EXHIBIT 4.2
RAMBUS INC.
AMENDED AND RESTATED
INFORMATION AND REGISTRATION RIGHTS AGREEMENT
TABLE OF CONTENTS
PAGE
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1. Certain Definitions.................................................. 1
2. Financial Statements and Reports to Shareholders..................... 2
3. Additional Information............................................... 3
4. Inspection........................................................... 3
5. Termination of Covenants; Delivery of Public Information............. 3
6. Investor Representation at Board Meetings............................ 4
7. Right of First Refusal............................................... 6
7.1 Right of First Refusal.......................................... 6
7.2 Pro Rata Share.................................................. 6
7.3 New Securities.................................................. 6
7.4 Procedure....................................................... 6
8. Demand Registration.................................................. 7
8.1 Request for Registration on Form Other Than Form S-3............ 7
8.2 Right of Deferral of Registration............................... 7
8.3 Request for Registration on Form S-3............................ 7
8.4 Registration of Other Securities in Demand Registration......... 8
8.5 Underwriting in Demand Registration............................. 8
8.6 Blue Sky in Demand Registration................................. 9
9. Piggyback Registration............................................... 9
9.1 Notice of Piggyback Registration and Inclusion of
Registrable Securities......................................... 9
9.2 Underwriting in Piggyback Registration.......................... 9
9.3 Blue Sky in Piggyback Registration.............................. 11
10. Expenses of Registration............................................. 11
11. Registration Procedures.............................................. 11
12. Information Furnished by Holder...................................... 11
13. Indemnification...................................................... 12
13.1 Company's Indemnification of Holders........................... 12
13.2 Holder's Indemnification of Company............................ 12
13.3 Indemnification Procedure...................................... 13
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TABLE OF CONTENTS
(CONTINUED)
14. Limitations on Registration Rights Granted to Other Securities....... 13
15. Transfer of Rights................................................... 13
16. Market Stand-off..................................................... 14
17. Conversion of Preferred Stock........................................ 14
18. Miscellaneous........................................................ 14
18.1 Termination of Prior Agreements, Rights and Obligations........ 14
18.2 Entire Agreement; Successors and Assigns....................... 14
18.3 Governing Law.................................................. 15
18.4 Counterparts................................................... 15
18.5 Headings....................................................... 15
18.6 Notices........................................................ 15
18.7 Amendment of Agreement......................................... 15
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AMENDED AND RESTATED
INFORMATION AND REGISTRATION RIGHTS AGREEMENT
This AMENDED AND RESTATED INFORMATION AND REGISTRATION RIGHTS AGREEMENT
(the "Agreement") is made as of January 7, 1997, by and among Rambus Inc., a
California corporation (the "Company"), and the persons listed on the attached
Schedule A (collectively, the "Investors").
R E C I T A L S
A. The Company and the Investors have entered into agreements for sale by
the Company and purchase by the Investors the Company's securities.
B. The Company and certain existing investors in the Company are parties
to a Prior Registration Rights Agreement (as defined below), pursuant to which
the Company granted such investors certain information rights and registration
rights with respect to the Company's securities.
C. In connection with the issuance of a warrant for the purchase of
1,000,000 shares of Common Stock (the "Warrant") to Intel Corporation, the
Company and the Investors desire to amend and restate the rights of the
Investors with respect to information about the Company and registration of the
Common Stock issued upon conversion or exercise of the securities according to
the terms of this Agreement.
THE PARTIES AGREE AS FOLLOWS:
1. Certain Definitions.
As used in this Agreement, the following terms shall have the following
respective meanings:
(a) "Commission" shall mean the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
(b) "Convertible Securities" shall mean the Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock
of the Company, the Warrant, and the Common Stock of the Company issued or
issuable upon conversion thereof.
(c) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
(d) "Form S-3" shall mean Form S-3 issued by the Commission or any
substantially similar form then in effect.
(e) "Holder" shall mean any holder of outstanding Registrable
Securities which have not been sold to the public, but only if such holder is an
Investor or an assignee or transferee of Registration rights as permitted by
Section 15.
(f) "Initiating Holders" shall mean Holders who in the aggregate hold
at least fifty percent (50%) of the Registrable Securities (or any Holders in
the case of Section 8.3).
(g) "Material Adverse Event" shall mean an occurrence having a
consequence that either (a) is materially adverse as to the business,
properties, prospects or financial condition of the Company or (b) is reasonably
foreseeable, has a reasonable likelihood of occurring, and if it were to occur
might materially adversely affect the business, properties, prospects or
financial condition of the Company.
(h) "Prior Registration Rights Agreement" shall mean the Amended and
Restated Information and Registration Rights Agreement dated as of February 24,
1995, by and among Rambus Inc. and the investors listed on Schedule A thereto.
(i) The terms "Register", "Registered" and "Registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act ("Registration Statement"), and the
declaration or ordering of the effectiveness of such Registration Statement.
(j) "Registrable Securities" shall mean all Common Stock not
previously sold to the public issued or issuable upon conversion or exercise of
any of the Company's Convertible Securities purchased by or issued to the
Investors, including Common Stock issued in respect of the Conversion Stock
pursuant to stock splits, stock dividends and similar distributions, and any
securities of the Company granted registration rights pursuant to Section 14 of
this Agreement.
(k) "Registration Expenses" shall mean all expenses incurred by the
Company in complying with Sections 8 or 9 of this Agreement, including, without
limitation, all federal and state registration, qualification and filing fees,
printing expenses, fees and disbursements of counsel for the Company and one
special counsel for Holders (if different from the Company), blue sky fees and
expenses, and the expense of any special audits incident to or required by any
such registration.
