EXHIBIT 4.3
AMENDMENT NO. 2 TO
INVESTORS RIGHTS AGREEMENT
This AMENDMENT NO. 2 TO INVESTORS RIGHTS AGREEMENT dated March 21, 2000
(this "Amendment") amends that certain Investors Right Agreement, which is
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attached hereto as Exhibit A, dated as of September 28, 1999, by and among Lexar
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Media, Inc., a California corporation (the "Company"), certain existing
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shareholders of the Company listed on Schedule 1 thereto and certain investors
listed on Schedule 2 thereto, as amended by that certain Amendment No. 1 to
Investors Rights Agreement, which is attached hereto as Exhibit B, dated as of
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December 18, 1999, (the "Investors Rights Agreement"). The capitalized terms
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not otherwise defined herein have the respective meanings given to them in the
Investors Rights Agreement.
RECITALS
A. Section 7.1 of the Investor Rights Agreement states in part that any
term or provision of the Investors Rights Agreement may be amended by
a writing signed by the Company and holders of at least two-thirds
(2/3rds) of the Registrable Common.
B. The undersigned parties include the Company and the holders of at
least two-thirds (2/3rds) of the Registrable Common.
AGREEMENTS
NOW, THEREFORE, in consideration of the mutual promises made herein and
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree to amend the Investors Rights
Agreement as follows:
1. Section 1.11 of the Investors Rights Agreement is amended by adding a
reference to the Convertible Promissory Note (the "Sony Note") issued pursuant
to that certain Convertible Note and Warrant Purchase Agreement, dated as of
even date herewith (the "Purchase Agreement"), by and between the Company and
Sony Electronics, Inc. ("Sony"). Section 1.11 shall read in its entirety as
follows:
1.11. "Registrable Common" means (a) any shares of Common Stock which
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have been issued or are issuable upon the conversion of the Series A
Preferred, Series B Preferred, Series C Preferred, Series D Preferred or
Series E Preferred, (b) any shares of Common Stock which have been issued
or are issuable upon exercise of the Warrants, the Series C Warrant, the
Series E Warrant or the Bridge Loan Warrant, (c) any shares of Common Stock
which have been issued or are issuable upon conversion of the convertible
promissory note issued to Sony Electronics, Inc. ("Sony") on or about March
21, 2000 and (d) any share of Common Stock issued as a dividend, stock
split, reclassification,
recapitalization or other distribution with respect to or in exchange for
replacement of any Registrable Common, and, and, provided, however, that
shares of Common Stock shall no longer be Registrable Common when they
shall have been effectively registered under the Securities Act and sold by
the Holder thereof in accordance with such registration or sold by the
Holder pursuant to Rule 144.
2. Section 1.22 of the Investors Rights Agreement is amended by adding a
reference to the warrant issued to Sony pursuant to the Purchase Agreement (the
"Sony Warrant"). Section 1.22 shall read in its entirety as follows:
1.22. "Warrants" means (a) the warrants to purchase 125,000 shares of
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the Company's Common Stock granted to certain of the Investors as of
January 16, 1998, (b) the warrant granted to SMART Modular Technologies,
Inc. as of September 28, 1999 to purchase up to a certain number of shares
of the Company's Common Stock as set forth in the warrant, (c) the warrant
to purchase up to 30,000 shares of the Company's Common Stock granted to
Fenwick & West LLP as of December 8, 1999 and (d) the warrant to purchase
shares of the Company's Common Stock granted to Sony on or about March 21,
2000.
