EXHIBIT 10.1
FIFTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS FIFTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"Agreement") is made as of this 10th day of November, 2004 by and among (1)
iRobot Corporation, a Delaware corporation (the "Company"); (2) Xxxxxx Xxxxxx,
Xxxxx X. Angle, Xxxxx Xxxxxxx, Xxxxx Xxxxx and Xxxxxxxx More (each, a "Founder"
and collectively, the "Founders"); (3) Hasbro, Inc., a Rhode Island corporation
("Hasbro"); (4) Acer Technology Venture Fund L.P., a Cayman Islands limited
partnership ("Acer"); (5) First Albany Companies, Inc., a New York corporation
("FAC"); (6) the holders of the Company's Series C Convertible Preferred Stock,
$.01 par value per share (the "Series C Preferred Stock") set forth on Schedule
I hereto (collectively, the "Series C Investors"); (7) the holders of the
Company's Series D Convertible Preferred Stock, $.01 par value per share (the
"Series D Preferred Stock") set forth on Schedule I hereto (collectively, the
"Series D Investors"), (8) the holders of the Company's Series E Convertible
Preferred Stock, $.01 par value per share (the "Series E Preferred Stock") set
forth on Schedule I hereto, (9) the holders of the Company's Series F
Convertible Preferred Stock, $.01 par value per share (the "Series F Investors")
set forth on Schedule I attached hereto and, from and after the time that it
becomes a party to this Agreement by execution of a counterpart signature page
in substantially the form attached as Exhibit A countersigned by the Company (a
"Counterpart Signature Page"), each additional holder of Series F Preferred
Stock executing a Counterpart Signature Page (each of Acer, FAC, Hasbro, the
Series C Investors, the Series D Investors, the Series E Investors and the
Series F Investors being referred to herein individually as an "Investor" and
all collectively being referred to as the "Investors"); (10) the stockholders
identified on Schedule I hereto as the Additional Stockholders; and (11) any
other stockholder, warrantholder or optionholder who from time to time becomes a
party to this Agreement by execution of a Joinder Agreement in the form attached
as Exhibit B hereto (collectively, the "Additional Stockholders"). The Founders
and the Additional Stockholders are herein referred to collectively as the
"Stockholders" and individually as a "Stockholder."
WHEREAS, all of the parties hereto except the Series F Investors are
parties to that certain Fourth Amended and Restated Registration Rights
Agreement dated as of February 28, 2003 (the "Prior Agreement") amending and
restating a Third Amended and Restated Registration Rights Agreement dated as of
August 24, 2001, which amended and restated a Second Amended and Restated
Registration Rights Agreement dated as of February 15, 2000, which amended and
restated a Registration Rights Agreement dated August 25, 1999, which amended
and restated a Registration Rights Agreement dated as of November 17, 1998; and
WHEREAS, the Founders are holders of shares of the Company's Common Stock
(as defined herein);
WHEREAS, Acer, FAC, the Series C Investors, the Series D Investors, the
Series E Investors and the Series F Investors are holders of shares of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock, Series E Preferred Stock and Series F Preferred Stock;
WHEREAS, Hasbro is the holder of shares of the Company's Common Stock; and
WHEREAS, it is a condition to the purchase by the Series F Investors of
shares of Series F Preferred Stock that the Prior Agreement be further amended
and restated as provided herein, and the Company, Investors and Stockholders
desire to further amend and restate the Prior Agreement as provided herein;
NOW THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree that the Prior Agreement is hereby amended and restated in
its entirety as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 CONSTRUCTION OF TERMS. As used herein, the masculine, feminine
or neuter gender, and the singular or plural number, shall be deemed to be or to
include the other genders or number, as the case may be, whenever the context so
indicates or requires.
SECTION 1.2 NUMBER OF SHARES OF STOCK. Whenever any provision of this
Agreement calls for any calculation based on a number of shares of Common Stock
held by a Stockholder or an Investor, the number of shares deemed to be held by
a Stockholder or an Investor shall be the total number of shares of Common Stock
then owned by such Stockholder or Investor, plus the total number of shares of
Common Stock issuable upon conversion of any Preferred Stock or other
convertible securities or exercise of any vested options, warrants or
subscription rights then owned by such Stockholder or Investor.
SECTION 1.3 DEFINED TERMS. The following capitalized terms, as used in
this Agreement, shall have the meanings set forth below.
An "AFFILIATE" of any Person means a Person that directly or indirectly,
through one or more intermediaries, controls, is controlled by or is under
common control with the first mentioned Person. A Person shall be deemed to
control another Person if such first Person possesses directly or indirectly the
power to direct, or cause the direction of, the management and policies of the
second Person, whether through the ownership of voting securities, by contract
or otherwise.
"BOARD OF DIRECTORS" means the Board of Directors of the Company.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means the Common Stock, $.01 par value per share, of the
Company and any other common equity securities now or hereafter issued by the
Company, and any other shares of stock issued or issuable with respect thereto
(whether by way of a stock dividend or stock split or in exchange for or in
replacement of or upon conversion of such shares or
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otherwise in connection with a combination of shares, recapitalization, merger,
consolidation or other corporate reorganization).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended from
time to time, and the rules and regulations promulgated thereunder.
"PERSON" means an individual, a corporation, an association, a
partnership, a limited liability company, an estate, a trust, and any other
entity or organization, governmental or otherwise.
"PREFERRED STOCK" means the Series A Preferred Stock, the Series B
Preferred Stock, the Series C Preferred Stock, the Series D Preferred Stock, the
Series E Preferred Stock and/or the Series F Preferred Stock.