(l) "Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
(m) "Selling Expenses" shall mean all underwriting discounts and
selling commissions applicable to the sale of Registrable Securities pursuant to
this Agreement.
(n) "Warrant Stock" shall mean the Common Stock of the Company issued
or issuable upon the exercise of the Warrant (or any similar warrant issued
pursuant to the transfer or exchange thereof), including Common Stock issued in
respect thereof pursuant to stock splits, stock dividends and similar
distributions.
2. Financial Statements and Reports to Shareholders.
The Company shall deliver the Investors as soon as practicable after
the end of each fiscal year of the Company, and in any event within 90 days
thereafter, an audited consolidated balance sheet of the Company as of the end
of such year and audited consolidated statements of income, shareholders' equity
and changes in financial position for such year, which year-end financial
reports shall be in reasonable detail and shall be accompanied by the opinion of
independent public accountants of recognized standing selected by the Company.
In addition, the Company shall deliver to the Investors: (a) as soon as
practicable after the end of each fiscal quarter of the Company, and in any
event within 45 days thereafter, unaudited financial statements
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of the Company on a quarterly basis prepared in accordance with generally
accepted accounting principles and fairly reflecting the fiscal affairs of the
Company to the date thereof, and (b) contemporaneously with delivery to holders
of Common Stock, a copy of each report of the Company delivered to holders of
Common Stock .
3. Additional Information.
As long as an Investor (together with any affiliate) or its transferee
holds not less than 15% of the Warrant Stock originally issuable (or a Warrant
representing such amount of Warrant Stock), or 5% of the Series A Preferred
Stock of the Company originally issued, or 15% of the Series B Preferred Stock
of the Company originally issued, or 15% of the Series C Preferred Stock of the
Company originally issued, or 15% of the Series D Preferred Stock of the Company
originally issued (or an equivalent number of shares consisting of Registrable
Securities issued upon conversion or exercise of such Preferred Stock of the
Company or a combination of such Preferred Stock and Registrable Securities
issued upon conversion thereof), as adjusted for recapitalizations, stock
splits, stock dividends and the like, the Company will deliver to such Investor:
(a) As soon as practicable after the end of each month, and in any
event within 30 days thereafter, consolidated balance sheets of the Company and
its subsidiaries, if any, as of the end of such month, and consolidated
statements of income and cash flow for such month and for the current fiscal
year to date.
(b) As soon as practicable following submission to and approval by the
Board of Directors of the Company, but in no event later than 90 days after the
end of each fiscal year, each operating budget and plan (the "Plan") respecting
the next fiscal year and a summary of each such Plan containing a monthly
financial budget together with any update of the Plan as such update is
prepared.
4. Inspection.
The Company shall permit each Investor, at such 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 each such
Investor; provided, however, that the Company shall not be obligated pursuant to
this Section 4 to provide any information which it reasonably considers to be a
trade secret or confidential information. Subject to Section 5, the rights of
an Investor under this Section 4 may not be assigned as part of such Investor's
sale of any of the Registrable Securities or Convertible Securities except with
the consent of the Company, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, Xxxxx Xxxxxx Xxxx 0000, X.X., Xxxxx Xxxxxx Fund
1995, L.P., Bridge Street Fund 1994, L.P., and Bridge Street Fund 1995, L.P.
shall be entitled to the rights provided under this Section 4 upon the
assignment of any of the Registrable Securities to them, respectively, by GS
Capital Partners, L.P.
5. Termination of Covenants; Delivery of Public Information.
(a) The covenants of the Company set forth in Sections 2, 3, 4, 6(a),
6(b), 6(c), and 7 shall be terminated and be of no further force or effect upon
the earlier of (a) the date when a Registration Statement filed by the Company
under the Securities Act, in connection with the first public offering of its
securities (other than either a public offering limited solely to employees of
the Company or an offering pursuant to Rule 145 under the Securities Act)
becomes effective and (b) the date the Company (i) registers any securities
under the Exchange Act or (ii) first becomes subject to the periodic reporting
requirements of Section 13 or
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Section 15(d) of the Exchange Act, and such covenants shall terminate as to any
Investor as of the date such Investor no longer holds any shares of the capital
stock of the Company.
(b) The covenants of the Company set forth in Sections 8 and 9 shall
be terminated and shall be of no further force or effect upon March 30, 2005.
(c) Until the third anniversary of the event described in Section
5(a), the Company shall deliver to any Investor or its transferee who holds not
less than 15% of the Warrant Stock originally issuable (or a Warrant
representing such amount of Warrant Stock), a copy of the Company's reports
(without exhibits) on Forms 00-X, 00-X, 0-X and its Annual Reports to
Shareholders promptly after such documents are filed with the Commission.
6. Investor Representation at Board Meetings.
(a) Each Investor or transferee holding at least 10% of the Series A
Preferred Stock of the Company originally issued (or an equivalent number of
shares consisting of Registrable Securities issued upon conversion or exercise
of such Series A Preferred Stock of the Company or a combination of such Series
A Preferred Stock and Registrable Securities issued upon conversion thereof), as
adjusted for recapitalizations, stock splits, stock dividends and the like,
shall have the right to receive notices (except with respect to previously
unscheduled telephonic meetings) and minutes of each meeting of the Board as if
such Investor were a director, and to designate one of its constituent partners
to attend all Board meetings, and to speak at or otherwise participate in such
meetings to the extent permitted by the Board; provided, however, that such
person may disclose or use any information made known to him by virtue of such
notice, minutes or attendance only to the extent consistent with the fiduciary
obligations of a director of the Company, whether or not such person actually is
a director. Such Investors' rights to notice, attendance and minutes shall be
assignable only with the prior written consent of the Company, which consent
shall not be unreasonably withheld.
