GRIC COMMUNICATIONS, INC.
FOURTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
___________________________
This Agreement is made at Milpitas, California as of April 16, 1999
among GRIC COMMUNICATIONS, INC., a California corporation (the "Company"),
and each of the persons listed on the Signature Page(s) to this Agreement
(the "Securityholders").
RECITALS
A. The Company has previously granted registration rights to certain
Securityholders pursuant to a Third Amended Registration Rights Agreement
dated as of December 24, 1997 (the "Previous Agreement").
B. The Previous Agreement was amended on August 10, 1998, November 5, 1998
and November 12, 1998, respectively, to grant registration rights to
Phoenix Leasing Incorporated, Xxxxxx Xxxxxxxxx, Silicon Valley Bank and
America Online, Inc. with respect to warrants issued to them to puchase
certain of the Company's securities and to add them as Securityholders
thereunder.
C. The Company and the requisite number of Securityholders under the
Previous Agreement make this grant of registration rights in connection
with the issuance of Series D Preferred Stock pursuant to a Series D
Preferred Stock Second Purchase Agreement dated the date of this
Agreement. A summary of the outstanding Registrable Securities is set
forth on EXHIBIT A to this Agreement. In every case, this Agreement
restates, or does not materially increase, the registration rights
granted to each Securityholder in connection with the original issuance
of the Securityholder's Securities (as defined below).
D. Capitalized terms have the meanings set forth in Article 1 of this
Agreement.
NOW, THEREFORE, the parties agree as follows:
1. AMENDMENT AND DEFINITIONS
1.1. AMENDMENT AND RESTATEMENT.
The Previous Agreement is hereby amended and restated to read in its entirety
as set forth in this Agreement.
1.2. DEFINITIONS.
The capitalized terms listed below have the meanings assigned to them.
Capitalized terms used in this Agreement that are not set forth below have
the meanings ascribed to them elsewhere in this Agreement.
"INITIATING AOL HOLDER" means America Online, Inc. ("AOL"), if the reasonably
anticipated aggregate offering price would exceed $10,000,000 and the
reasonably anticipated price per share is at least $5.00 in a Registration
pursuant to Article 2 (REQUESTED REGISTRATION)
or $500,000 in a Registration pursuant to Article 4 (REGISTRATION ON FORM
S-3); provided, however, that for purposes of a Registration pursuant to
Article 2 (REQUESTED REGISTRATION), AOL shall be deemed an Initiating AOL
Holder even if the $10,000,000 reasonably anticipated aggregate offering
price threshold is not met, provided that AOL proposes to sell and sells in
the offering at least 51% of AOL's Registrable Securities; provided,
further, that after the Company's initial public offering, neither the
$10,000,000 reasonably anticipated aggregate offering price threshold nor the
requirement of selling at least 51% of AOL's Registrable Securities shall
apply to any REQUESTED REGISTRATION under Article 2 after consummation of the
Company's initial public offering; provided, further, that the $5.00 per
share threshold shall not apply to any REQUESTED REGISTRATION under Article 2
that is requested after the Company's initial public offering and prior to
the Company's becoming eligible to use Form S-3.
"CLAIM" means any claim, loss, damage, cost, expense, or liability, joint or
several, or any threatened or pending suit, action, arbitration, or other
proceeding in respect thereof.
"CONTROL PERSON" means any officer, director, general partner, person
controlling another person within the meaning of Section 15 of the Securities
Act, or alleged Control Person.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, or any
successor statute, and the rules and regulations of the SEC thereunder, all
as the same are in effect at the time.
"FOUNDERS" means Hong Chen, Ph.D., Xxxx Ya-Xxx Xxx, and XXX Partners 1994-1.
"FOUNDERS' SHARES" means shares of the Company's Common Stock held by the
Founders including without limitation any shares of Common Stock hereafter
acquired by the Founders.
"HOLDER" means any Securityholder holding Registrable Securities or
securities or instruments with respect to which Registrable Securities are
ultimately issuable, and any transferee thereof to whom registration rights
have also been transferred in accordance with this Agreement.
"INDEMNIFIED PARTY" means a person entitled to indemnity under Article 9
(INDEMNIFICATION).
"INDEMNIFYING PARTY" means a person required to provide indemnification
pursuant to Article 9.
"INITIATING HOLDERS" means, with respect to the Company's IPO pursuant to
Article 2 (REQUESTED REGISTRATION), Holder(s) (other than Founders) of at
least thirty percent (30%) of the then outstanding or issuable Registrable
Securities (other than Founder's Shares) or any lesser percentage if the
reasonably anticipated aggregate offering price would exceed $10,000,000 and
the reasonably anticipated price per share is at least $5.00. In all other
cases, "INITIATING HOLDERS" means Holder(s) of at least twenty percent (20%)
of the then outstanding or issuable Registrable Securities or any lesser
percentage if the reasonably anticipated aggregate offering price would
exceed $10,000,000 and the reasonably anticipated price per share is at least
$5.00 in a Registration pursuant to Article 2 (REQUESTED REGISTRATION) or
$500,000 in a Registration pursuant to Article 4 (REGISTRATION ON FORM S-3).
"IPO" means the first Registration by the Company (other than a Registration
in a Rule 145
transaction or with respect to an employee benefit plan) (a) pursuant to
which all of the Company's outstanding preferred stock is automatically
converted into shares of Common Stock pursuant to the terms of the Company's
charter documents, (b) for an aggregate offering price, net of underwriting
discounts and commissions, of more than $10,000,000, and (c) with an offering
price to the public of at least $10.00 per share.
"MISSTATEMENT" means (a) any untrue statement of a material fact, (b) any
omission to state a material fact required to be stated or necessary to make
another statement not misleading in light of the circumstances in which such
other statement was made, and (c) any alleged Misstatement.
"PROSPECTUS" means any registration statement, prospectus, offering circular,
or other document, including without limitation any related registration
statement, notification, or the like, incident to any Registration, and any
amendment or supplement thereto.
"REGISTER" and "REGISTRATION" mean the act of registering securities by
preparing and filing a registration statement in compliance with the
Securities Act and pursuing such filing until the SEC declares or orders it
effective. Unless the context otherwise requires, "REGISTER" and
"REGISTRATION" also include the filing of appropriate post-effective
amendments, appropriate qualifications under applicable blue sky and other
state securities laws, compliance with applicable regulations, and such other
actions as are reasonable and customary in connection with a Registered sale
of securities to the public.
"REGISTERED" means (a) the past tense of Register, or (b) an adjective used
to describe securities, or the sale thereof, with respect to which a
Registration has been completed.
"REGISTRABLE SECURITIES" means (a) (i) Founders' Shares, (ii) Common Stock
issued or issuable with respect to the Securities (including without
limitation upon any exercise of exercisable securities, conversion of
convertible securities, stock split, stock dividend, recapitalization, or as
a distribution or upon exercise of the Warrants issued in August 1998 to
Phoenix Leasing Incorporated and Xxxxxx X. Xxxxxxxxx or upon exercise of the
Warrants issued in November 1998 to Silicon Valley Bank), and (iii) Common
Stock issued or issuable upon exercise of the Warrants issued to AOL in
November 1998; that (b) have not been sold to the public pursuant to
Section 4(l) of the Securities Act or in a Registration.
"REGISTRATION EXPENSES" means expenses incurred by the Company in complying
with Articles 2 (REQUESTED REGISTRATION), 3 (COMPANY REGISTRATION), and 4
(REGISTRATION ON FORM S-3), including without limitation all Registration
fees, printing expenses, escrow fees, fees and disbursements of counsel and
independent certified public accountants for the Company, reasonable fees and
disbursements of one special counsel for the participating Holders as a
group, and blue sky fees and expenses.
"SEC" means the Securities and Exchange Commission.
"SECURITIES" means the Founders' Shares, the Series A Shares, the Series B
Shares, the Series C Shares and the Series D Shares.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any
successor statute, and the rules and regulations of the SEC thereunder, all
as the same are in effect at the time.
