregoing restriction until the end of said one hundred eighty (180) day
period.
1.13 DELAY OF REGISTRATION. No Holder shall have any right to take any
action to restrain, enjoin, or otherwise delay any registration as the result of
any controversy that might arise with respect to the interpretation or
implementation of this Section 1.
15
1.14 TERMINATION OF REGISTRATION RIGHTS. The right of any Holder to
request registration or inclusion in any registration pursuant to this Agreement
shall terminate on the date on which all shares of Registrable Securities held
or entitled to be held upon conversion by such Holder may immediately be sold
under Rule 144 during any ninety (90) day period.
1.15 EXCLUSION/ALLOCATION IN AN OFFERING BY THE COMPANY. With respect
to an underwritten public offering pursuant to Section 1.3 and related primarily
to an offering by the Company for its own account, if the total amount of
securities, including Registrable Securities, requested by shareholders to be
included in the offering exceeds the amount of securities 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 securities that the underwriters determine in their sole
discretion will not jeopardize the offering, in the following order of priority:
(i) first, securities to be offered by the Company for its own account and (ii)
second, Registrable Securities held by the Holders requesting inclusion of
Registrable Securities in the offering, based on their pro rata portion of all
Registrable Securities requested to be included in the offering. For purposes of
the preceding parenthetical concerning apportionment, for any selling
shareholder which is a Holder of Registrable Securities and which is a
partnership or corporation, the partners, retired partners and shareholders 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 shareholder," and any pro-rata reduction with
respect to such "selling shareholder" shall be based upon the aggregate amount
of shares carrying registration rights owned by all entities and individuals
included in such "selling shareholder," as defined in this sentence.
Notwithstanding the foregoing, in no event shall the amount of securities of
selling holders included in such offering be reduced below twenty-five percent
(25%) of the total amount of securities included in such offering unless such
offering is the Company's initial public offering.
1.16 EXCLUSION/ALLOCATION IN AN OFFERING BY HOLDERS. With respect to an
underwritten public offering (i) pursuant to Section 1.2 or 1.5 or (ii) pursuant
to Section 1.3 and related primarily to an offering by any person other than the
Company for its own account, if the total amount of securities requested to be
included in the offering exceeds the amount of securities that the underwriters
determine in their sole discretion is compatible with the success of the
offering, then there will be included in the offering only that number of
securities that the underwriters determine in their sole discretion will not
jeopardize the offering, in the following order of priority: (i) first,
Registrable Securities held by the Holders requesting inclusion of Registrable
Securities in the offering, based on their pro rata portion of all Registrable
Securities requested to be included in the offering; (ii) second, securities to
be offered by the Company for its own account; and (iii) third, any securities
held by a person who is not a Holder.
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SECTION 2
COVENANTS OF THE COMPANY
2.1 DELIVERY OF FINANCIAL STATEMENTS. The Company shall deliver to each
Material Investor:
(a) as soon as practicable, but in any event within ninety (90)
days after the end of each fiscal year of the Company, an income statement for
such fiscal year, a balance sheet of the Company and statement of shareholder's
equity as of the end of such year, and a statement of cash flows, such year-end
financial reports to be in reasonable detail, unaudited but prepared in
accordance with generally accepted accounting principles;
(b) as soon as practicable, but in any event within forty-five (45)
days after the end of each of the first three (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) annually as soon as practicable (but in any event at least
thirty (30) days prior to the commencement of each fiscal year of the Company)
the financial and operating plan of the Company, in such manner and form as
approved by the Board of Directors of the Company, which financial and operating
plan shall include a projection of income and a projected cash flow statement
for such fiscal year and a projected balance sheet as of the end of such fiscal
year.
2.2 INSPECTION. The Company shall permit each Material Investor, at
such Material Investor's expense, to visit and inspect the Company's properties,
to examine its books of account and records and to discuss the Company's
affairs, finances and accounts with its officers, all at such reasonable times
as may be requested by the Material Investor; provided, however, that the
Company shall not be obligated pursuant to this Section 2.2 to provide access to
any information which it reasonably considers to be a trade secret or similar
confidential information.