3. Sections 4.2 (iv) and 4.2 (vii) of the Investors Rights Agreement are
amended by adding a reference to the Sony Note and the Sony Warrant to exclude
the Sony Note, the Sony Warrant and the Common Stock issuable upon conversion of
the Sony Note and the Sony Warrant from the definition of "New Securities" that
are subject to each Holders' right of first refusal. Sections 4.2 (iv) and 4.2
(vii) shall read in their entirety as follows:
(iv) the Warrants, the Series C Warrants, the Series E Warrants, the
Bridge Loan Warrants or any securities issuable upon exercise of the
Warrants, the Series C Warrants, the Series E Warrants and the Bridge Loan
Warrants (the "Warrant Securities") or any securities issuable upon the
conversion of any Warrant Securities;
(vii) the convertible promissory note issued by the Company to Sony
Electronics, Inc. on or about March 21, 2000 in the principal amount of
$2,000,000, the convertible promissory note issued by the Company on or
about May 13, 1999 in the principal amount of $150,000, the convertible
promissory notes issued by the Company on or about August 6, 1999 in the
aggregate principal amount of $2,285,449.38 or any securities issuable upon
the conversion of any of such notes (the "Note Securities") or any
securities issuable upon the conversion of any Note Securities;
4. Sections 5.1.1, 5.1.2, 5.1.4 and 5.2.3 of the Investors Rights
Agreement are amended by adding a reference to the Registrable Common issued or
issuable upon conversion of the Series E Preferred to include the Holders of
such Registrable Common as Holders who can initiate a Registration Request
pursuant to Section 5.1. Sections 5.1.1, 5.1.2, 5.1.4 and 5.2.3 shall read in
their entirety as follows:
5.1.1. If, at any time after the earlier of: (i) six (6) months after
the Company's initial public offering of its Common Stock or (ii) June 1,
2001, the Company shall receive a written request for registration under
the Securities Act from (a) the record Holder or Holders of an aggregate of
at least a majority of the then Registrable Common not previously
registered under the Securities Act and sold or (b) the record Holder or
Holders of an aggregate of at least one-fifth (1/5th) of the then
Registrable Common issued upon conversion of the Series E Preferred;
provided that at least 500,000 shares of the Registrable Common issued upon
conversion of the Series E Preferred remain outstanding (a "Registration
Request"):
(a) the Company shall promptly give written notice to all other
record Holders of Registrable Common not previously registered under
the Securities Act and sold that such registration is to be effected
("Registration Notice"); and
(b) subject to the limitations and requirements set forth in
this Section 5.1, the Company shall use its best efforts to prepare
and file a registration statement under the Securities Act, covering
the Registrable Common which is the subject of the Registration
Request and such additional Registrable Common for which it has
received written requests to register by such other record Holders:
(i) within twenty (20) days after the delivery of the Registration
Notice if the Company is subject to the reporting requirements of the
Exchange Act or (ii) within forty-five (45) days after the delivery of
the Registration Notice if the Company is not subject to such
reporting requirements; and the Company shall use its best efforts to
cause such registration statement to become effective as soon as is
practicable after receipt of the Registration Request, but not later
than sixty (60) days after receipt of such request.
5.1.2. The Company shall be obligated (a) to proceed with filing the
Registration Statement only if the anticipated gross offering proceeds
based upon the public offering price per share proposed by the underwriters
is at least $5,000,000, (b) to prepare, file and cause to become effective
no more than two (2) registration statements pursuant to Registration
Requests made by Holders of at least a majority of the Registrable Common
under this Section 5.1 and no more than one (1) additional registration
statement pursuant to a Registration Request made by the Holders of at
least one-fifth (1/5th) of the Registrable Common issued or issuable upon
conversion of the Series E Preferred under this Section 5.1 and (c)
notwithstanding the provisions of Subsection 5.1.2(b) above, to prepare,
file and cause to become effective no more than one (1) registration
statement pursuant to a Registration Request made under this Section 5.1
during any six-month period.