"SELLING EXPENSES" means all underwriting discounts, selling commissions, and
stock transfer taxes applicable to the Registrable Securities Registered by
the Company on behalf of the Holders and all fees and disbursements of
individual counsel for the Holders (as opposed to the reasonable fees and
disbursements of one special counsel for the participating Holders as a
group).
"SERIES A REGISTRABLE SECURITIES" means the Registrable Securities into which
the outstanding Series A Shares are convertible at the time of the
calculation.
"SERIES A SHARES" means shares of the Company's Series A Preferred Stock.
"SERIES B REGISTRABLE SECURITIES" means the Registrable Securities into which
the outstanding Series B Shares are convertible at the time of the
calculation.
"SERIES B SHARES" means shares of the Company's Series B Preferred Stock.
"SERIES C REGISTRABLE SECURITIES" means the Registrable Securities into which
the outstanding Series C Shares are convertible at the time of the
calculation.
"SERIES C SHARES" means shares of the Company's Series C Preferred Stock.
"SERIES D REGISTRABLE SECURITIES" means the Registrable Securities into which
the outstanding Series D Shares are convertible at the time of the
calculation.
"SERIES D SHARES" means shares of the Company's Series D Preferred Stock.
"SECURITYHOLDERS" means the persons listed on the Signature Page(s) to this
Agreement.
"SHARES" is another term for Registrable Securities.
2. REQUESTED REGISTRATION
2.1. REQUEST FOR REGISTRATION.
2.1.1. WHO MAY MAKE A REQUEST.
Upon receiving a written request from the Initiating Holders or the
Initiating AOL Holder, the Company shall take the actions specified in
this Section 2.1 and Article 8 (REGISTRATION PROCEDURES). The request
shall identify the underwriters who will manage the offering. Each
underwriter shall be subject to the approval of the Company, which the
Company shall not withhold unreasonably. Any Registration pursuant to
this Article 2 shall be a firm commitment underwriting.
2.1.2. ELIGIBLE PARTICIPANTS.
All Registrable Securities held by persons entitled to be included among
the Initiating Holders and the AOL Initiating Holder shall be eligible to
be included in the Registration. No other Registrable Securities shall
be included in the Registration.
2.1.3. FILINGS.
Subject to Article 5 (LIMITATIONS ON REGISTRATIONS), the Company shall
use diligent reasonable efforts to Register the Shares specified in the
requests of the eligible Holders as quickly as is practicable.
2.2. LIMIT ON REGISTRATIONS.
The Company is not required to complete more than three Registrations
pursuant to this Article 2 exclusive of: (i) any Registrations requested by
Founders and (ii) up to two Registrations pursuant to this Article 2 for AOL.
2.3. FUTURE GRANTS OF RIGHTS.
The Company may grant additional rights to include securities in
Registrations pursuant to this Article 2, if (a) the Holders of at least a
majority of the Registrable Securities entitled to request Registration under
this Article 2 consent to such grant in writing (except that in the case of a
Registration that has already been requested, the consent of the Holders of
at least a majority of the Registrable Securities actually included in the
Registration shall be required), or (b) the inclusion of such securities
would not reduce the amount of Registrable Securities to be included in such
Registrations.
2.4. LIMIT ON GRANTS OF RIGHTS TO REGISTRATION.
Notwithstanding Section 2.3, the Company shall not, without the prior written
consent of the Holders of a majority of the Series A Registrable Securities,
the prior written consent of the Holders of at least two-thirds (2/3) of the
Series B Registrable Securities, the prior written consent of the Holders of
at least two-thirds of the Series C Registrable Securities, and the prior
written consent of the Holders of at least two-thirds of the Series D
Registrable Securities, enter into any agreement with any holder or
prospective holder of any securities of the Company which would allow such
holder or prospective holder to request a registration which could result in
such registration statement being declared effective before the earlier of
either of the dates set forth in Section 5.3 or within one hundred eighty
(180) days of the effective date of any Registration pursuant to this
Article 2.
2.5. PARTICIPATION BY THE COMPANY.
The Company may include securities of the same class as the Registrable
Securities for its own account in a Registration pursuant to this Article 2
in an amount up to 10% of the total shares to be Registered. The Company may
include additional shares of such class in the Registration if (a) the
Holders of at least a majority of the Registrable Securities actually
included in the Registration consent to such inclusion or (b) the inclusion
of such securities would not reduce the amount of Registrable Securities to
be included in such Registration.
3. COMPANY REGISTRATION
3.1. RIGHT TO PIGGYBACK.
3.1.1. REQUIRED ACTIONS.
Whenever the Company decides to Register any of its securities for its
own account or the account of others including a Registration pursuant to
Articles 2 or 4 (other than in connection with (a) a registration
relating solely to employee benefit plans, or (b) a registration relating
solely to a Rule 145 transaction) the Company shall take the actions
specified in this Section 3.1 and Article 8.
3.1.2. ELIGIBLE PARTICIPANTS.
All Registrable Securities shall be eligible to be included in the
Registration.
3.1.3. RIGHT TO TERMINATE REGISTRATION.
The Company and any Holders exercising their rights pursuant to
Articles 2 or 4, if applicable, may terminate any Registration of
securities for its or their own account before the SEC declares the
Registration to be effective, regardless of whether any Holder, or any
other shareholder entitled to include its securities in such
Registration, has elected to include Registrable Securities, or its
securities, respectively, in the Registration.
3.1.4. MINIMUM NUMBER OF SHARES TO BE INCLUDED IN COMPANY REGISTRATION.
Notwithstanding any provision of Article 5 or Section 6.5, the Company
shall not limit the Registrable Securities to be included in a
Registration pursuant to this Article 3 (other than the Company's IPO, in
which case there is no restriction on the limitation of Registrable
Securities that may be included pursuant to this Article 3) to less than
thirty percent (30%) of the total value of the securities to be
Registered.
3.2. FUTURE GRANTS OF RIGHTS.
The Company may grant additional rights to include securities in Registrations
pursuant to this Article 3, if (a) the Holders of at least a majority of the
Registrable Securities entitled to participate in a Registration pursuant to
this Article 3 consent to such grant in writing (except that in the case of a
Registration that has already been requested, the consent of the Holders of at
least a majority of the Registrable Securities actually included in the
Registration shall be required), or (b) the inclusion of such securities would
not reduce the amount of Registrable Securities to be included in such
Registrations.
4. REGISTRATION ON FORM S-3
4.1. RIGHT TO REGISTRATION.
4.1.1. WHO MAY MAKE A REQUEST.
Upon receiving a written request from the Initiating Holders or the
Initiating AOL Holder to Register their Registrable Securities on
Form S-3 (or any successor form to Form S-3), the Company shall take the
actions specified in this Section 4.1 and Article 8 if the Company is
entitled to use such form. If the Company agrees to an underwritten
offering on Form S-3, the request shall identify the underwriters who
will manage the offering and each underwriter shall be subject to the
approval of the Company, which the Company
shall not withhold unreasonably.
4.1.2. ELIGIBLE PARTICIPANTS.
All Registrable Securities shall be eligible to be included in the
Registration.
4.1.3. FILINGS.
Subject to Article 5, the Company shall use diligent reasonable efforts
to Register the Shares specified in the requests of the eligible Holders
as quickly as is practicable.
4.2. LIMIT ON REGISTRATIONS.
There is no limit on the number of Registrations the Holders may request
pursuant to this Article 4 if the right to request Registration has not
terminated.
4.3. FUTURE GRANTS OF RIGHTS.
The Company may grant additional rights to include securities in Registrations
pursuant to this Article 4, if (a) the Holders of at least a majority of the
Registrable Securities entitled to request Registration under this Article 4
consent to such grant in writing (except that in the case of a Registration that
has already been requested, the consent of the Holders of at least a majority of
the Registrable Securities actually included in the Registration shall be
required), or (b) the inclusion of such securities would not reduce the amount
of Registrable Securities to be included in such Registrations.