2.3 RIGHT OF FIRST REFUSAL. The Company hereby grants to each Material
Investor the right of first refusal to purchase a pro rata share of New
Securities (as defined in this Section 2.3) which the Company may, from time to
time, propose to sell and issue. For purposes of applying this Section 2.3, the
holdings of a Material Investor shall be deemed to include shares held by
entities who are controlled by or are under common control with the Material
Investor (a "Material Investor Affiliate"). A Material Investor's pro rata
share, for purposes of this right of first refusal, is the ratio of the number
of shares of Common Stock owned by such Material Investor, including shares
owned by such Material Investor's Affiliate(s), immediately prior to the
issuance of New Securities, assuming full conversion of the Preferred Shares and
the exercise of all Warrants, to the total number of shares of Common Stock
outstanding immediately prior to the issuance of New Securities, assuming full
conversion of the Preferred Shares and the exercise of all Warrants; provided,
however, that in the event two or more Material Investors have a common Material
Investor Affiliate, the shares owned by any Material Investor Affiliate may only
be counted once for purposes of determining pro rata ownership. Each Material
Investor shall have a right of over-allotment such that if any Material Investor
fails to exercise its right
17
hereunder to purchase its pro rata share of New Securities, the other
Material Investors may purchase the non-purchasing Material Investor's portion
on a pro rata basis within five (5) days from the date such non-purchasing
Material Investor fails to exercise its right hereunder to purchase its pro rata
share of New Securities. This right of first refusal shall be subject to the
following provisions:
(a) "NEW SECURITIES" shall mean any capital stock (including Common
Stock and/or Preferred Stock) of the Company whether now authorized or not, and
rights, options or warrants to purchase such capital stock, and securities of
any type whatsoever that are, or may become, convertible into capital stock;
provided that the term "New Securities" does not include (i) the Preferred
Shares or the Warrants or securities issued upon conversion of the Preferred
Shares or the exercise of the Warrants; (ii) Securities issued upon conversion
of the AMT Convertible Note; (iii) any borrowings, direct or indirect, from
financial institutions or other persons by the Company, whether or not presently
authorized, including any type of loan or payment evidenced by any type of debt
instrument, including, without limitation, the debt instruments between the
Company and Silicon Valley Bank, provided such borrowings do not have any equity
features including warrants, options or other rights to purchase capital stock
and are not convertible into capital stock of the Company except for the
warrants to purchase stock from the Company in favor of Silicon Valley Bank with
respect to 48,000 shares of Series D Preferred Stock and 20,000 shares of Series
E Preferred Stock or securities issued upon exercise thereof; (iv) securities
issued to employees, consultants, officers or directors of the Company pursuant
to any stock option, stock purchase or stock bonus plan, agreement or other
compensation plan or arrangement approved by the Board of Directors; (iv)
securities issued in a firm commitment underwritten public offering pursuant to
a registration under the Securities Act provided that such public offering is a
Qualified IPO; (v) securities issued as consideration in connection with any
stock split, stock dividend or recapitalization of the Company; (vi) securities
issued in connection with a merger or acquisition transaction provided, that (1)
with respect to securities issued in connection with any such merger or
acquisition transaction, subject to subpart (2) below, upon completion of a such
merger the relative shareholdings of the Crossroads Parties (including options
and other rights to acquire an interest) in the surviving merged company shall
be in the same proportion to Wi-LAN's shareholdings in such merged company that
the Crossroads Parties' shareholdings (including options and other rights to
acquire an interest) were to Wi-LAN's shareholdings in the entity just prior to
the merger or acquisition, and (2) the interest of the Crossroads Parties may be
increased from that contemplated in subpart (1) above by virtue of the holding
of one or more of the Crossroads Parties, prior to the merger or acquisition, of
not more than 5% of the equity of the other party to the merger or acquisition
and provided, that in the aggregate of all such transactions and the Merger, the
relative proportionate interests of the Crossroads Parties to Wi-LAN in any
merged entity will not change by more than 20% of their proportionate interests
as of the Restructuring Date; (vii) Common Stock issued to a TRW, Inc. pursuant
to a License Agreement between the Company and TRW, Inc. dated as of January 14,
2000 and (viii) any right, option or warrant to acquire any security convertible
into the securities excluded from the definition of New Securities pursuant to
subsections (i) through (vi) above.
(b) In the event the Company proposes to undertake an issuance of
New Securities, it shall give each Material Investor written notice of its
intention, describing the type of New Securities, and their price and the
general terms upon which the Company proposes to
18
issue the same. Each Material Investor shall have fifteen (15) days after any
such notice is effective to notify the Company of its desire to purchase such
Material Investor's pro rata share of such New Securities (a "Participating
Purchaser") for the price and upon the terms specified in the notice and such
Material Investor shall also state the quantity of New Securities to be
purchased (and include the proposed terms of financing for such participation if
such financing is required); provided, however, that the Material Investor shall
not be required to complete the purchase of its pro-rata share of New
Securities, if at all, until sixty (60) days after the effectiveness of
Company's original notice; provided further, that if, after a good faith effort,
the Material Investor is unable to raise the financing necessary to purchase its
pro-rata share of the New Securities, such notice shall not be binding on such
Material Investor. Upon the expiration of the sixty (60) day period specified in
the previous sentence, the Company shall give notice to each Participating
Purchaser, specifying the number of New Securities available for over-allotment
to Participating Purchasers (the "Over-allotment Securities"). Each
Participating Purchaser shall have five (5) business days after any such notice
is effective to agree to purchase such Participating Purchaser's pro rata share
of the Over-allotment Securities by giving written notice to the Company and
stating therein the number of Over-allotment Securities to be purchased.
(c) In the event the Material Investors fail to exercise fully the
right of first refusal within said sixty (60) day period and after the
expiration of the five (5) business days allowed for the exercise of the
over-allotment provisions of this Section 2.3, the Company shall have ninety
(90) days thereafter to sell or enter into an agreement (pursuant to which the
sale of New Securities covered thereby shall be closed, if at all, within ninety
(90) days from the date of said agreement) to sell the New Securities respecting
which the Material Investors' right of first refusal option set forth in this
Section 2.3 was not exercised, at a price and upon terms no more favorable to
the purchasers thereof than specified in the Company's notice to Material
Investors pursuant to Section 2.3(b). In the event the Company has not sold
within said 90 day period or entered into an agreement to sell the New
Securities within said 90 day period (or sold and issued New Securities in
accordance with the foregoing within ninety (90) days from the date of said
agreement), the Company shall not thereafter issue or sell any New Securities,
without first again offering such securities to the Material Investors in the
manner provided in Section 2.3(b) above.