(b) The Investors holding Series B Preferred Stock of the Company or
Registrable Securities issued upon conversion thereof shall have the right,
jointly, to have either Xxxx Xxxxxx or Xxxxx XxXxxxx attend regular meetings of
the Company's Board of Directors, provided that before any such attendance Xx.
Xxxxxx or Xx. XxXxxxx, as applicable, shall have executed a confidentiality and
non-disclosure agreement in a form reasonably acceptable to the Company.
(c) GS Capital Partners, L.P. shall have the right to have either
Xxxxxx X. Xxxxxxxxx or Xxxxxxx X. X'Xxxxx attend and observe meetings of the
Board, provided that only one of such designees shall be allowed to attend any
particular Board meeting. Such representatives shall receive notices and minutes
of each meeting, and materials distributed to members of the Board in their
capacities as such. Such representatives shall not be Board members (unless
elected to the Board in accordance with the Company's Articles of Incorporation
and Bylaws), nor shall such representatives have the power to vote as Board
members or the right to receive compensation, if any, paid to Board members in
their capacities as such. Before any attendance at Board meetings is allowed,
the Company may require such representatives to execute a confidentiality and
non-disclosure agreement in a form mutually acceptable to the Company and such
representatives. Such representatives may only disclose or use information made
known to them by virtue of the notice, minutes, or materials provided or
attendance allowed hereunder to the extent consistent with the fiduciary duties
of a director of the Company, whether or not such representative actually is a
director. Notwithstanding the foregoing, if the Board makes a good faith
determination that it would be inappropriate
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to allow such representatives to attend all or a portion of a Board meeting or
to provide such representatives with minutes or materials, for reasons relating
to attorney-client privilege, securities law compliance, transactions or
potential transactions between the Company and GS Capital Partners, L.P. or
Xxxxxxx, Sachs & Co. or any affiliate thereof, or if, in the reasonable good
faith judgment of the Board of Directors such attendance would be harmful to the
Company, then the Company shall so indicate in the notice of such meeting to GS
Capital Partners, L.P., setting forth the basis of its decision to exclude GS
Capital Partners, L.P., and shall not be obligated to allow such attendance or
to provide such minutes or materials. The rights of GS Capital Partners, L.P.
under this Section 6(c) shall be nonassignable. In the event that a GS Capital
Partners, L.P. representative designated under this Section 6(c) shall
permanently cease to be available to attend and observe meetings of the Board,
GS Capital Partners, L.P. shall have the right to designate a replacement
reasonably acceptable to the Company.
(d) (i) Intel Corporation shall have the option, subject to the
conditions described below, to designate an individual to attend and observe
meetings of the Board. Unless elected to the Board pursuant to Section 6(d)(ii)
below or otherwise in accordance with the Company's Articles of Incorporation
and Bylaws, such designee shall not be a Board member, nor shall such designee
have the power to vote as a Board member or the right to receive compensation,
if any, paid to Board members in their capacities as such. The right to
designate a Board observer pursuant to this Section 6(d)(i) shall terminate upon
termination of the Semiconductor Technology License Agreement between Intel
Corporation and Rambus Inc.
(ii) If the Warrant has by its terms become exercisable, then if
and for so long as Intel Corporation holds at least 500,000 shares of the
Company's outstanding Common Stock (as adjusted for stock splits, stock
dividends, stock combinations and the like), Intel Corporation shall have the
option, subject to the conditions described below, to nominate a representative
to the Board. Should Intel exercise this option in writing, the Company shall
include such nominee among management's slate of nominees to the shareholders at
the first annual meeting of shareholders taking place more than 90 days
following satisfaction of the conditions set forth in this Section 6(d) and
shall solicit shareholder votes in favor of the election of such nominee to the
same extent that it solicits shareholder notes in favor of management's other
nominees. The right to nominate a Board representative pursuant to this Section
6(d)(ii) shall not be effective prior to the effective time of the Company's
initial public offering of shares of Common Stock under a Registration Statement
(other than either a public offering limited solely to employees of the Company
or an offering pursuant to Rule 145 under the Securities Act.)
(iii) Any designee under Section 6(d)(i) or nominee under Section
6(d)(ii) must be acceptable to the Board. The right to maintain such designee or
nominee shall exist during a calendar quarter only if more than twenty percent
(20%) of the main memory chip sets shipped by Intel Corporation during each of
the two immediately preceding calendar quarters implemented the Rambus-1
Interface Specification or the Rambus-2 Interface Specification. Any such
nominee shall resign from the Board on the first day of any calendar quarter
with respect to which such condition is not satisfied. If such condition shall
fail to be satisfied, and then later become satisfied, Intel may re-appoint a
designee or nominee in accordance with the provisions of this Section 6(d).
(iv) The Intel Corporation designee or nominee shall receive
notices and minutes of each meeting, and materials distributed to members of the
Board in their capacities as such. Before any attendance at Board meetings is
allowed, the Company may require such designee or nominee to execute a
confidentiality and non-disclosure agreement in a form mutually acceptable to
the Company and such
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designee or nominee. Such designee or nominee may only disclose or use
information made known to such person by virtue of the notice, minutes, or
materials provided or attendance allowed hereunder to the extent consistent with
the fiduciary duties of a director of the Company, whether or not such person
actually is a director. Notwithstanding the foregoing, if the Board makes a good
faith determination that it would be inappropriate to allow such designee or
nominee to attend all or a portion of a Board meeting or to provide such
designee or nominee with minutes or materials, for reasons relating to attorney-
client privilege, securities law compliance, transactions or potential
transactions between the Company and Intel Corporation or any affiliate or
competitor thereof, or if, in the reasonable good faith judgment of the Board of
Directors such attendance would be harmful to the Company, then the Company
shall so indicate in the notice of such meeting to such designee or nominee,
setting forth the basis of its decision to exclude such person, and shall not be
obligated to allow such attendance or to provide such minutes or materials. The
rights of Intel Corporation under this Section 6(d) shall be nonassignable.