"REGISTRABLE SECURITIES" means (i) any shares of Common Stock held by an
Investor, (ii) any shares of Common Stock subject to acquisition by an Investor
upon conversion of shares of Preferred Stock (it being understood that if an
Investor owns Preferred Stock, the Investor may exercise its registration rights
hereunder by converting the shares to be sold under the relevant registration
statement into Common Stock as of the closing of the relevant offering and shall
not be required to cause such Preferred Stock to be converted to Common Stock
until immediately prior to the occurrence of such closing), (iii) for purposes
of Sections 2.1, 2.3, 2.4, 2.5, 2.7, and 3.1, any shares of Common Stock held by
a Founder and any shares of Common Stock subject to acquisition by a Founder
upon conversion or exercise of securities convertible or exercisable into shares
of Common Stock (it being understood that if a Founder owns such securities, the
Founder may exercise its registration rights hereunder by converting or
exercising the shares to be sold under the relevant registration statement into
Common Stock as of the closing of the relevant offering and shall not be
required to cause such securities to be converted or exercised into Common Stock
until immediately prior to the occurrence of such closing), and (iv) any
securities issued and issuable with respect to any such shares described in
clauses (i), (ii) or (iii) above by way of a stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization; provided, however, that notwithstanding anything to the
contrary contained herein, "Registrable Securities" shall not include at any
time securities (i) that have been sold in a registered sale pursuant to an
effective registration statement under the Securities Act, (ii) that have been
sold to the public pursuant to Rule 144 under the Securities Act, (iii) held by
a holder of less than three percent (3%) of the outstanding capital stock of the
Company which could then be sold in their entirety pursuant to Rule 144 under
the Securities Act without limitation or restriction, except to the extent that
such holder is prevented from selling such shares pursuant to the market
stand-off agreement set forth in Section 2.6.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time to
time, and the rules and regulations promulgated thereunder.
"TRANSFER" means any direct or indirect transfer, donation, sale,
assignment, pledge, hypothecation, grant of a security interest in or other
disposal or attempted disposal of all or any
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portion of a security or of any rights. "Transferred" means the accomplishment
of a Transfer, and "Transferee" means the recipient of a Transfer.
ARTICLE II
REGISTRATION RIGHTS
SECTION 2.1 OPTIONAL REGISTRATIONS. If at any time or times after the date
hereof the Company shall seek to register any shares of its Common Stock under
the Securities Act for sale to the public (except with respect to registration
statements on Form X-0, X-0 or other similar form not available for registering
the Registrable Securities for general sale to the public) for its own account
or for the account of any other Person, including, without limitation, any
registration pursuant to Section 2.2, the Company will promptly give written
notice thereof to all holders of Registrable Securities (the "Holders"). If
within twenty (20) days after their receipt of such notice one or more Holders
request the inclusion of some or all of the Registrable Securities owned by them
in such registration, the Company will use its best efforts to effect the
registration under the Securities Act of such Registrable Securities. In the
case of the registration of shares of capital stock by the Company in connection
with any underwritten public offering, if the underwriter(s) determines that
marketing factors require a limitation on the number of Registrable Securities
to be offered, subject to the following sentence, the Company shall not be
required to register Registrable Securities of the Holders in excess of the
amount, if any, of shares of the capital stock which the principal underwriter
of such underwritten offering shall reasonably and in good faith agree to
include in such offering in addition to any amount to be registered for the
account of the Company and/or such other Person on whose account the Company had
initially sought to register the shares. If any limitation of the number of
shares of Registrable Securities to be registered by the Holders is required
pursuant to this Section 2.1, the number of shares to be excluded shall be
determined in the following order and on the following basis: first, on a pro
rata basis based upon the respective holdings of Registrable Securities by such
Holders who are neither Founders nor Investors; second, on a pro rata basis
based upon the respective holdings of Registrable Securities by such Holders who
are Founders; and third, on a pro rata basis based upon the respective holdings
of Registrable Securities by such Holders who are Investors, provided, however,
that in no event shall the above cutback provision reduce the number of
Registrable Securities included in such registration to a number that is less
than 25% of the total number of shares of capital stock to be included in such
underwritten public offering, including any amount to be registered for the
account of the Company and any Person on whose account the Company had initially
sought to register the shares, except with respect to the Company's initial
public offering of its Common Stock, in which case the number of shares of
Registrable Securities to be included may be reduced to zero (0).
SECTION 2.2 REQUIRED REGISTRATIONS.
(a) DEMAND REGISTRATION.
(i) At any time that is at least six (6) months after the
initial underwritten public offering of Common Stock by the Company pursuant to
an effective registration statement under the Securities Act, Fenway Partners
Capital Fund II, L.P. ("Fenway") and/or one or more
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Series D Investors holding at least 20% of the Registrable Securities originally
issued to Fenway and such Series D Investors and then held by Fenway and/or such
Series D Investors may request that the Company register under the Securities
Act all or a portion of the Series D Preferred Stock held by Fenway and/or such
Series D Investors having an aggregate value (based on the then current market
price) of at least (A) $7,500,000 or (B) if the Series D Preferred Stock for
which such registration is requested represent all of the Series D Preferred
Stock held by Fenway and/or such Series D Investor, $1,000,000. The Company
shall not be obligated to effect, or to take any action to effect, any
registration pursuant to this Section 2.2(a)(i) after the Company has effected
two (2) registrations pursuant to this Section 2.2(a)(i) and such registrations
have been declared or ordered effective.
(ii) At any time that is at least six (6) months after the
initial underwritten public offering of Common Stock by the Company pursuant to
an effective registration statement under the Securities Act, Acer and/or one or
more Investors holding at least 50% of those Registrable Securities originally
issued to Acer and then held by Acer and such Investors may request that the
Company register under the Securities Act all or a portion of the Registrable
Securities held by Acer and such requesting Investors having an aggregate value
(based on the then current market price) of at least (A) $7,500,000 or (B) if
the Registrable Securities for which such registration is requested represent
all of the Registrable Securities held by Acer and such Investors, $1,000,000.
The Company shall not be obligated to effect, or to take any action to effect,
any registration pursuant to this Section 2.2(a)(ii) after the Company has
effected two (2) registrations pursuant to this Section 2.2(a)(ii) and such
registrations have been declared or ordered effective.
(iii) At any time that is at least six (6) months after the
initial underwritten public offering of Common Stock by the Company pursuant to
an effective registration statement under the Securities Act, Hasbro and/or one
or more Investors holding at least 50% of those Registrable Securities
originally issued to Hasbro and then held by Hasbro and such Investors may
request that the Company register under the Securities Act all or a portion of
the Registrable Securities held by Hasbro and such requesting Investors having
an aggregate value (based on the then current market price) of at least (A)
$7,500,000 or (B) if the Registrable Securities for which such registration is
requested represent all of the Registrable Securities held by Hasbro and such
Investors, $1,000,000. The Company shall not be obligated to effect, or to take
any action to effect, any registration pursuant to this Section 2.2(a)(iii)
after the Company has effected two (2) registrations pursuant to this Section
2.2(a)(iii) and such registrations have been declared or ordered effective.