(d) The right of first refusal granted under this Agreement shall
expire upon, and shall not be applicable to, the first sale of Common Stock of
the Company to the public effected pursuant to a registration statement filed
with, and declared effective by, the Commission under the Securities Act
provided that such sale is a Qualified IPO.
(e) The right of first refusal set forth in this Section 2.3 may
not be assigned or transferred, except in a transfer permitted by Section 1.11.
2.4 TERMINATION OF COVENANTS. The covenants set forth in this Sections
2.1 and 2.2 shall terminate and be of no further force and effect after the time
of effectiveness of the Company's first firm commitment underwritten public
offering registered under the Securities Act or when the Company first becomes
subject to the periodic reporting requirements of Sections 12(g) or 15(d) of the
Exchange Act, whichever event shall occur first.
19
SECTION 3
RESTRICTIONS ON TRANSFER OF SECURITIES
3.1 TRANSFER OF SECURITIES. Subject to the provisions of Section 3.2
hereof and subject to the rights granted to Wi-LAN pursuant to that certain
Third Amended and Restated Shareholders' Rights Agreement, dated as of June 3,
1998, (a) no Crossroads Investor may sell, assign, pledge or otherwise transfer
(a "Transfer") any interest in any Securities held by such Crossroads Investors
(the "Crossroads Securities"), either voluntarily or involuntarily, by operation
of law or otherwise, except (i) to such Crossroads Investor's Family Members,
provided that such Crossroads Investor retains voting control over the
transferred Crossroads Securities, (ii) to such Crossroads Investor's Personal
Representative, (iii) pursuant to a Third Party Sale subject to the provisions
of Sections 3.2 and 3.3 hereof or (iv) pursuant to a Public Sale; provided that,
in each case, (A) no Event of Default under (and as defined in) the Series E
Purchase Agreement would occur as a result of any such transfer, (B) the
restrictions contained in this Section 3 will continue to be applicable to any
transferee of Crossroads Securities by any Crossroads Investor pursuant to this
Section 3.1, and (C) the transferee of such Crossroads Securities pursuant to
clause (B) above shall have executed and delivered an Instrument of Accession as
a condition precedent to the transfer thereof.
3.2 FIRST RIGHT OF PURCHASE. (a) Subject to the provisions of Section
3.1 hereof, any Crossroads Investor may Transfer any interest in any Crossroads
Securities pursuant to a Third Party Sale in accordance with the provisions of
this Section 3.2 and Section 3.3. At least 45 days prior to any Third Party
Sale, the transferring Crossroads Investor (the "Transferring Shareholder") will
deliver a written notice (the "Offer Notice") to the Company and to the Series E
Investor Shareholders (the "Non-Transferring Shareholders"). The Offer Notice
will disclose in reasonable detail the proposed number of shares of the
Crossroads Securities to be transferred, the class or classes of such Crossroads
Securities, the proposed price, terms and conditions of the Transfer and the
identity of the transferee. The Non-Transferring Shareholders may elect to
purchase all (but not less than all) of the Crossroads Securities specified in
the Offer Notice at the price and on the terms specified therein by delivering
written notice of such election to the Transferring Shareholder and the Company
within 30 days after the delivery of such Offer Notice (the "Shareholder
Election Period"). If the Non-Transferring Shareholders elect to purchase all of
such Crossroads Securities, the Transfer of the Crossroads Securities will be
consummated within 30 days after the expiration of the Shareholder Election
Period. If more than one Non-Transferring Shareholder elects to purchase all of
the Crossroads Securities to be transferred, each Non-Transferring Shareholder
electing to purchase such Crossroads Securities will be entitled to purchase
from the Transferring Shareholder a pro rata portion (based upon the respective
numbers of shares of Securities then held by such Non-Transferring Shareholders
(on a fully-diluted and converted basis)) of the Crossroads Securities proposed
to be transferred. If the Non-Transferring Shareholders do not elect to purchase
all of the Crossroads Securities being offered, the Transferring Shareholder
may, within 90 days after the expiration of the Shareholder Election Period,
complete the Third Party Sale of the Crossroads Securities specified in the
Offer Notice at a price and on terms no more favorable to the transferees than
the price and terms offered to the Non-Transferring Shareholders in the Offer
Notice, provided that no such Third Party Sale may be completed except in
compliance with Section 3.3 and unless each of such transferees shall have
executed and delivered an Instrument of Accession as a condition
20
precedent to the transfer thereof. If the Transferring Shareholder fails to
consummate such Third Party Sale within the 90 day period after the expiration
of the Shareholder Election Period, any subsequent proposed Transfer of the
Crossroads Securities shall be once again subject to the provisions of this
Section 3.2.
