EXHIBIT 4.2
CLARENT CORPORATION
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
TABLE OF CONTENTS
PAGE
SECTION 1. GENERAL.................................................... 1
1.1 Definitions................................................ 1
SECTION 2. REGISTRATION; RESTRICTIONS ON TRANSFER..................... 3
2.1 Restrictions on Transfer................................... 3
2.2 Demand Registration........................................ 4
2.3 Piggyback Registrations.................................... 6
2.4 Form S-3 Registration...................................... 7
2.5 Expenses of Registration................................... 8
2.6 Obligations of the Company................................. 9
2.7 Termination of Registration Rights......................... 10
2.8 Delay of Registration; Furnishing Information.............. 10
2.9 Indemnification............................................ 11
2.10 Assignment of Registration Rights.......................... 13
2.11 Amendment of Registration Rights........................... 13
2.12 Limitation on Subsequent Registration Rights............... 14
2.13 "Market Stand-Off" Agreement............................... 14
2.14 Rule 144 Reporting......................................... 14
SECTION 3. COVENANTS.................................................. 15
3.1 Basic Financial Information and Reporting.................. 15
3.2 Inspection Rights.......................................... 15
3.3 Confidentiality of Records................................. 16
3.4 Reservation of Common Stock................................ 17
3.5 Termination of Covenants................................... 17
SECTION 4. RIGHTS OF FIRST REFUSAL.................................... 17
4.1 Subsequent Offerings....................................... 17
4.2 Exercise of Rights......................................... 17
4.3 Issuance of Equity Securities to Other Persons............. 18
4.4 Termination of Rights of First Refusal..................... 18
4.5 Transfer of Rights of First Refusal........................ 18
TABLE OF CONTENTS
(CONTINUED)
PAGE
4.6 Excluded Securities........................................ 18
SECTION 5. MISCELLANEOUS.............................................. 19
5.1 Governing Law.............................................. 19
5.2 Survival................................................... 19
5.3 Successors and Assigns..................................... 19
5.4 Entire Agreement........................................... 20
5.5 Severability............................................... 20
5.6 Amendment and Waiver....................................... 20
5.7 Delays or Omissions........................................ 20
5.8 Notices.................................................... 20
5.9 Attorneys' Fees............................................ 21
5.10 Titles and Subtitles....................................... 21
5.11 Aggregation................................................ 21
5.12 Counterparts............................................... 21
CLARENT CORPORATION
AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
THIS AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT (the "Agreement")
is entered into as of the 11th day of June 1998, by and among CLARENT
CORPORATION, a California corporation (the "Company"), the holders of the
Company's Series A Preferred Stock ("Series A Stock") identified on EXHIBIT A
hereto, the holders of the Company's Series B Preferred Stock ("Series B Stock")
set forth on EXHIBIT B hereto and the purchasers of the Company's Series C
Preferred Stock ("Series C Stock") set forth on EXHIBIT C hereto (the
"Purchasers").
RECITALS
WHEREAS, certain of the shareholders of the Company (the
"Shareholders") hold shares of the Company's Series A Preferred Stock and shares
of the Company's Series B Preferred Stock and possess registration rights,
information rights and other rights pursuant to an Amended and Restated Investor
Rights Agreement dated as of March 25, 1997, between the Company and such
Shareholders (the "Prior Agreement");
WHEREAS, the Shareholders desire to terminate the Prior Agreement and
to accept the rights created pursuant hereto in lieu of the rights granted to
them under the Prior Agreement;
WHEREAS, the Purchasers are parties to the Series C Preferred Stock
Purchase Agreement dated as of June 11, 1998, by and among the Company and the
Purchasers (the "Purchase Agreement"), pursuant to which certain of the
Company's and such Purchasers' obligations are conditioned upon the execution
and delivery by such Purchasers and the Company of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth herein, the Shareholders who are parties to the Prior Agreement hereby
agree that the Prior Agreement shall be superseded and replaced in its entirety
by this Agreement, and the parties hereto further agree as follows:
SECTION 1. GENERAL
1.1 DEFINITIONS. As used in this Agreement the following terms shall
have the following respective meanings:
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"FOUNDERS" means Xxxxx Xxxxx and Xxxxxxx Xxxxx.
"HOLDER" means any Investor who holds shares of Registrable
Securities and any holders of Shares or Registrable Securities and to whom the
registration rights conferred by this
1.
Agreement have been assigned in compliance with Section 2.10 hereof, and holders
of Shares or Registrable Securities issuable upon exercise of those certain
warrants (the "Advisory Services Agreement Shares") dated April 2, 1998 issued
to WK Technology Fund in connection with the Advisory Services Agreement dated
June 3, 1997 by and between WK Technology Fund and the Company.
"INITIAL OFFERING" means the Company's first firm commitment
underwritten public offering of its Common Stock registered under the Securities
Act.
"INVESTORS" means the Purchasers and the Shareholders.
"REGISTER," "REGISTERED," AND "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of
effectiveness of such registration statement or document.
"REGISTRABLE SECURITIES" means (i) Common Stock of the Company
issued or issuable upon conversion of the Shares; and (ii) 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
above-described securities and (iii) Advisory Services Agreement Shares.
Notwithstanding the foregoing, Registrable Securities shall not include any
securities sold by a person to the public either pursuant to a registration
statement or Rule 144(k) or sold in a private transaction in which the
transferor's rights under Section 2 of this Agreement are not assigned. Shares
of Common Stock held by the Founders shall not be Registrable Securities for
purposes of Section 2.2 or 2.4 hereof.
"REGISTRABLE SECURITIES THEN OUTSTANDING" shall be the number of
shares determined by calculating the total number of shares of the Company's
Common Stock that are Registrable Securities and either (1) are then issued and
outstanding or (2) are issuable pursuant to then exercisable or convertible
securities.
"REGISTRATION EXPENSES" shall mean all expenses incurred by the
Company in complying with Sections 2.2, 2.3 and 2.4 hereof, including, without
limitation, all registration and filing fees, printing expenses, fees and
disbursements of counsel for the Company, blue sky fees and expenses, the
expense of any special audits incident to or required by any such registration
(but excluding the compensation of regular employees of the Company which shall
be paid in any event by the Company) and the expenses of underwriters
customarily paid by similarly situated companies in connection with underwritten
offerings of equity securities to the public (including any qualified
independent underwriter required in connection with such underwritten offering),
excluding any such fees based on the proceeds of sales of Registrable Securities
by selling Holders. With respect to expenses incurred in connection with
Sections 2.2, 2.3 and 2.4 hereof, "Registration Expenses" shall include
reasonable fees and disbursements of a single special counsel for the Holders
not to exceed $25,000 per registration.
2.
"REGULATION S" shall mean Rules 901 through 904 as promulgated by
the Commission under the Securities Act, as such rules may be amended from time
to time, or any similar successor rules that may be promulgated by the
Commission.
"RULE 144" shall mean Rule 144 as promulgated by the Commission
under the Securities Act, as such rule may be amended from time to time, or any
similar successor rules that may be promulgated by the Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended.
"SELLING EXPENSES" shall mean all underwriting discounts, selling
commissions, and stock transfer taxes applicable to the sale of Registrable
Securities and any fees and disbursements of counsel for Holders not included in
Registration Expenses.
"SHARES" shall mean the Company's Series A, Series B and Series C
Stock held by the Investors listed on EXHIBITS A, B, and C hereto and their
permitted assigns or held by purchasers of the Company's Series C Preferred
Stock who become parties hereto in compliance with Section 5.6(c).
"FORM S-3" means such form under the Securities Act as in effect
on the date hereof or any successor registration form under the Securities Act
subsequently adopted by the SEC which permits inclusion or incorporation of
substantial information by reference to other documents filed by the Company
with the SEC.
"SEC" OR "COMMISSION" means the Securities and Exchange
Commission.
SECTION 2. REGISTRATION; RESTRICTIONS ON TRANSFER
2.1 RESTRICTIONS ON TRANSFER.
(A) Each Holder agrees not to make any disposition of all or any
portion of the Shares or Registrable Securities unless and until:
(I) There is then in effect a registration statement under the
Securities Act covering such proposed disposition and such disposition is made
in accordance with such registration statement; or
(II) (A) The transferee has agreed in writing to be bound by
the terms of this Agreement, (B) such Holder shall have notified the Company of
the proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and (C) if
reasonably requested by the Company, such Holder shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company, that
such disposition will not require registration of such shares under the
Securities Act. It is agreed that the Company will not require opinions of
counsel for transactions made pursuant to Rule 144.
3.
(III) Notwithstanding the provisions of paragraphs (i) and
(ii) above, no such registration statement or opinion of counsel shall be
necessary for a transfer by a Holder which is (A) a partnership to its partners
or former partners in accordance with partnership interests, (B) a corporation
to its shareholders in accordance with their interest in the corporation, (C) a
limited liability company to its members or former members in accordance with
their interest in the limited liability company, (D) an entity affiliated by
common ownership with the Holder, or (E) to the Holder's family member or trust
for the benefit of an individual Holder; provided that (A) the transfer is in
compliance with Regulation S, if applicable, and (B) the transferee will be
subject to the terms of this Agreement to the same extent as if such transferee
were an original Holder hereunder.
(B) Each certificate representing Shares or Registrable
Securities shall (unless otherwise permitted by the provisions of the Agreement)
be stamped or otherwise imprinted with a legend substantially similar to the
following (in addition to any legend required under applicable state securities
laws or as provided elsewhere in this Agreement):
"THE SHARES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED, PLEDGED, OR HYPOTHECATED
UNLESS AND UNTIL REGISTERED UNDER SUCH ACT, OR
UNLESS IN ACCORDANCE WITH REGULATION S PROMULGATED
UNDER THE ACT OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE ACT AND, IN EITHER CASE,
THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL
OR OTHER EVIDENCE SATISFACTORY TO THE COMPANY AND
ITS COUNSEL THAT REGISTRATION IS NOT REQUIRED."
(C) The Company shall be obligated to reissue promptly unlegended
certificates at the request of any holder thereof if the holder shall have
obtained an opinion of counsel (which counsel may be counsel to the Company)
reasonably acceptable to the Company to the effect that the securities proposed
to be disposed of may lawfully be so disposed of without registration,
qualification or legend or if the securities were sold pursuant to Rule 144.
(D) Each Investor is aware that the Company will, and the Company
agrees that it will, to the extent required by Regulation S, refuse to register
any transfer of the Shares or Registrable Securities not made in compliance with
Regulation S, pursuant to an effective registration under the Securities Act, or
pursuant to an exemption from registration under the Securities Act.
2.2 DEMAND REGISTRATION.
(A) Subject to the conditions of this Section 2.2, if the Company
shall receive a written request from (i) the Holders of more than fifty percent
(50%) of the Registrable
4.
Securities then outstanding issued upon the conversion of the Series B Stock, as
to one (1) demand registration right hereunder, and (ii) the Holders of more
than fifty percent (50%) of the Registrable Securities issued upon the
conversion of the Series C Stock, as to one (1) demand registration right
hereunder (in each case to be considered separately as the "Initiating Holders")
that the Company file a registration statement under the Securities Act covering
the registration of Registrable Securities the aggregate proceeds of which
(after deduction for underwriter's discounts and expenses related to the
issuance) exceed $10,000,000 (a "Qualified Public Offering"), then the Company
shall, within thirty (30) days of the receipt thereof, give written notice of
such request to all Holders, and subject to the limitations of this Section 2.2,
use its best efforts to effect, as soon as practicable, the registration under
the Securities Act of all Registrable Securities that the Holders request to be
registered.
(B) If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request made pursuant to
this Section 2.2 or any request pursuant to Section 2.4 and the Company shall
include such information in the written notice referred to in Section 2.2(a) or
Section 2.4(a), as applicable. In such event, the right of any Holder to include
its Registrable Securities in such registration shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting (unless otherwise mutually agreed by
a majority in interest of the Initiating Holders and such Holder) to the extent
provided herein. All Holders proposing to distribute their securities through
such underwriting shall enter into an underwriting agreement in customary form
with the underwriter or underwriters selected for such underwriting by a
majority in interest of the Initiating Holders (which underwriter or
underwriters shall be reasonably acceptable to the Company). Notwithstanding any
other provision of this Section 2.2 or Section 2.4, if the underwriter advises
the Company that marketing factors require a limitation of the number of
securities to be underwritten (including Registrable Securities) then the
Company shall so advise all Holders of Registrable Securities which would
otherwise be underwritten pursuant hereto, and the number of shares that may be
included in the underwriting shall be allocated to the Holders of such
Registrable Securities on a pro rata basis based on the number of Registrable
Securities held by all such Holders (including the Initiating Holders). Any
Registrable Securities excluded or withdrawn from such underwriting shall be
withdrawn from the registration.
(C) The Company shall not be required to effect a registration
pursuant to this Section 2.2:
(I) prior to the earlier of (i) one year after the Company's
Initial Offering or (ii) three years after the date of this Agreement; or
(II) after the Company has effected two (2) registrations
pursuant to this Section 2.2, and such registrations have been declared or
ordered effective and the transactions contemplated thereby have been
consummated; or
(III) if within thirty (30) days of receipt of a written
request from Initiating Holders pursuant to Section 2.2(a), the Company gives
notice to the Holders of the
5.