(iv) At any time that is at least six (6) months after the
initial underwritten public offering of Common Stock by the Company pursuant to
an effective registration statement under the Securities Act, FAC and/or one or
more Investors holding at least 50% of those Registrable Securities originally
issued to FAC and then held by FAC and such Investors may request that the
Company register under the Securities Act all or a portion of the Registrable
Securities held by FAC and such requesting Investors having an aggregate value
(based on the then current market price) of at least (A) $7,500,000 or (B) if
the Registrable Securities for which such registration is requested represent
all of the Registrable Securities held by FAC and such Investors, $1,000,000.
The Company shall not be obligated to effect, or to take any action
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to effect, any registration pursuant to this Section 2.2(a)(iv) after the
Company has effected two (2) registrations pursuant to this Section 2.2(a)(iv)
and such registrations have been declared or ordered effective.
(v) At any time that is at least six (6) months after the
initial underwritten public offering of Common Stock by the Company pursuant to
an effective registration statement under the Securities Act, one or more
Investors holding at least 50% of those Registrable Securities originally issued
to the Series C Investors and then held by the Series C Investors and such
Investors may request that the Company register under the Securities Act all or
a portion of the Registrable Securities held by the Series C Investors and such
requesting Investors having an aggregate value (based on the then current market
price) of at least (A) $7,500,000 or (B) if the Registrable Securities for which
such registration is requested represent all of the Registrable Securities held
by such Investors, $1,000,000. The Company shall not be obligated to effect, or
to take any action to effect, any registration pursuant to this Section
2.2(a)(v) after the Company has effected two (2) registrations pursuant to this
Section 2.2(a)(v) and such registrations have been declared or ordered
effective.
(vi) At any time that is at least six (6) months after the
initial underwritten public offering of Common Stock by the Company pursuant to
an effective registration statement under the Securities Act, Trident Capital
Fund-V, L.P. and affiliates (collectively, "Trident") and/or one or more Series
E Investors holding at least 20% of the Registrable Securities originally issued
to Trident and such Series E Investors and then held by Trident and/or such
Series E Investors may request that the Company register under the Securities
Act all or a portion of the Registrable Securities held by Trident and/or such
Series E Investors having an aggregate value (based on the then current market
price) of at least (A) $7,500,000 or (B) if the Registrable Securities for which
such registration is requested represent all of the Registrable Securities held
by Trident and/or such Series E Investor, $1,000,000. The Company shall not be
obligated to effect, or to take any action to effect, any registration pursuant
to this Section 2.2(a)(vi) after the Company has effected two (2) registrations
pursuant to this Section 2.2(a)(vi) and such registrations have been declared or
ordered effective.
(vii) At any time that is at least six (6) months after the
initial underwritten public offering of Common Stock by the Company pursuant to
an effective registration statement under the Securities Act, Explore Holdings
L.L.C. ("Explore") and/or one or more Series F Investors holding at least 50% of
those Registrable Securities originally issued to Explore and such Series F
Investors and then held by Explore and/or such Series F Investors may request
that the Company register under the Securities Act all or a portion of the
Registrable Securities held by Explore and/or such Series F Investors having an
aggregate value (based on the then current market price) of at least (A)
$7,500,000 or (B) if the Registrable Securities for which such registration is
requested represent all of the Registrable Securities held by Explore and/or
such Series F Investors, $1,000,000. The Company shall not be obligated to
effect, or to take any action to effect, any registration pursuant to this
Section 2.2(a)(vii) after the Company after the Company has effected one (1)
registration pursuant to this Section 2.2(a)(vii) and such registration has been
declared or ordered effective.
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(b) FORM S-3. After the Company's initial public offering of Common
Stock registered under the Securities Act, the Company shall use its best
efforts to qualify and remain qualified to register securities on Form S-3 (or
any successor form) under the Securities Act. In addition to the rights set
forth in Section 2.2(a), so long as the Company is qualified to register
securities on Form S-3 (or any successor form), any Investor or Investors shall
have the right to request registration on Form S-3 (or any successor form) for
the Registrable Securities held by such requesting Investor having an aggregate
value of at least $500,000 (based on the then current market price), including
registrations for the sale of such Registrable Securities on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act. Such requests
shall be in writing and shall state the number of shares of Registrable
Securities to be disposed of and the intended method of disposition of such
shares by such Investor or Investors. Registrations effected pursuant to this
Section 2.2(b) shall not be counted as demands for registration or registrations
effected pursuant to Section 2.2(a). The Company shall not be obligated to
effect, or to take any action to effect, any registration pursuant to this
Section 2.2(b) (i) for any Investor if the Company has effected two (2)
registrations initiated at the request of such Investor pursuant to this Section
2.2(b) and such registrations have been declared or ordered effective or (ii) if
the Company has, within the twelve (12) month period preceding the date of such
request, already effected four (4) registrations for any Investors pursuant to
this Section 2.2(b) and such registrations have been declared or ordered
effective.
(c) REGISTRATION REQUIREMENTS. Following a request pursuant to
Section 2.2(a) or (b) above, the Company will promptly notify all of the Holders
who would be entitled to notice of a proposed registration under Section 2.1
above and any other holder of piggyback registration rights of its receipt of
such notification from such Investor or Investors. Upon the written request of
any such Holder or other holder of the Company's securities delivered to the
Company within twenty (20) days after receipt from the Company of such
notification, the Company will use its best efforts to cause such of the
Registrable Securities as may be requested by any Holders and any other holder
of piggyback registration rights to be registered under the Securities Act in
accordance with the terms of Section 2.1. If the request for registration
contemplates an underwritten public offering, the Company shall state such in
the written notice and in such event the right of any Person to participate in
such registration shall be conditioned upon their participation in such
underwritten public offering and the inclusion of their securities in the
underwritten public offering to the extent provided herein. If the Company fails
to register all shares for which registration has been properly requested
pursuant to Section 2.2(a) or 2.2(b), other than because the number of such
shares, plus the number of shares required to be allocated to the exercise of
piggy-back rights in respect of Registrable Securities pursuant to Section 2.1,
exceeds the number of Registrable Securities which the underwriter thereof
determines can be sold in light of then applicable marketing factors, then
except as otherwise provided in this Agreement such registration shall not be
considered a request pursuant to Section 2.2(a) or 2.2(b).