3.3. PARTICIPATION RIGHTS. In the event that the Non-Transferring
Shareholders fail to purchase the Crossroads Securities specified in the Offer
Notice, any Series E Investor Shareholder may elect to participate in the
contemplated Third Party Sale by delivering written notice to the Transferring
Shareholder within 15 days after expiration of the Shareholder Election Period.
If a Series E Investor Shareholder elects to participate in such Third Party
Sale, each of the Transferring Shareholder and the Series E Investor
Shareholder(s) will be entitled to sell in the contemplated Third Party Sale, at
the same price and on the same terms, a number of shares of Securities proposed
to be sold equal to the product of (i) the fraction, the numerator of which is
the number of shares of Securities (on a fully-diluted basis) held by such
Person, and the denominator of which is the aggregate number of shares of
Securities (on a fully-diluted basis) owned by the Transferring Shareholder and
the Series E Investor Shareholder(s), MULTIPLIED BY (ii) the number of shares of
Securities (on a fully-diluted basis) to be sold in the contemplated Third Party
Sale.
For example, if the notice from the Transferring Shareholder
contemplated a sale of 100 shares of Securities by the Transferring
Shareholder and the Transferring Shareholder at such time owns 300
shares of Securities, and if a Series E Investor Shareholder elects to
participate in such sale and the Series E Investor Shareholder owns 200
shares of Securities (on a fully-diluted basis), such Transferring
Shareholder would be entitled to sell 60 shares (300/500 x 100 shares)
and the Series E Investor Shareholder would be entitled to sell 40
shares (200/500 x 100 shares).
The Transferring Shareholder will use its best efforts to obtain the agreement
of the prospective transferee(s) to the participation of a Series E Investor
Shareholder in any contemplated Third Party Sale and will not transfer any of
its Securities to the prospective transferee(s) if the prospective transferee(s)
declines to allow the participation of the Series E Investor Shareholder(s) on
the terms specified herein.
3.4 TRANSFERS OF SECURITIES IN BREACH OF THIS AGREEMENT. In the event
of any Transfer of Existing Investor Securities in breach of this Section 3,
commencing immediately upon the date of such attempted Transfer (i) such
Transfer shall be void and of no effect, (ii) no dividend of any kind or any
distribution pursuant to any liquidation, redemption or otherwise shall be paid
by the Company to the purported transferee in respect of such Existing Investor
Securities (all such rights to payment by the transferring Shareholder and/or
the purported transferee being deemed waived), (iii) the voting rights of such
Existing Investor Securities, if any, shall terminate, and (iv) neither the
transferring Shareholder nor the purported transferee shall be entitled to
exercise any rights with respect to such Existing Investor Securities until such
Transfer in breach of this Agreement has been rescinded.
3.5 TERMINATION. The provisions of this Section 3 shall terminate and
be of no further force and effect after the time of effectiveness of the
Company's Qualified IPO.
21
SECTION 4
BOARD OF DIRECTORS
4.1 BOARD OF DIRECTORS; VOTING AGREEMENTS. (a) Subject to adjustment as
provided below, in any and all elections of directors of the Company (whether at
a meeting or by written consent in lieu of a meeting), each of the undersigned
Holders, to the extent that such Holder has voting rights, shall vote, or cause
to be voted, or cause such Holder's designees as directors to vote, all
Securities, owned by such Holder or over which such Holder has voting control,
so as to fix the number of directors of such Company at nine (9), and to
nominate and elect four (4) directors of such Company as follows:
(i) One (1) individual designated by GMN Investors II, L.P., so
long as GMN Investors II, L.P. or its Affiliates hold any Securities and
thereafter by the Majority Holders;
(ii) One (1) individual designated by Stratford Equity Partners,
L.P., so long as Stratford Equity Partners, L.P. or its Affiliates hold any
Securities and thereafter by the Majority Holders;
(iii) One (1) individual designated by DynaFund, L.P. and DynaFund
International, L.P. (together, the "DynaFund Entities") for so long as the
DynaFund Entities hold at least 200,000 Common Shares and thereafter by the
Majority Holders; and
(iv) One (1) individual designated by TRW, Inc. for so long as TRW
and/or its Affiliates hold at least 2,500,000 Common Shares (subject to
appropriate adjustment in the event of any stock dividend, stock split,
combination or other similar recapitalization affecting such shares) or
securities of the Company which may be converted into at least 2,500,000 Common
Shares (subject to appropriate adjustment in the event of any stock dividend,
stock split, combination or other similar recapitalization affecting such
shares); provided, however, that it shall no longer be so entitled upon such
time as the holders of Common Shares and securities which may be converted into
or exercised for Common Shares on the date hereof no longer hold 51% of the
total Common Shares, assuming for all purposes that securities which may be
converted into or exercised for Common Shares are fully converted or exercised.
If an Investor or the Majority Holders with designation rights as set
forth immediately above, as applicable, choose not to designate a director or
directors of the Company as provided above, the number of directors of such
Company shall be reduced accordingly until such time as such Investor or the
Majority Holders, as applicable, exercise their rights as provided above, at
which time the number of directors of such Company shall be increased
accordingly.