Company's intention to consummate its Initial Offering within ninety (90) days;
provided that the Company shall make reasonable good faith efforts to cause such
registration statement to become effective and provided further that the
foregoing provision shall cease to have force or effect four years after the
date of this Agreement; or
(IV) if the Company shall furnish to Holders requesting a
registration statement pursuant to this Section 2.2, a certificate signed by the
Chairman of the Board stating that in the good faith judgment of the Board of
Directors of the Company, it would be seriously detrimental to the Company and
its shareholders for such registration statement to be effected at such time, in
which event the Company shall have the right to defer such filing for a period
of not more than ninety (90) days after receipt of the request of the Initiating
Holders; provided that such right to delay a request shall be exercised by the
Company not more than once in any twelve (12) month period and provided further,
that during such ninety (90) day period the Company shall not file a
registration statement with respect to the public offering of securities of the
Company.
2.3 PIGGYBACK REGISTRATIONS. The Company shall notify all Holders of
Registrable Securities in writing at least thirty (30) days prior to the filing
of any registration statement under the Securities Act for purposes of a public
offering of securities of the Company (including, but not limited to,
registration statements relating to secondary offerings of securities of the
Company, but excluding registration statements relating to employee benefit
plans or with respect to corporate reorganizations or other transactions under
Rule 145 promulgated under the Securities Act) and will afford each such Holder
an opportunity to include in such registration statement all or part of such
Registrable Securities held by such Holder. Each Holder desiring to include in
any such registration statement all or any part of the Registrable Securities
held by it shall, within fifteen (15) days after the above-described notice from
the Company, so notify the Company in writing. Such notice shall state the
intended method of disposition of the Registrable Securities by such Holder. If
a Holder decides not to include all of its Registrable Securities in any
registration statement thereafter filed by the Company, such Holder shall
nevertheless continue to have the right to include any Registrable Securities in
any subsequent registration statement or registration statements as may be filed
by the Company with respect to offerings of its securities, all upon the terms
and conditions set forth herein.
(A) UNDERWRITING. If the registration statement under which the
Company gives notice pursuant to this Section 2.3 is for an underwritten
offering, the Company shall so advise the Holders of Registrable Securities. In
such event, the right of any such Holder to be included in a registration
pursuant to this Section 2.3 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their Registrable Securities through such
underwriting shall enter into an underwriting agreement in customary form with
the underwriter or underwriters selected for such underwriting by the Company.
Notwithstanding any other provision of the Agreement, if the underwriter
determines in good faith that marketing factors require a limitation of the
number of shares to be underwritten, the number of shares that may be included
in the underwriting shall be allocated, first, to the Company; second, to the
Holders on a pro rata basis based on the total number of Registrable
6.
Securities held by the Holders; and third, to any shareholder of the Company
(other than a Holder) on a pro rata basis. No such reduction shall reduce the
amount of securities of the selling Holders included in the registration below
twenty-five percent (25%) of the total amount of securities included in such
registration, unless such offering is the Initial Offering and such registration
does not include shares of any other selling shareholders, in which event any or
all of the Registrable Securities of the Holders may be excluded in accordance
with the immediately preceding sentence. In no event will shares of any other
selling shareholder be included in such registration which would reduce the
number of shares which may be included by Holders without the written consent of
Holders of not less than sixty-six and two-thirds percent (66 2/3%) of the
Registrable Securities proposed to be sold in the offering.
(B) RIGHT TO TERMINATE REGISTRATION. The Company shall have the
right to terminate or withdraw any registration initiated by it under this
Section 2.3 prior to the effectiveness of such registration whether or not any
Holder has elected to include securities in such registration. The Registration
Expenses of such withdrawn registration shall be borne by the Company in
accordance with Section 2.5 hereof.
(C) For purposes of this Section 2.3 the Holders shall be deemed
to include the Founders and the Registrable Securities shall be deemed to
include Common Stock held by the Founders.
2.4 FORM S-3 REGISTRATION. In case the Company shall receive from any
Holder or Holders of Registrable Securities a written request or requests that
the Company effect a registration on Form S-3 (or any successor to Form S-3) or
any similar short-form registration statement and any related qualification or
compliance with respect to all or a part of the Registrable Securities owned by
such Holder or Holders, the Company will:
(A) promptly give written notice of the proposed registration,
and any related qualification or compliance, to all other Holders of Registrable
Securities; and
(B) as soon as practicable, effect such registration and all such
qualifications and compliances as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such Holder's or
Holders' Registrable Securities as are specified in such request, together with
all or such portion of the Registrable Securities of any other Holder or Holders
joining in such request as are specified in a written request given within
fifteen (15) days after receipt of such written notice from the Company;
provided, however, that the Company shall not be obligated to effect any such
registration, qualification or compliance pursuant to this Section 2.4:
(I) if Form S-3 (or any successor or similar form) is not
available for such offering by the Holders, or
(II) if the Holders, together with the holders of any other
securities of the Company entitled to inclusion in such registration, propose to
sell Registrable Securities and such other securities (if any) at an aggregate
price to the public of less than $500,000, or
7.
(III) if the Company shall furnish to the Holders a
certificate signed by the Chairman of the Board of Directors of the Company
stating that in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company and its shareholders
for such Form S-3 Registration to be effected at such time, in which event the
Company shall have the right to defer the filing of the Form S-3 registration
statement for a period of not more than ninety (90) days after receipt of the
request of the Holder or Holders under this Section 2.4, provided, that such
right to delay a request shall be exercised by the Company not more than once in
any twelve (12) month period and provided further, that during such ninety (90)
day period the Company shall not file a registration statement with respect to
the public offering of securities of the Company, or
(IV) if the Company has already effected six (6) registrations
on Form S-3 for the Holders pursuant to this Section 2.4, or
(V) if the Company has, within the twelve month period
preceding the date of such request, already effected two (2) registrations on
Form S-3 for the Holders pursuant to this Section 2.4, or
(VI) in any particular jurisdiction in which the Company would
be required to qualify to do business or to execute a general consent to service
of process in effecting such registration, qualification or compliance.
(C) Subject to the foregoing, the Company shall file a Form S-3
registration statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request or requests of the Holders. All Registration Expenses incurred in
connection with registrations requested pursuant to this Section 2.4 after the
first six (6) registrations shall be paid by the selling Holders pro rata in
proportion to the number of shares sold by each.
2.5 EXPENSES OF REGISTRATION. Except as specifically provided herein,
all Registration Expenses incurred in connection with any registration,
qualification or compliance pursuant to Section 2.2 or any registration under
Section 2.3 or Section 2.4 herein shall be borne by the Company. All Selling
Expenses incurred in connection with any registrations hereunder shall be borne
by the holders of the securities so registered pro rata on the basis of the
number of shares so registered. The Company shall not, however, be required to
pay for expenses of any registration proceeding begun pursuant to Section 2.2 or
2.4, the request of which has been subsequently withdrawn by the Initiating
Holders unless (a) the withdrawal is based upon material adverse information or
events concerning the Company of which the Initiating Holders were not aware at
the time of such request or (b) the Holders of a majority of Registrable
Securities agree to forfeit their right to one requested registration pursuant
to Section 2.2 or to one registration pursuant to Section 2.4 for which the
Company will be obligated to pay the Registration Expenses, if applicable, in
which event such right shall be forfeited by all Holders. If the Holders are
required to pay the Registration Expenses, such expenses shall be borne by the
holders of securities (including Registrable Securities) requesting such
registration in proportion to the number of shares for which registration was
requested. If the Company is required to pay
8.
the Registration Expenses of a withdrawn offering pursuant to clause (a) above,
then the Holders shall not forfeit their rights to a demand registration
pursuant to Section 2.2 or to require the Company to pay Registration Expenses
in connection with a registration pursuant to Section 2.4.
2.6 OBLIGATIONS OF THE COMPANY. Whenever required to effect the
registration of any Registrable Securities, the Company shall, as expeditiously
as reasonably possible:
(A) Prepare and file with the SEC not later than 60 days
following the request for registration from the Initiating Holders a
registration statement with respect to such Registrable Securities and use all
reasonable efforts to cause such registration statement to become effective,
and, upon the request of the Holders of a majority of the Registrable Securities
registered thereunder, keep such registration statement effective for up to one
hundred twenty (120) days or, if earlier, until the Holder or Holders have
completed the distribution related thereto.
(B) Prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement.
(C) Furnish to the Holders such number of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in order
to facilitate the disposition of Registrable Securities owned by them.
(D) Use all reasonable efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions.
(E) Use reasonable efforts to appoint a qualified independent
underwriter, if necessary in the circumstances.
(F) 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 managing underwriter(s) of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(G) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
9.
(H) Furnish, at the request of a majority of the Holders participating
in the registration, on the date that such Registrable Securities are delivered
to the underwriters for sale, if such securities are being sold through
underwriters, or, if such securities are not being sold through underwriters, on
the date that the registration statement with respect to such securities becomes
effective, (i) an opinion, dated as of 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 and
reasonably satisfactory to a majority in interest of the Holders requesting
registration, addressed to the underwriters, if any, and to the Holders
requesting registration of Registrable Securities and (ii) a letter dated as of
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 and reasonably
satisfactory to a majority in interest of the Holders requesting registration,
addressed to the underwriters, if any, and if permitted by applicable accounting
standards, to the Holders requesting registration of Registrable Securities.
(I) Use reasonable efforts to maintain the listing of the Company's
securities on a nationally recognized securities exchange or market system
selected by the Company.
2.7 TERMINATION OF REGISTRATION RIGHTS. All registration rights granted
under this Section 2 shall terminate and be of no further force and effect seven
(7) years after the date of the Company's Initial Offering. In addition, a
Holder's registration rights shall expire if (i) the Company has completed its
Initial Offering and is subject to the provisions of the Exchange Act, and (ii)
all Registrable Securities held by and issuable to such Holder (and its
affiliates, partners and former partners) may be sold under Rule 144k during any
ninety (90) day period.
2.8 DELAY OF REGISTRATION; FURNISHING INFORMATION.
(A) No Holder shall have any right to obtain or seek an injunction
restraining or otherwise delaying any such registration as the result of any
controversy that might arise with respect to the interpretation or
implementation of this Section 2.
(B) It shall be a condition precedent to the obligations of the
Company to take any action pursuant to Section 2.2, 2.3 or 2.4 that the selling
Holders shall furnish to the Company such information regarding themselves, the
Registrable Securities held by them and the intended method of disposition of
such securities as shall be reasonably required to effect the registration of
their Registrable Securities.
(C) The Company shall have no obligation with respect to any
registration requested pursuant to Section 2.2 or Section 2.4 if, due to the
operation of subsection 2.2(b), the number of shares or the anticipated
aggregate offering price of the Registrable Securities to be included in the
registration does not equal or exceed the number of shares or the anticipated
aggregate offering price required to originally trigger the Company's obligation
to initiate such registration as specified in Section 2.2 or Section 2.4,
whichever is applicable.
10.
2.9 INDEMNIFICATION. In the event any Registrable Securities are included
in a registration statement under Sections 2.2, 2.3 or 2.4:
(A) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, the partners, officers, directors and legal counsel
of each Holder, any underwriter (as defined in the Securities Act) for such
Holder and each person, if any, who controls such Holder or underwriter within
the meaning of the Securities Act or the Exchange Act and any directors or
officers of such control person, against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject under the
Securities Act, the Exchange Act or other federal or state law, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any of the following statements, omissions or violations
(collectively a "Violation") by the Company: (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation promulgated under the Securities Act,
the Exchange Act or any state securities law in connection with the offering
covered by such registration statement; and the Company will reimburse each such
Holder, partner, officer or director, underwriter or controlling person for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred, provided however, that the indemnity agreement
contained in this Section 2.9(a) shall not apply to amounts paid in settlement
of any such loss, claim, damage, liability or action if such settlement is
effected without the consent of the Company, which consent shall not be
unreasonably withheld, nor shall the Company be liable in any such case for any
such loss, claim, damage, liability or action to the extent that it arises out
of or is based upon a Violation which occurs in reliance upon and in conformity
with written information furnished expressly for use in connection with such
registration by such Holder, partner, officer, director, underwriter or
controlling person of such Holder.
(B) To the extent permitted by law, each Holder will, if Registrable
Securities held by such Holder are included in the securities as to which such
registration qualifications or compliance is being effected, indemnify and hold
harmless the Company, each of its directors, its officers, and legal counsel and
each person, if any, who controls the Company within the meaning of the
Securities Act, any underwriter and any other Holder selling securities under
such registration statement or any of such other Holder's partners, directors or
officers or any person who controls such Holder, against any losses, claims,
damages or liabilities (joint or several) to which the Company or any such
director, officer, controlling person, underwriter or other such Holder, or
partner, director, officer or controlling person of such other Holder may become
subject under the Securities Act, the Exchange Act or other federal or state
law, insofar as such losses, claims, damages or liabilities (or actions in
respect thereto) arise out of or are based upon any Violation, in each case to
the extent (and only to the extent) that such Violation occurs in reliance upon
and in conformity with written information furnished by such Holder under an
instrument duly executed by such Holder and stated to be specifically for use in
connection with
11.
such registration; and each such Holder will reimburse any legal or other
expenses reasonably incurred by the Company or any such director, officer,
controlling person, underwriter or other Holder, or partner, officer, director
or controlling person of such other Holder in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred, provided, however, that the indemnity agreement contained in this
Section 2.9(b) shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is effected without the
consent of the Holder, which consent shall not be unreasonably withheld;
provided further, that in no event shall any indemnity under this Section 2.9
exceed the net proceeds from the offering received by such Holder.