(d) UNDERWRITTEN OFFERING. If a requested registration pursuant to
Section 2.2 hereof involves an underwritten public offering and the managing
underwriter of such offering determines in good faith that the number of
securities sought to be offered should be limited due to market conditions, then
the number of securities to be included in such underwritten public offering
shall be reduced to a number deemed satisfactory by such managing
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underwriter, provided that the shares to be excluded shall be determined in the
following sequence: (i) first, securities held by any Persons other than the
Founders and the Investors, (ii) second, securities held by any Founders, (iii)
third, shares sought to be registered by the Company and (iv) fourth,
Registrable Securities of Investors requesting such registration (whether
pursuant to Section 2.1 or this Section 2.2). If there is a reduction of the
number of Registrable Securities to be included in the registration pursuant to
clause (i), (ii) or (iv), the reduction shall be effected among the holders
covered by such respective clause (i), (ii) or (iv) (as the case may be) on a
pro rata basis (based upon the respective number of shares of Registrable
Securities and other securities entitled to registration held by such holders).
Any Investor who sells more than fifty percent (50%) of the Registrable
Securities then held by such Investor pursuant to any registration requested
under Section 2.2(a) shall be deemed to have exercised one of the demand
registration rights granted to such Investor pursuant to Section 2.2(a),
regardless of whether such Investor requested such registration pursuant to
Section 2.2(a). With respect to a request for registration pursuant to Section
2.2(a) or (b) which is for an underwritten public offering, the managing
underwriter shall be chosen by the Investors requesting such registration,
subject to the Company's approval which shall not be unreasonably withheld.
(e) POSTPONEMENT. The Company may postpone the filing of any
registration statement required hereunder for a reasonable period of time, not
to exceed ninety (90) days in the aggregate during any twelve-month period, if
the Company has been advised by legal counsel that such filing would require a
special audit or the disclosure of a material impending transaction or other
matter and the Company's Board of Directors determines reasonably and in good
faith that such disclosure would have a material adverse effect on the Company.
The Company shall not be required to cause a registration statement requested
pursuant to this Section 2.2 to become effective prior to ninety (90) days
following the effective date of a registration statement initiated by the
Company (or one hundred eighty (180) days in the case of the Company's initial
public offering of its Common Stock), if the request for registration has been
received by the Company subsequent to the giving of written notice by the
Company, made in good faith, to the Investors that the Company is commencing to
prepare a Company-initiated registration statement (other than a registration
effected solely to implement an employee benefit plan or a transaction to which
Rule 145 or any other similar rule under the Securities Act is applicable);
provided, however, that the Company shall use its best efforts to achieve such
effectiveness promptly following such period. Notwithstanding anything in this
Agreement to the contrary, the Company shall not be obligated to effect more
than one registration pursuant to Section 2.2(a) in any six-month period.
SECTION 2.3 FURTHER OBLIGATIONS OF THE COMPANY. Whenever the Company is
required hereunder to register any Registrable Securities, it agrees that it
shall also do the following:
(a) Pay all expenses of such registrations and offerings (exclusive
of underwriting discounts and commissions) and the reasonable fees and expenses
of not more than one independent counsel for the Holders in connection with any
registrations pursuant to Section 2.1 or 2.2, any such counsel to be selected by
the Investor requesting registration under Section 2.2 (if any) and otherwise to
be selected by a majority of the Holders selling in such registration;
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(b) Use its best efforts diligently to prepare and file with the
Commission, within sixty (60) days of request, a registration statement and such
amendments and supplements to said registration statement and the prospectus
used in connection therewith as may be necessary to keep said registration
statement effective until the earlier of the sale of all Registrable Securities
covered thereby and one hundred twenty (120) days, and to comply with the
provisions of the Securities Act with respect to the sale of securities covered
by said registration statement for such period;
(c) Furnish to each selling Holder such copies of each preliminary
and final prospectus and such other documents as such Holder may reasonably
request to facilitate the public offering of its Registrable Securities;
(d) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the underwriter(s) of such offering; each Holder participating in
such underwriting shall also enter into and perform its obligations under such
an agreement;
(e) Use its best efforts to register or qualify the securities
covered by said registration statement under the securities or "blue sky" laws
of such jurisdictions as any selling Holder may reasonably request; provided,
that the Company shall not be required to register or qualify the securities in
any jurisdictions in which such registration or qualification would require it
to qualify to do business or consent to general service of process therein;
(f) Immediately notify each selling Holder, at any time when a
prospectus relating to his, her or its Registrable Securities is required to be
delivered under the Securities Act, of the happening of any event as a result of
which such prospectus contains an untrue statement of a material fact or omits
any material fact necessary to make the statements therein not misleading, and,
at the request of any such selling Holder, prepare a supplement or amendment to
such prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not contain any untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein not misleading;
(g) Cause all such Registrable Securities to be listed on each
securities exchange or quotation system on which similar securities issued by
the Company are then listed or quoted;
(h) Otherwise use its best efforts to comply with the securities
laws of the United States and other applicable jurisdictions and all applicable
rules and regulations of the Commission and comparable governmental agencies in
other applicable jurisdictions;
(i) If the offering is underwritten, use its best efforts to obtain
and furnish to each selling Holder, immediately prior to the effectiveness of
the registration statement and, at the time of delivery of any Registrable
Securities sold pursuant thereto, a cold comfort letter from the Company's
independent public accountants in customary form and covering such matters of
the type customarily covered by cold comfort letters as any Investor requesting
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registration under Section 2.2 or the Holders of a majority of the Registrable
Securities being sold may reasonably request;
(j) Otherwise cooperate with the underwriter or underwriters, the
Commission and other regulatory agencies and take all actions and execute and
deliver or cause to be executed and delivered all documents necessary to effect
the registration of any Registrable Securities under this Article II; and
(k) Use its best efforts to obtain and furnish to each selling
Holder such legal opinions, if any, of counsel to the Company, addressed to each
selling Holder, as are usual and customary under the circumstances.