(b) If any vacancy shall occur in the Board of Directors of the Company
as a result of death, disability, resignation or any other termination of a
director, the replacement for such vacating director shall be designated by the
Person or Persons who, pursuant to Section 4.1(a) above, originally designated
such vacating director. Each Person or Persons entitled to designate a director
or a replacement for a director pursuant to this Section 4 shall also be
entitled to designate the removal of such director with or without cause. Each
Holder agrees to vote, or to cause to be voted, all voting securities owned by
such Holder, or over which such Holder has voting control, in order to comply
with this Section 4.1.
22
4.2 PROXY. Each undersigned Holder hereby grants to the Company, as
applicable, an irrevocable proxy, coupled with an interest, to vote all voting
Securities held by such Person to the extent necessary to carry out the
provisions of this Section 4 in the event of any breach by such Person of its
obligations under the voting agreement contained herein.
4.3 TERMINATION. The provisions of this Section 4 shall terminate and
be of no further force and effect after the time of effectiveness of the
Company's Qualified IPO.
SECTION 5
ADDITIONAL LEGEND
So long as any New Investor Securities are subject to the provisions of
this Agreement, all certificates or instruments representing New Investor
Securities will have imprinted on them the following legend:
The shares represented by this certificate are subject to the
terms of a certain Sixth Amended and Restated Investors' Rights
Agreement, dated as of January 14, 2000, among the issuer of this
certificate and certain investors. Such Agreement contains certain
restrictive provisions relating to the voting and transfer of shares of
the stock represented hereby. A copy of such Agreement is on file at
the Company's principal offices. Upon written request to the Company's
Secretary, a copy of such Agreement will be provided without charge to
appropriately interested persons.
SECTION 6
TRANSFEREE STOCKHOLDERS
The undersigned Holders will not Transfer any Securities to
any Person, unless the transferee of such Securities shall have first
executed an Instrument of Accession.
23
SECTION 7
REMEDIES
The undersigned Holders will be entitled to enforce their rights under
this Agreement specifically (without posting a bond or other security), to
recover damages by reason of any breach of any provision of this Agreement and
to exercise all other rights existing in their favor. The parties hereto agree
and acknowledge that money damages may not be an adequate remedy for any breach
of the provisions of this Agreement and that any undersigned Holder may in its
sole discretion apply to any court of law or equity of competent jurisdiction
for specific performance and/or injunctive relief in order to enforce or prevent
any violation of the provisions of this Agreement. In the event of any dispute
involving the terms of this Agreement, the prevailing party shall be entitled to
collect reasonable fees and expenses incurred by the prevailing party in
connection with such dispute from the other parties to such dispute.
SECTION 8
TERMINATION OF PRIOR AGREEMENT
The Prior Agreement shall be superseded by this Agreement, shall
terminate and shall be of no further force or effect as of the Closing.
SECTION 9
MISCELLANEOUS
9.1 GOVERNING LAW. This Agreement shall be governed in all respects by
and construed in accordance with the laws of the State of California as if
entered into by and between California residents exclusively for performance
entirely within California.
9.2 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto, including, without limitation, any successor corporation of the
Company, following any amalgamation, merger or similar transaction.
9.3 ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement (including the
Exhibits hereto) constitutes the full and entire understanding and agreement
between the parties with regard to the subject matter hereof. Neither this
Agreement nor any term hereof may be amended, waived, discharged or terminated,
except by a written instrument signed by the Company and the holders of at least
sixty-six percent (66%) of the Registrable Securities, at least fifty-one
percent (51%) of the Series E Investor Securities and at least fifty-one percent
(51%) of the Series F Preferred Stock and any such amendment, waiver, discharge
or termination shall be binding on all the Holders, but in no event shall the
obligation of any Holder hereunder be materially increased, except upon the
written consent of such Holder.
9.4 NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be telecopied, sent by
nationally-recognized overnight courier or mailed by registered of certified
mail (return receipt requested), postage prepaid, or
24
delivered personally addressed by hand or special courier (a) if to an
Investor, as indicated on the signature pages hereto, or at such other
address as such Investor or permitted assignee shall have furnished to the
Company in writing, or (b) if to the Company, at its headquarters, 00 Xxxxx
Xxxxx, Xxxxxxx, Xxxxxxxxxx 00000, or at such other address as the Company shall
have furnished to each Holder in writing. All such notices and other written
communications shall be effective (i) if mailed, ten (10) days after mailing and
(ii) if delivered personally or by telecopier, upon delivery, and (iii) in the
case of a nationally-recognized overnight courier, two (2) business days after
the day when sent.
9.5 SEPARABILITY. In case any provision of the Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
9.6 INFORMATION CONFIDENTIAL. Each Holder acknowledges that the
information received by them pursuant hereto may be confidential and for its use
only, and it will not use any information designated as confidential by the
Company in violation of the Exchange Act or reproduce, disclose or disseminate
such information to any other person (other than its employees or agents having
a need to know the contents of such information, and its attorneys), except in
connection with the exercise of rights under this Agreement, unless the Company
has made such information available to the public generally or such Holder is
required to disclose such information by a governmental body.