(C) Promptly after receipt by an indemnified party under this Section
2.9 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 2.9, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding or if, and for such period,
such Indemnified Party was required to retain counsel prior to the Indemnifying
Party's retention of counsel. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if materially prejudicial to its ability to defend such action, to the
extent materially prejudiced thereby, shall relieve such indemnifying party of
any liability to the indemnified party under this Section 2.9, but the omission
so to deliver written notice to the indemnifying party will not relieve it of
any liability that it may have to any indemnified party otherwise than under
this Section 2.9.
(D) If the indemnification provided for in this Section 2.9 is held by
a court of competent jurisdiction to be unavailable to an indemnified party with
respect to any losses, claims, damages or liabilities referred to herein, the
indemnifying party, in lieu of indemnifying such indemnified party thereunder,
shall to the extent permitted by applicable law contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim, damage or
liability 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 Violation(s) that resulted in such loss, claim, damage or
liability, as well as any other relevant equitable considerations. The relative
fault of the indemnifying party and of the indemnified party shall be determined
by a court of law by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission to state a material
fact relates to information supplied by the indemnifying party or by the
indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission;
provided, that in no event shall any contribution when combined with any
indemnity paid by a Holder hereunder exceed the net proceeds from the offering
received by such Holder
12.
and provided further that contribution shall not be available to any party
determined to have engaged in fraud.
(E) The obligations of the Company and Holders under this Section 2.9
shall survive completion of any offering of Registrable Securities in a
registration statement and the termination of this agreement. No Indemnifying
Party, in the defense of any such claim or litigation, shall, except with the
consent of each Indemnified Party, consent to entry of any judgment or enter
into any settlement which admits fault on behalf of the Indemnified Party or
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 to such claim or litigation.
(F) For purposes of this Section 2.9 the Holders shall be deemed to
include the Founders and the Registrable Securities shall be deemed to include
Common Stock held by the Founders.
2.10 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the Company to
register Registrable Securities pursuant to this Section 2 may be assigned by a
Holder to a transferee or assignee of Registrable Securities which (i) is a
subsidiary, parent, general partner, limited partner or retired partner of a
Holder, (ii) is an entity affiliated by common ownership, (iii) is a Holder's
family member or trust for the benefit of an individual Holder, or (iv) acquires
at least five hundred (500,000) shares of Registrable Securities (as adjusted
for stock splits and combinations); provided, however, (A) the transferor shall,
within ten (10) days after such transfer, furnish to the Company written notice
of the name and address of such transferee or assignee and the securities with
respect to which such registration rights are being assigned and (B) such
transferee shall at the time of transfer agree to be subject to all restrictions
set forth in this Agreement.
2.11 AMENDMENT OF REGISTRATION RIGHTS. Any provision of this Section 2 may
be amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and the Holders of at least fifty percent (50%)
of the Registrable Securities then outstanding. Any amendment which adversely
affects the rights of the Holders of Series C Stock shall be approved by the
holders of fifty percent (50%) of the shares of Series C Stock subject to this
Agreement. Any amendment or waiver effected in accordance with this Section
2.11 shall be binding upon each Holder and the Company. By acceptance of any
benefits under this Article II, Holders of Registrable Securities hereby agree
to be bound by the provisions hereunder.
2.12 LIMITATION ON SUBSEQUENT REGISTRATION RIGHTS. After the date of this
Agreement, the Company shall not, without the prior written consent of the
Holders of a majority of the Registrable Securities then outstanding, enter into
any agreement with any holder or prospective holder of any securities of the
Company that would grant such holder demand registration rights senior to, or in
parity with, those granted to the Holders hereunder.
2.13 "MARKET STAND-OFF" AGREEMENT. Each Holder hereby agrees that such
Holder shall not sell or otherwise transfer or dispose of any Common Stock (or
other securities) of the
13.
Company held by such Holder (other than those included in the registration) for
a period specified by the representative of the underwriters of Common Stock (or
other securities) of the Company not to exceed one hundred eighty (180) days
following the effective date of the Company's initial public offering of
securities pursuant to a registration statement of the Company filed under the
Securities Act, or ninety (90) days following the effective date of any
subsequent registration statement of the Company filed under the Securities Act,
provided that all officers and directors of the Company enter into similar
agreements.
Each Holder agrees to execute and deliver such other agreements as may be
reasonably requested by the Company or the underwriter which are consistent with
the foregoing or which are reasonably necessary to give further effect thereto.
The obligations described in this Section 2.13 shall not apply to a registration
relating solely to employee benefit plans on Form S-1 or Form S-8 or similar
forms that may be promulgated in the future, or a registration relating solely
to a Commission Rule 145 transaction on Form S-4 or similar forms that may be
promulgated in the future. The Company may impose stop-transfer instructions
with respect to the shares of Common Stock (or other securities) subject to the
foregoing restriction until the end of said one hundred eighty (180) day period.
2.14 RULE 144 REPORTING. With a view to making available to the Holders
the benefits of certain rules and regulations of the SEC which may permit the
sale of the Registrable Securities to the public without registration, the
Company agrees to use its best efforts to:
(A) Make and keep public information available, as those terms are
understood and defined in SEC Rule 144 or any similar or analogous rule
promulgated under the Securities Act, at all times after the effective date of
the first registration filed by the Company for an offering of its securities to
the general public;
(B) File with the SEC, in a timely manner, all reports and other
documents required of the Company under the Exchange Act;
(C) So long as a Holder owns any Registrable Securities, furnish to
such Holder forthwith upon request: a written statement by the Company as to
its compliance with the reporting requirements of said Rule 144 of the
Securities Act, and of the Exchange Act (at any time after it has become subject
to such reporting requirements); a copy of the most recent annual or quarterly
report of the Company; and such other reports and documents as a Holder may
reasonably request in availing itself of any rule or regulation of the SEC
allowing it to sell any such securities without registration.
SECTION 3. COVENANTS
3.1 BASIC FINANCIAL INFORMATION AND REPORTING.
(A) The Company will maintain true books and records of account in
which full and correct entries will be made of all its business transactions
pursuant to a system of accounting established and administered in accordance
with generally accepted accounting
14.
principles consistently applied, and will set aside on its books all such proper
accruals and reserves as shall be required under generally accepted accounting
principles consistently applied.
(B) As soon as practicable after the end of each fiscal year of the
Company, and in any event within one hundred twenty (120) days thereafter, the
Company will furnish each Investor an audited consolidated balance sheet of the
Company, as at the end of such fiscal year, and an audited consolidated
statement of income and an audited consolidated statement of cash flows of the
Company, for such year, all prepared in accordance with generally accepted
accounting principles consistently applied and setting forth in each case in
comparative form the figures for the previous fiscal year, all in reasonable
detail. Such financial statements shall be accompanied by a report and opinion
thereon by independent public accountants of national standing selected by the
Company's Board of Directors.
(C) So long as an Investor (with its affiliates) shall own not less
than five hundred thousand (500,000) shares of Registrable Securities (or Shares
convertible into 500,000 shares of Registrable Securities) (as adjusted for
stock splits and combinations) (a "Major Investor"), the Company will furnish
each such Major Investor (i) at least thirty (30) days prior to the beginning of
each fiscal year an annual budget and operation plans for such fiscal year (and
as soon as available, any subsequent revisions thereto); and (ii) as soon as
practicable after the end of each fiscal quarter or, as to the unaudited
consolidated statement of income only, each month, and in any event within
twenty (20) days thereafter, an unaudited consolidated balance sheet of the
Company as of the end of each such fiscal quarter, and an unaudited consolidated
statement of income for such fiscal quarter and month, and an unaudited
consolidated statement of cash flows of the Company for such fiscal quarter and
for the current fiscal year to date, including a comparison to plan figures for
such period, prepared in accordance with generally accepted accounting
principles consistently applied, with the exception that no notes need be
attached to such statements and year-end audit adjustments may not have been
made.
3.2 INSPECTION RIGHTS. Each Major Investor shall have the right to visit
and inspect any of the properties of the Company or any of its subsidiaries, and
to discuss the affairs, finances and accounts of the Company or any of its
subsidiaries with its officers, and to review such information as is reasonably
requested all at such reasonable times and as often as may be reasonably
requested; provided, however, that the Company shall not be obligated under this
Section 3.2 with respect to a competitor of the Company or with respect to
information which the Board of Directors determines in good faith is highly
confidential for competitive reasons or potentially trade secrets and should
not, therefore, be disclosed.
3.3 CONFIDENTIALITY OF RECORDS.
(A) Each Investor agrees not to use Confidential Information (as
hereinafter defined) of the Company for its own use or for any purpose except
(i) to evaluate, monitor and enforce its equity investment in the Company or
(ii) to use internally (without disclosure except to employees or consultants on
a need to know basis who are bound by a disclosure agreement with Holder to keep
such information confidential) in evaluating such Investor's other equity
investments or business transactions. Each Investor shall undertake to treat
such Confidential
15.
Information in a manner consistent with the treatment of its own information of
such proprietary nature. Each transferee of any Investor who receives
Confidential Information shall agree to be bound by such provisions. For
purposes of this Section, "Confidential Information" means any information,
technical data, or know-how, including, but not limited to, the Company's
research, products, software, services, development, inventions, processes,
designs, drawings, engineering, marketing, or finances, disclosed by the Company
either directly or indirectly in writing, orally or by drawings or inspection of
parts or equipment which written material is stamped "Confidential" or
"Proprietary" or if disclosed orally, is promptly confirmed in writing to be
Confidential Information.
(B) Confidential Information does not include information, technical
data or know-how which (i) is in the Investor's possession at the time of
disclosure as shown by Investor's files and records immediately prior to the
time of disclosure; (ii) before or after it has been disclosed to the Investor,
it is part of the public knowledge or literature, not as a result of any action
or inaction of the Investor; or (iii) is disclosed to an Investor on a non-
confidential basis by a third party having a legal right to such information,
(iv) is independently developed by Investor, as properly documented by the
Investor, or (v) is approved for release by written authorization of Company.
The provisions of this Section shall not apply (i) to the extent that an
Investor is required to disclose Confidential Information pursuant to any law,
statute, rule or regulation or any order of any court or jurisdiction process or
pursuant to any direction, request or requirement (whether or not having the
force of law but if not having the force of law being of a type with which
institutional investors in the relevant jurisdiction are accustomed to comply)
of any self-regulating organization or any governmental, fiscal, monetary or
other authority; (ii) to the disclosure of Confidential Information to an
Investor's partners, employees, counsel, accountants or other professional
advisors; (iii) to the extent that an Investor needs to disclose Confidential
Information for the protection of any of such Investor's rights or interest
against the Company, whether under this Agreement or otherwise; or (iv) to the
disclosure of Confidential Information to a prospective transferee of securities
that agrees to be bound by the provisions of this Section in connection with the
receipt of such Confidential Information.
3.4 RESERVATION OF COMMON STOCK. The Company will at all times reserve
and keep available, solely for issuance and delivery upon the conversion of the
Preferred Stock, all Common Stock issuable from time to time upon such
conversion.
3.5 TERMINATION OF COVENANTS. All covenants of the Company contained in
Section 3 of this Agreement shall expire and terminate as to each Investor on
the closing of the Initial Offering.
16.
SECTION 4. RIGHTS OF FIRST REFUSAL.
4.1 SUBSEQUENT OFFERINGS. Each Investor that holds at least 100,000
shares of Registrable Securities as adjusted for stock splits and combinations
(a "First Refusal Investor") shall have a right of first refusal to purchase its
pro rata share of all Equity Securities, as defined below, that the Company may,
from time to time, propose to sell and issue after the date of this Agreement,
other than the Equity Securities excluded by Section 4.6 hereof. Each
Investor's pro rata share is equal to the ratio of (A) the number of shares of
the Company's Common Stock (including all shares of Common Stock issued or
issuable upon conversion of the Shares) which such Investor is deemed to be a
holder immediately prior to the issuance of such Equity Securities to (B) the
total number of shares of the Company's outstanding Common Stock (including all
shares of Common Stock issued or issuable upon conversion of any convertible
stock of the Company or upon the exercise or exercise and conversion of any
outstanding warrants or options with an exercise price no greater than the price
of the Equity Securities) immediately prior to the issuance of the Equity
Securities. The term "Equity Securities" shall mean (i) any Common Stock,
Preferred Stock or other security of the Company, (ii) any security convertible,
with or without consideration, into any Common Stock, Preferred Stock or other
security (including any option to purchase such a convertible security), (iii)
any security carrying any warrant or right to subscribe to or purchase any
Common Stock, Preferred Stock or other security or (iv) any such warrant or
right.