SECTION 2.4 INDEMNIFICATION; CONTRIBUTION.
(a) Incident to any registration statement referred to in this
Article II, the Company will indemnify and hold harmless each underwriter, each
Holder who offers or sells any such Registrable Securities in connection with
such registration statement (including its partners (including partners of
partners and stockholders of any such partners), and directors, officers,
employees and agents of any of them (a "Selling Holder"), and each person who
controls any of them within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act (a "Controlling Person")), from and against any
and all losses, claims, damages, expenses and liabilities, joint or several
(including any reasonable investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claim asserted, as the same are incurred), to which they, or
any of them, may become subject under the Securities Act, the Exchange Act or
other federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities arise out of or are based
on (i) any untrue statement or alleged untrue statement of a material fact
contained in such registration statement (including any related preliminary or
definitive prospectus, or any amendment or supplement to such registration
statement or prospectus), (ii) any omission or alleged omission to state in such
document a material fact required to be stated in it or necessary to make the
statements in it not misleading in light of the circumstances under which such
statements were made, or (iii) any violation by the Company of the Securities
Act, any state securities or "blue sky" laws or any rule or regulation
thereunder in connection with such registration; provided, however, that the
Company will not be obligated to indemnify any party to the extent that such
loss, claim, damage, expense or liability arises from and is based on an untrue
statement or omission or alleged untrue statement or omission made in reliance
on and in conformity with information furnished in writing to the Company by or
on behalf of such party expressly for use in such registration statement.
(b) Each Selling Holder will indemnify and hold harmless the Company
(including its directors, officers, employees and agents), each underwriter and
each other Holder (including its partners (including partners of partners and
stockholders of such partners), and directors, officers, employees and agents of
any of them, and each person who controls any of them within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act), from and
against any and all losses, claims, damages, expenses and liabilities, joint or
several (including any reasonable investigation, legal and other expenses
incurred in connection with,
10
and any amount paid in settlement of, any action, suit or proceeding or any
claim asserted, as the same are incurred), to which they, or any of them, may
become subject under the Securities Act, the Exchange Act or other federal or
state statutory law or regulation, at common law or otherwise with respect to
any untrue statement or alleged untrue statement of a material fact contained in
information furnished in writing to the Company by such Selling Holder expressly
for use in such registration statement or any omission or alleged omission to
state in such information a material fact required to be stated in it or
necessary to make the statements in it not misleading in light of the
circumstances under which such statements were made. In no event, however, shall
the liability of a Selling Holder for indemnification under this Section 2.4(b)
exceed the net proceeds received by such Selling Holder from its sale of
Registrable Securities under such registration statement.
(c) If the indemnification provided for in Section 2.4(a) or (b)
above for any reason is held by a court of competent jurisdiction to be
unavailable to an indemnified party in respect of any losses, claims, damages,
expenses or liabilities referred to therein, then each indemnifying party under
this Section 2.4, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, expenses or liabilities in such
proportion as is appropriate to reflect (i) the relative benefits received by
the Company, the other Selling Holders and the underwriters from the offering of
the Registrable Securities, (ii) the relative fault of the Company, the other
Selling Holders and the underwriters in connection with the statements or
omissions which resulted in such losses, claims, damages, expenses or
liabilities, and (iii) any other relevant equitable considerations. The relative
benefits received by the Company, the Selling Holders and the underwriters shall
be deemed to be in the same respective proportions that the net proceeds from
the offering (before deducting expenses) received by the Company and the Selling
Holders and the underwriting discount received by the underwriters, in each case
as set forth in the table on the cover page of the applicable prospectus, bear
to the aggregate public offering price of the Registrable Securities. The
relative fault of the Company, the Selling Holders and the underwriters shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, the Selling
Holders or the underwriters and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company, the Selling Holders, and the underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 2.4(c)
were determined by pro rata or per capita allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in the immediately preceding paragraph. In no event, however, shall a Selling
Holder be required to contribute any amount under this Section 2.4(c) in excess
of the net proceeds received by such Selling Holder from its sale of Registrable
Securities under such registration statement. No person found guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
found guilty of such fraudulent misrepresentation.
(d) The amount paid by an indemnifying party or payable to an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in this Section 2.4 shall
11
be deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim, payable as the same are
incurred. The indemnification obligations set forth in this Section 2.4 shall
not apply to amounts paid by the indemnified party in any settlement that is
effected without the consent of the party from whom indemnification sought,
which consent shall not be unreasonably withheld. The indemnification and
contribution provided for in this Section 2.4 will remain in full force and
effect regardless of any investigation made by or on behalf of the indemnified
parties or any officer, director, employee, agent or controlling person of the
indemnified parties. No indemnifying party, in the defense of any such claim or
litigation, shall, except with the consent of such indemnified party, which
consent shall not be unreasonably withheld, 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 such indemnified party of a
release from all liability in respect of such claim or litigation.
(e) Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in an underwriting agreement
entered into in connection with an underwritten public offering are in conflict
with the provisions of this Agreement, the provisions in such underwriting
agreement shall control.
SECTION 2.5 RULE 144 AND RULE 144A REQUIREMENTS. With a view to making
available to the Holders the benefits of Rule 144 promulgated under the Act and
any other rule or regulation of the Commission that may at any time permit a
Holder to sell securities of the Company to the public without registration or
pursuant to a registration on Form S-3, the Company agrees to use its best
efforts to:
(a) make and keep public information available, as those terms are
understood and defined in Commission Rule 144, at all times after ninety (90)
days after the effective date of the first registration statement filed by the
Company for the offering of its securities to the general public;
(b) take such action, including the voluntary registration of its
Common Stock under Section 12 of the Exchange Act, as is necessary to enable the
Holders to utilize Form S-3 for the sale of their Registrable Securities, such
action to be taken as soon as practicable after the end of the fiscal year in
which the first registration statement filed by the Company for the offering of
its securities to the general public is declared effective;
(c) file with the Commission in a timely manner all reports and
other documents required of the Company under the Act and the Exchange Act; and
(d) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of Commission Rule
144 (at any time after ninety (90) days after the effective date of the first
registration statement filed by the Company), the Act and the Exchange Act (at
any time after it has become subject to such reporting requirements), or that it
qualifies as a registrant whose securities may be resold pursuant to Form S-3
(at any time after it so qualifies), (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed by
the Company, and (iii) such other information as may be
12
reasonably requested in availing any Holder of any rule or regulation of the
Commission which permits the selling of any such securities without registration
or pursuant to such form.