9.7 TITLES AND SUBTITLES. The titles of the paragraphs and
subparagraphs of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
9.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
25
Schedule 1
INSTRUMENT OF ACCESSION
The undersigned, ____________________, in order to become the owner or
holder of [a warrant/an option to purchase/Securities convertible into] ________
shares of Common Stock (the "Shares") of Wireless, Inc., a California
corporation, hereby agrees to become a [New Investor Shareholder/Existing
Investor Shareholder/Series E Investor Shareholder] party to that certain Sixth
Amended and Restated Investors' Rights Agreement, dated as of _________, 2000
(the "Shareholder Agreement"), a copy of which is attached hereto. The
undersigned acknowledges that the Shares constitute shares of [Existing Investor
Securities] [New Investor Securities] [Series E Investor Securities] under and
as defined in the Shareholder Agreement. This Instrument of Accession shall
become a part of such Shareholder Agreement.
[The undersigned also acknowledges that the Shares constitute
Crossroads Securities.]
Executed as of the date set forth below under the laws of the State of
California.
Signature: --------------------------------
Address: ---------------------------------
---------------------------------
---------------------------------
Date: ---------------------------------
Accepted:
WIRELESS, INC.
By: ---------------------------------
Date: -------------------------------
IN WITNESS WHEREOF, the parties hereto have executed this Sixth Amended
and Restated Investors' Rights Agreement effective as of the day and year first
above written.
WIRELESS, INC.
By:/s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxx
President
WI-LAN INC.
By:
----------------------------------------
Xxxxx Xxxxxxxx
President and Chief Executive Officer
CROSSROADS VENTURE INVESTORS II, L.P.
By: CROSSROADS VENTURE CAPITAL LLC
Its General Partner
By:/s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx
Manager
CROSSROADS VENTURE INVESTORS II, L.P.
By: CROSSROADS VENTURE CAPITAL LLC
Its General Partner
By:/s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx
Manager
SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
GMN INVESTORS II, L.P.
By: GMN INVESTORS LLC,
its general partner
By:/s/ Xxxxx X. Xxxxxx
-----------------------------------
Xxxxx X. Xxxxxx
Managing Director
STRATFORD EQUITY PARTNERS, L.P.
By: STRATFORD CAPITAL GP ASSOCIATES, L.P.,
its general partner
By: STRATFORD CAPITAL CORPORATION,
its general partner
By:/s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
---------------------------
Title: Managing Director
--------------------------
SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS IN SERIES D PREFERRED STOCK:
Adtel Limited Partnership
Advent Crown Fund C.V.
Global Private Equity II Limited Partnership
Golden Gate Development and Investment
Limited Partnership
By: Advent International Limited Partnership,
General Partners
By: Advent International Corporation,
General Partners
By: Xxxxxx X. Xxxxxx,
Vice President*
*For all of the above.
/s/ Xxxxxx X. Xxxxxx
------------------------------------------
Xxxxxx X. Xxxxxx
Address: 00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
HMS Hawaii Management Partners
By:/s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
--------------------------------------
Title: General Partner
--------------------------------------
Address: 000 Xxxxxx Xxxxxx
Xxxxxx Xxxxxxx Xxxxxx, Xxxxx 000
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
HMS Hawaii
By: /s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
--------------------------------------
Title: General Partner
-------------------------------------
Address: 000 Xxxxxx Xxxxxx
Davies Pacific Center, Xxxxx 000
Xxxxxxxx, XX 00000
SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
Digital Microwave Corporation
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
--------------------------------------
Title: SR VP - CFO
--------------------------------------
Address: 000 Xxxx Xxxxxxx Xxx
Xxx Xxxx, XX 00000
SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
Alta V Limited Partnership
By: Xxxx X. Management Partners
By:
----------------------------------------
Name: Marino X. Xxxxxxxx
Title: General Partner
Address: C/O Burr, Egan, Deleage & Co.
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Customs House Partners
By:
----------------------------------------
Print Name:
---------------------------------
Title:
-------------------------------------
Address: C/O Burr, Egan, Deleage & Co.
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
CROSSROADS VENTURE CAPITAL LLC
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx, its Managing Member
SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
Dynamics Technology, Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Print Name: Xxxxxxx X. Xxxxxxx
-------------------------------
Title: Managing Member, DynaFund Ventures, LLC
------------------------------------
Address: 00000 Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx, XX 00000-0000
Dynafund, L.P.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Print Name: Xxxxxxx X. Xxxxxxx
--------------------------------
Title: Managing Member, DynaFund Ventures, LLC
-------------------------------------
Dynafund International
By:/s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Print Name: Xxxxxxx X. Xxxxxxx
--------------------------------
Title: Managing Member, DynaFund Ventures, LLC
-----------------------------------
SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
Xxxxxxx Ventures, LLC
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Printed Name: Xxxx X. Xxxxxxx
Title:
------------------------------------
Address: 000 Xxxxx Xxx Xxx.
Xxx Xxxxxxxxx, XX 00000
/s/ Xxxx X. Xxxxxxx
-------------------------------------------
Xxxx X. Xxxxxxx
Address: 000 Xxxxx Xxx Xxx.