Subject to the conditions in this Section 6(d), Intel Corporation shall have the
right to designate from time to time a replacement designee or nominee.
7. Right of First Refusal.
7.1 Right of First Refusal.
The Company hereby grants to each holder of at least 5% of the
outstanding shares (which may be computed on an aggregate basis with affiliates
of the holder) of any series of Preferred Stock, and to Intel Corporation, (a
"Qualified Purchaser") a right of first refusal (the "Right of First Refusal")
to purchase its Pro Rata Share of New Securities that the Company may from time
to time issue.
7.2 Pro Rata Share.
For purposes of this Right of First Refusal, a Qualified
Purchaser's "Pro Rata Share" shall mean the ratio that (i) the number of shares
of Common Stock issuable upon conversion of the Preferred Stock then held by
such Qualified Purchaser (or in the case of Intel Corporation, the number of
shares of outstanding Common Stock issued to Intel Corporation upon exercise of
the Common Stock Purchase Warrant No. 1 dated November 15, 1996 (the "Warrant"))
bears to (ii) the sum of the number of shares of Common Stock then outstanding
and the number of shares of Common Stock issuable upon conversion of all shares
of Preferred Stock then outstanding. The Company may be required to allow the
purchase of such Pro Rata Share upon a later exercise of the Warrant, and shall
reserve such number of New Securities as may be necessary to satisfy its
obligations under the Warrant.
7.3 New Securities.
Except as set forth below, "New Securities" shall mean any shares
of capital stock of the company, and options, warrants and other rights to
acquire capital stock of the Company issued after the date of this Agreement.
Notwithstanding the foregoing, "New Securities" shall not include (i) the
1,882,353 shares of Series D Preferred Stock, (ii) Common Stock issuable upon
conversion or exercise of securities outstanding as of the date of this
Agreement, (iii) securities offered in a public offering registered under the
Securities Act, (iv) securities issued pursuant to the acquisition of another
corporation or other business entity by the Company by merger, purchase of all
or substantially all of the assets or other reorganization whereby the Company
or its shareholders own more than 50% of the voting power of the surviving
entity in such
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transaction, (v) shares of Common Stock or related options to purchase an
aggregate, net of returns to the option plan, or not more than 6,000,000 shares
of Common Stock issued or granted to employees, consultants, advisors, officers
or directors of the Company and its subsidiaries (including shares issued or
sold pursuant to the exercise of any stock option or purchase pursuant to a
grant under the Company's stock option plan or stock purchase plan, even though
granted prior to the date of this Agreement), (vi) securities issued pursuant to
any rights, including without limitation convertible securities, to receive
securities, provided that the right of first refusal created hereby applied with
respect to the initial sale or grant by the Company of such rights (and the
procedure set forth in Section 7.4 below was complied with by the Company, or
waived by all of the holders of Preferred Stock that did not exercise their
Right of First Refusal, with respect thereto), (vii) shares of Common Stock or
Preferred Stock issued in connection with any stock split, stock dividend, or
recapitalization by the Company, and (viii) securities issued pursuant to any
transactions involving technology licensing or a strategic relationship or
corporate partnering arrangement approved by the Company's Board of Directors.
Notwithstanding the foregoing or anything to the contrary in Section 5(a),
solely for the purpose of determining the rights of Intel Corporation under this
Section 7, Intel shall have a Right of First Refusal to purchase its Pro Rata
Share of securities offered for the account of the Company pursuant to the
initial public offering of the Company under a registration statement filed
under the Securities Act, where the aggregate offering price to the public of
securities so offered for the account of the Company equals or exceeds $50
million.
7.4 Procedure.
In the event that the Company proposes to undertake an issuance
of New Securities, it shall give each Qualified Purchaser written notice of its
intention, describing the amount and type of New Securities and the price and
general terms upon which the Company proposes to issue such New Securities. Each
Qualified Purchaser shall have ten (10) days from the date of receipt of such
notice to agree to purchase up to its Pro Rata Share of such New Securities for
the price and upon the terms specified in the notice by giving written notice to
the Company and stating therein the quantity of New Securities to be purchased.
The Company may then, within ninety (90) days of the date of its notice to
Qualified Purchasers, complete the proposed offering of New Securities on terms
substantially as described in its notice to Qualified Purchasers, and each
Qualified Purchaser shall purchase in such offering that number of New
Securities that it indicated its intention to purchase in its written notice to
the Company. The Company must repeat the notice procedure described above with
respect to any proposed offering of New Securities that is not completed within
such ninety (90) day period or that is proposed to be completed on terms that
are not substantially as described in the notice to Qualified Purchasers.
8. Demand Registration.
8.1 Request for Registration on Form Other Than Form S-3.
Subject to the terms of this Agreement, in the event that the
Company shall receive from the Initiating Holders at any time after the earlier
of (a) March 30, 1996 and (b) the Company's initial public offering of shares of
Common Stock under a Registration Statement, a written request that the Company
effect any Registration with respect to all or a part of the Registrable
Securities on a Form other than Form S-3 for an offering of at least 20% of the
then outstanding Registrable Securities (or any lesser percent if the reasonably
anticipated aggregate offering price to the public would exceed $7,500,000), the
Company shall (i) promptly give written notice of the proposed Registration to
all other Holders and shall (ii) as soon as
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practicable, use its best efforts to effect Registration of the Registrable
Securities specified in such request, together with any Registrable Securities
of any Holder joining in such request as are specified in a written request
given within 20 days after written notice from the Company. The Company shall
not be obligated to take any action to effect any such registration pursuant to
this Section 8.1 (i) within six months of the effective date of a Registration
initiated by the Company or (ii) after the Company has effected two such
Registrations pursuant to this Section 8.1 and such Registrations have been
declared effective.