4.2 EXERCISE OF RIGHTS. If the Company proposes to issue any Equity
Securities, it shall give each First Refusal Investor written notice of its
intention, describing the Equity Securities, the price and the terms and
conditions upon which the Company proposes to issue the same. Each First
Refusal Investor shall have ten (10) days from the giving of such notice to
agree to purchase its pro rata share of the Equity Securities for the price and
upon the terms and conditions specified in the notice by giving written notice
to the Company and stating therein the quantity of Equity Securities to be
purchased. The Company shall promptly notify each First Refusal Investor who
elects to participate in purchasing its pro rata share of the Equity Securities
of the amount of Equity Securities that any other First Refusal Investor
declines to purchase. Each such participating investor shall have five (5) days
from the giving of such Second Notice to agree to purchase its pro rata share
(based upon the ratio of all Common Stock held by such participating inventor
divided by all Common Stock held by all participating investors) of the
nonparticipating First Refusal Investors' portion, upon the same terms and
conditions as stated above. Notwithstanding the foregoing, the Company shall
not be required to offer or sell such Equity Securities to any Investor who
would cause the Company to be in violation of applicable federal or state
securities laws by virtue of such offer or sale.
4.3 ISSUANCE OF EQUITY SECURITIES TO OTHER PERSONS. If the First Refusal
Investors fail to exercise in full the rights of first refusal, the Company
shall have ninety (90) days thereafter to sell the Equity Securities in respect
of which the First Refusal Investor's rights were not exercised, at a price and
upon general terms and conditions no more favorable to the purchasers thereof
than specified in the Company's notice to the First Refusal Investors pursuant
to Section 4.2 hereof. If the Company has not sold such Equity Securities
within ninety (90) days of the notice provided pursuant to Section 4.2, the
Company shall not thereafter issue or sell
17.
any Equity Securities, without first offering such securities to the First
Refusal Investors in the manner provided above.
4.4 TERMINATION OF RIGHTS OF FIRST REFUSAL. The rights of first refusal
established by this Section 4 shall not apply to securities registered pursuant
to the registration statement pertaining to the Company's Initial Offering, and
shall terminate upon the closing of the Initial Offering.
4.5 TRANSFER OF RIGHTS OF FIRST REFUSAL. The rights of first refusal of
each First Refusal Investor under this Section 4 may be transferred to the same
parties, subject to the same restrictions as any transfer of registration rights
pursuant to Section 2.10.
4.6 EXCLUDED SECURITIES. The rights of first refusal established by this
Section 4 shall have no application to any of the following Equity Securities:
(A) shares of capital stock (and/or options, warrants or other capital
stock purchase rights issued pursuant to such options, warrants or other rights)
issued or to be issued to employees, officers or directors of, or consultants or
advisors to the Company or any subsidiary, pursuant to stock purchase or stock
option plans or other arrangements that are approved by the Board of Directors;
(B) capital stock issued pursuant to any rights or agreements
outstanding as of the date of this Agreement, options and warrants outstanding
as of the date of this Agreement; and stock issued pursuant to any such rights
or agreements granted after the date of this Agreement, provided that the rights
of first refusal established by this Section 4 applied (or were inapplicable
pursuant to this Section 4.6) with respect to the initial sale or grant by the
Company of such rights or agreements;
(C) any Equity Securities issued for consideration other than cash
pursuant to a merger, consolidation, acquisition or similar business
combination;
(D) shares of Common Stock issued in connection with any stock split,
stock dividend or recapitalization by the Company;
(E) shares of Common Stock issued upon conversion of the Shares;
(F) any Equity Securities issued pursuant to any equipment leasing
arrangement, or debt financing from a bank or similar financial institution
provided that such transactions are for primarily nonequity financing purposes;
(G) any Equity Securities that are issued by the Company pursuant to a
registration statement filed under the Securities Act; and
(H) shares of the Company's Common Stock or Preferred Stock issued in
connection with strategic transactions involving the Company and other entities,
including (A) joint ventures, manufacturing, marketing or distribution
arrangements or (B) technology transfer
18.
or development arrangements; provided that such strategic transactions and the
issuance of shares therein, has been approved by the Company's Board of
Directors and provided that such transactions are for primarily nonequity
financing purposes.
SECTION 5. MISCELLANEOUS.
5.1 GOVERNING LAW. This Agreement 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.
5.2 SURVIVAL. The representations, warranties, covenants, and agreements
made herein shall survive any investigation made by any Holder and the closing
of the transactions contemplated hereby. All statements as to factual matters
contained in any certificate or other instrument delivered by or on behalf of
the Company pursuant hereto in connection with the transactions contemplated
hereby shall be deemed to be representations and warranties by the Company
hereunder solely as of the date of such certificate or instrument.
5.3 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors, and administrators of the
parties hereto and shall inure to the benefit of and be enforceable by each
person who shall be a holder of Registrable Securities from time to time;
provided, however, that prior to the receipt by the Company of adequate written
notice of the transfer of any Registrable Securities specifying the full name
and address of the transferee, the Company may deem and treat the person listed
as the holder of such shares in its records as the absolute owner and holder of
such shares for all purposes, including the payment of dividends or any
redemption price.
5.4 ENTIRE AGREEMENT. This Agreement, the Exhibits and Schedules hereto,
the Purchase Agreement and the other documents delivered pursuant thereto
constitute the full and entire understanding and agreement between the parties
with regard to the subjects hereof and no party shall be liable or bound to any
other in any manner by any representations, warranties, covenants and agreements
except as specifically set forth herein and therein.
5.5 SEVERABILITY. In case any provision of the Agreement shall be
invalid, illegal, or unenforceable, the validity, legality, and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
5.6 AMENDMENT AND WAIVER.
(A) Except as otherwise expressly provided, this Agreement may be
amended or modified only upon the written consent of the Company and the holders
of a majority of the Registrable Securities. In the event that such amendment
adversely affects the rights of the Holders of Series C Stock, such amendment
shall be approved by the Holders of fifty percent (50%) of the Series C Stock
subject to this Agreement.
19.
(B) Except as otherwise expressly provided, the obligations of the
Company and the rights of the Holders under this Agreement may be waived only
with the written consent of the holders of a majority of the Registrable
Securities.
(C) Notwithstanding the foregoing, this Agreement may be amended with
only the written consent of the Company to include additional purchasers of
Shares as "Investors," "Holders" and parties hereto.
5.7 DELAYS OR OMISSIONS. It is agreed that no delay or omission to
exercise any right, power, or remedy accruing to any Holder, upon any breach,
default or noncompliance of the Company under this Agreement shall impair any
such right, power, or remedy, nor shall it be construed to be a waiver of any
such breach, default or noncompliance, or any acquiescence therein, or of any
similar breach, default or noncompliance thereafter occurring. It is further
agreed that any waiver, permit, consent, or approval of any kind or character on
any Holder's part of any breach, default or noncompliance under the Agreement or
any waiver on such Holder's part of any provisions or conditions of this
Agreement must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement, by law, or otherwise afforded to Holders, shall be cumulative and not
alternative.
5.8 NOTICES. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (i) upon personal delivery to the
party to be notified, (ii) when sent by confirmed telex or facsimile if sent
during normal business hours of the recipient; if not, then on the next business
day, (iii) five (5) days after having been sent by registered or certified mail,
return receipt requested, postage prepaid, or (iv) one (1) day after deposit
with a nationally or internationally recognized overnight courier, as
applicable, specifying next day delivery, with written verification of receipt.
All communications shall be sent to the party to be notified at the address as
set forth on the signature pages hereof or Exhibit A hereto or at such other
address as such party may designate by ten (10) days advance written notice to
the other parties hereto.
5.9 ATTORNEYS' FEES. In the event that any dispute among the parties to
this Agreement should result in litigation, the prevailing party in such dispute
shall be entitled to recover from the losing party all fees, costs and expenses
of enforcing any right of such prevailing party under or with respect to this
Agreement, including without limitation, such reasonable fees and expenses of
attorneys and accountants, which shall include, without limitation, all fees,
costs and expenses of appeals.
5.10 TITLES AND SUBTITLES. The titles of the sections and subsections of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
5.11 AGGREGATION. 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.
5.12 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
20.
IN WITNESS WHEREOF, the parties hereto have executed this AMENDED AND
RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in the first
paragraph hereof.
CLARENT CORPORATION INVESTORS:
/s/ Xxxxx Xxxxx
By:________________________________ ____________________________________
Xxxxx Xxxxx, President Investor Name
Address: 0000 Xxxxxxxx, Xxxxx 000
Xxxxxxx Xxxx, XX 00000
____________________________________
Facsimile: (000) 000-0000 Signature
FOUNDERS: ____________________________________
Name of Signatory
/s/ Xxxxx Xxxxx
____________________________________ ____________________________________
Xxxxx Xxxxx Title
/s/ Xxxxxxx Xxxxx Address:____________________________
____________________________________
Xxxxxxx Xxxxx ____________________________
____________________________
Facsimile:__________________________
THE XXXXXXX XXXXX GROUP, L.P.
By: The Xxxxxxx Sachs Corporation,
its general partner
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President
Address: Xxxxxxx, Xxxxx & Company
47/F, 0 Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
(000) 000-0000
STONE XXXXXX XXXX 0000, X.X.
By: Stone Street Advantage Corp.
General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President
Address: Xxxxxxx, Xxxxx & Company
47/F, 0 Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
(000) 000-0000
XXXXXX XXXXXX XXXX 0000, X.X.
By: Stone Street Advantage Corp.
Managing General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President
Address: Xxxxxxx, Xxxxx & Company
47/F, 0 Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
(000) 000-0000
In WITNESS WHEREOF, the parties hereto have executed this AMENDED AND
RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in the first
paragraph hereof.
CLARENT CORPORATION INVESTORS:
By: Precision Capital Investment Inc.
-------------------------------- ---------------------------------
Xxxxx Xxxxx, President Investor Name
Address: 0000 Xxxxxxxx, Xxxxx 000
Xxxxxxx Xxxx, XX 00000 /s/ B&H- Xxxx Xxxxx
---------------------------------
Signature
Facsimile: (000) 000-0000
---------------------------------
Name of Signatory
FOUNDERS:
------------------------------------ ---------------------------------
Xxxxx Xxxxx Title
Address:
-------------------------
------------------------------------ -------------------------
Xxxxxxx Xxxxx
-------------------------
Facsimile:
-----------------------
In WITNESS WHEREOF, the parties hereto have executed this AMENDED AND
RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in the first
paragraph hereof.
CLARENT CORPORATION INVESTORS:
By: Xxxx-Xx Su
-------------------------------- ---------------------------------
Xxxxx Xxxxx, President Investor Name
Address: 0000 Xxxxxxxx, Xxxxx 000
Xxxxxxx Xxxx, XX 00000 /s/ Su, Xxxx Xx
---------------------------------
Signature
Facsimile: (000) 000-0000
---------------------------------
Name of Signatory
FOUNDERS:
------------------------------------ ---------------------------------
Xxxxx Xxxxx Title
Address:
-------------------------
------------------------------------ -------------------------
Xxxxxxx Xxxxx
-------------------------
Facsimile:
-----------------------
In WITNESS WHEREOF, the parties hereto have executed this AMENDED AND
RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in the first
paragraph hereof.
CLARENT CORPORATION INVESTORS:
By: Ren-Xxxx Xxxx
-------------------------------- ---------------------------------
Xxxxx Xxxxx, President Investor Name
Address: 0000 Xxxxxxxx, Xxxxx 000
Xxxxxxx Xxxx, XX 00000 /s/ Ren-Xxxx Xxxx
---------------------------------
Signature
Facsimile: (000) 000-0000
---------------------------------
Name of Signatory
FOUNDERS:
------------------------------------ ---------------------------------
Xxxxx Xxxxx Title
Address:
-------------------------
------------------------------------ -------------------------
Xxxxxxx Xxxxx
-------------------------
Facsimile:
-----------------------
In WITNESS WHEREOF, the parties hereto have executed this AMENDED AND
RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in the first
paragraph hereof.
CLARENT CORPORATION INVESTORS:
By: Xxxxxx X. Xxxxxxxxxxx
-------------------------------- ---------------------------------
Xxxxx Xxxxx, President Investor Name
Address: 0000 Xxxxxxxx, Xxxxx 000
Xxxxxxx Xxxx, XX 00000 /s/ Xxxxxx X. Xxxxxxxxxxx
---------------------------------
Signature
Facsimile: (000) 000-0000
---------------------------------
Name of Signatory
FOUNDERS:
------------------------------------ ---------------------------------
Xxxxx Xxxxx Title
Address:
-------------------------
------------------------------------ -------------------------
Xxxxxxx Xxxxx
-------------------------
Facsimile:
-----------------------
In WITNESS WHEREOF, the parties hereto have executed this AMENDED AND
RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in the first
paragraph hereof.
CLARENT CORPORATION INVESTORS:
By: Min Ho Shuen Investment Inc.