Xxx Xxxxxxxxx, XX 00000
SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
/s/ Xxxx X. Xxxxxx
-------------------------------------------
Xxxx X. or Xxxx X. Xxxxxx
Address: 000 Xxxxxxx Xxxx
Xxxx Xxxx, XX 00000
/s/ Xxxxx Xxxxxx
-------------------------------------------
Xxxxx Xxxxxx
Address: 0000 Xxxx Xxxx
Xxxxxxxx, XX 00000-0000
--------------------------------------------
Tao Chow
Address: 00000 Xxxxxxx Xxx
Xxx Xxxxx Xxxxx, XX 00000
/s/ Xxxxxx Xxxxx
-------------------------------------------
Xxxxxx Xxxxx
Address: 0000 Xxx Xxxxx
-----------------------------------
Xxxxxxxxxx, XX 00000-0000
-----------------------------------
-----------------------------------
SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
Ardax Systems, Inc.
By: /s/ Xxxx Xxxxxxxxxxxx
----------------------------------------
Printed Name: Xxxx Xxxxxxxxxxxx
Title: President
--------------------------------------
Address: 000 Xxxxxx Xxxxxx
Xxx Xxxxxx, XX 00000
SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
/s/ Xxxxx Xxxxxxxx
-------------------------------------------
Xxxxx Xxxxxxxx
SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
Sheridan Ing Partners Hawaii, a Hawaii Limited
Partnership
By:/s/ Xxxxxxx X. Ing
----------------------------------------
Name: Xxxxxxx X. Ing
-------------------------------------
Title: Co-Trustee of Sheridan Ing Trust,
Its General Partner
------------------------------------
Address: 000 Xxxxxx Xxxxxx
Davies Pacific Center, Xxxxx 000
Xxxxxxxx, XX 00000
SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
Aala Produce Inc.
By:/s/ Xxxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxxxx
-------------------------------------
Title: President
------------------------------------
Address: 000 X. Xxxxxx
Xxxxxxxx, XX 00000
SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
FMT Limited Partnership
By: /s/ Xxxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxxx X. Xxxxxxx XX
-------------------------------------
Title: General Partner
------------------------------------
Address: 0000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
Bali Land Associates
By:/s/ Xxxxx Xxxxx
----------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Address: 0000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
-------------------------------------------
Xxxxx X.X. Xxxxxx
SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
Xxxxxxx Ventures, LLC
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Printed Name: Xxxx X. Xxxxxxx
Title:
------------------------------------
Address: 000 Xxxxx Xxx Xxx.
Xxx Xxxxxxxxx, XX 00000
Xxxxxxx Revocable Trust, Xxxx X. Xxxxxxx and
Xxxxxxx X. Xxxxxxx, Trustees
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
/s/ Xxxx X. Xxxxxxx
-------------------------------------------
Xxxx X. Xxxxxxx Trustee for the
Xxxxxxx Xxxxxxx Trust
/s/ Xxxx X. Xxxxxxx
------------------------------------------
Xxxx X. Xxxxxxx Trustee for the
Xxxx X. Xxxxxxx, Xx. Trust
/s/ Xxxx X. Xxxxxxx
-------------------------------------------
Xxxx X. Xxxxxxx Trustee for the
Xxxxxxxx Xxx Xxxxxxx Trust
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Xxxxxxx X. Xxxxxxx Trustee for the Rolapp Trust
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Xxxxxxx X. Xxxxxxx Trustee for the
Xxxxxxx X. Xxxxxxx Trust
Address: 000 Xxxxx Xxx Xxx.
Xxx Xxxxxxxxx, XX 00000
SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
Wi-LAN Inc.
By:
----------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
Address:
------------------------------------
------------------------------------
------------------------------------
SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
-------------------------------------------
Xxxxxxx Xxxx
ADVENT INTERNATIONAL CORPORATION
By:/s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx
Vice President
SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
HMS Hawaii
By:
----------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
/s/ Xxxx X. Xxxxxx
-------------------------------------------
Xxxx X. Xxxxxx
SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
AMT CAPITAL, LTD.
By: AMT Capital G.P., Inc., its General Partner
By:
----------------------------------------
Xxxxx X. Xxxxxxxx
Chairman of the Board
SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
CROSSROADS VENTURE INVESTORS VII, L.P.
By: CROSSROADS VENTURE CAPITAL LLC
Its General Partner
By:/s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx
Manager
CROSSROADS VENTURE CAPITAL LLC
By:/s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx
Manager
Xxxxxxx X. Xxxxxx and Kahala Xxx Xxxxx Xxxxxx
Charitable Trust
By:/s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx, Trustee
SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS IN SERIES E PREFERRED STOCK:
GMN INVESTORS II, L.P.
By: GMN INVESTORS LLC,
its general partner
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
STRATFORD EQUITY PARTNERS, L.P.
By: STRATFORD CAPITAL GP ASSOCIATES, L.P.
its general partner
By: STRATFORD CAPITAL CORPORATION
its general partner
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title Managing Director
SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
Adtel Limited Partnership
Advent Crown II Fund C.V.