SECTION 2.6 "MARKET STAND-OFF" AGREEMENT. In connection with any
underwritten public offering of the Company's Common Stock, the Investors and
the Stockholders (including any Transferee) if requested in good faith by the
Company and the managing underwriter of the Company's securities, shall agree
not to, directly or indirectly, offer, sell, pledge, contract to sell (including
any short sale), grant any option to purchase or otherwise dispose of any
securities of the Company held by them (except for any securities sold pursuant
to such registration statement) or enter into any Hedging Transaction (as
defined below) relating to any securities of the Company for a period not to
exceed one hundred eighty (180) days (in the case of the Company's initial
underwritten public offering) or ninety (90) days (in the case of any
underwritten public offering other than the Company's initial underwritten
public offering) following the effective date of the applicable registration
statement as agreed to by such parties; provided, that the Investors'
obligations under this Section 2.6 shall be conditioned upon (a) all officers
and directors of the Company entering into similar agreements with the Company
and such managing underwriter and (b) the Company using all reasonable effort to
obtain similar agreements from all holders of one percent (1%) or more of the
outstanding capital stock of the Company; and provided, further, that such
periods may be extended for up to an additional twenty (20) days to permit the
underwriters to issue a research report in compliance with the National
Association of Security Dealers Rule 2711(f)(4). For purposes of this Section
2.6, "Hedging Transaction" means any short sale (whether or not against the box)
or any purchase, sale or grant of any right (including without limitation, any
put or call option) with respect to any security (other than a broad-based
market basket or index) that includes, relates to or derives any significant
part of its value from the Company's Common Stock.
SECTION 2.7 TRANSFERABILITY OF REGISTRATION RIGHTS. The registration
rights set forth in this Agreement are transferable (i) to each Transferee of
Registrable Securities who receives at least one hundred thirty five thousand
(135,000) shares of Registrable Securities, provided, that such transferee's
activities, products and services are not competitive in any material respect
with activities, products or services of the Company as reasonably determined by
the Board of Directors or (ii) to any partner, member or employee of such Holder
or a general partner or managing member of such Holder or an Affiliate of such
Holder. Each subsequent holder of Registrable Securities must consent in writing
to be bound by the terms and conditions of this Agreement and written notice of
any such transfer must be given to the Company in order for such Holder to
acquire the rights granted pursuant to this Agreement and, in such event, each
such subsequent Holder who is a transferee of an Investor shall be deemed an
Investor for all purposes of this Agreement.
ARTICLE III
GENERAL
SECTION 3.1 AMENDMENTS, WAIVERS AND CONSENTS. For the purposes of this
Agreement, no course of dealing between or among any of the parties hereto and
no delay on the part of any party hereto in exercising any rights hereunder or
thereunder shall operate as a waiver
13
of the rights hereof and thereof. The following shall be sufficient to effect
any amendment, waiver or modification of this Agreement: the written consent of
Investors holding a majority of the Registrable Securities then held by all
Investors, the Company and Stockholders holding at least a majority of the
outstanding shares of Registrable Securities then held by the Stockholders;
provided, that any party may waive any provision hereof with respect to such
party intended for its benefit by written consent; provided, further, that the
provisions contained in Article II may be amended, modified or waived only with
the added consent of the holders of not less than a majority of the Registrable
Securities then outstanding , provided, however, that any such amendment,
modification or waiver that disproportionately (other than as a result of
disproportionate stockholdings) and adversely affects any Investor or
Stockholder shall require the prior written consent of such Investor or
Stockholder, it being understood and agreed that the grant of registration
rights to third parties shall not be deemed to disproportionately or adversely
affect any particular Investor or Stockholder; and provided, further, that the
provisions of Section 2.1 may be amended modified or waived only with the added
consent of those Founders holding a majority of Registrable Securities then held
by the Founders; and provided still further, that the provisions of this Section
3.1 may be amended, modified or waived only with the consent of (i) holders of
not less than a majority of the Registrable Securities then outstanding which
were initially held by Hasbro, (ii) holders of not less than a majority of the
Registrable Securities then outstanding which were initially held by Acer, (iii)
holders of not less than a majority of the Registrable Securities then
outstanding which were initially held by FAC, (iv) holders of not less than a
majority of the Registrable Securities then outstanding which were initially
held by the Series C Investors, (v) holders of not less than a majority of the
Registrable Securities then outstanding which were initially held by the Series
D Investors, (vi) holders of not less than a majority of the Registrable
Securities then outstanding which were initially held by the Series E Investors,
(vii) holders of not less than a majority of the Registrable Securities then
outstanding which were initially held by the Series F Investors, (viii) the
Company and (ix) Stockholders holding at least a majority of the outstanding
shares of Registrable Securities then held by all Stockholders. Notwithstanding
anything in this Agreement to the contrary, the Company shall amend (which
amendments shall not require the consents of the holders of Registrable
Securities or any particular Investor or Stockholder in accordance with this
Section 3.1) Schedule I hereto to include each additional holder of Series F
Preferred Stock executing a Counterpart Signature Page, any Additional
Stockholder or to reflect any permitted transfer pursuant to Section 2.7.