8.2 Right of Deferral of Registration.
If the Company shall furnish to all such Holders who joined in a
request pursuant to Section 8.1 or 8.3 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 any
Registration to be effected as requested under Section 8.1 or 8.3, as
applicable, the Company shall have the right, exercisable one time only with
respect to such request, to defer the filing of a Registration Statement with
respect to such offering for a period of not more than 90 days from delivery of
the request of the Initiating Holders.
8.3 Request for Registration on Form S-3.
Subject to the terms of this Agreement, in the event that the
Company receives from any Holders of the then outstanding Registrable Securities
a written request that the Company effect any Registration on Form S-3 (or any
successor form to Form S-3 regardless of its designation) at a time when the
Company is eligible to register securities on Form S-3 (or any successor form to
Form S-3 regardless of its designation) for an offering of Registrable
Securities, the Company will promptly give written notice of the proposed
Registration to all the Holders and will as soon as practicable use its best
efforts to effect Registration of the Registrable Securities specified in such
request, together with all or such portion of the Registrable Securities of any
Holder joining in such request as are specified in a written request delivered
to the Company within 30 days after written notice from the Company of the
proposed Registration. There shall be no limit to the number of occasions on
which the Company shall be obligated to effect Registration under this Section
8.3. The Company shall not be obligated to take any action to affect
Registration under this Section 8.3 (i) within six months following any other
registered public offering, including any prior registered offering on Form S-3,
or (ii) if the number of shares which Holders have requested be included in such
Registration would result in an anticipated aggregate offering price of less
than $5,000,000.
8.4 Registration of Other Securities in Demand Registration.
Any Registration Statement filed pursuant to the request of the
Initiating Holders under this Section 8 may, subject to the provisions of
Section 8.5, include securities of the Company other than Registrable
Securities.
8.5 Underwriting in Demand Registration.
8.5.1 Notice of 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
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pursuant to this Section 8, and the Company shall include such information in
the written notice referred to in Section 8.1 or 8.3. The right of any Holder to
Registration pursuant to Section 8 shall be conditioned upon such Holder's
agreement to participate in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting.
8.5.2 Inclusion of Other Holders in Demand Registration.
If the Company or holders of securities other than
Registrable Securities request inclusion in such Registration, the Initiating
Holders, to the extent they deem advisable and consistent with the goals of such
Registration, shall, on behalf of all Holders, offer to any or all of the
Company and such holders of securities other than Registrable Securities that
such securities other than Registrable Securities be included in the
underwriting and may condition such offer on the acceptance by such persons of
the terms of this Section 8. In the event, however, that the number of shares so
included exceeds the number of shares of Registrable Securities included by all
Holders, such Registration shall be treated as governed by Section 9 hereof
rather than Section 8, and it shall not count as a Registration for purposes of
Section 8.1 hereof.
8.5.3 Selection of Underwriter in Demand Registration.
The Company shall (together with all Holders proposing to
distribute their securities through such underwriting) enter into an
underwriting agreement with the representative ("Underwriter's Representative")
of the underwriter or underwriters selected for such underwriting by the Holders
of a majority of the Registrable Securities being registered (provided that only
those Holders responding positively within the period required by Section 8.1 or
Section 8.3, as applicable, shall be included in such calculation) and agreed to
by the Company.
8.5.4 Marketing Limitation in Demand Registration.
In the event the Underwriter's Representative advises the
Initiating Holders in writing that market factors (including, without
limitation, the aggregate number of shares of Common Stock requested to be
Registered, the general condition of the market, and the status of the persons
proposing to sell securities pursuant to the Registration) require a limitation
of the number of shares to be underwritten, then (i) first the Common Stock
(other than Registrable Securities) held by officers or directors of the
Company, (ii) next the securities other than Registrable Securities, and (iii)
last the securities requested to be registered by the Company, shall be excluded
from such Registration to the extent required by such limitation. If a
limitation of the number of shares is still required, the Initiating Holders
shall so advise all Holders and the number of shares of Registrable Securities
that may be included in the Registration and underwriting shall be allocated
among all Holders in proportion, as nearly as practicable, to the respective
amounts of Registrable Securities entitled to inclusion in such Registration
held by such Holders at the time of filing the Registration Statement. No
Registrable Securities or other securities excluded from the underwriting by
reason of this Section 8.5.4 shall be included in such Registration Statement.
8.5.5 Right of Withdrawal in Demand Registration.
If any Holder of Registrable Securities, or a holder of
other securities entitled (upon request) to be included in such Registration,
disapproves of the terms of the underwriting, such person may elect to withdraw
therefrom by written notice to the Company, the underwriter and the Initiating
Holders
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delivered at least seven days prior to the effective date of the Registration
Statement. The securities so withdrawn shall also be withdrawn from the
Registration Statement.
8.6 Blue Sky in Demand Registration.
In the event of any Registration pursuant to Section 8, the
Company will exercise its best efforts to Register and qualify the securities
covered by the Registration Statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably appropriate for the
distribution of such securities; provided, however, that (i) the Company shall
not be required to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions, and (ii) notwithstanding
anything in this Agreement to the contrary, in the event any jurisdiction in
which the securities shall be qualified imposes a non-waivable requirement that
expenses incurred in connection with the qualification of the securities be
borne by selling shareholders, such expenses shall be payable pro rata by
selling shareholders.