-------------------------------- ---------------------------------
Xxxxx Xxxxx, President Investor Name
Address: 0000 Xxxxxxxx, Xxxxx 000
Xxxxxxx Xxxx, XX 00000 /s/ Yaw-Min Chiang
---------------------------------
Signature
Facsimile: (000) 000-0000
---------------------------------
Name of Signatory
FOUNDERS:
President
------------------------------------ ---------------------------------
Xxxxx Xxxxx Title
Address:
-------------------------
------------------------------------ -------------------------
Xxxxxxx Xxxxx
-------------------------
Facsimile:
-----------------------
In WITNESS WHEREOF, the parties hereto have executed this AMENDED AND
RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in the first
paragraph hereof.
CLARENT CORPORATION INVESTORS:
By: Chin Ho Wu
-------------------------------- ---------------------------------
Xxxxx Xxxxx, President Investor Name
Address: 0000 Xxxxxxxx, Xxxxx 000
Xxxxxxx Xxxx, XX 00000 /s/ Chin Ho Wu
---------------------------------
Signature
Facsimile: (000) 000-0000
---------------------------------
Name of Signatory
FOUNDERS:
------------------------------------ ---------------------------------
Xxxxx Xxxxx Title
Address:
-------------------------
------------------------------------ -------------------------
Xxxxxxx Xxxxx
-------------------------
Facsimile:
-----------------------
In WITNESS WHEREOF, the parties hereto have executed this AMENDED AND
RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in the first
paragraph hereof.
CLARENT CORPORATION INVESTORS:
By: Capital Plus Investment Inc.
-------------------------------- ---------------------------------
Xxxxx Xxxxx, President Investor Name
Address: 0000 Xxxxxxxx, Xxxxx 000
Xxxxxxx Xxxx, XX 00000 /s/ Chin Ho Wu
---------------------------------
Signature
Facsimile: (000) 000-0000
---------------------------------
Name of Signatory
FOUNDERS:
President
------------------------------------ ---------------------------------
Xxxxx Xxxxx Title
Address:
-------------------------
------------------------------------ -------------------------
Xxxxxxx Xxxxx
-------------------------
Facsimile:
-----------------------
In WITNESS WHEREOF, the parties hereto have executed this AMENDED AND
RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in the first
paragraph hereof.
CLARENT CORPORATION INVESTORS:
By: Honesty Capital Investment Inc.
-------------------------------- -----------------------------------
Xxxxx Xxxxx, President Investor Name
Address: 0000 Xxxxxxxx, Xxxxx 000
Xxxxxxx Xxxx, XX 00000 /s/ Chu Xxx Xxxx
-----------------------------------
Signature
Facsimile: (000) 000-0000
-----------------------------------
Name of Signatory
FOUNDERS:
------------------------------------ -----------------------------------
Xxxxx Xxxxx Title
Address:
---------------------------
------------------------------------ ---------------------------
Xxxxxxx Xxxxx
---------------------------
Facsimile:
-------------------------
In WITNESS WHEREOF, the parties hereto have executed this AMENDED AND
RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in the first
paragraph hereof.
CLARENT CORPORATION INVESTORS:
By: Brilliant Sun Limited
-------------------------------- ---------------------------------
Xxxxx Xxxxx, President Investor Name
Address: 0000 Xxxxxxxx, Xxxxx 000
Xxxxxxx Xxxx, XX 00000 /s/ Brilliant Sun Limited
---------------------------------
Signature
Facsimile: (000) 000-0000
---------------------------------
Name of Signatory
FOUNDERS:
------------------------------------ ---------------------------------
Xxxxx Xxxxx Title
Address:
-------------------------
------------------------------------ -------------------------
Xxxxxxx Xxxxx
-------------------------
Facsimile:
-----------------------
In WITNESS WHEREOF, the parties hereto have executed this AMENDED AND
RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in the first
paragraph hereof.
CLARENT CORPORATION INVESTORS:
By: Xxx-Xxxxx Ko
-------------------------------- ---------------------------------
Xxxxx Xxxxx, President Investor Name
Address: 0000 Xxxxxxxx, Xxxxx 000
Xxxxxxx Xxxx, XX 00000 /s/ Xxx-Xxxxx Ko
---------------------------------
Signature
Facsimile: (000) 000-0000
---------------------------------
Name of Signatory
FOUNDERS:
------------------------------------ ---------------------------------
Xxxxx Xxxxx Title
Address:
-------------------------
------------------------------------ -------------------------
Xxxxxxx Xxxxx
-------------------------
Facsimile:
-----------------------
In WITNESS WHEREOF, the parties hereto have executed this AMENDED AND
RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in the first
paragraph hereof.
CLARENT CORPORATION INVESTORS:
By: WK Technology Fund
-------------------------------- ---------------------------------
Xxxxx Xxxxx, President Investor Name
Address: 0000 Xxxxxxxx, Xxxxx 000
Xxxxxxx Xxxx, XX 00000 /s/ Xxx-Xxxxx Ko
---------------------------------
Signature
Facsimile: (000) 000-0000
---------------------------------
Name of Signatory
FOUNDERS:
------------------------------------ ---------------------------------
Xxxxx Xxxxx Title
Address:
-------------------------
------------------------------------ -------------------------
Xxxxxxx Xxxxx
-------------------------
Facsimile:
-----------------------
In WITNESS WHEREOF, the parties hereto have executed this AMENDED AND
RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in the first
paragraph hereof.
CLARENT CORPORATION INVESTORS:
By: WK Technology Fund II
-------------------------------- ---------------------------------
Xxxxx Xxxxx, President Investor Name
Address: 0000 Xxxxxxxx, Xxxxx 000
Xxxxxxx Xxxx, XX 00000 /s/ Xxx-Xxxxx Ko
---------------------------------
Signature
Facsimile: (000) 000-0000
---------------------------------
Name of Signatory
FOUNDERS:
------------------------------------ ---------------------------------
Xxxxx Xxxxx Title
Address:
-------------------------
------------------------------------ -------------------------
Xxxxxxx Xxxxx
-------------------------
Facsimile:
-----------------------
In WITNESS WHEREOF, the parties hereto have executed this AMENDED AND
RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in the first
paragraph hereof.
CLARENT CORPORATION INVESTORS:
By: WK Technology Fund III
-------------------------------- ---------------------------------
Xxxxx Xxxxx, President Investor Name
Address: 0000 Xxxxxxxx, Xxxxx 000
Xxxxxxx Xxxx, XX 00000 /s/ Xxx-Xxxxx Ko
---------------------------------
Signature
Facsimile: (000) 000-0000
---------------------------------
Name of Signatory
FOUNDERS:
------------------------------------ ---------------------------------
Xxxxx Xxxxx Title
Address:
-------------------------
------------------------------------ -------------------------
Xxxxxxx Xxxxx
-------------------------
Facsimile:
-----------------------
In WITNESS WHEREOF, the parties hereto have executed this AMENDED AND
RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in the first
paragraph hereof.
CLARENT CORPORATION INVESTORS:
By: WK Technology Fund IV
-------------------------------- ---------------------------------
Xxxxx Xxxxx, President Investor Name
Address: 0000 Xxxxxxxx, Xxxxx 000
Xxxxxxx Xxxx, XX 00000 /s/ Xxx-Xxxxx Ko
---------------------------------
Signature
Facsimile: (000) 000-0000
---------------------------------
Name of Signatory
FOUNDERS:
------------------------------------ ---------------------------------
Xxxxx Xxxxx Title
Address:
-------------------------
------------------------------------ -------------------------
Xxxxxxx Xxxxx
-------------------------
Facsimile:
-----------------------
In WITNESS WHEREOF, the parties hereto have executed this AMENDED AND
RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in the first
paragraph hereof.
CLARENT CORPORATION INVESTORS:
By: WK Global Fund Ltd.
-------------------------------- ---------------------------------
Xxxxx Xxxxx, President Investor Name
Address: 0000 Xxxxxxxx, Xxxxx 000
Xxxxxxx Xxxx, XX 00000 /s/ Xxx-Xxxxx Ko
---------------------------------
Signature
Facsimile: (000) 000-0000
---------------------------------
Name of Signatory
FOUNDERS:
------------------------------------ ---------------------------------
Xxxxx Xxxxx Title
Address:
-------------------------
------------------------------------ -------------------------
Xxxxxxx Xxxxx
-------------------------
Facsimile:
-----------------------
EXHIBIT A
SERIES A PREFERRED SHAREHOLDERS
NUMBER OF SHARES OF
NAME SERIES A STOCK ADDRESS
------------------------------- ---------------------- ---------------------
Min Ho Shuen Investment Inc. 200,000 c/o Jaw-Min Xxxxx, President
Xx. 0 Xxxx 000
Xxxx-Xxxxxx Xxxx
Xxxxxx
Xxxxxx
Capital Plus Investment Inc. 200,000 c/o Chin-Ho Wu, President
Xx. 00 Xxxxx 0 Xxxx 00
Xxxxxxxxxx Xxxx
Xxxxx-Xxx 886-3-577-7137 R.O.C.
Taiwan
Precision Capital Investment Inc. 200,000 c/o Zyh-Xxxx Xxxxx, President
Xx. 00 Xxxxx 0 Xxxx 00
Xxxxxxxxxx Xxxx
Xxxxx-Xxx 886-3-572-7127 R.O.C.
Taiwan
Chin-Ho Wu 200,000 Xx. 00 Xxxx 000
Xxxxxxx Xxxx Xxxx
Xxxxx-Xxx 886-3-577-7137 R.O.C.
Taiwan
Honesty Capital Investment Inc. 200,000 c/o Xxx Xxx-Xxxx, President
No. 000 Xxx-Xxxxx Xxxx
Xxxxxxx 886-4-75-1275 R.O.C.
Taiwan
EXHIBIT B
SERIES B PREFERRED SHAREHOLDERS
NUMBER OF SHARES OF
NAME SERIES B STOCK ADDRESS
------------------------------- ----------------------------- --------------------------
WK Technology Fund 216,000 Xx. Xxxxxx Xxx
WK Technology Fund
10th Floor, Xx. 000, Xxx. 0
Xxxx Xxxxx Xxxx Xx.
Xxxxxx, Xxxxxx
Xxxxxxxx of China
WK Technology Fund II 207,000 Xx. Xxxxxx Xxx
WK Technology Fund
10th Floor, Xx. 000, Xxx. 0
Xxxx Xxxxx Xxxx Xx.
Xxxxxx, Xxxxxx
Xxxxxxxx of China
WK Technology Fund III 234,000 Xx. Xxxxxx Xxx
WK Technology Fund
10th Floor, Xx. 000, Xxx. 0
Xxxx Xxxxx Xxxx Xx.
Xxxxxx, Xxxxxx
Xxxxxxxx of China
WK Technology Fund IV 171,000 Xx. Xxxxxx Xxx
WK Technology Fund
10th Floor, Xx. 000, Xxx. 0
Xxxx Xxxxx Xxxx Xx.
Xxxxxx, Xxxxxx
Xxxxxxxx of China
WK Global Fund LTD 72,000 Xx. Xxxxxx Xxx
WK Technology Fund
10th Floor, Xx. 000, Xxx. 0
Xxxx Xxxxx Xxxx Xx.
Xxxxxx, Xxxxxx
Xxxxxxxx of China
NUMBER OF SHARES OF
NAME SERIES B STOCK ADDRESS
------------------------------- ----------------------------- -------------------------
Xxx-Xxxxx Ko 900,000 Xx. Xxxxxx Xxx
WK Technology Fund
10th Floor, Xx. 000, Xxx.