Global Private Equity II Limited Partnership
By: Advent International Limited Partnership,
General Partners
By: Advent International Corporation,
General Partners
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
CROSSROADS VENTURE INVESTORS, VII, L.P.
By: CROSSROADS VENTURE CAPITAL LLC
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Member
SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
Digital Microwave Corporation
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
-----------------------------------
Title: SR VP - CFO
----------------------------------
SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
Xxxxxxx Ventures, LLC
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
----------------------------------
Title:
----------------------------------
Xxxxxxx Xxxxxx Xxxxxxx, Trustee
By: /s/ Xxxxxxx Xxxxxx Xxxxxxx
----------------------------------------
Xxxxxxx Revocable Trust
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Rolapp Trust
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
/s/ Xxxx X. Xxxxxxx
-------------------------------------------
Xxxx X. Xxxxxxx Trustee for the
Xxxxxxx Xxxxxxx Trust
/s/ Xxxx X. Xxxxxxx
------------------------------------------
Xxxx X. Xxxxxxx Trustee for the
Xxxx X. Xxxxxxx, Xx. Trust
/s/ Xxxx X. Xxxxxxx
-------------------------------------------
Xxxx X. Xxxxxxx Trustee for the
Xxxxxxxx Xxx Xxxxxxx Trust
SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
HMS Hawaii
By: /s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
-----------------------------------
Title: General Partner of HMS Hawaii
Management Partners, the
General Partner of HMS Hawaii
----------------------------------
SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
-------------------------------------------
Xxxx Xxxxxx
SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
/s/ Xxxxx Xxxxxx
-------------------------------------------
Xxxxx Xxxxxx
SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
/s/ Xxxx Xxxxxxx
-------------------------------------------
Xxxx Xxxxxxx
SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
Adtel Limited Partnership
Advent Crown Fund C.V.
Global Private Equity II Limited Partnership
Golden Gate Development and Investment
Limited Partnership
By: Advent International Limited Partnership,
General Partners
By: Advent International Corporation,
General Partners
By: Xxxxxx X. Xxxxxx,
Vice President*
Advent International Investors II Limited
Partnership
By: Advent International Corporation,
General Partner
By: Xxxxxx X. Xxxxxx,
Vice President*
*For all of the above.
/s/ Xxxxxx X. Xxxxxx
-------------------------------------------
Xxxxxx X. Xxxxxx
SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
HMS (Overseas) Partners
By: /s/ Xxxxxxx X. Grey
----------------------------------------
Print Name: Xxxxxxx X. Grey
--------------------------------
Title: General Partners
----------------------------------
HMS Capital Partners (Annex)
By: /s/ Xxxxxxx X. Grey
----------------------------------------
Print Name: Xxxxxxx X. Grey
-------------------------------
Title: General Partner
----------------------------------
HMS Capital Partners
By: /s/ Xxxxxxx X. Grey
----------------------------------------
Print Name: Xxxxxxx X. Grey
-------------------------------
Title: General Partner
----------------------------------
HMS Group
By: /s/ Xxxxxxx X. Grey
----------------------------------------
Name: Xxxxxxx X. Grey
-----------------------------------
Title: General Partner
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SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
Alta V Limited Partnership
By: Xxxx X. Management Partners
By: /s/ illegible
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Title: General Partner
Customs House Partners
By: /s/ Xxxxxx Xxxxxx
----------------------------------------
Print Name: Xxxxxx Xxxxxx
--------------------------------
Title: Under Power of Attorney
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SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
MVP Investors L.P.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Print Name: Xxxxxxx X. Xxxxxxx
--------------------------------
Title: General Partner
------------------------------------
Address: MVP Ventures
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000 Xxxxxxxxx Xx., Xxxxx 00
----------------------------------
Xxxxxxxx, XX 00000
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Telephone: 000-000-0000
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Facsimile: 000-000-0000
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SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
Chestnut Capital International III, L.P.
By: MVP Capital Limited Partnership,
Investment General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxx
General Partner
Late Xxxxx Xxxx 0000, X.X.
By: MVP Capital Limited Partnership,
Investment General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxx
General Partner
SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
Xxxxxxx Xxxx, TTEE Xxxxxx Inc. Prft Shrg Pl.
By:
----------------------------------------
Print Name:
--------------------------------
Title:
------------------------------------
Address:
-----------------------------------
-----------------------------------
-----------------------------------
Telephone:
---------------------------------
Facsimile:
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SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS IN SERIES F PREFERRED STOCK
TRW, Inc.
Signature: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Print Name: Xxxxxx X. Xxxxxx
--------------------------------
Title: Executive Vice President
-------------------------------------
Address: 00000 Xxxxxx Xxxx Xxxx
-----------------------------------
Xxxxxx, XX 00000
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CECAP Wireless Group, LLC
Signature: /s/ Xxxx X. Xxxxxxx, III
---------------------------------
Print Name: Xxxx X. Xxxxxxx, III
--------------------------------
Title: Managing Director
-------------------------------------
Address: 000 Xxxx Xxxxxx, Xxxxx 0000
-----------------------------------
Xxx Xxxx, XX 00000
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SIGNATURE PAGE TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