9. Piggyback Registration.
9.1 Notice of Piggyback Registration and Inclusion of Registrable
Securities.
Subject to the terms of this Agreement, in the event the Company
decides to Register any of its Common Stock for its own account on a form that
would be suitable for a registration involving solely Registrable Securities,
the Company will: (i) promptly give each Holder written notice thereof (which
shall include a list of the jurisdictions in which the Company intends to
attempt to qualify such securities under the applicable Blue Sky or other state
securities laws) and (ii) include in such Registration (and any related
qualification under Blue Sky laws or other compliance), and in any underwriting
involved therein, all the Registrable Securities specified in a written request
delivered to the Company by any Holder within 15 days after delivery of such
written notice from the Company.
9.2 Underwriting in Piggyback Registration.
9.2.1 Notice of Underwriting in Piggyback Registration.
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
9.1. In such event the right of any Holder to Registration shall be conditioned
upon such underwriting and the inclusion of such Holder's Registrable Securities
in such underwriting to the extent provided in this Section 9. All Holders
proposing to distribute their securities through such underwriting shall
(together with the Company and the other holders distributing their securities
through such underwriting) enter into an underwriting agreement with the
Underwriter's Representative for such offering. The Holders shall have no right
to participate in the selection of the underwriters for an offering pursuant to
this Section 9.
9.2.2 Marketing Limitation in Piggyback Registration.
In the event the Underwriter's Representative advises the
Holders seeking registration of Registrable Securities pursuant to Section 9 in
writing that market factors (including, without limitation, the aggregate number
of shares of Common Stock requested to be Registered, the general condition of
the market, and the status of the persons proposing to sell securities pursuant
to the Registration) require a
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limitation of the number of shares to be underwritten, the Underwriter's
Representative (subject to the allocation priority set forth in Section 9.2.3)
may:
(a) in the case of the Company's initial Registered public
offering, exclude some or all Registrable Securities from such registration and
underwriting;
(b) in the case of the first Registered public offering
subsequent to the initial public offering, limit the number of shares of
Registrable Securities to be included in such Registration and underwriting to
not less than twenty percent (20%) of the securities included in such
Registration (based on aggregate market values); and
(c) in the case of any subsequent registered public
offering, limit the number of shares of Registrable Securities to be included in
such Registration and underwriting to not less than twenty-five percent (25%) of
the securities included in such Registration (based on aggregate market values).
9.2.3 Allocation of Shares in Piggyback Registration.
In the event that the Underwriter's Representative limits
the number of shares to be included in a Registration pursuant to Section 9.2.2,
the number of shares to be included in such Registration shall be allocated
(subject to Section 9.2.2) in the following manner: The shares (other than
Registrable Securities) held by officers or directors of the Company shall be
excluded from such Registration and underwriting to the extent required by such
limitation. Next, the shares (other than Registrable Securities) held by other
holders of the Company's securities shall be excluded from such Registration and
underwriting to the extent required by such limitation. If a limitation of the
number of shares is still required after such exclusion, the number of shares
that may be included in the Registration and underwriting shall be allocated
among all Holders thereof requesting and legally entitled to include shares in
such Registration, in proportion, as nearly as practicable, to the respective
amounts of Registrable Securities which such Holders would otherwise be entitled
to include in such Registration. No Registrable Securities or other securities
excluded from the underwriting by reason of this Section 9.2.3 shall be included
in the Registration Statement.
9.2.4 Withdrawal in Piggyback Registration.
If any Holder disapproves of the terms of any such
underwriting, he may elect to withdraw therefrom by written notice to the
Company and the underwriter delivered at least seven days prior to the effective
date of the Registration Statement. Any Registrable Securities or other
securities excluded or withdrawn from such underwriting shall be withdrawn from
such Registration.
9.3 Blue Sky in Piggyback Registration.
In the event of any Registration of Registrable Securities
pursuant to Section 9, the Company will exercise its best efforts to Register
and qualify the securities covered by the Registration Statement under such
other securities or Blue Sky laws of such jurisdictions as shall be reasonably
appropriate for the distribution of such securities; provided, however, that (i)
the Company shall not be required to qualify to do business or to file a general
consent to service of process in any such states or jurisdictions, and (ii)
notwithstanding anything in this Agreement to the contrary, in the event any
jurisdiction in which the securities shall be qualified imposes a non-waivable
requirement that expenses incurred in connection with the
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qualification of the securities be borne by selling shareholders, such expenses
shall be payable pro rata by selling shareholders.
10. Expenses of Registration.
All Registration Expenses incurred in connection with two
Registrations pursuant to Section 8 and all Registrations pursuant to Section 9,
shall be borne by the Company. All Registration Expenses incurred in connection
with any other registration, qualification or compliance shall be apportioned
among the Holders and other holders of the securities so registered on the basis
of the number of shares so registered. Notwithstanding the above, the Company
shall not be required to pay for any expenses of any registration proceeding
begun pursuant to Section 8 if the registration request is subsequently
withdrawn at the request of the Holders of a majority of the Registrable
Securities to be registered (which Holders shall bear such expenses), unless the
Holders of a majority of the Registrable Securities agree to forfeit their right
to one demand registration pursuant to Section 8; provided further, however,
that if at the time of such withdrawal, the Holders have learned of a Material
Adverse Event with respect to the condition, business or prospects of the
Company not known to the Holders at the time of their request, then the Holders
shall not be required to pay any of such expenses and shall retain their rights
pursuant to Section 8. All Selling Expenses shall be borne by the holders of the
securities registered pro rata on the basis of the number of shares registered.