Xxxx Xxxxx Xxxx Xx. 0
Xxxxxx, Xxxxxx
Republic of China
Ren-Xxxx Xxxx 50,000 00 Xx Xxxxx Xxxx Xxxx
Xxxx-Xxx Xxxxxxxx
Xxxxxx, Xxxxxx
San-Xxxx Xxx 25,000 0X, Xx 0, Xxxxx 00, Xxxx 86,
Sec. 0
Xxx Xxxx Xxxx Xxxx
Xxx-Xxxx Xxxxxxxx
Xxxxxx, Xxxxxx
Pei-Xxxx Xxxx 25,000 0X, 00-0, Xxxx 000, Xxx. 0
Xxx-Xx Xxxx
Xxx-Xx Xxxxxxxx
Xxxxxx, Xxxxxx
Xxxxx-Xxxx Xxxx 100,000 106 Xxxxx Xxxx Xxxxxx
Xxxx-Xxxx Xxxxxxxx
Xxxxxx, Xxxxxx
Hui-Xxxx Xxxxx 80,000 0X, Xx 0-0, XX-0 Xxxx
Xxxxxxx, Xxxxxx
Shu-Xxxxx Xxxxxx Xxxxx 50,000 258, Sec. 0, Xxxx-Xx Xxxxx Xxxx
Xxxxxx, Xxxxxx
Hua-Xxxxx Xxxx 50,000 0X, Xx 00, Xxx. 0
Xxxx Xxxxx Xxxx Xxxx
Xxxxxx, Xxxxxx
Xxxx Xxx Xxxxx 150,000 13F-3, Xx 00, Xxxxx 00, Xxxx 00
Xxxx-Xxx Xxxx Xxxx
Xxxxxx, Xxxxxx
Jui-Xxxxxx Xxx Lu 50,000 Xx 00, Xxxx 000, Xxx. 0
Xxx-Xxxx Xxxx
Xxxxx-Xx Xxxx
Xxxxxx, Xxxxxx
NUMBER OF SHARES OF
NAME SERIES B STOCK ADDRESS
------------------------------- ----------------------------- ------------------------------
Feng-Man Chiang Xxx 30,000 Xx 00, Xxxx 000, Xxx. 0
Xxx-Xxxx Xxxx
Xxxxx-Xx Xxxx
Xxxxxx, Xxxxxx
Xxxxx Wu 100,000 0X, Xx 00, Xxxx 000, Xxxxx-Xx
Xxxx
Xxxxx-Xx Xxxx
Xxxxxx, Xxxxxx
Xxxx Xxxx Choo 50,000 000 Xxxxx XXX, Xxxxxx X
Xxxxxxx 00000
Xxxxxxx, Xxxxxxxx
Xxx-Xxx Xxxxx Xxxxx 10,000 00 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxx Xxxx 50,000 000 Xxxxx Xxxx
Xxxxxxx, XX 00000
Brilliant Sun Limited 200,000 c/o Xx. Xxxxxx Xxx
WK Technology
Xxxxx Xxxxx, Xx. 000, Xxx. 0
Xxxx Xxxxx Xxxx Xxxx
Xxxxxx XXX
Xxxxxx
Ting-Fang Chi 100,000 7F-2, Xx. 00
Xxxx Xxxx Xxxxxx
Xxx-Xxx Xxxx
Xxxxxx XXX
Xxxxxx
Xxxxx X. Xxxxxxxxx 50,000 0000 Xxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000-0000
Xxxx-Xx Su 50,000 00X-00, Xxxx 000, Xxxxxxx 0
Xxxxx-Xxx Xxxx
Xxxxx-Xx XXX
Xxxxxx
EXHIBIT C
SERIES C PREFERRED SHAREHOLDERS
NUMBER OF SHARES OF
NAME SERIES C STOCK ADDRESS
------------------------------ ------------------------------ ---------------------------------
The Xxxxxxx Xxxxx Group, L.P. 759,878 Xxxxxxx, Sachs & Company
47/F, 0 Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Stone Street Fund 1998, L.P. 233,486 Xxxxxxx, Xxxxx & Company
47/F, 0 Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxx Xxxx 0000, X.X. 70,465 Xxxxxxx, Sachs & Company
47/F, 0 Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
WK Technology Fund 65,544 Xx. Xxxxxx Xxx
WK Technology Fund
00/xx/ Xxxxx, Xx. 000, Xxx. 0
Xxxx Xxxxx Xxxx Xxxx
Xxxxxx, Xxxxxx ROC
WK Technology Fund II 46,817 Xx. Xxxxxx Xxx
WK Technology Fund
00/xx/ Xxxxx, Xx. 000, Xxx. 0
Xxxx Xxxxx Xxxx Xxxx
Xxxxxx, Xxxxxx ROC
WK Technology Fund III 74,908 Xx. Xxxxxx Xxx
WK Technology Fund
00/xx/ Xxxxx, Xx. 000, Xxx. 0
Xxxx Xxxxx Xxxx Xxxx
Xxxxxx, Xxxxxx ROC
WK Technology Fund IV 62,423 Xx. Xxxxxx Xxx
WK Technology Fund
00/xx/ Xxxxx, Xx. 000, Xxx. 0
Xxxx Xxxxx Xxxx Xxxx
Xxxxxx, Xxxxxx ROC
NUMBER OF SHARES OF
NAME SERIES C STOCK ADDRESS
------------------------------ ------------------------------ ---------------------------------
WK Global Fund Limited 62,423 Xx. Xxxxxx Xxx
WK Technology Fund
00/xx/ Xxxxx, Xx. 000, Xxx. 0
Xxxx Xxxxx Xxxx Xxxx
Xxxxxx, Xxxxxx ROC
Xxxxxx Xxxxxxxxxxx 7,805 00000 Xxxx Xxxxx
Xxxxxxxx, XX 00000
AMENDMENT NO. 1 TO THE
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
DATED AS OF JUNE 11, 1998
THIS AMENDMENT NO. 1 (the "Amendment Agreement") to the Amended and
Restated Investor Rights Agreement (the "Investor Rights Agreement") dated as of
June 11, 1998 by and among CLARENT CORPORATION, a California corporation (the
"Company"), the holders of the Company's Series A Preferred Stock identified on
EXHIBIT A thereto, the holders of the Company's Series B Preferred Stock set
forth on EXHIBIT B thereto and the holders of the Company's Series C Preferred
Stock set forth on EXHIBIT C thereto (the "Purchasers") is entered into as of
December 7, 1998 with INTEL CORPORATION, a Delaware corporation ("Intel"). All
terms used herein not otherwise defined herein shall have the respective
meanings assigned to them in the Investor Rights Agreement.
RECITALS
WHEREAS, on June 11, 1998, the Company and the Purchasers executed the
Investor Rights Agreement which provided for the grant of registration rights,
information rights and other rights to the Purchasers, subject to the terms and
conditions therein; and
WHEREAS, the Company and the Purchasers have agreed to amend the
Investor Rights Agreement to reflect the inclusion of Intel.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual agreements contained in
this Amendment Agreement, the parties hereto agree as follows:
SECTION 1. EXHIBIT C - SERIES C PREFERRED SHAREHOLDERS.
Exhibit C to the Investor Rights Agreement is hereby amended and
restated in its entirety to read as attached hereto.
SECTION 2. ADDITION OF PARTY.
Intel shall sign this Amendment Agreement as an acknowledgment that
pursuant to this Amendment Agreement, it is a party to the Investor Rights
Agreement and Intel shall agree to be bound by all of the terms and conditions
of the Investor Rights Agreement.
SECTION 3. CONFIDENTIALITY.
The heading of Section 3.3 of the Investor Rights Agreement is hereby
amended and restated in its entirety to read as follows: "Confidentiality."
Section 3.3 of the Investor Rights Agreement is hereby amended to
include a Section 3.3(c) to read as follows:
"(c) The Company and each Investor agree to abide by the
confidentiality and nondisclosure terms set forth on Exhibit D attached hereto."
Exhibit D to the Investor Rights Agreement is attached hereto.
SECTION 4. WAIVER OF RIGHT OF FIRST REFUSAL.
The Purchasers executing this Amendment Agreement are the holders of a
majority of the Registrable Securities (as defined in the Investor Rights
Agreement). The Purchasers hereby waive, pursuant to Section 5.6(b) of the
Investor Rights Agreement, the right of first refusal set forth in Section 4 of
the Investor Rights Agreement with respect to the issuance of Series C Preferred
Stock on the date hereof by the Company to Intel.
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to
the Amended and Restated Investor Rights Agreement dated as of June 11, 1998 by
and between Clarent Corporation, a California corporation and the holders of the
Company's Series A Preferred Stock identified on EXHIBIT A thereto, the holders
of the Company's Series B Preferred Stock set forth on EXHIBIT B thereto and the
holders of the Company's Series C Preferred Stock set forth on EXHIBIT C
thereto, as of the date first set forth above.
CLARENT CORPORATION, PURCHASERS:
a California corporation
By: /s/ Xxxxxxx Xxxxx By:______________________________________
-------------------------------
Name:______________________________ Name:____________________________________
Title:_____________________________ Title:___________________________________
Address:___________________________ Address:_________________________________
___________________________________ _________________________________________
___________________________________ _________________________________________
Facsimile:_________________________ Facsimile:_______________________________
Shares of Series A Preferred Stock_______
INTEL CORPORATION, Shares of Series B Preferred Stock_______
a Delaware corporation
Shares of Series C Preferred Stock_______
By:________________________________
Name:______________________________
Title:_____________________________
Address:___________________________
___________________________________
___________________________________
Facsimile:_________________________
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to the
Amended and Restated Investor Rights Agreement dated as of June 11, 1998 by and
between Clarent Corporation, a California corporation and the holders of the
Company's Series A Preferred Stock identified on EXHIBIT A thereto, the holders
of the Company's Series B Preferred Stock set forth on EXHIBIT B thereto and the
holders of the Company's Series C Preferred Stock set forth on EXHIBIT C
thereto, as of the date first set forth above.
CLARENT CORPORATION, PURCHASERS:
a California corporation
By:__________________________________ By:___________________________________
Name:________________________________ Name:_________________________________
Title:_______________________________ Title:________________________________
Address:_____________________________ Address:______________________________
_____________________________________ ______________________________________
_____________________________________ ______________________________________
Facsimile:___________________________ Facsimile:____________________________
Shares of Series A Preferred Stock____
INTEL CORPORATION, Shares of Series B Preferred Stock____
a Delaware corporation
Shares of Series C Preferred Stock____
By: /s/ Xxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxx
--------------------------------
Title: Vice President and Treasurer
-------------------------------
Address: 0000 Xxxxxxx Xxxxxxx Xxxx.
-----------------------------
Attn: M&A Portford Manager, SCM-210
-------------------------------------
Xxxxx Xxxxx, XX 00000
-------------------------------------
Facsimile: 000-000-0000
---------------------------
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to the
Amended and Restated Investor Rights Agreement dated as of June 11, 1998 by and
between Clarent Corporation, a California corporation and the holders of the
Company's Series A Preferred Stock identified on EXHIBIT A thereto, the holders
of the Company's Series B Preferred Stock set forth on EXHIBIT B thereto and the
holders of the Company's Series C Preferred Stock set forth on EXHIBIT C
thereto, as of the date first set forth above.
CLARENT CORPORATION, PURCHASERS:
a California corporation
WK TECHNOLOGY FUND
By:_________________________________ By: /s/ Xxx-Xxxxx Ko
______________________________________
Name:_______________________________ Name:____________________________________
Title:______________________________ Title:___________________________________
Address:____________________________ Address:_________________________________
____________________________________ _________________________________________
____________________________________ _________________________________________
Facsimile:__________________________ Facsimile:_______________________________
Shares of Series A Preferred Stock_______
INTEL CORPORATION, Shares of Series B Preferred Stock_______
a Delaware corporation
Shares of Series C Preferred Stock_______
By:_________________________________
Name:_______________________________
Title:______________________________
Address:____________________________
____________________________________
____________________________________
Facsimile:__________________________
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to the
Amended and Restated Investor Rights Agreement dated as of June 11, 1998 by and
between Clarent Corporation, a California corporation and the holders of the
Company's Series A Preferred Stock identified on EXHIBIT A thereto, the holders
of the Company's Series B Preferred Stock set forth on EXHIBIT B thereto and the
holders of the Company's Series C Preferred Stock set forth on EXHIBIT C
thereto, as of the date first set forth above.
CLARENT CORPORATION, PURCHASERS:
a California corporation
WK TECHNOLOGY FUND II
By: _________________________________ By: /s/ Xxx-Xxxxx Ko
--------------------------------------
Name:________________________________ Name:____________________________________
Title:_______________________________ Title:___________________________________
Address:_____________________________ Address:_________________________________
_____________________________________ _________________________________________
_____________________________________ _________________________________________
Facsimile:___________________________ Facsimile:_______________________________
Shares of Series A Preferred Stock_______
INTEL CORPORATION, Shares of Series B Preferred Stock_______
a Delaware corporation
Shares of Series C Preferred Stock_______
By:__________________________________
Name:________________________________
Title:_______________________________
Address:_____________________________
_____________________________________
_____________________________________
Facsimile:___________________________
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to the
Amended and Restated Investor Rights Agreement dated as of June 11, 1998 by and
between Clarent Corporation, a California corporation and the holders of the
Company's Series A Preferred Stock identified on EXHIBIT A thereto, the holders
of the Company's Series B Preferred Stock set forth on EXHIBIT B thereto and the
holders of the Company's Series C Preferred Stock set forth on EXHIBIT C
thereto, as of the date first set forth above.
CLARENT CORPORATION, PURCHASERS:
a California corporation
WK TECHNOLOGY FUND III
By: By: /s/ WK Technology Fund III
-------------------------------- -------------------------------------
Name:______________________________ Name:____________________________________
Title:_____________________________ Title:___________________________________
Address:___________________________ Address:_________________________________
___________________________________ _________________________________________
___________________________________ _________________________________________
Facsimile:_________________________ Facsimile:_______________________________
Shares of Series A Preferred Stock_______
INTEL CORPORATION, Shares of Series B Preferred Stock_______
a Delaware corporation
Shares of Series C Preferred Stock_______
By:________________________________
Name:______________________________
Title:_____________________________
Address:___________________________
___________________________________
___________________________________
Facsimile:_________________________
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to the
Amended and Restated Investor Rights Agreement dated as of June 11, 1998 by and
between Clarent Corporation, a California corporation and the holders of the
Company's Series A Preferred Stock identified on EXHIBIT A thereto, the holders
of the Company's Series B Preferred Stock set forth on EXHIBIT B thereto and the
holders of the Company's Series C Preferred Stock set forth on EXHIBIT C
thereto, as of the date first set forth above.