SECTION 3.2 LEGEND ON SECURITIES. The Company, each of the Investors and
each of the Stockholders acknowledge and agree that substantially the following
legend shall be typed on each certificate evidencing any of the securities
issued hereunder held at any time by an Investor or a Stockholders:
14
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT"), OR ANY STATE SECURITIES OR BLUE SKY
LAWS AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, MORTGAGED, PLEDGED,
HYPOTHECATED OR OTHERWISE ASSIGNED EXCEPT (1) PURSUANT TO A REGISTRATION
STATEMENT WITH RESPECT TO SUCH SECURITIES WHICH IS EFFECTIVE UNDER THE ACT
OR (2) PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE ACT
RELATING TO THE DISPOSITION OF SECURITIES AND (3) IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES AND BLUE SKY LAWS.
SECTION 3.3 GOVERNING LAW. This Agreement shall be deemed to be a contract
made under, and shall be construed in accordance with, the laws of The
Commonwealth of Massachusetts, without giving effect to conflict of laws
principles thereof.
SECTION 3.4 SECTION HEADINGS. The descriptive headings in this Agreement
have been inserted for convenience only and shall not be deemed to limit or
otherwise affect the construction of any provision thereof or hereof.
SECTION 3.5 COUNTERPARTS. This Agreement may be executed simultaneously in
any number of counterparts, each of which when so executed and delivered shall
be taken to be an original; but such counterparts shall together constitute but
one and the same document.
SECTION 3.6 NOTICES AND DEMANDS. Any notice or demand which is required or
provided to be given under this Agreement shall be deemed to have been
sufficiently given and received for all purposes when delivered by hand, or
facsimile, or five days after being sent by certified or registered mail,
postage and charges prepaid, return receipt requested, or two days after being
sent by overnight delivery providing receipt of delivery, to the following
addresses: if to the Company or the Founders, at the addresses set forth on the
signature pages hereto, or at any other address designated by the Company or the
Founders, respectively, to the Investors and the other parties hereto in
writing; if to the Investors, at the mailing address as shown on the signature
page hereto, or at any other address designated by an Investor to the Company in
writing; and if to any other the Stockholders, at the mailing address for notice
as set forth in the books and records of the Company.
SECTION 3.7 REMEDIES; SEVERABILITY. It is specifically understood and
agreed that any breach of the provisions of this Agreement by any Person subject
hereto will result in irreparable injury to the other parties hereto, that the
remedy at law alone will be an inadequate remedy for such breach, and that, in
addition to any other remedies which they may have, such other parties may
enforce their respective rights by actions for specific performance (to the
extent permitted by law). Whenever possible, each provision of this Agreement
shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be deemed
prohibited or invalid under such applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, and such
prohibition or invalidity shall not invalidate the remainder of such provision
or the other provisions of this Agreement.
15
SECTION 3.8 INTEGRATION. This Agreement, including the exhibits, documents
and instruments referred to herein or therein, constitutes the entire agreement,
and supersedes all other prior agreements and understandings, both written and
oral, among the parties with respect to the subject matter hereof. Without
limiting the foregoing, this Fifth Amended and Restated Registration Rights
Agreement amends and supersedes the Prior Agreement in its entirety.
SECTION 3.9 ADJUSTMENT. All references to share amounts and prices herein
shall be equitably adjusted to reflect any stock split, combination,
reorganization, recapitalization, reclassification, stock distribution, stock
dividend or similar event affecting the capital stock of the Company.
[SIGNATURE PAGE FOLLOWS]
16
IN WITNESS WHEREOF, the parties have executed this Fifth Amended and
Restated Registration Rights Agreement as of the date first above written.
COMPANY:
IROBOT CORPORATION
By: /s/ Xxxxx Xxxxxxx
---------------------------------------
Xxxxx Xxxxxxx, President
00 Xxxxx Xxx.
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
FOUNDERS:
/s/ Xxxxxx Xxxxxx
-----------------------------------------
Xxxxxx Xxxxxx
00 Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
/s/ Xxxxx X. Angle
-----------------------------------------
Xxxxx X. Angle
00 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
/s/ Xxxxx Xxxxxxx
-----------------------------------------
Xxxxx Xxxxxxx
00 Xxxx Xxxx
Xxxxxxx, XX 00000
/s/ M. Xxxxx Xxxxx
-----------------------------------------
M. Xxxxx Xxxxx
00 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
/s/ Xxxxxxxx More
-----------------------------------------
Xxxxxxxx More
000 Xxx Xxxxxxxxxxxxx Xxxx
Xxxxxx, XX 00000
INVESTORS:
EXPLORE HOLDINGS L.L.C
By: /s/ Xxxxxxxxx Xxxxxxx
---------------------------------------
Xxxxxxxxx Xxxxxxx
Manager
TRIDENT CAPITAL FUND-V, L.P.
TRIDENT CAPITAL FUND-V AFFILIATES FUND, L.P.
TRIDENT CAPITAL FUND-V AFFILIATES FUND (Q), L.P.
TRIDENT CAPITAL FUND-V PRINCIPALS FUND, L.P.
TRIDENT CAPITAL PARALLEL FUND-V, C.V.
Executed on behalf of the foregoing funds by the
undersigned, as an authorized signatory of the
respective general partner of each such fund:
/s/ Xxxxx Xxxxxx
-------------------------------------------
(signature)
Xxxxx Xxxxxx
-------------------------------------------
(print name)
FENWAY PARTNERS CAPITAL FUND II, L.P.
FPIP TRUST, LLC
FPIP, LLC
By: Fenway Partners II, LLC, its general partner
By: /s/ [Illegible]
---------------------------------------
Name:
Title: Managing Director
By: /s/ [Illegible]
---------------------------------------
Name:
Title: Managing Director
ROBOTIC VENTURES FUND I, L.P.
By:
-----------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Managing Director
HASBRO, INC.
By: /s/ Xxxxx X.X. Xxxxxxxxxx
-----------------------------------------
Name: Xxxxx X.X. Xxxxxxxxxx
Title: C.F.O.
ACER TECHNOLOGY VENTURE FUND L.P.
By: Acer Technology Ventures
Management LLC, its General Partner
By: /s/ Xxxxx X. Xx
-----------------------------------------
Name: Xxxxx X. Xx
Title: Managing Director
IP FUND ONE, L.P.
By: Acer Technology Ventures America LLC,
its General Partner
By: [illegible]
-----------------------------------------
Name:
Title:
FIRST ALBANY COMPANIES, INC.