11. Registration Procedures.
The Company will keep each Holder whose Registrable Securities are
included in any registration pursuant to this Agreement advised as to the
initiation and completion of such Registration. At its expense the Company will:
(a) use its best efforts to keep such Registration effective for a period of 120
days or until the Holder or Holders have completed the distribution described in
the Registration Statement relating thereto, whichever first occurs; and (b)
furnish such number of prospectuses (including preliminary prospectuses) and
other documents as a Holder from time to time may reasonably request.
12. Information Furnished by Holder.
It shall be a condition precedent of the Company's obligations under
this Agreement that each Holder of Registrable Securities included in any
Registration furnish to the Company such information regarding such Holder and
the distribution proposed by such Holder or Holders as the Company may
reasonably request.
13. Indemnification.
13.1 Company's Indemnification of Holders.
To the extent permitted by law, the Company will indemnify each
Holder, each of its officers, directors and constituent partners, legal counsel
for the Holders, and each person controlling such Holder, with respect to which
Registration, qualification or compliance of Registrable Securities has been
effected pursuant to this Agreement, and each underwriter, if any, and each
person who controls any underwriter against all claims, losses, damages or
liabilities (or actions in respect thereof) to the extent such claims, losses,
damages or liabilities arise out of or are based upon any untrue statement (or
alleged untrue statement) of a material fact contained in any prospectus or
other document (including any related Registration
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Statement) incident to any such Registration, qualification or compliance, or
are based on any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or any violation by the Company of any rule or regulation
promulgated under the Securities Act applicable to the Company and relating to
action or inaction required of the Company in connection with any such
Registration, qualification or compliance; and the Company will reimburse each
such Holder, each such underwriter and each person who controls any such Holder
or underwriter, for any legal and any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability or action; provided, however, that the indemnity contained in this
Section 13.1 shall not apply to amounts paid in settlement of any such claim,
loss, damage, liability or action if settlement is effected without the consent
of the Company (which consent shall not unreasonably be withheld); and provided,
further, 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
upon any untrue statement or omission based upon written information furnished
to the Company by such Holder, underwriter, or controlling person and stated to
be for use in connection with the offering of securities of the Company.
13.2 Holder's Indemnification of Company.
To the extent permitted by law, each Holder will, if Registrable
Securities held by such Holder are included in the securities as to which such
Registration, qualification or compliance is being effected pursuant to this
Agreement, indemnify the Company, each of its directors and officers, each legal
counsel and independent accountant of the Company, 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 the
Securities Act, and each other such Holder, each of its officers, directors and
constituent partners and each person controlling such other Holder, against all
claims, losses, damages and liabilities (or actions in respect thereof) arising
out of or based upon any untrue statement (or alleged untrue statement) of a
material fact contained in any such Registration Statement, prospectus, offering
circular or other document, or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, or any violation by such Holder of any rule
or regulation promulgated under the Securities Act applicable to such Holder and
relating to action or inaction required of such Holder in connection with any
such Registration, qualification or compliance; and will reimburse the Company,
such Holders, such directors, officers, partners, persons, law and accounting
firms, underwriters or control persons for any legal and 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 alleged untrue statement) or
omission (or alleged omission) is made in such Registration Statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to the Company by such Holder and
stated to be specifically for use in connection with the offering of securities
of the Company. Notwithstanding the foregoing, a Holder's liability under this
Section 13.2 shall not exceed such Holder's proceeds from the offering of
securities made in connection with such Registration, and the indemnity
contained in this Section 13.2 shall not apply to amounts paid in settlement of
any claim, loss, damage, liability or action if settlement is effected without
the consent of such Holder (which consent shall not unreasonably be withheld).
13.3 Indemnification Procedure.
Promptly after receipt by an indemnified party under this
Section 13 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against
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an indemnifying party under this Section 13, notify the indemnifying party in
writing of the commencement thereof and generally summarize such action. The
indemnifying party shall have the right to participate in and to assume the
defense of such claim; provided, however, that the indemnifying party shall be
entitled to select counsel for the defense of such claim with the approval of
any parties entitled to indemnification, which approval shall not be
unreasonably withheld; provided further, however, that if either party
reasonably determines that there may be a conflict between the position of the
Company and the Investors in conducting the defense of such action, suit or
proceeding by reason of recognized claims for indemnity under this Section 13,
then counsel for such party shall be entitled to conduct the defense to the
extent reasonably determined by such counsel to be necessary to protect the
interest of such party. The failure to notify an indemnifying party promptly of
the commencement of any such action, if prejudicial to the ability of the
indemnifying party to defend such action, shall relieve such indemnifying party,
to the extent so prejudiced, of any liability to the indemnified party under
this Section 13, but the omission so to notify the indemnifying party will not
relieve such party of any liability that such party may have to any indemnified
party otherwise than under this Section 13. The indemnity provided for in this
Section 13 shall apply to the Holders in their capacities as such, and shall be
independent of any other agreement, including without limitation an underwriting
agreement, entered into after the date hereof between the Company and any Holder
in its capacity as a Holder or otherwise.
14. Limitations on Registration Rights Granted to Other Securities.
From and after the date of this Agreement, the Company shall not
enter into any agreement with any holder or prospective holder of any securities
of the Company providing for the granting to such holder of any information or
Registration rights, except that, with the consent of the Holders of 66-2/3% of
the aggregate of the Convertible Securities and Registrable Securities then
outstanding, additional holders may be added as parties to this Agreement with
regard to any or all securities of the Company held by them. Any such additional
parties shall execute a counterpart of this Agreement, and upon execution by
such additional parties and by the Company, shall be considered an Investor for
all purposes of this Agreement. The additional parties and the additional
Registrable Securities shall be identified in an amendment to Schedule A hereto.