CLARENT CORPORATION, PURCHASERS:
a California corporation
WK TECHNOLOGY FUND IV
By:______________________________ By: /s/ WK Technology Fund IV
--------------------------------------
Name:____________________________ Name:____________________________________
Title:___________________________ Title:___________________________________
Address: ________________________ Address:_________________________________
_________________________________ _________________________________________
_________________________________ _________________________________________
Facsimile:_______________________ Facsimile:_______________________________
Shares of Series A Preferred Stock_______
INTEL CORPORATION, Shares of Series B Preferred Stock_______
a Delaware corporation
Shares of Series C Preferred Stock_______
By:______________________________
Name:____________________________
Title:___________________________
Address:_________________________
_________________________________
_________________________________
Facsimile:_______________________
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to the
Amended and Restated Investor Rights Agreement dated as of June 11, 1998 by and
between Clarent Corporation, a California corporation and the holders of the
Company's Series A Preferred Stock identified on EXHIBIT A thereto, the holders
of the Company's Series B Preferred Stock set forth on EXHIBIT B thereto and the
holders of the Company's Series C Preferred Stock set forth on EXHIBIT C
thereto, as of the date first set forth above.
CLARENT CORPORATION, PURCHASERS:
a California corporation
WK GLOBAL FUND LIMITED
By: _______________________________ By: /s/ WK Global Fund Limited
--------------------------------------
Name:______________________________ Name:____________________________________
Title:_____________________________ Title:___________________________________
Address:___________________________ Address:_________________________________
___________________________________ _________________________________________
___________________________________ _________________________________________
Facsimile:_________________________ Facsimile:_______________________________
Shares of Series A Preferred Stock_______
INTEL CORPORATION, Shares of Series B Preferred Stock_______
a Delaware corporation
Shares of Series C Preferred Stock_______
By:________________________________
Name:______________________________
Title:_____________________________
Address:___________________________
___________________________________
___________________________________
Facsimile:_________________________
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to the
Amended and Restated Investor Rights Agreement dated as of June 11, 1998 by and
between Clarent Corporation, a California corporation and the holders of the
Company's Series A Preferred Stock identified on EXHIBIT A thereto, the holders
of the Company's Series B Preferred Stock set forth on EXHIBIT B thereto and the
holders of the Company's Series C Preferred Stock set forth on EXHIBIT C
thereto, as of the date first set forth above.
CLARENT CORPORATION, PURCHASERS:
a California corporation
THE XXXXXXX SACHS GROUP, L.P.
By:______________________________ By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------------------
Name:____________________________ Name: Xxxxxx X. Xxxxxxxxx
--------------------------------------
Title:___________________________ Title: Executive Vice President
-------------------------------------
Address:_________________________ Address: 00 Xxxxx Xxxxxx
-----------------------------------
19/th/ Floor
_________________________________ -------------------------------------------
Xxx Xxxx, XX 00000
_________________________________ -------------------------------------------
Facsimile:_______________________ Facsimile: 000-000-0000
---------------------------------
Shares of Series A Preferred Stock_________
INTEL CORPORATION, Shares of Series B Preferred Stock_________
a Delaware corporation
Shares of Series C Preferred Stock 759,878
---------
By:______________________________
Name:____________________________
Title:___________________________
Address:_________________________
_________________________________
_________________________________
Facsimile:_______________________
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to the
Amended and Restated Investor Rights Agreement dated as of June 11, 1998 by and
between Clarent Corporation, a California corporation and the holders of the
Company's Series A Preferred Stock identified on EXHIBIT A thereto, the holders
of the Company's Series B Preferred Stock set forth on EXHIBIT B thereto and the
holders of the Company's Series C Preferred Stock set forth on EXHIBIT C
thereto, as of the date first set forth above.
CLARENT CORPORATION, PURCHASERS:
a California corporation
STONE STREET FUND 1998, L.P.
By:_____________________________ By: /s/ Xxx X. Xxxxxxxx
----------------------------------------
Name:___________________________ Name: Xxx X. Xxxxxxxx, V.P.
--------------------------------------
Title:__________________________ Title:_____________________________________
Address:________________________ Address: 00 Xxxxx Xxxxxx
-----------------------------------
19/th/ Floor
________________________________ -------------------------------------------
Xxx Xxxx, XX 00000
________________________________ -------------------------------------------
Facsimile:______________________ Facsimile: 000-000-0000
---------------------------------
Shares of Series A Preferred Stock_________
INTEL CORPORATION, Shares of Series B Preferred Stock_________
a Delaware corporation
Shares of Series C Preferred Stock 233,486
---------
By:_____________________________
Name:___________________________
Title:__________________________
Address:________________________
________________________________
________________________________
Facsimile:______________________
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to the
Amended and Restated Investor Rights Agreement dated as of June 11, 1998 by and
between Clarent Corporation, a California corporation and the holders of the
Company's Series A Preferred Stock identified on EXHIBIT A thereto, the holders
of the Company's Series B Preferred Stock set forth on EXHIBIT B thereto and the
holders of the Company's Series C Preferred Stock set forth on EXHIBIT C
thereto, as of the date first set forth above.
CLARENT CORPORATION, PURCHASERS:
a California corporation
XXXXXX XXXXXX XXXX 0000, X.X.
By:____________________________ By: /s/ Xxx X. Xxxxxxxx, V.P.
----------------------------------------
Name:__________________________ Name: Xxx X. Xxxxxxxx, V.P.
--------------------------------------
Title:_________________________ Title:_____________________________________
Address:_______________________ Address: 00 Xxxxx Xxxxxx
-----------------------------------
19/th/ Floor
_______________________________ -------------------------------------------
Xxx Xxxx, XX 00000
_______________________________ -------------------------------------------
Facsimile:_____________________ Shares of Series A Preferred Stock_________
INTEL CORPORATION, Shares of Series B Preferred Stock_________
a Delaware corporation
Shares of Series C Preferred Stock 70,465
---------
By:____________________________
Name:__________________________
Title:_________________________
Address:_______________________
_______________________________
_______________________________
Facsimile:_____________________
EXHIBIT D
For purposes of this Exhibit D, the term "Financing Documents" shall mean (i)
the Series C Preferred Stock Purchase Agreement dated as of December 7, 1998
among the Company and Intel (the "Purchase Agreement"), (ii) the Amended and
Restated Investors Rights Agreement dated as of June 11, 1998 among the Company
and the "Purchasers" (as defined therein), (iii) Amendment No. 1 to the Amended
and Restated Investor Rights Agreement dated as of June 11, 1998 dated as of
December 7, 1998 among the Company, the "Purchasers" (as defined therein) and
Intel, (iv) the Amended and Restated Co-Sale Agreement dated as of June 11, 1998
among the Company, the "Shareholders" (as defined therein) and the "Founders"
(as defined therein), (v) Amendment No. 1 to the Amended and Restated Co-Sale
Agreement dated as of June 11, 1998 dated as of December 7 1998 among the
Company, the "Shareholders" (as defined therein), the "Founders" (as defined
therein) and Intel, (vi) the Voting Agreement dated as of December 7, 1998 among
the Company, the "Existing Investors" (as defined therein) and Intel and (vii)
the Board Observer Agreement dated as of December 7, 1998 among the Company and
Intel. The term "Investors" shall mean Intel and the Existing Investors.
(I) DISCLOSURE OF TERMS. The terms and conditions of the Financing
Documents (collectively, the "Financing Terms"), including their existence,
shall be considered confidential information and shall not be disclosed by any
party hereto to any third party except in accordance with the provisions set
forth below.
(II) PRESS RELEASES, ETC. Within sixty (60) days of the Closing (as
defined in the Purchase Agreement), the Company may issue a press release
disclosing that the Investors have invested in the Company; provided that the
release does not disclose any of the Financing Terms and the final form of the
press release is approved in advance in writing by the Investors. Intel's name
and the fact that Intel is an investor in the Company can be included in a
reusable press release boilerplate statement, so long as Intel has given the
Company its initial approval of such boilerplate statement and the boilerplate
statement is reproduced in exactly the form in which it was approved. No other
announcements regarding any Investor in a press release, conference,
advertisement, announcement, professional or trade publication, mass marketing
materials or otherwise to the general public may be made without such Investor's
prior written consent.
(III) PERMITTED DISCLOSURES. Notwithstanding the foregoing, (A) any
party may disclose any of the Financing Terms to its current or bona fide
prospective investors, limited or general partners, employees, investment
bankers, lenders, accountants and attorneys, and in the case of the Company,
such disclosure may only be made where such recipients are under appropriate
nondisclosure obligations; (B) any party may disclose (other than in a press
release or other public announcement described in subsection (ii)) solely the
fact that the Investors are investors in the Company to any third parties
without the requirement for the consent of any other party or nondisclosure
obligations; and (C) any Investor may disclose the Financing Terms in its
marketing materials to third parties or in its regulatory filings so long as
such Investor does not disclose the identity of the other Investors in such
marketing materials.
(IV) LEGALLY COMPELLED DISCLOSURE. In the event that any party is
requested or becomes legally compelled (including without limitation, pursuant
to securities laws and regulations) to disclose the existence of the Financing
Documents or any of the Financing Terms hereof and such disclosure is permitted
pursuant to Section 3.3(b), such party (the "Disclosing Party") shall act
reasonably to provide the other parties (the "Non-Disclosing Parties") with
prompt written notice of that fact so that the appropriate party may seek (with
the cooperation and reasonable efforts of the other parties) a protective order,
confidential treatment or other appropriate remedy. In addition, in the event
that the Disclosing Party is the Company, the Company shall furnish only that
portion of the information which is legally required and shall exercise
reasonable efforts to obtain reliable assurance that confidential treatment will
be accorded such information to the extent reasonably requested by any Non-
Disclosing Party.
(V) OTHER INFORMATION. The provisions of this Section 3.3(c) shall be
in addition to, and not in substitution for, the provisions of any separate
nondisclosure agreement executed by any of the parties hereto with respect to
the transactions contemplated hereby. Sections 3.3(a) and 3.3(b) shall not be
applicable to Intel, and any additional disclosures and exchange of confidential
information between the Company and Intel Corporation (including without
limitation, any exchanges of information with any Intel board observer) shall be
governed solely by the terms of the Corporate Non-Disclosure Agreement No.
115014, dated September 3, 1998, executed by the Company and Intel, and any
Confidential Information Transmittal Records (CITR) provided in connection
therewith. The CITR that shall govern the exchanges of confidential information
with any Intel board observer shall be in the form attached hereto as Schedule
1.
(VI) NOTICES. All notices required under this section shall be made
pursuant to Section 5.8 of this Agreement.
Amendment No. 2 to the
Amended and Restated Investor Rights Agreement
Dated as of June 11, 1998, as Amended on December 7, 1998
This Amendment No. 2 (the "Amendment Agreement") to the Amended and
Restated Investor Rights Agreement (the "Investor Rights Agreement") dated as of
June 11, 1998, as amended on December 7, 1998, by and among Clarent Corporation,
a California corporation (the "Company"), the holders of the Company's Series A
Preferred Stock identified on Exhibit A thereto, the holders of the Company's
Series B Preferred Stock set forth on Exhibit B thereto, the holders of the
Company's Series C Preferred Stock set forth on Exhibit C thereto (the
"Purchasers") and 1998 Wang/Xxxxx Family Revocable Trust and 1998 Xxxxx Family
Trust (collectively, the "Founders' Trusts") is entered into as of April 8,
1999. All terms used herein not otherwise defined herein shall have the
respective meanings assigned to them in the Investor Rights Agreement.
Recitals
Whereas, on June 11, 1998, the Company and the Purchasers executed the
Investor Rights Agreement which provided for the grant of registration rights,
information rights and other rights to the Purchasers, subject to the terms and
conditions therein;
Whereas, on December 7, 1998, the Company and the Purchasers amended the
Investor Rights Agreement to reflect the inclusion of Intel Corporation; and
Whereas, the Company and the Purchasers have agreed to amend the Investor
Rights Agreement to reflect the addition of the Founders' Trusts as parties to
the Investor Rights Agreement.
Agreement
Now, Therefore, in consideration of the mutual agreements contained in this
Amendment Agreement, the parties hereto agree as follows:
Section 1. Addition of Party.
The Founders' Trusts shall sign this Amendment Agreement as an
acknowledgment that pursuant to this Amendment Agreement, they are parties to
the Investor Rights Agreement and the Founders' Trusts shall agree to be bound
by all of the terms and conditions of the Investor Rights Agreement.
Section 2. Definition of Registrable Securities.
Section 1.1 of the Investor Rights Agreement is hereby amended to define
the term "Registrable Securities" to read in its entirety as follows:
"Registrable Securities" means (i) Common Stock of the Company issued or
issuable upon conversion of the Shares; (ii) 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 above-described securities; (iii) Advisory Services
Agreement Shares; and (iv) any Common Stock held by the Founders' Trusts.
Notwithstanding the foregoing, Registrable Securities shall not include any
securities sold by a person to the public either pursuant to a registration
statement or Rule 144(k) or sold in a private transaction in which the
transferor's rights under Section 2 of this Agreement are not assigned. Shares
of Common Stock held by the Founders shall not be Registrable Securities for
purposes of Section 2.2 or 2.4 hereof.