5.1.4. If the Holders submitting the Registration Request (the
"Initiating Holders") intend to distribute the Registrable Common covered
by such request
by means of an underwriting, the Registration Request shall so indicate and
the Company shall include such information in the Registration Notice. A
majority in interest of the Initiating Holders shall select the
underwriter, with the approval of the Company, which approval shall not be
unreasonably withheld. Notwithstanding any other provision of this Section
5.1, if the managing underwriter advises the Initiating Holders in writing
that marketing factors require reducing the number of shares to be
underwritten, then the number of shares of Registrable Common included in
the underwriting shall be reduced pro rata among all participating Holders
in proportion (as nearly as practicable) to the amount of Registrable
Common owned by each participating Holder; provided, that, if in connection
with a Registration Request made by the Holders of the Registrable Common
issued or issuable upon conversion of the Series E Preferred, Registrable
Common is being included in the underwriting pursuant to a Holder's
incidental registration rights under Section 5.2, such reduction shall be
made: (i) first, from the number of Registrable Common requested to be
included in the underwriting pursuant to Section 5.2, on a pro rata basis,
based on the number of Registrable Common requested to be included in the
registration by Holders pursuant to Section 5.2, and (ii) second, from the
number of Registrable Common requested to be included in such underwriting
by the applicable Initiating Holders, on a pro rata basis, based on the
number of Registrable Common requested to be included in the registration
by such Initiating Holders; provided, however that such reduction shall be
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made only if all other securities (other than Registrable Common) to be
included already have been entirely excluded from the underwriting.
5.2.3. If in the good faith judgment of the managing underwriter of
such public offering, marketing factors require the number of securities
otherwise to be included in the underwritten public offering to be reduced
or excluded such number may be reduced pro rata (by number of shares) or
excluded among the Holders thereof requesting such registration; provided,
however, that, (i) in connection with an offering initiated by the Company,
such reduction shall be made: (a) first, from the number of securities
requested to be included in such offering by Holders exercising incidental
registration rights pursuant to this Section 5.2, on a pro rata basis,
based on the number of Registrable Common requested to be included in the
offering by such Holders and (b) second, from the number of securities to
be offered for the account of the Company and (ii) in connection with a
Registration Request made by the Holders of the Registrable Common issued
or issuable upon conversion of the Series E Preferred, such reduction shall
be made: (a) first, from the number of securities requested to be included
in such offering by Holders exercising incidental registration rights
pursuant to this Section 5.2, on a pro rata basis, based on the number of
Registrable Common requested to be included in the offering by such Holders
and (b) second, from the number of securities to be offered by the
Initiating Holders, on a pro rata basis, based on the number of Registrable
Common requested to be included in the offering by such Initiating Holders
under Section 5.1 or 5.3; and, provided, further, that the number of
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Registrable Common included in any such registration is not reduced below
10 percent (10%) of the shares included in the
registration, except for a registration relating to the Company's initial
public offering, from which all Registrable Common may be excluded.
5. Section 7.1 of the Investors Rights Agreement is amended by adding a
reference to the Registrable Common issued or issuable upon conversion of the
Series E Preferred to include the Holders of such Registrable Common as Holders
who can initiate a Registration Request pursuant to Section 5.1.1. The second
sentence of Section 7.1 shall read in its entirety as follows:
Notwithstanding the previous sentence and in lieu of the vote required
therein, no such amendment or waiver shall (i) adversely affect the rights
of a Holder, to (A) attend Board meetings pursuant to Section 2.5 or (B)
receive expense reimbursement pursuant to Section 3.3 without the written
consent of the affected Holder, or (ii) adversely affect the rights of the
Holders of Registrable Common issued or issuable upon conversion of the
Series E Preferred to make a Registration Request pursuant to Sections
5.1.1 and 5.1.2 without the written consent of four-fifths (4/5ths) of the
Series E Preferred.
6. Except as expressly modified by this Amendment, all terms of the
Investors Rights Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
COMPANY: LEXAR MEDIA, INC.
By:_______________________________________
Name: Xx. Xxxx Xxxxxx
Title: President and Chief Executive
Officer
SHAREHOLDERS: __________________________________________
Xxxx Xxxxxx
__________________________________________
Xxxxx Xxxxxxxx
__________________________________________
Mahmud ("Xxxx") Xxxxx
SIGNATURE PAGE TO AMENDMENT NO. 2 TO INVESTORS RIGHTS AGREEMENT
INVESTORS: GE CAPITAL EQUITY INVESTMENTS, INC.
