EXHIBIT 10.6
EFFICIENT NETWORKS, INC.
AMENDMENT NO. 2 TO THE INVESTORS' RIGHTS AGREEMENT
This Amendment No. 2 ("Amendment") to the Investors' Rights Agreement dated
as of July 30, 1993, as previously amended by Amendment No. 1 thereto dated
February 9, 1994 (together the "Agreement") is made as of this 30th day of
September, 1994 by and among Efficient Networks, Inc., a Delaware corporation
(the "Company"), each of the individuals and entities listed on Schedule A to
the Agreement, as amended (the Existing Investors") and the investors listed on
Schedule A hereto (the "Series C Investors"). Capitalized terms used herein
which are not defined herein shall have the definition ascribed to them in the
Agreement.
RECITALS
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A. The Company desires to sell and issue to the Series C Investors, and
the Series C Investors desire to purchase from the Company, 5,858,332 shares of
the Company's Series C Preferred Stock pursuant to the Series C Preferred Stock
Purchase Agreement dated of even date herewith (the "Series C Agreement").
B. The Existing Investors desire for the Series C Investors to invest in
the Company and, as a condition thereof and to induce such investment, the
Existing Investors are willing to enter into this Amendment to permit the Series
C Investors to become parties to the Agreement, as amended.
In consideration of the foregoing and the promises and covenants contained
herein and other good and valuable consideration the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. ADDITIONAL PARTIES TO THE AGREEMENT.
-----------------------------------
The Series C Investors hereby enter into and become parties to the
Agreement. Schedule A to the Agreement is amended to include the Series C
Investors.
2. AMENDMENTS TO AGREEMENT.
-----------------------
2.1 The Series C Investors and the Existing Investors are collectively
referred to as "Investors" for the purposes of the Agreement, as amended.
2.2 Section 1.1(c) of the Agreement is amended in its entirety to read as
follows:
"(c) The term "Registrable Securities" means (1) the Common Stock
issuable or issued upon conversion of the
Series A Preferred Stock, Series B Preferred Stock and Series C Preferred
Stock and (2) any Common Stock of the Company issued as (or issuable upon
the conversion or exercise of any warrant, right or other security which is
issued as) a dividend or other distribution with respect to, or in exchange
for or in replacement of, such Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock or Common Stock, excluding in all cases,
however, any Registrable Securities sold by a person in a transaction in
which his rights under this Section 1 are not assigned;"
2.3 The first sentence of Section 2.1 of the Agreement is amended in its
entirety to read as follows:
"2.1 Delivery of Financial Statements. The Company shall deliver to
each Investor holding at least 750,000 shares of Series A Preferred Stock
or 375,000 shares of Series B Preferred Stock or 250,000 shares of Series C
Preferred Stock:"
2.4 All references to "Series A Preferred Stock" in Sections 2.4, 2.7 and
2.10 shall be deemed to include and make reference to the Series B Preferred
Stock and to the Series C Preferred Stock sold to the Series C Investors
pursuant to the Series C Agreement.
3. WAIVER AND CONSENT.
------------------
Each Existing Investor, pursuant to any rights such Existing Investor
may have under the Agreement, hereby, on behalf of himself and the other
Investors under the Agreement, (a) waives all rights under, and any notice
required by, Section 3 of the Agreement relating to any rights to purchase or
rights of first refusal with respect to the sale of the shares of Series C
Preferred Stock, (b) consents to adding as parties to the Agreement the Series C
Investors, and (c) consents to the registration rights hereby provided the
Series C Investors, which consent is given pursuant to Section 1.14 of the
Agreement.
4. EFFECT OF AMENDMENT.
-------------------
Except as amended and set forth above, the Agreement shall continue in full
force and effect.
5. COUNTERPARTS.
------------
This Amendment may be executed in any number of counterparts, each which
will be deemed an original, and all of which together shall constitute one
instrument.
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6. SEVERABILITY.
------------
If one or more provisions of this Amendment are held to be unenforceable
under applicable law, such provisions shall be excluded from this Amendment and
the balance of the Amendment shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
7. ENTIRE AGREEMENT.
----------------
This Amendment, together with the Agreement, constitutes the full and
entire understanding and agreement between the parties with regard to the
subjects hereof and thereof.
8. GOVERNING LAW.
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This Amendment shall be governed by and construed under the laws of the
State of California as applied to agreements among California residents entered
into and to be performed entirely within California.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
-3-
This Amendment is hereby executed as of the date first above written.
EFFICIENT NETWORKS, INC., a Delaware
corporation
By: /s/ M. A. Xxxxx
-------------------------------
Title:
-------------------------
Address: 0000 Xxxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxx, XX 00000
EXISTING INVESTORS: CROSSPOINT VENTURE PARTNERS 1993
------------------
By: /s/ Xxxxxx Xxxx
-------------------------------
General Partner
Address: 00000 XxxXxxxxx Xxxx., Xxxxx 000
Xxxxxx, XX 00000
CROSSPOINT 1993 ENTREPRENEURS
FUND
By: /s/ Xxxxxx Xxxx
--------------------------------
General Partner
Address: 00000 XxxXxxxxx Xxxx., Xxxxx 000
Xxxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE
INVESTORS' RIGHTS AGREEMENT]
ENTERPRISE PARTNERS II L.P.
By: Enterprise Management Partners II,
L.P., Its General Partner
By: /s/ Xxx Xxxxx
-----------------------------
General Partner
Address: 00000 Xxx Xxxxxxx Xxxx.,
Xxxxx 000
Xxx Xxxxxxx, XX 00000
ENTERPRISE PARTNERS II ASSOCIATES,
L.P.