4.4. PARTICIPATION BY THE COMPANY.
The Company may include securities of the same class as the Registrable
Securities for its own account in a Registration pursuant to this Article 4 in
an amount up to 10% of the total shares to be Registered. The Company may
include additional shares of such class in the Registration if (a) the Holders
of at least a majority of the Registrable Securities actually included in the
Registration consent to such inclusion or (b) the inclusion of such securities
would not reduce the amount of Registrable Securities to be included in such
Registration.
5. LIMITATIONS ON REGISTRATIONS
5.1. EXCEPTIONS TO OBLIGATION.
Notwithstanding anything in this Agreement to the contrary, the Company is not
required to take any action enumerated in this Article 5.
5.2. NO GENERAL CONSENT TO SERVICE.
The Company is not required to Register Shares in any jurisdiction in which the
Company would be required to execute a general consent to service of process,
unless (a) the Company is already subject to service in such jurisdiction or (b)
such consent is required by the Securities Act.
5.3. INITIAL MORATORIUM ON REQUESTS.
The Company is not required to Register Shares pursuant to Article 2 before the
earlier of (a) December 31, 1999 or (b) six months after the effective date of
the first Registration by the Company (other than a Registration in a Rule 145
transaction or with respect to an employee benefit plan).
5.4. LAST DATE FOR REQUESTS.
The Company is not required to Register any Shares pursuant to Articles 2, 3 or
4 after the tenth anniversary following the earlier of the dates referred to in
Section 5.3.
5.5. CONFLICTS WITH OTHER OFFERINGS.
The Company is not required to Register Shares pursuant to Articles 2 or 4 if
the Company receives the request for Registration during the period beginning on
the date the Company files a Registration of its own shares (other than a
Registration in a Rule 145 transaction or with respect to an employee benefit
plan), and ending on the earlier of (a) one hundred eighty (180) days
immediately after the effective date of the Registration, or (b) immediately at
such time as the Company is no longer using all reasonable good faith efforts to
cause the Registration to become effective.
5.6. RIGHT TO DELAY REQUESTED REGISTRATION.
The Company may delay a Registration pursuant to Article 2 or 4 for up to 120
days (the "Delay Period") if, at any time before the Registration becomes
effective, the Company delivers to the eligible Holders a certificate signed by
the President or Chief Executive Officer of the Company stating that, in the
good faith judgment of the Board of Directors, it would be seriously detrimental
to the Company or its shareholders for a Registration to be filed or become
effective within the time otherwise required by this Agreement. The Holders
shall not have the right to request an additional Registration pursuant to
Article 2 or 4 during the Delay Period. Once the Company has invoked its rights
pursuant to this Section 5.6, it may not do so again until after it has
completed a Registration pursuant to Article 2 or 4, unless the Holders have
withdrawn the request with respect to which the Delay Period was invoked.
5.7. PACING OF REQUESTS.
The Company may decline to comply with a request to Register Shares made within
six months after a Registration pursuant to Article 2 or 4 has been completed.
5.8. TERMINATION OF REQUESTED REGISTRATIONS.
The Company may, and at the election of Holders of a majority of the eligible
Registrable Securities shall, terminate a Registration pursuant to Article 2 or
4 if the number of Registrable Securities to be included in the Registration is
reduced to fewer that 80% of the minimum number of Registrable Securities
required to be included in the Registration.
6. UNDERWRITTEN REGISTRATIONS
6.1. APPLICATION.
The provisions of this Article 6 apply to each underwritten Registration covered
by this Agreement.
6.2. PERFORM UNDERWRITING AGREEMENT.
In each underwritten Registration, the Company shall enter into and perform, or
be ready, willing, and able to enter into and perform, its obligations under an
underwriting agreement in usual and customary form with the managing
underwriter.
6.3. PARTICIPATION REQUIRED.
Each Holder participating in a Registration shall enter into an underwriting
agreement in customary form with the managing underwriters, if any. No
Registrable Securities shall be included in or sold pursuant to the Registration
except in accordance with the applicable underwriting agreement.
6.4. CHANGES IN UNDERWRITERS.
The Holders of a majority of the Registrable Securities to be included in the
Registration pursuant to Articles 2 or 4 may replace an underwriter named in the
request for Registration or add one or more additional underwriters. Each
underwriter shall be subject to the approval of the Company, which the Company
shall not withhold unreasonably.
6.5. DECREASES IN OFFERINGS.
Notwithstanding any other provision of this Agreement but subject to subsection
3.1.4, if the Company or the managing underwriters in a Registration advise the
participating Holders in writing that market factors require a limit on the
number of Registrable Securities to be underwritten, then the number of
Registrable Securities that may be included in the Registration shall be
allocated first among all participating Holders (other than the Founders) in
proportion, as nearly as practicable, to the number of Registrable Securities
(other than Founders' Shares) such Holders have requested to include in the
Registration, and thereafter among the Founders in proportion, as nearly as
practicable, to the number of Founders Shares such Holders have requested to
include in the Registration. The Company shall not reduce the number of
Registrable Securities to be included in the Registration if the Registration
will include securities to be sold for the account of persons other than Holders
or the Company.
6.6. INCREASES IN OFFERINGS.
If the managing underwriter(s) in a Registration advise the participating
Holders that the underwriter(s) desire to increase the number of Registrable
Securities to be underwritten, whether because of market factors or withdrawal
of other Shares, the increase shall be allocated among the eligible Holders in
proportion to the Holders' eligible Registrable Securities, including those
already included in the Registration.
6.7. WITHDRAWAL OF SHARES.
Any Holder who disapproves of the terms of an underwriting may withdraw from the
Registration by delivering written notice to the Company, the managing
underwriters, and the
other participating Holders.
7. EXPENSES OF REGISTRATION
7.1. OBLIGATION OF THE COMPANY.
Except as otherwise provided in this Agreement, the Company shall pay all
Registration Expenses incurred in connection with any Registration. Unless
otherwise stated, all Selling Expenses relating to Registrable Securities
Registered on behalf of the Holders shall be borne by the Holders pro rata on
the basis of the net proceeds from the sale of their Shares so Registered,
except that attorney fees of individual Holders shall be borne by the individual
Holders. The Company shall pay all of the compensation of its regular
employees, even though they may engage in activities included within the scope
of Registration Expenses. The Company shall pay the expense of any special
audits incident to or required by any Registration except as provided in
Section 7.2.
7.2. EXPENSES OF TERMINATED REQUESTED REGISTRATIONS.
The Registration Expenses of any Registration pursuant to Article 2 or 4 that is
terminated because of a reduction of the Shares to be included below the minimum
required under Article 2 or 4, respectively, shall be paid by (a) the Holders
who have withdrawn their Shares after requesting them to be included, in
proportion to the number of Shares they have withdrawn, if the termination is
due to withdrawal of Shares, or (b) all Holders who initially requested to have
their Registrable Securities included in the Registration, in proportion to the
number of Shares they requested to have included, in all other cases (such as
underwriter action). For the purpose of this Section 7.2, Registration Expenses
includes the expense of any special audit incident to or required by the
Registration. If such Registration Expenses are not paid promptly, the
terminated Registration shall be deemed to be completed for the purpose of
Section 7.3. The Holders shall not be required to pay the Registration Expenses,
however, if, at the time of termination, the Holders have learned of a material
adverse change in the condition, business, or prospects of the Company from that
known to the Holders at the time of their request.
7.3. WHAT COUNTS AS A COMPLETED REGISTRATION.
A Registration is deemed completed when the Registration has become effective
and the Registered Securities have been sold. Any Registration that is
terminated by the Holders pursuant to this Agreement shall be deemed to have
been completed for the purpose of this Section 7.3 unless (a) at the time of the
termination, the Holders have learned of a material adverse change in the
condition, business, or prospects of the Company from that known to the Holders
at the time of their request, or (b) the Holders pay the Registration Expenses
associated with such Registration pursuant to Section 7.2.