a Delaware corporation
By:_____________________________________
Name:________________________________
Title:_______________________________
SIGNATURE PAGE TO AMENDMENT NO. 2 TO INVESTORS RIGHTS AGREEMENT
ST. XXXX VENTURE CAPITAL IV, LLC
By:_____________________________________
Name:________________________________
Title:_______________________________
ST. XXXX VENTURE CAPITAL V, LLC
By:_____________________________________
Name:________________________________
Title:_______________________________
ST. XXXX VENTURE CAPITAL AFFILIATES
FUND I, LLC
By St. Xxxx Venture Capital, Inc.,
Its Manager
By:_____________________________________
Name:________________________________
Title:_______________________________
SIGNATURE PAGE TO AMENDMENT NO. 2 TO INVESTORS RIGHTS AGREEMENT
APV TECHNOLOGY PARTNERS II, L.P.
By APV Management Co. II, LLC,
Its Managing General Partner
By:________________________________
Name:___________________________
Title:__________________________
SIGNATURE PAGE TO AMENDMENT NO. 2 TO INVESTORS RIGHTS AGREEMENT
THE XXXX XX AND XXXX TU TRUST,
DATED JUNE 16, 1995
By:________________________________
Name: Xxxx Xx
Title: Trustee
SIGNATURE PAGE TO AMENDMENT NO. 2 TO INVESTORS RIGHTS AGREEMENT
DECLARATION OF TRUST OF XXXXX XXX AND
XXXXX SUN, DATED FEBRUARY 26, 1986
By:_____________________________________
Name: Xxxxx Xxx
Title: Co-Trustee
By:_____________________________________
Name: Xxxxx Sun
Title: Co-Trustee
SIGNATURE PAGE TO AMENDMENT NO. 2 TO INVESTORS RIGHTS AGREEMENT
THOMVEST HOLDINGS, INC.
By:________________________________
Name:___________________________
Title:__________________________
SIGNATURE PAGE TO AMENDMENT NO. 2 TO INVESTORS RIGHTS AGREEMENT
TOSHIBA AMERICA ELECTRONIC
COMPONENTS, INC.
By:________________________________
Name:___________________________
Title:__________________________
SIGNATURE PAGE TO AMENDMENT NO. 2 TO INVESTORS RIGHTS AGREEMENT
XXXX X. XXXXXXXXX REVOCABLE TRUST
U/A DATED SEPTEMBER 13, 1991
By:________________________________
Name:___________________________
Title:__________________________
SIGNATURE PAGE TO AMENDMENT NO. 2 TO INVESTORS RIGHTS AGREEMENT
F&W INVESTMENTS 1997
By:________________________________
Name:___________________________
Title:__________________________
FENWICK & WEST LLP
By:________________________________
Name:___________________________
Title:__________________________
SIGNATURE PAGE TO AMENDMENT NO. 2 TO INVESTORS RIGHTS AGREEMENT
1267104 ONTARIO, LTD.
By:________________________________
Name:___________________________
Title:__________________________
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SIP GLOBAL I, L.P.
By:________________________________
Name:___________________________
Title:__________________________
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NORWEST BANK MINNESOTA, N.A.
By:________________________________
Name:___________________________
Title:__________________________
SIGNATURE PAGE TO AMENDMENT NO. 2 TO INVESTORS RIGHTS AGREEMENT
SUNAMERICA, INC.,
as beneficial owner
By:________________________________
Name:___________________________
Title:__________________________
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XXX XXXXXXX CAPITAL MANAGEMENT
By:________________________________
Name:___________________________
Title:__________________________
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OLYMPUS OPTICAL CO., LTD.
By:________________________________
Name:___________________________
Title:__________________________
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MELLON VENTURES, L.P.
By:________________________________
Name:___________________________
Title:__________________________
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LAGUNITAS PARTNER, L.P.
By:________________________________
Name:___________________________
Title:__________________________
XXXXXX & XxXXXXX INTERNATIONAL
By:________________________________
Name:___________________________
Title:__________________________
___________________________________
XXX X. XXXXXX
SIGNATURE PAGE TO AMENDMENT NO. 2 TO INVESTORS RIGHTS AGREEMENT