By: Enterprise Management Partners II,
L.P., Its General Partner
By: /s/ Xxx Xxxxx
-----------------------------
General Partner
Address: 00000 Xxx Xxxxxxx Xxxx.,
Xxxxx 000
Xxx Xxxxxxx, XX 00000
OCEAN PARK VENTURES, L.P.
By: /s/ Xxx Xxxxx
-----------------------------
General Partner
Address: 00000 Xxx Xxxxxxx Xxxx.,
Xxxxx 000
Xxx Xxxxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE
INVESTORS' RIGHTS AGREEMENT]
EL DORADO VENTURES III, L.P.
By: El Dorado Venture Partners III,
Its General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
General Partner
Address: 000 Xxxx Xxxxxxxx Xxxx.,
Xxxxx 000
Xxxxxxxx, XX 00000
EL DORADO C & L FUND, L.P.
By: El Dorado Venture Partners III,
Its General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
General Partner
Address: 000 Xxxx Xxxxxxxx Xxxx.,
Xxxxx 000
Xxxxxxxx, XX 00000
EL DORADO TECHNOLOGY IV, L.P., a
California Limited Partnership
By: El Dorado Venture Partners III,
Its General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
General Partner
Address: 000 Xxxx Xxxxxxxx Xxxx.,
Xxxxx 000
Xxxxxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE
INVESTORS' RIGHTS AGREEMENT]
ADAPTEC, INC., a California corporation
By: /s/ Signature Illegible
-----------------------
Title: Vice President & Treasurer
Address: 000 X. Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
SERIES C INVESTORS: CROSSPOINT VENTURE PARTNERS 1993
------------------
By: /s/ Xxxxxx Xxxx
-----------------------
General Partner
Address: 00000 XxxXxxxxx Xxxx., Xxxxx 000
Xxxxxx, XX 00000
CROSSPOINT 1993 ENTREPRENEURS
FUND
By: /s/ Xxxxxx Xxxx
----------------------------
General Partner
Address: 00000 XxxXxxxxx Xxxx., Xxxxx 000
Xxxxxx, XX 00000
ENTERPRISE PARTNERS II L.P.
By: Enterprise Management Partners II,
L.P., Its General Partner
By: /s/ Xxx Xxxxx
------------------------
General Partner
Address: 00000 Xxx Xxxxxxx Xxxx.,
Xxxxx 000
Xxx Xxxxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE
INVESTORS' RIGHTS AGREEMENT]
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ENTERPRISE PARTNERS II ASSOCIATES,
L.P.
By: Enterprise Management Partners II,
L.P., Its General Partner
By: /s/ Xxx Xxxxx
-----------------------
General Partner
Address: 00000 Xxx Xxxxxxx Xxxx.,
Xxxxx 000
Xxx Xxxxxxx, XX 00000
OCEAN PARK VENTURES, L.P.
By: /s/ Xxx Xxxxx
----------------------------
General Partner
Address: 00000 Xxx Xxxxxxx Xxxx.,
Xxxxx 000
Xxx Xxxxxxx, XX 00000
EL DORADO VENTURES III, L.P.
By: El Dorado Venture Partners III,
Its General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------
General Partner
Address: 000 Xxxx Xxxxxxxx Xxxx.,
Xxxxx 000
Xxxxxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE
INVESTORS' RIGHTS AGREEMENT]
EL DORADO C & L FUND, L.P.
By: El Dorado Venture Partners III,
Its General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------
General Partner
Address: 000 Xxxx Xxxxxxxx Xxxx.,
Xxxxx 000
Xxxxxxxx, XX 00000
EL DORADO TECHNOLOGY IV, L.P., a
California Limited Partnership
By: El Dorado Venture Partners III,
Its General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------
General Partner
Address: 000 Xxxx Xxxxxxxx Xxxx.,
Xxxxx 000
Xxxxxxxx, XX 00000
MENLO VENTURES VI, L.P.
By: MV Management VI, L.P.
By: /s/ Signature Illegible
-----------------------
General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxx. 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE
INVESTORS' RIGHTS AGREEMENT]
MENLO ENTREPRENEURS FUND VI, L.P.
By: MV Management VI, L.P.
its General Partner
By: /s/ Signature Illegible
-----------------------
General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxx. 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE
INVESTORS' RIGHTS AGREEMENT]
SCHEDULE A
SCHEDULE OF INVESTORS
Name and Address
----------------
Crosspoint Venture Partners 1993
00000 XxxXxxxxx Xxxx., Xxxxx 000
Xxxxxx, XX 00000
Crosspoint 1993 Entrepreneurs Fund
00000 XxxXxxxxx Xxxx., Xxx. 000
Xxxxxx, XX 00000
Enterprise Partners II, L.P.
00000 Xxx Xxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxxxx, XX 00000
Enterprise Partners II Associates, L.P.
00000 Xxx Xxxxxxx Xxxx., Xxxx 000
Xxx Xxxxxxx, XX 00000
Ocean Park Ventures, L.P.
00000 Xxx Xxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxxxx, XX 00000
El Dorado Ventures III, L.P.
000 Xxxx Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx, XX 00000
El Dorado C & L Fund, L.P.
000 Xxxx Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx, XX 00000
El Dorado Technology IV, L.P.
000 Xxxx Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx, XX 00000
Menlo Ventures VI, L.P.
0000 Xxxx Xxxx Xxxx
Xxxx. 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Menlo Entrepreneurs Fund VI, L.P.
0000 Xxxx Xxxx Xxxx
Xxxx. 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