8. REGISTRATION PROCEDURES
8.1. DUTY TO GIVE MEANINGFUL NOTICE.
The Company shall advise each Holder in writing as to the initiation and
completion of each Registration in which the Holder is entitled to participate.
Whenever the Company gives a notice that requires a response, the Company shall
notify the Holder as promptly as possible and give a
reasonable time, but in no event less than fifteen (15) days, within which to
respond.
8.2. CONTENTS OF NOTICE.
The notice shall give a brief summary of the intended terms of the underwriting,
including the states in which the Company then intends to Register any Shares.
The notice shall advise all eligible Holders that the number of Registrable
Securities they may include in the Registration shall be allocated among all
Holders in proportion, as nearly as practicable, to the respective amounts of
Registrable Securities held by them at the time the notice is given.
8.3. RESPONSE TO NOTICE BY HOLDERS.
Each eligible Holder shall notify the Company in writing of the number of Shares
the Holder wishes to include in the Registration. If the Holder so notifies the
Company within the time specified in the Company's notice, but in no event less
than fifteen (15) days, the Company shall include such Shares in the
Registration, subject to Article 5.
8.4. DURATION OF REGISTRATION.
With respect to each Registration of Registrable Securities, the Company shall
prepare and file a registration statement with the SEC with respect to the
Shares and use diligent reasonable efforts to cause the Registration to become
and remain effective for at least 120 days or until the Shares covered by the
Registration have been sold; provided, however, that (i) the 120-day period
shall be extended for a period of time equal to the period the Holder refrains
from selling any securities included in such registration at the request of an
underwriter of Common Stock (or other securities) of the Company; and (ii) in
the case of any registration of Registrable Securities on Form S-3 which is
intended to be offered on a continuous or delayed basis, the 120-day period
shall be extended, if necessary, to keep the registration statement effective
until all such Registrable Securities are sold, provided that Rule 415, or any
successor rule under the Securities Act, permits an offering on a continuous or
delayed basis, and provided further that applicable rules under the Securities
Act governing the obligation to file a post-effective amendment permit, in lieu
of filing a post-effective amendment which (I) includes any prospectus required
by Section 10(a)(3) of the Securities Act or (II) reflects facts or events
representing a material or fundamental change in the information set forth in
the registration statement, the incorporation by reference of information
required to be included in (I) and (II) above to be contained in periodic
reports filed pursuant to Section 13 or 15(d) of the Exchange Act in the
registration statement.
8.5. PROSPECTUS DELIVERY.
With respect to each Registration of Registrable Securities, the Company shall
furnish the participating Holders and the underwriters such number of copies of
the registration statement and amendments and supplements thereto, preliminary
and final prospectus and amendments and supplements thereto, and such other
documents as the Holders and underwriters may reasonably request.
8.6. BLUE SKY COMPLIANCE.
Subject to Article 5, with respect to each Registration of Registrable
Securities, the Company
shall use diligent reasonable efforts to Register the securities under the
securities or blue sky laws of such jurisdictions as participating Holders of
a majority of the Shares to be included in the Registration may reasonably
request. The Holders must make such request within ten days before the
estimated filing of the Registration with the SEC.
8.7. AMENDMENTS AND SUPPLEMENTS.
With respect to each Registration of Registrable Securities, the Company shall
prepare and file with the SEC, promptly upon the request of any participating
Holders, any amendments or supplements to the Registration which, on the
reasonable advice of the special counsel for the participating Holders, is
required under the Securities Act.
8.8. INFORMATION TO BE SUPPLIED BY HOLDER.
As a condition precedent to the obligations of the Company to Register a
Holder's Registrable Securities, the Holder shall furnish the Company with such
information regarding the Holder, the Holder's Registrable Securities, and the
distribution proposed by the Holder (if the Registration is pursuant to
Article 2 or 4) as the Company may reasonably request in writing or as may be
required to Register the Holder's Registrable Securities.
8.9. NOTIFICATION OF MISSTATEMENTS IN PROSPECTUS.
The Company shall promptly notify each Holder of Registrable Securities included
in a registration statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of any event that causes the
prospectus included in such registration statement, as then in effect, to
include a Misstatement.
8.10. CORRECTION OF MISSTATEMENTS.
With respect to each Registration of Registrable Securities, the Company shall
prepare and promptly file with the SEC, and promptly notify the participating
Holders or their attorneys in fact of the filing of, such amendments or
supplements to the Registration as may be necessary to correct any statements or
omissions if, at the time when a prospectus relating to such securities was
required to be delivered under the Securities Act, an event has occurred that
causes the Registration to make an untrue statement of a material fact or omit
to state a material fact necessary to make the statements made therein not
misleading, in the light of the circumstances in which they were made.
8.11. UPDATES.
With respect to each Registration of Registrable Securities, the Company shall
promptly prepare any amendments to the Registration needed to permit the
participating Holders and their underwriters to comply with the requirements of
the Securities Act.
8.12. LISTING ON EXCHANGES.
The Company shall cause all Registrable Securities included in a Registration to
be listed on each securities exchange or over the counter market on which the
Company's securities of same class and series are then listed.
8.13. PROVIDE TRANSFER AGENT AND REGISTRAR AND CUSIP NUMBER.
The Company shall provide a transfer agent and registrar and a CUSIP number for
all Registrable Securities included in a Registration, in each case not later
than the effective date of the Registration.
8.14. OPINION OF COUNSEL AND COLD COMFORT LETTER.
The Company shall furnish, at the request of any Holder requesting registration
of Registrable Securities pursuant to Article 2, 3, or 4 on the date that the
Holder delivers the Registrable Securities to the underwriters for sale in
connection with a Registration pursuant to Article 2, 3 or 4 if the Registrable
Securities are being sold through underwriters, or, if the Registrable
Securities are not being sold through underwriters, on the date that the
registration statement with respect to the Registrable Securities becomes
effective, (a) an opinion, dated such date, of the counsel representing the
Company for the purposes of such registration, in form and substance as is
customarily given to underwriters in an underwritten public offering, addressed
to the underwriters, if any, and to the Holders requesting registration of
Registrable Securities, and (b) a letter dated such date, from the independent
certified public accountants of the Company, in form and substance as is
customarily given by independent certified public accountants to underwriters in
an underwritten public offering, addressed to the underwriters, if any, and to
the Holders requesting registration of Registrable Securities.
9. INDEMNIFICATION
9.1. BY THE COMPANY.
9.1.1. OBLIGATION TO INDEMNIFY.
The Company shall indemnify and hold harmless (a) each Holder (and each
Control Person of the Holder) and (b) each underwriter, if any (and each
Control Person of the underwriter) of the Holder's Shares against all
Claims arising out of or based on any Misstatement contained in any
preliminary or final Prospectus, or any violation or alleged violation by
the Company of the Securities Act, the Exchange Act, or any state
securities law or of any rule or regulation promulgated under the
Securities Act, the Exchange Act, or any state securities law.
9.1.2. OBLIGATION TO REIMBURSE.
The Company shall reimburse each Holder (and its Control Persons) and
each underwriter (and its Control Persons) for any legal and any other
expenses reasonably incurred by them in connection with investigating or
defending any Claims referred to in subsection 9.1.1.
9.1.3. COMPANY NOT RESPONSIBLE FOR INFORMATION FURNISHED BY HOLDER OR
UNDERWRITER.
The Company shall not be liable under this Section 9.1 to the extent that
any Claim arises out of or is based upon a Misstatement in any
preliminary or final prospectus made in
reliance upon and in conformity with written information furnished to
the Company by an instrument duly executed by a Holder (or its Control
Person) or underwriter (or its Control Person) expressly for use in the
Prospectus in which the information is used.
9.1.4. CORRECTED MISSTATEMENTS.
If a Claim relates to a Misstatement in a preliminary prospectus that did
not appear in the final prospectus, the Company shall not be liable for
such Claim under this Section 9.1 to (a) the seller (or its Control
Person) if the seller delivered a copy of the preliminary prospectus to
the person alleging the Claim and failed to deliver a copy of the
corrected final prospectus to such person, or (b) any underwriter (or its
Control Person) if the underwriter delivered a copy of the preliminary
prospectus to the person alleging the Claim and failed to deliver a copy
of a corrected final prospectus to such person.
9.2. BY THE HOLDERS.
9.2.1. OBLIGATION TO INDEMNIFY.
If Shares of a Holder are included in a Registration, the Holder shall,
along with all other Holders participating in the Registration, severally
indemnify (a) the Company (and its Control Persons); (b) each underwriter
(and its Control Persons); and (c) each other Holder (and its Control
Persons), if any, against all Claims arising out of or based on any
Misstatement contained in any preliminary or final Prospectus. Each
Holder shall severally indemnify (a) the Company (and its Control
Persons); (b) each underwriter (and its Control Persons); and (c) each
other Holder (and its Control Persons), if any, against all Claims
arising out of or based on any violation or alleged violation by the
Holder of the Securities Act, the Exchange Act, or any state securities
law or of any rule or regulation promulgated under the Securities Act,
the Exchange Act, or any state securities law.
9.2.2. OBLIGATION TO REIMBURSE.
Each Holder shall reimburse (a) the Company (and its Control Persons);
(b) each underwriter (and its Control Persons); and (c) each other Holder
(and its Control Persons), if any, for any legal or any other expenses
reasonably incurred in connection with investigating or defending any
Claim referred to in subsection 9.2.1.
9.2.3. LIMIT ON LIABILITY.
A Holder shall be liable under this Section 9.2 only to the extent that a
Misstatement is made in a Prospectus in reliance upon and in conformity
with written information furnished to the Company by an instrument duly
executed by the Holder expressly for use therein. In addition, a Holder
shall not be liable under this Section 9.2 for more than the net amount
of proceeds received from the sale of the Holder's Shares pursuant to the
Registration with respect to which the Claim is made.
9.2.4. CORRECTED MISSTATEMENTS.
If a Claim relates to a Misstatement in a preliminary prospectus that did
not appear in the
final prospectus, the Holder shall not be liable for such Claim under
this Section 9.2 to (a) the seller (or its Control Person) if the seller
delivered a copy of the preliminary prospectus to the person alleging
the Claim and failed to deliver a copy of the corrected final prospectus
to such person, or (b) any underwriter (or its Control Person) if the
underwriter delivered a copy of the preliminary prospectus to the
person alleging the Claim and failed to deliver a copy of the
corrected final prospectus to such person.
9.3. PROCEDURE.
9.3.1. NOTICE.
Each Indemnified Party shall give written notice to each Indemnifying
Party promptly after the Indemnified Party has actual knowledge of any
Claim as to which indemnity may be sought. The failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Parties of their obligations under this Article 9 unless and
to the extent that the Indemnifying Parties are prejudiced thereby.
9.3.2. CONDUCT OF DEFENSE.
In case any action shall be brought against any Indemnified Party and it
shall notify an Indemnifying Party of the commencement thereof, such
Indemnifying Party shall be entitled to participate therein, and to the
extent that it shall wish, jointly with any other Indemnifying Party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such Indemnified Party (who shall not, except with the
consent of the Indemnified Party, be counsel to the Indemnifying Party),
and, after notice from the Indemnifying Party to such Indemnified Party
of its election so to assume the defense thereof, such Indemnifying Party
shall not be xxxxxx to such Indemnified Party under Section 9.2 for any
legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such Indemnified Party, in connection with the
defense thereof other than reasonable costs of investigation.
9.3.3. SETTLEMENTS.
No Indemnifying Party, in the defense of any Claim, shall, except with
the consent of each Indemnified Party, consent to entry of any judgment
or enter into any settlement or compromise that does not include as an
unconditional term thereof the giving to such Indemnified Party by the
claimant or plaintiff a release from all liability in respect to such
Claim.
9.3.4. CONSENT AS CONDITION TO OBLIGATION TO INDEMNIFY.
The indemnity obligations contained in this Article 9 shall not apply to
amounts paid in settlement of any such Claim without the consent of the
Indemnifying Party, which the Indemnifying Party shall not withhold
unreasonably.
9.4. CONTRIBUTION.
If the indemnification obligations provided for in this Article 9 are held by a
court of competent jurisdiction to be unavailable to an Indemnified Party with
respect to any Claim, the
Indemnifying Party, in lieu of indemnifying such Indemnified Party under this
Article 9, shall contribute to the amount paid or payable by such Indemnified
Party as a result of such Claim in such proportion as is appropriate to
reflect the relative fault of the Indemnifying Party on the one hand and of
the Indemnified Party on the other in connection with the Misstatements that
resulted in the Claim as well as any other relevant equitable considerations.
The relative fault of the Indemnifying Party and of the Indemnified Party
shall be determined by referring to, among other things, whether the
Misstatement relates to information supplied by the Indemnifying Party or by
the Indemnified Party, the parties' relative intent, knowledge, access to
information, and opportunity to correct or prevent such Misstatement, and the
evidence indicating whether the Misstatement was in fact false or misleading.
9.5. CONFLICT WITH UNDERWRITING AGREEMENT.
Notwithstanding anything in this Article 9, to the extent that the provisions on
indemnification and contribution contained in an underwriting agreement entered
into in connection with a Registration conflict with this Article 9, the
underwriting agreement shall control.
9.6. SURVIVAL.
The obligations of the Company and the Holders under this Article 9 shall
survive the closing of any Registration under this Agreement, and otherwise.
10. TRANSFER OF REGISTRATION RIGHTS
10.1. TRANSFERS PERMITTED.
A Holder may assign the right to require the Company to Register Registrable
Securities under this Agreement to any transferee in connection with a transfer
of Securities or Registrable Securities by the Holder upon complying with all of
the provisions of this Article 10, unless the Company waives such compliance in
its discretion.
10.2. MINIMUM TRANSFER.
Unless the transferee is an equity owner of the Holder or another
Securityholder, the transferee shall acquire at least the lesser of (a) twenty
percent (20%) of the Registrable Securities held by the original Holder, or (b)
twenty thousand (20,000) shares of Registrable Securities (adjusted for
recapitalizations, stock splits, stock dividends, conversions and similar
events).
10.3. COMPLIANCE WITH LAWS AND AGREEMENTS.
Each such transfer shall comply with all applicable securities laws and any
agreements between the Company and the transferor.
10.4. TRANSFER INSTRUMENTS.
The transferee shall execute and deliver to the Company an agreement in form and
substance satisfactory to the Company by which the transferee agrees to be bound
by all terms and provisions of this agreement as a Holder of the transferred
rights.
10.5. RIGHTS WITH RESPECT TO REMAINING SHARES.
The Company shall continue to have the same obligation to register the balance
of a Holder's Registrable Securities following a transfer of less than all of
the Holder's Registrable Securities, unless the obligation has otherwise
terminated.
11. STANDOFF AGREEMENT
11.1. RESTRICTION ON TRANSFER.
Upon delivery of a written request by the Company, or the underwriters managing
a Registered offering of the Company's securities, the Holders shall not sell,
make any short sale of, loan, grant any option for the purchase of, or otherwise
dispose of any Registrable Securities (other than those included in the
Registration) to the public without the prior written consent of the Company or
the underwriter(s) for such time (not to exceed 180 days in the case of the
Company's IPO, and 90 days in all other cases) following the effective date of
the Registration as the Company or the underwriters may request. As a condition
precedent to the obligations of the Holders under this Article, all officers and
directors of the Company who own stock in the Company, owners of more than 1% of
the outstanding shares of Common Stock of the Company, and holders of
registration rights other than pursuant to this Agreement, shall also abide by
such restrictions. This Section 11.1 does not apply to a registration relating
solely to employee benefit plans on Form S-1 or Form S-8 or similar forms which
may be promulgated in the future, or a registration relating solely to a
Commission Rule 145 transaction on Form S-14 or Form S-15 or similar forms which
may be promulgated in the future.
11.2. LEGEND.
The Company shall cause each stock certificate representing the Holders'
Securities and any Registrable Securities issued with respect to the Securities
to bear a conspicuous legend in substantially the following form:
SALE, TRANSFER, OR HYPOTHECATION OF THE SHARES REPRESENTED BY THIS
CERTIFICATE IS PROHIBITED FOR UP TO 180 DAYS FOLLOWING A PUBLIC
OFFERING OF THE STOCK OF THE CORPORATION PURSUANT TO A
REGISTRATION RIGHTS AGREEMENT BETWEEN THE ORIGINAL PURCHASER OF
THE SHARES AND THE CORPORATION.
12. TERMINATION OF RIGHTS
The rights of any particular Holder to cause the Company to Register Registrable
Securities under this Agreement shall terminate with respect to such Holder
following a bona fide, firmly underwritten public offering of shares of Common
Stock Registered under the Securities Act for so long after the Company's IPO as
the Holder holds Registrable Securities constituting less than one percent (1%)
of the combined voting power of all classes of stock of the Company and is able
to dispose of all of the Holder's Registrable Securities in one transaction
pursuant to SEC Rule 144.
13. RULE 144 REPORTING
13.1. DURATION OF UNDERTAKINGS.
The Company shall use its best efforts, including the actions described in this
Article 13, to make available to the Holders all of the benefits of any SEC
rules or regulations that may permit the Holders to sell their Registrable
Securities to the public without Registration for so long as the Holders hold
Registrable Securities.
13.2. RULE 144 PUBLIC INFORMATION REQUIREMENTS.
The Company shall make and keep public information available, in the manner
contemplated by SEC Rule 144, at all times after the Company becomes subject to
the reporting requirements of the Securities Act or the Exchange Act regardless
of whether the Company subsequently ceases to be subject to such requirements.
13.3. REPORTING OBLIGATIONS.
The Company shall file with the SEC, in a timely manner, all reports and other
documents required under the Securities Act and the Security Exchange Act of
1934, as amended, at all times after the Company becomes subject to the
reporting requirements of such Acts.
13.4. COMPLIANCE CERTIFICATE AND OTHER DOCUMENTATION.
The Company shall furnish to each Holder, forthwith upon request, (a) a written
statement by the Company as to its compliance with the reporting requirements of
SEC Rule 144 (at any time after 90 days after the effective date of the first
Registration by the Company (other than a Registration in a Rule 145 transaction
or with respect to an employee benefit plan)) and of the Securities Act and the
Securities Exchange Act of 1934, as amended (at any time after the Company has
become subject to such reporting requirements), (b) a copy of the most recent
annual or quarterly report of the Company, and (c) such other reports and
documents of the Company and other information in the possession of or
reasonably obtainable by the Company as a Holder may reasonably request.
13.5. S-3 REGISTRATION.
The Company shall 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 use Form S-3 to sell their Registrable Securities as soon as
practicable after the end of the fiscal year in which the Company's IPO is
declared effective.
14. MISCELLANEOUS
14.1. ADDITIONAL ACTIONS AND DOCUMENTS.
The parties shall execute and deliver such further documents and instruments and
shall take such other further actions as may be required or appropriate to carry
out the intent and purposes of this Agreement.
14.2. SUCCESSORS AND ASSIGNS.
Subject to Article 10, this Agreement shall bind and inure to the benefit of the
parties hereto and their respective successors and assigns.
14.3. AMENDMENTS, WAIVERS, AND CONSENTS.
This Agreement shall not be amended except in a writing signed by the Company,
the Holders of a majority of the Founders Registrable Securities, the Holders of
a majority of the outstanding Series A Registrable Securities, the Holders of
two-thirds (2/3) of the outstanding Series B Registrable Securities, the Holders
of a majority of the outstanding Series C Registrable Securities and the Holders
of a majority of the outstanding Series D Registrable Securities; and provided,
further, that no provision of this Agreement pertaining solely to AOL or the
Registrable Securities issued or issuable to AOL or its successors or
transferees may be amended except in a writing signed by the Company and AOL. No
waiver or consent shall be binding except in a writing signed by the party
making the waiver or giving the consent, except that the Holders of a majority
of the Founders' Shares may grant a waiver or consent on behalf of all of the
Holders of Founder's Shares in their capacity as such, the Holders of a majority
of the Series A Registrable Securities may grant a waiver or consent on behalf
of all of the Holders of Series A Registrable Securities in their capacity as
such, the Holders of two thirds (2/3) of the Series B Registrable Securities may
grant a waiver or consent on behalf of all of the Holders of Series B
Registrable Securities in their capacity as such, the Holders of a majority of
the Series C Registrable Securities may grant a waiver or consent on behalf of
all of the Holders of Series C Registrable Securities in their capacity as such,
and the Holders of a majority of the Series D Registrable Securities may grant a
waiver or consent on behalf of all of the Holders of Series D Registrable
Securities in their capacity as such. No waiver of any provision or consent to
any action shall constitute a waiver of any other provision or consent to any
other action, whether or not similar. No waiver or consent shall constitute a
continuing waiver or consent except to the extent specifically set forth in
writing. For the protection of all parties, amendments, waivers, and consents
that are not in writing and executed by the party to be bound may be enforced
only if they are detrimentally relied upon and proved by clear and convincing
evidence. Such evidence may not include the alleged reliance.
14.4. NOTICE.
Any notice, instruction, or communication required or permitted to be given
under this Agreement to any party shall be in writing (which may include telex,
telegram, telecopier, or other similar form of reproduction followed by a mailed
hard copy) and shall be deemed given when actually received or, if earlier, five
(5) days after deposit in the United States Mail by certified or express mail,
return receipt requested, postage prepaid (or for foreign addresses by Federal
Express, DHL or other comparable delivery service), addressed to the principal
office of such party or to such other address as such party may request by
written notice. Each party shall make an ordinary, good faith effort to ensure
that the person to be given notice actually receives such notice promptly. Each
party shall ensure that the other parties to this Agreement have a current
address, fax number, and telephone number for the purpose of giving notice.
Addresses for each of the Securityholders are set forth on the Signature Page(s)
of this Agreement. For ease of reference, a current business address for the
Company is as follows:
To Company: GRIC Communications, Inc.
0000 XxXxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attn.: General Counsel
Tel: (000) 000-0000
Fax: (000) 000-0000
A copy of any notice to the Company shall be given to:
Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn.: Xxxxx X. Xxxxx
Tel: (000) 000 0000
Fax: (000) 000-0000
Any party may change its address for the purpose of this Section 14.4 by giving
the other parties written notice of its new address as provided above.
14.5. ATTORNEY'S FEES.
If any action at law or in equity is necessary to enforce or interpret the terms
of this Agreement, the prevailing party shall be entitled to reasonable
attorneys' fees, costs, and necessary disbursements in addition to any other
relief to which such party may be entitled.
14.6. AGGREGATION OF STOCK.
All shares of Registrable Securities held or acquired by affiliated entities or
persons shall be aggregated together for the purpose of determining the
availability of any rights under this Agreement.
14.7. GOVERNING LAW.
The rights and obligations of the parties shall be governed by, and this
Agreement shall be construed and enforced in accordance with, the laws of the
United States and the State of California, excluding California's conflicts of
laws rules to the extent such rules would apply the law of another jurisdiction.
14.8. JURISDICTION AND VENUE.
The parties hereto consent to the personal jurisdiction of all federal and state
courts in California, and agree that venue shall lie exclusively in Santa Xxxxx
County, California.
14.9. ENTIRE AGREEMENT.
This Agreement and the documents and agreements contemplated herein constitute
the entire agreement between the parties with regard to the subject matter
hereof and thereof. This Agreement supersedes all prior written and oral
agreements and understandings between the parties hereto with respect to the
subject matter hereof including, without limitation, the Previous
Agreement. There are now no agreements, representations, or warranties
between or among the parties other than those set forth in this Agreement or
the documents and agreements contemplated in this Agreement.
14.10. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of which may
be executed by less than all of the parties hereto, each of which shall be
enforceable only against the parties actually executing such counterparts, and
all of which together shall constitute one instrument.
14.11. PARTIES IN INTEREST.
Except as expressly provided in this Agreement, nothing in this Agreement shall
(a) confer any rights or remedies on any persons other than the parties, their
respective successors and assigns, and any Indemnified Parties, (b) relieve or
discharge the obligation of any third person to any party, or (c) shall give any
third person any right of subrogation or (except for the Indemnified Parties)
action against any party.
14.12. SEVERABILITY.
If any provision of this Agreement, or the application of such provision to any
person or circumstances, is held invalid or unenforceable, the remainder of this
Agreement, or the application of such provision to persons or circumstances
other than those as to which it is held invalid or unenforceable, shall continue
in full force without being impaired or invalidated.
14.13. TITLES, CAPTIONS, AND RECITALS.
Article, Section, and subsection titles and captions contained in this Agreement
are inserted as a matter of convenience and for reference and in no way define,
limit, extend, or describe the scope of this Agreement or the intent of any of
its provisions. If there is any conflict between the Recitals at the beginning
of this Agreement and the substantive provisions of this Agreement, the
substantive provisions shall control.
14.14. SECTION REFERENCES.
Unless otherwise stated, any reference contained in this Agreement to an
Article, Section, or subsection refers to the provisions of this Agreement. An
Article includes all of the Sections within that Article, and a Section includes
all of the subsections within that Section.
14.15. VARIATIONS OF PRONOUNS.
All pronouns and all variations thereof shall be deemed to refer to the
masculine, feminine, or neuter, singular or plural, as the context in which they
are used may require.
SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Fourth Amended and Restated
Registration Rights Agreement of GRIC COMMUNICATIONS, INC. as of the date first
set forth above.
"COMPANY"
GRIC COMMUNICATIONS, INC.,
a California corporation
By: _________________________
"SECURITYHOLDERS"
Hong Chen, Ph.D.
c/o GRIC Communications, Inc.
0000 XxXxxxxx Xxxx.
Xxxxxxxx, XX 00000
Tel: (000) 000-0000
Xxxx Ya-Xxx Xxx
c/o GRIC Communications, Inc.
0000 XxXxxxxx Xxxx.
Xxxxxxxx, XX 00000
Tel: (000) 000-0000
GRIC COMMUNICATIONS, INC.
FOURTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE (CONTINUED)
Xxxx Xxx
00000 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Swan Chen
0000 Xxxxxxx Xxxxxx, #000
Xxx Xxxxx, XX 00000
Tel: 000-000-0000
Xxxx Xxx
x/x Xxxx Xxxxxxx Xxxxxxxxxx Xx.
0X Xx. 000-00
Xxxx Xxx X. Xx.
Xxxxxx, Xxxxxx, X.X.X.
Tel: (000) 000-0-000-0000
Wen-Xxxx Xxxx
0000 Xxxxxxxxxx Xxxxx Xxxx
Xxx Xxxx, XX 00000-0000
Tel: (000) 000-0000
Xxxxx Xxx
000 Xxxxxx Xxx, #00
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
GRIC COMMUNICATIONS, INC.
FOURTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE (CONTINUED)
Xxxxx X. X. Xxx
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Tel: (000) 000-0000
Jingsha He
0000 Xxxx Xxxxxx Xxxxx
Xxxxx, XX 00000
Tel: (000) 000-0000
ELG PARTNERS 1994-1,
a California general partnership
By:
Xxxxxxx X. Xxxxx, Managing Partner
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000-0000
Tel: (000) 000-0000
GRIC COMMUNICATIONS, INC.
FOURTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE (CONTINUED)
Vertex Investments (II) Ltd.
By:
(sign name)
(print name)
(title)
00 Xxxxxxx Xxxx Xxxxx
#00-00 Xxxxxxx XXX
Xxxxxxxxx Xxxxxxx Xxxx
Xxxxxxxxx 000000
Tel: 00-000-0000
Fax: 00-000-0000
Vertex Technology Fund Ltd.
By:
(sign name)
(print name)
(title)
00 Xxxxxxx Xxxx Xxxxx
#00-00 Xxxxxxx XXX
Xxxxxxxxx Xxxxxxx Xxxx
Xxxxxxxxx 000000
Tel: 00-000-0000
Fax: 00-000-0000
GRIC COMMUNICATIONS, INC.
FOURTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE (CONTINUED)
Technology Associates Corporation
By:
(sign name)
(print name)
(title)
9F, Xx. 000, Xxx. 0, Xxx Xxxx Xxxx Xxxx
Xxxxxx 000, Xxxxxx, ROC
Tel: 000-0-0000-0000
Fax: 000-0-0000-0000
Tech Alliance Corporation
By:
(sign name)
(print name)
(title)
x/x Xxxxxxxxxx Xxxxxxxxxx Xxxxxxxxxxx
0X, Xx. 000, Sec. 5, Xxx Xxxx East Road
Taipei 105, Taiwan, ROC
Tel: 000-0-0000-0000
Fax: 000-0-0000-0000
AII Holding Corporation
GRIC COMMUNICATIONS, INC.
FOURTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE (CONTINUED)
By:
(sign name)
(print name)
(title)
c/o Acer Advanced Labs
0000-X Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
Attn: Xx. Xxx Xx
Netis Technology, Inc.
By:
(sign name)
(print name)
(title)
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Tel: 000-000-0000
Tekkang Management Consulting, Inc.
GRIC COMMUNICATIONS, INC.
FOURTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE (CONTINUED)
By:
(sign name)
(print name)
(title)
00X, 000 Xxxxx Xxx X. Xxxx, Xxx. 0
Xxxxxx, Xxxxxx, ROC
Tel: 000-0-000-0000
Fax: 000-0-000-0000
Yen-Son Xxxxx
00000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Tel: (000) 000-0000
Xxxx-Xxxx Xxxx, Trustee
00000 Xxxxxxxx Xxxxx
Xxx Xxxxx Xxxxx, XX 00000
Tel: 000-000-0000
Hung Xxxx Xxxx
00X, 000 Xxxxx Xxx X. Xxxx, Xxx. 0
Xxxxxx, Xxxxxx, ROC
Tel: 000-0-000-0000
Fax: 000-0-000-0000
GRIC COMMUNICATIONS, INC.
FOURTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE (CONTINUED)
Xxxxxxx Xxx
0X, Xx. 0, Xxxx 000, Xxxxx Xxxxx Xx.
Xxxx-Xxxx,
Xxxxxx, Xxxxxx, ROC
Tel: 000-000-0-000-0000
Xxxxxx X.X. Xxxx
Products Development Division
Institute for Information Industry
0X, #00 000 Xxxx
Xxxxxx Xxxx Xxxx, Xxx. 0
Xxxxxx, Xxxxxx, R.O.C.
Tel: 000-0-0-000-0000
Xxxxx Xxxxx
Fushin Rd, Sec. 0, Xxxxx 00, Xx. 00
Xxxxxxxx, Xxxxxx
Tel: 000-00-000-0000
Xxxx X. Xxxx
000 Xxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
Tel: 000-000-0000
Xxxx Xxxxx
00000 XxxxXxx Xxxxx
Xxxxxxxx, XX 00000
Tel: (000) 000-0000
GRIC COMMUNICATIONS, INC.
FOURTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE (CONTINUED)
Masaharu Shinya
0-0 Xxxxxxxx 0-Xxxxx
Xxxx-Xx
Xxxxx, 000 Xxxxx
Tel: 00-0-0000-0000
Xxxx X. Xxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Tel: 000-000-0000
Fu Lin
c/o Netis Technology, Inc.
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Tel: 000-000-0000
Xxxxx Xxxxx
c/o Netis Technology, Inc.
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Tel: 000-000-0000
Xxxxx Xxx
0 Xxxxxx Xxxxxx, #00-000
Xxxxxxxxx 000000
Tel: 00-000-0000
Xxxxxxxx Xx Yoke Lay
41A Lorong Marzuki
GRIC COMMUNICATIONS, INC.