15. Transfer of Rights.
The rights to information under Sections 2, 3, 4 and 5, and the right
to cause the Company to Register securities granted by the Company to the
Investors under this Agreement may be assigned by any Holder to a transferee or
assignee of any Convertible Securities or Registrable Securities not sold to the
public acquiring at least 235,000 shares of such Holder's Registrable Securities
(equitably adjusted for any stock splits, subdivisions, stock dividends,
changes, combinations or the like); provided, however, that (i) the Company must
receive written notice prior to the time of said transfer, stating the name and
address of said transferee or assignee and identifying the securities with
respect to which such information and Registration rights are being assigned,
and (ii) the transferee or assignee of such rights must not be a person deemed
by the Board of Directors of the Company, in its best judgment, to be a
competitor or potential competitor of the Company. Notwithstanding the
limitation set forth in the foregoing sentence respecting the minimum number of
shares which must be transferred, (a) any Holder which is a partnership may
transfer such Holder's Registration rights to such Holder's constituent partners
without restriction as to the number or percentage of shares acquired by any
such constituent partner and (b) GS Capital Partners, L.P. may transfer its
Registration rights to hereunder to Stone Street Fund 1994, L.P., Stone Street
Fund 1995, L.P., Bridge Street Fund 1994, L.P., and Bridge Street Fund 1995,
L.P. (the "GS Transferees") without restriction as to the number or
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percentage of shares acquired by any such transferee. Any transferee or assignee
to which rights are transferred under this Agreement shall be subject to the
restrictions and obligations imposed upon Holders by this Agreement.
16. Market Stand-off.
Each Holder hereby agrees that, if so requested by the Company and
the Underwriter's Representative (if any), such Holder shall not sell or
otherwise transfer any Registrable Securities or other securities of the Company
during the 120 day period (the "Market Standoff Period") following the effective
date of a Registration Statement of the Company filed under the Securities Act;
provided, however, that if in connection with the offering of the securities so
Registered, the Holders of a majority of the Registrable Securities agree not to
sell or otherwise transfer any shares held by them for a period greater than 120
days, then the Market Standoff Period shall be increased to such greater period
agreed to by such Holders; and provided, further, that such restriction shall
only apply to the first two Registration Statements of the Company to become
effective which include securities to be sold on behalf of the Company to the
public in an underwritten offering.
17. Conversion of Preferred Stock.
The Registration rights of the Holders of the Shares set forth in
this Agreement are conditioned upon the conversion of the Shares with respect to
which registration is sought into Common Stock prior to the effective date of
the Registration Statement; provided however, that in the event the closing of
the public offering to which such Registration Statement relates does not occur
within six (6) business days following the effective date, such conversion shall
be deemed not to have occurred.
18. Miscellaneous.
18.1 Termination of Prior Agreements, Rights and Obligations.
Upon execution of this Agreement by the Company, the Investors
and the Holders of at least sixty six and two-thirds percent (66-2/3%) of the
then-outstanding Registrable Securities, as defined in the Prior Registration
Agreement, pursuant to Section 18.7 thereof, the Prior Registration Agreement
and all rights and obligations contained therein shall be amended and superseded
in their entirety by this Agreement and the rights and obligations contained
herein.
18.2 Entire Agreement; Successors and Assigns.
This Agreement constitutes the entire contract between the
Company and the Investors relative to the subject matter hereof. Any previous
agreement between the Company and the Investors concerning Registration rights
is superseded by this Agreement. Subject to the exceptions specifically set
forth in this Agreement the terms and conditions of this Agreement shall inure
to the benefit of and be binding upon the respective executors, administrators,
heirs, successors and assigns of the parties.
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18.3 Governing Law.
This Agreement shall be governed by and construed in accordance
with the laws of the State of California applicable to contracts entered into
and wholly to be performed within the State of California by California
residents.
18.4 Counterparts.
This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
18.5 Headings.
The headings of the Sections of this Agreement are for
convenience and shall not by themselves determine the interpretation of this
Agreement.
18.6 Notices.
Any notice required or permitted hereunder shall be given in
writing and shall be conclusively deemed effectively given upon personal
delivery, or five days after deposit in the United States mail, by registered or
certified mail, postage prepaid, addressed (i) if to the Company, as set forth
below the Company's name on the signature page of this Agreement, and (ii) if to
an Investor, at such Investor's address as set forth on Schedule A, or at such
other address as the Company or such Investor may designate by ten (10) days'
advance written notice to the Investors or the Company, respectively.
18.7 Amendment of Agreement.
Any provision of this Agreement may be amended only by a
written instrument signed by the Company and by persons holding at least sixty
six and two-thirds percent (66-2/3%) of the Registrable Securities as defined in
Section 1 of this Agreement; provided that any amendment to Section 6 shall
require the consent of the Investor or transferee whose rights thereunder are
being amended; and provided, further, that any amendment adversely affecting an
Investor or transferee in a different manner than all Investors or transferees
generally shall require the consent of the Investor or transferee so affected.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
The Company: RAMBUS, INC.
By: _______________________________
Title:_____________________________
The Investors: XXXX, XXXXXXX VENTURES II
By:________________________________
Title:_____________________________
XXXXXXX XXXXXXX XXXXXXXX & XXXXX V
By:________________________________
Title:_____________________________
MERRILL, PICKARD, XXXXXXXX & EYRE V
By:________________________________
Title:_____________________________
INTEGRAL CAPITAL PARTNERS
By:________________________________
Title:_____________________________
DOMINION INCOME MANAGEMENT
By:________________________________
Title:_____________________________
GS CAPITAL PARTNERS, L.P.
By:________________________________
Title:_____________________________
XXXXXXX XXXX
By:________________________________
INTEL CORPORATION
By:________________________________
Title:_____________________________