In Witness Whereof, the parties have executed this Amendment No. 2 to the
Amended and Restated Investor Rights Agreement dated as of June 11, 1998, as
amended on December 7, 1998, by and between Clarent Corporation, a California
corporation, the holders of the Company's Series A Preferred Stock identified on
Exhibit A thereto, the holders of the Company's Series B Preferred Stock set
forth on Exhibit B thereto, the holders of the Company's Series C Preferred
Stock set forth on Exhibit C thereto and the Founders, as defined herein above,
as of the date first set forth above.
Clarent Corporation, Purchasers:
a California corporation
By:
By: /s/ Xxxxx Xxxxx ---------------------------------------
---------------------------------------
Name:
Name: Xxxxx Xxxxx ------------------------------------
-------------------------------------
Title:
Title: President -------------------------------------
-----------------------------------
Address:
Founders' Trusts: -----------------------------------
1998 Wang/Xxxxx Family Revocable ---------------------------------------------
Trust
---------------------------------------------
By: /s/ Xxxxx Xxxxx Facsimile:
--------------------------------------- ----------------------------------
Shares of Series A Preferred Stock
Name: Xxxxx Xxxxx ----------
--------------------------------------
Shares of Series B Preferred Stock
Title: ----------
-------------------------------------
Shares of Series C Preferred Stock
----------
1998 Xxxxx Family Trust
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx
--------------------------------------
Title:
-------------------------------------
In Witness Whereof, the parties have executed this Amendment No. 2 to the
Amended and Restated Investor Rights Agreement dated as of June 11, 1998, as
amended on December 7, 1998, by and between Clarent Corporation, a California
corporation, the holders of the Company's Series A Preferred Stock identified on
Exhibit A thereto, the holders of the Company's Series B Preferred Stock set
forth on Exhibit B thereto, the holders of the Company's Series C Preferred
Stock set forth on Exhibit C thereto and the Founders, as defined herein above,
as of the date first set forth above.
Clarent Corporation, Purchasers:
a California corporation
By: By: WK Technology Fund
--------------------------------------- ---------------------------------------
Name: Name: /s/ Xxx-Xxxxx Ko
------------------------------------- ------------------------------------
Title: Title: Chairman
----------------------------------- -------------------------------------
Founders' Trusts: Address:
-----------------------------------
1998 Wang/Xxxxx Family Revocable
Trust ---------------------------------------------
---------------------------------------------
By:
--------------------------------------- Facsimile:
----------------------------------
Name: Shares of Series A Preferred Stock
-------------------------------------- ----------
Title: Shares of Series B Preferred Stock
------------------------------------- ----------
Shares of Series C Preferred Stock
1998 Xxxxx Family Trust ----------
By:
---------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
In Witness Whereof, the parties have executed this Amendment No. 2 to the
Amended and Restated Investor Rights Agreement dated as of June 11, 1998, as
amended on December 7, 1998, by and between Clarent Corporation, a California
corporation, the holders of the Company's Series A Preferred Stock identified on
Exhibit A thereto, the holders of the Company's Series B Preferred Stock set
forth on Exhibit B thereto, the holders of the Company's Series C Preferred
Stock set forth on Exhibit C thereto and the Founders, as defined herein above,
as of the date first set forth above.
Clarent Corporation, Purchasers:
a California corporation
By: By: WK Technology Fund II
--------------------------------------- ---------------------------------------
Name: Name: /s/ Xxx-Xxxxx Ko
------------------------------------- ------------------------------------
Title: Title: Chairman
----------------------------------- -------------------------------------
Founders' Trusts: Address:
-----------------------------------
1998 Wang/Xxxxx Family Revocable
Trust ---------------------------------------------
---------------------------------------------
By:
--------------------------------------- Facsimile:
----------------------------------
Name: Shares of Series A Preferred Stock
-------------------------------------- ----------
Title: Shares of Series B Preferred Stock
------------------------------------- ----------
Shares of Series C Preferred Stock
1998 Xxxxx Family Trust ----------
By:
---------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
In Witness Whereof, the parties have executed this Amendment No. 2 to the
Amended and Restated Investor Rights Agreement dated as of June 11, 1998, as
amended on December 7, 1998, by and between Clarent Corporation, a California
corporation, the holders of the Company's Series A Preferred Stock identified on
Exhibit A thereto, the holders of the Company's Series B Preferred Stock set
forth on Exhibit B thereto, the holders of the Company's Series C Preferred
Stock set forth on Exhibit C thereto and the Founders, as defined herein above,
as of the date first set forth above.
Clarent Corporation, Purchasers:
a California corporation
By: By: WK Technology Fund III
--------------------------------------- ---------------------------------------
Name: Name: /s/ Xxx-Xxxxx Ko
------------------------------------- ------------------------------------
Title: Title: Chairman
----------------------------------- -------------------------------------
Founders' Trusts: Address:
-----------------------------------
1998 Wang/Xxxxx Family Revocable
Trust ---------------------------------------------
---------------------------------------------
By:
--------------------------------------- Facsimile:
----------------------------------
Name: Shares of Series A Preferred Stock
-------------------------------------- ----------
Title: Shares of Series B Preferred Stock
------------------------------------- ----------
Shares of Series C Preferred Stock
1998 Xxxxx Family Trust ----------
By:
---------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
In Witness Whereof, the parties have executed this Amendment No. 2 to the
Amended and Restated Investor Rights Agreement dated as of June 11, 1998, as
amended on December 7, 1998, by and between Clarent Corporation, a California
corporation, the holders of the Company's Series A Preferred Stock identified on
Exhibit A thereto, the holders of the Company's Series B Preferred Stock set
forth on Exhibit B thereto, the holders of the Company's Series C Preferred
Stock set forth on Exhibit C thereto and the Founders, as defined herein above,
as of the date first set forth above.
Clarent Corporation, Purchasers:
a California corporation
By: By: WK Technology Fund IV
--------------------------------------- ---------------------------------------
Name: Name: /s/ Xxx-Xxxxx Ko
------------------------------------- ------------------------------------
Title: Title: Chairman
----------------------------------- -------------------------------------
Founders' Trusts: Address:
-----------------------------------
1998 Wang/Xxxxx Family Revocable
Trust ---------------------------------------------
---------------------------------------------
By:
--------------------------------------- Facsimile:
----------------------------------
Name: Shares of Series A Preferred Stock
-------------------------------------- ----------
Title: Shares of Series B Preferred Stock
------------------------------------- ----------
Shares of Series C Preferred Stock
1998 Xxxxx Family Trust ----------
By:
---------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
In Witness Whereof, the parties have executed this Amendment No. 2 to the
Amended and Restated Investor Rights Agreement dated as of June 11, 1998, as
amended on December 7, 1998, by and between Clarent Corporation, a California
corporation, the holders of the Company's Series A Preferred Stock identified on
Exhibit A thereto, the holders of the Company's Series B Preferred Stock set
forth on Exhibit B thereto, the holders of the Company's Series C Preferred
Stock set forth on Exhibit C thereto and the Founders, as defined herein above,
as of the date first set forth above.
Clarent Corporation, Purchasers:
a California corporation
By: By: WK Global Fund LTD
--------------------------------------- ---------------------------------------
Name: Name: /s/ Xxx-Xxxxx Ko
------------------------------------- ------------------------------------
Title: Title: Chairman
----------------------------------- -------------------------------------
Founders' Trusts: Address:
-----------------------------------
1998 Wang/Xxxxx Family Revocable
Trust ---------------------------------------------
---------------------------------------------
By:
--------------------------------------- Facsimile:
----------------------------------
Name: Shares of Series A Preferred Stock
-------------------------------------- ----------
Title: Shares of Series B Preferred Stock
------------------------------------- ----------
Shares of Series C Preferred Stock
1998 Xxxxx Family Trust ----------
By:
---------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
In Witness Whereof, the parties have executed this Amendment No. 2 to the
Amended and Restated Investor Rights Agreement dated as of June 11, 1998, as
amended on December 7, 1998, by and between Clarent Corporation, a California
corporation, the holders of the Company's Series A Preferred Stock identified on
Exhibit A thereto, the holders of the Company's Series B Preferred Stock set
forth on Exhibit B thereto, the holders of the Company's Series C Preferred
Stock set forth on Exhibit C thereto and the Founders, as defined herein above,
as of the date first set forth above.
Clarent Corporation, Purchasers:
a California corporation
By: By: Intel Corporation
--------------------------------------- ---------------------------------------
Name: Name: /s/ Xxxxxx Xxxxxxx
------------------------------------- ------------------------------------
Title: Title: Vice President & Treasurer
----------------------------------- -------------------------------------
Founders' Trusts: Address: 0000 Xxxxxxx Xxxxxxx Xxxx.
-----------------------------------
1998 Wang/Xxxxx Family Revocable Xxxxx Xxxxx, XX 00000
Trust -----------------------------------
Attn: M&A Portfolio Manager
-----------------------------------
By:
--------------------------------------- Facsimile:
----------------------------------
Name: Shares of Series A Preferred Stock
-------------------------------------- ----------
Title: Shares of Series B Preferred Stock
------------------------------------- ----------
Shares of Series C Preferred Stock 759,878
1998 Xxxxx Family Trust ----------
By:
---------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
In Witness Whereof, the parties have executed this Amendment No. 2 to the
Amended and Restated Investor Rights Agreement dated as of June 11, 1998, as
amended on December 7, 1998, by and between Clarent Corporation, a California
corporation, the holders of the Company's Series A Preferred Stock identified on
Exhibit A thereto, the holders of the Company's Series B Preferred Stock set
forth on Exhibit B thereto, the holders of the Company's Series C Preferred
Stock set forth on Exhibit C thereto and the Founders, as defined herein above,
as of the date first set forth above.
Clarent Corporation, Purchasers:
a California corporation
The Xxxxxxx Xxxxx Group, L.P.
By: By: The Xxxxxxx Sachs Corporation
---------------------------------------
Name: By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------- ------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
------------------------------------
Title: Title: Executive Vice President
----------------------------------- -------------------------------------
Founders' Trusts: Address: 00 Xxxxx Xxxxxx
-----------------------------------
1998 Wang/Xxxxx Family Revocable Xxx Xxxx, XX 00000
Trust ---------------------------------------------
---------------------------------------------
By:
--------------------------------------- Facsimile: (000) 000-0000
----------------------------------
Name: Shares of Series A Preferred Stock
-------------------------------------- ----------
Title: Shares of Series B Preferred Stock
------------------------------------- ----------
Shares of Series C Preferred Stock 759,878
1998 Xxxxx Family Trust ----------
By:
---------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
In Witness Whereof, the parties have executed this Amendment No. 2 to the
Amended and Restated Investor Rights Agreement dated as of June 11, 1998, as
amended on December 7, 1998, by and between Clarent Corporation, a California
corporation, the holders of the Company's Series A Preferred Stock identified on
Exhibit A thereto, the holders of the Company's Series B Preferred Stock set
forth on Exhibit B thereto, the holders of the Company's Series C Preferred
Stock set forth on Exhibit C thereto and the Founders, as defined herein above,
as of the date first set forth above.
Clarent Corporation, Purchasers:
a California corporation
Xxxxx Xxxxxx Xxxx 0000
By: By: Stone Street Advantage Corp.
---------------------------------------
Name: By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------- ------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
------------------------------------
Title: Title: Vice President
----------------------------------- -------------------------------------
Founders' Trusts: Address: 00 Xxxxx Xxxxxx
-----------------------------------
1998 Wang/Xxxxx Family Revocable Xxx Xxxx, XX 00000
Trust ---------------------------------------------
---------------------------------------------
By:
--------------------------------------- Facsimile: (000) 000-0000
----------------------------------
Name: Shares of Series A Preferred Stock
-------------------------------------- ----------
Title: Shares of Series B Preferred Stock
------------------------------------- ----------
Shares of Series C Preferred Stock 233,486
1998 Xxxxx Family Trust ----------
By:
---------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
In Witness Whereof, the parties have executed this Amendment No. 2 to the
Amended and Restated Investor Rights Agreement dated as of June 11, 1998, as
amended on December 7, 1998, by and between Clarent Corporation, a California
corporation, the holders of the Company's Series A Preferred Stock identified on
Exhibit A thereto, the holders of the Company's Series B Preferred Stock set
forth on Exhibit B thereto, the holders of the Company's Series C Preferred
Stock set forth on Exhibit C thereto and the Founders, as defined herein above,
as of the date first set forth above.
Clarent Corporation, Purchasers:
a California corporation
Xxxxxx Xxxxxx Xxxx 0000, X.X.
By: By: Stone Street Advantage Corp.
---------------------------------------
Name: By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------- ------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
------------------------------------
Title: Title: Vice President
----------------------------------- -------------------------------------
Founders' Trusts: Address: 00 Xxxxx Xxxxxx
-----------------------------------
1998 Wang/Xxxxx Family Revocable Xxx Xxxx, XX 00000
Trust ---------------------------------------------
---------------------------------------------
By:
--------------------------------------- Facsimile: (000) 000-0000
----------------------------------
Name: Shares of Series A Preferred Stock
-------------------------------------- ----------
Title: Shares of Series B Preferred Stock
------------------------------------- ----------
Shares of Series C Preferred Stock 70,465
1998 Xxxxx Family Trust ----------
By:
---------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