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Singapore 1441
Tel: 00-000-0000
Gau Tech Enterprises, Inc.
By:
(sign name)
(print name)
(title)
0000 Xxxxxxxxx
Xxxxx Xxxxxxx, XX 00000
Attn: Xxxxxx Xxx
Tel: 000-000-0000
ST Telecommunications Pte. Ltd.
By:
(sign name)
(print name)
(title)
0 Xxx Xxxx Xxx Xxxx, #00-00
Xxxxxxxxx Xxxxxxxxxxxx Xxxx.
Xxxxxxxxx 000000
Tel: 00-000-0000
Attn: Goh Sock Cheng
Essex Investment (Singapore) Pte Ltd.
GRIC COMMUNICATIONS, INC.
FOURTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
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By:
(sign name)
(print name)
(title)
00 Xxx Xxxx Xxxxx
XXX Xxxxxxxx
Xxxxxxxxx 0000
Tel: 00-000-0000
Fax: 00-000-0000
Attn: Xxxxxxx Xxxxx
GRIC COMMUNICATIONS, INC.
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Asia Pacific Growth Fund II
By:
(sign name)
(print name)
(title)
c/o H&Q Taiwan Co., Ltd.
Suite 3201, 32F,
International Trade Building
Xx. 000, Xxxxxxx Xxxx, Xxx. 0
Xxxxxx 00000, Xxxxxx, ROC
Tel: 000-0-000-0000
Attn: Jedi Chan
Asia Pacific Growth Fund III
By:
(sign name)
(print name)
(title)
c/o H&Q Taiwan Co., Ltd.
Suite 3201, 32F,
International Trade Building
Xx. 000, Xxxxxxx Xxxx, Xxx. 0
Xxxxxx 00000, Xxxxxx, ROC
Tel: 000-0-000-0000
Attn: Jedi Chan
GRIC COMMUNICATIONS, INC.
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HanTech International Venture Capital Corporation
By:
(sign name)
(print name)
(title)
c/o H&Q Taiwan Co., Ltd.
Suite 3201, 32F,
International Trade Building
Xx. 000, Xxxxxxx Xxxx, Xxx. 0
Xxxxxx 00000, Xxxxxx, ROC
Tel: 000-0-000-0000
Attn: Jedi Chan
Ko Suzuki
c/o SRI Consulting
000 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Tel: (000) 000-0000
GRIC COMMUNICATIONS, INC.
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SingCom (Australia) Pty Limited
By:
(sign name)
(print name)
(title)
c/o Singapore Telecommunications
Limited
Comcentre, 00 Xxxxxx Xxxx, 00xx Xx.
Xxxxxxxxx 000000
Tel: 00-000-0000
Attn: Xxxxxx Xxxx
SingTel Ventures (Cayman) Pte Ltd
By:
(sign name)
(print name)
(title)
c/o Singapore Telecommunications, Inc.
00 Xxxxxx Xxxx, Xxxxxxxxx
Xxxxxxxxx 000000
Tel: 00-000-0000
Fax: 00-000-0000
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Technology Fund Pte Ltd.
By:
(sign name)
(print name)
(title)
21 Science Park Road
#02-01 The Aquarius
Xxxxxxxxx Xxxxxxx Xxxx XX
Xxxxxxxxx 000000
Tel: 00-000-0000
Fax: 00-000-0000
Attn.: Mrs. Tahn Xxx Xxxx
Technology Fund II Pte Ltd.
By:
(sign name)
(print name)
(title)
21 Science Park Road
#02-01 The Aquarius
Xxxxxxxxx Xxxxxxx Xxxx XX
Xxxxxxxxx 000000
Tel: 00-000-0000
Fax: 00-000-0000
Attn.: Mrs. Tahn Xxx Xxxx
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Trustees of General Electric Pension Trust
By:
(sign name)
(print name)
(title)
WITH A COPY TO:
0000 Xxxxxx Xxxxxx
P.O. Box 0000 Xxxxx Xxxxxxxxxx, XXX
Xxxxxxxx, XX 00000-0000 1301 Avenue of the Americas
Attn: Xxxxxxx X. Xxxxxxx, Esq. Xxx Xxxx, XX 00000
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
-and- Attn: Xxxxxxx X Xxxxxxxx, Esq.
Attn: Xxxxx X. Xxxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
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Talisman Capital Opportunity Inc.
By:
(sign name)
(print name)
(title)
00000 XxXxxxxx Xxxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxxxx Xxxxxx
Talisman Capital Opportunity Fund Ltd.
By:
(sign name)
(print name)
(title)
00000 XxXxxxxx Xxxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxxxx Xxxxxx
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InnoMedia Pte Ltd
By:
(sign name)
(print name)
(title)
00 Xxxxxxx Xxxx Xxxx #03-04/05
The Alpha, Xxxxxxxxx Xxxxxxx Xxxx XX
Xxxxxxxxx 000000
Tel: x00-0000-000
Fax: x00-0000-000
Attn: Ng Kai Wa
L&H Investment Company N.V.
By:
(sign name)
(print name)
(title)
Xxxx Xxxxxxxxxxxxxx 0
X-0000 Xxxxx
Xxxxxxx
Tel: x00-00-00-00-00
Fax: x00-00-00-00-00
Attn: Xxxxxxx Xxxxxxxx
GRIC COMMUNICATIONS, INC.
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Flanders Language Valley Fund C.V.A.
By:
(sign name)
(print name)
(title)
Xxxxxxxxxxxxxxxxxx 0
X-0000 Xxxxx
Xxxxxxx
Tel: x00-00-00-00-00
Fax: x00-00-00-00-00
Attn: Xxxxx Xxxxxxxx
Xxxxxxx X. Xxxxxxx
c/o Oasis Capital, LLC
Three Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Xxxxxx X. Xxxxxxx
c/o Oasis Capital, LLC
Xxxxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
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Richmond Holdings Global Limited
By:
(sign name)
(print name)
(title)
00X, 00 Xxx Xxx Xxxxx Xxxx, Xxx. 0
Xxxxxx, Xxxxxx, R.O.C.
Tel: 000-0-000-0000
Fax: 000-0-000-0000
Attn.: Xxxxxx Xxxx
Xxxxxx Xxxxxxx
Xx Xxxxx
0000 Xxxxx-Xxxxxx
Xxxxxxxxxxx
Tel: 00-00-000-00-00
Fax: 00-00-000-00-00
GRIC COMMUNICATIONS, INC.
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X.X. Xxxxx
Xx. 0, Xxxxx 00, Xxxx 000,
Xx Xxxx Road, Xx Xx Village
TaiChung County, Taiwan, R.O.C.
Tel: 000-0-000-0000
GRIC COMMUNICATIONS, INC.
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SIGNATURE PAGE (CONTINUED)
NORTH AMERICA VENTURE FUND, L.P.,
a Cayman Islands Limited Partnership
By: CDC North America Venture
Management, L.D.C., a Cayman Islands Limited
Duration Company
General Partner
By:
Xxxxx Xxxx
Title: Member
By: _________________________
Xxxxxxx Xxx
Title: Member
GRIC COMMUNICATIONS, INC.
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SIGNATURE PAGE (CONTINUED)
EXHIBIT A
SUMMARY OF REGISTRABLE SECURITIES
NUMBER OF REGISTRABLE
SECURITIES INTO WHICH PRESENTLY
SECURITY NUMBER OF SHARES CONVERTIBLE
-------- ---------------- -----------------------------------
Founders' Shares 5,000,000 5,000,000
Series A Shares 3,400,000 3,400,000
Series B Shares 6,470,000 6,470,000
Series C Shares 4,726,752 4,726,752
Series D Shares up to 17,500,000 Up to 17,500,000
TOTAL UP TO 37,096,752 UP TO 37,096,752
For the purpose of this table, Preferred Stock are deemed convertible
into Common Stock.