By: /s/ Xxxxxx XxXxxxx
-----------------------------------------
Xxxxxx XxXxxxx, Chairman
FIRST ALBANY PRIVATE FUND 1999 L.L.C.
By: FAC Management Corp., as Managing Member
By: /s/ Xxxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxxx X. Xxxx
Title: VP
FIRST ALBANY TECHNOLOGY VENTURES
By: FAC Management Corp., as Managing Member
By:
--------------------------------------
Name:
Title:
FA TECHNOLOGY VENTURES, L.P
By: FATV GP LLC, its General Partner
By: /s/ Xxxxxx XxXxxxx
---------------------------------------
Name: Xxxxxx XxXxxxx
Manager
FA TECHNOLOGY MANAGERS LLC
By: FATV GP LLC, its Managing Member
By: /s/ Xxxxxx XxXxxxx
---------------------------------------
Name: Xxxxxx XxXxxxx
Manager
FIRST ALBANY PRIVATE FUND 2004, LLC
By: FAC Management Corp., its Manager
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------
Name: Xxxxxxx X. Xxxx
Title: VP
_________________________________________
Xxx Xxxxxxxxx
XXXXXXXX CAPITAL, LLC
By:_________________________________________
Xxx Xxxxxxxx, as Managing Member
/s/ Xxxxx Xxxxxxxxx
_________________________________________
Xxxxx Xxxxxxxxx
/s/ Xxxxxxxx X. Xxxxxxxx
_________________________________________
Xxxxxxxx X. Xxxxxxxx
/s/ Xxxxxxx Xxxxxxxx
_________________________________________
Xxxxxxx Xxxxxxxx
PAINTER HILL VENTURE FUND I, L.P.
By: /s/ Xxxxxx Xxxxxxxxxxx
_________________________________________
Name: Xxxxxx Xxxxxxxxxxx
Title:
PAINTER HILL PARTNERS, LLC
By: /s/ Xxxxxx Xxxxxxxxxxx
_________________________________________
Name: Xxxxxx Xxxxxxxxxxx
Title:
/s/ Xxxxxxx X. Xxxxxx
_________________________________________
Xxxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxx
_________________________________________
Xxxxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxxxx
_________________________________________
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx XxxxxXxxxx
_________________________________________
Xxxxxxx XxxxxXxxxx
/s/ Xxxx Xxxxxxxx
_________________________________________
Xxxx Xxxxxxxx
/s/ Xxxxx X. XxXxxxx
_________________________________________
Xxxxx X. XxXxxxx
FAC AS CUSTODIAN XXXXXXX XXXXXX
FBO XXXXXX XXXXXXX XXXXXXX XXXXXX PROFIT
SHARING
By:_________________________________________
Name:
Title:
/s/ Xxxxxxx Xxxxxxx
_________________________________________
Xxxxxxx Xxxxxxx
/s/ Xxxxxxx X. Xxxxxx
_________________________________________
Xxxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxxxxxxx
_________________________________________
Xxxxxx X. Xxxxxxxxxxx
/s/ Xxxxxx X. XxXxxxx
_________________________________________
Xxxxxx X. XxXxxxx
/s/ Xxxx Xxxxxxx
_________________________________________
Xxxx Xxxxxxx
/s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxxx
/s/ Xxxx Xxxxxxxxxx
-----------------------------------------
Xxxx Xxxxxxxxxx
/s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Xxxxxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxx
-----------------------------------------
Xxxxxxx X. Xxxx
/s/ Xxxxx Xxxx
-----------------------------------------
Xxxxx Xxxx
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxxx Xxxxxxxx
-----------------------------------------
Xxxxxxx Xxxxxxxx
FBF, LLLP
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing General Partner
/s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxxx Xxxxxxxxx
-----------------------------------------
Xxxxx Xxxxxxxxx
BOECKH CAPITAL CO. LTD.
By: /s/ Xxxxxxx X. Power
_________________________________________
Name: Xxxxxxx X. Power
Title: Vice President, CFO
/s/ Xxxxx Xxxxxx
_________________________________________
Xxxxx Xxxxxx
EXHIBIT A
IROBOT CORPORATION
FIFTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
Counterpart Signature Page
Reference is hereby made to that certain Fifth Amended and Restated
Registration Rights Agreement dated as of November 10, 2004 (the "Registration
Rights Agreement"), by and among IROBOT CORPORATION, a Delaware corporation (the
"Company"), the Stockholders referenced therein and the Investors referenced
therein. Capitalized terms used as defined terms herein and not otherwise
defined shall have the meanings ascribed to such terms in the Registration
Rights Agreement.
The undersigned is purchasing ___________ (________) shares of the Series
F Preferred Stock of the Company pursuant to a separate purchase agreement
between the Company and the undersigned. By execution of this Counterpart
Signature Page to the Registration Rights Agreement, the undersigned hereby (i)
acknowledges receipt of a copy of the Registration Rights Agreement, (ii) agrees
to be bound by and obtain the benefit of the rights and restrictions of the
Registration Rights Agreement as an Investor party thereto.
The Company agrees that the undersigned shall be an "Investor" for all
purposes under the Registration Rights Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as an instrument under seal:
PURCHASER
(For Individual Investor) (For Investor Entities)
___________________________________ ______________________________
(Signature) (Print Name of Company)
______________________________ By:______________________________
(Print Name) (Signature)
Name:____________________________
Title:_____________________________
Accepted:
IROBOT CORPORATION
By:___________________________________
Name:
Title:
EXHIBIT B
Form of Joinder Agreement
The undersigned hereby agrees, effective as of the date hereof, to become
a party to that certain Fifth Amended and Restated Registration Rights Agreement
(the "Agreement") dated as of November ____, 2004 by and among iRobot
Corporation (the "Company") and the other parties named therein and for all
purposes of the Agreement, the undersigned shall be included within the term
Stockholder (each as defined in the Agreement). The address and facsimile number
to which notices may be sent to the undersigned is as follows:
________________________________________________________________________________
Facsimile No.____________________.
_____________________________
Name:
Accepted:
IROBOT CORPORATION
By:_______________________________
Name:
Title:
