GLU MOBILE INC. (formerly Sorrent, Inc.) AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT March 29, 2006
Exhibit 4.02
EXECUTION COPY
GLU MOBILE INC.
(formerly Sorrent, Inc.)
(formerly Sorrent, Inc.)
AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT
March 29, 2006
(formerly Sorrent, Inc.)
AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT
THIS AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT (this “Agreement”) is made effective as
of March 29, 2006 by and among Glu Mobile Inc., a California corporation formerly known as Sorrent,
Inc. (the “Company”), the investors identified on the Schedule of Investors attached hereto as
Exhibit A (the “Investors”) and the shareholders identified on the Schedule of iFone
Shareholders attached hereto as Exhibit B (the “iFone Shareholders”).
RECITALS
WHEREAS, the Investors possess registration rights, information rights, rights of first offer,
and other rights pursuant to the Amended and Restated Investors’ Rights Agreement dated as of July
26, 2005, by and among the Company and the Investors (the “Original Agreement”) as an investor or a
transferee of an investor under the Original Agreement.
WHEREAS, the Original Agreement may be amended, and any provision therein waived, with the
consent of the Company and the holders of a majority of the Registrable Securities then outstanding
(as such term is defined in the Original Agreement).
WHEREAS, the undersigned Investors, as holders of greater than a majority of the Registrable
Securities then outstanding (as such term is defined in the Original Agreement) of the Company,
desire to terminate the Original Agreement and to accept the rights created pursuant hereto in lieu
of the rights granted to them under the Original Agreement.
WHEREAS, the Company and the iFone Shareholders are parties to the Exchange Agreement dated as
of March 29, 2006 (the “Exchange Agreement”), whereby the Company will issue shares of the
Company’s Special Junior Preferred Stock to the iFone Shareholders in exchange for all of the
issued and outstanding share capital of iFone Holdings Limited (the “Exchange”).
WHEREAS, the obligations of the Company and the iFone Shareholders under the Exchange
Agreement are conditioned, among other things, upon the execution and delivery of this Agreement by
the Company, the undersigned Investors and the iFone Shareholders.
WHEREAS, the parties intend that this Agreement shall take effect only upon the occurrence of
the consummation of the Exchange and that this Agreement shall be deemed null and void ab initio in
the event that the Exchange Agreement is terminated for any reason.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto agree
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that, contingent and effective upon the Closing (as defined in the Exchange Agreement), the
Original Agreement shall be amended and restated in its entirety as follows:
1. Certain Definitions. As used in this Agreement, the following terms shall have the
following respective meanings:
“Commission” means the United States Securities and Exchange Commission or any other federal
agency at the time administering the Securities Act.
“Common Stock” means the Company’s Common Stock, no par value.
“Consulting Agreement” means the Consulting Agreement dated as of March 29, 2006 by and
between the Company and LOLA, a Societe Anonyme Monegasque.
“Conversion Stock” means the Senior Conversion Stock and the Special Junior Conversion Stock.
“Exchange Related Shares” means the Special Junior Conversion Stock and any Common Stock of
the Company issuable or issued with respect to the Exchange Shares or the Special Junior Conversion
Stock upon any stock split, stock dividend, or similar event.
“Exchange Shares” means the shares of Special Junior Preferred Stock issued pursuant to the
Exchange Agreement (including pursuant to the Earn Out Schedule attached as Appendix A to the
Exchange Agreement) and the shares of Special Junior Preferred Stock issued pursuant to the
Consulting Agreement and any shares issued in connection with a transfer of such shares pursuant to
the terms of this Agreement, the Exchange Agreement and the Consulting Agreement.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any similar federal
rule or statute and the rules and regulations of the Commission thereunder, all as the same shall
be in effect at the time.
“Holders” means (i) each Investor and iFone Shareholder holding Registrable Securities, and
(ii) each person holding Registrable Securities to whom the rights under this Agreement have been
transferred in accordance with Section 11 hereof.
“Initiating Holders” means any Holder or Holders, other than a Holder or Holders of Exchange
Related Shares, who, in the aggregate, hold not less than thirty percent (30%) of the Registrable
Securities (excluding any Exchange Related Shares), then outstanding, with respect to a request for
registration made pursuant to Section 5.1.
“Major Holder” means any Holder who holds at least five hundred thousand (500,000) shares of
Registrable Securities (as adjusted for stock splits, stock dividends and the like, but excluding
any Mandatory Conversion Shares and any Exchange Related Shares).
“Preferred Stock” shall mean the Company’s (i) Series A Preferred Stock, (ii) Series B
Preferred Stock, (iii) Series C Preferred Stock, (iv) Series D Preferred Stock, (v) Series D-1
Preferred Stock and (vi) Special Junior Preferred Stock.
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“Registrable Securities” means (1) the Senior Conversion Stock and any Common Stock of the
Company issuable or issued with respect to the Senior Preferred Stock or Senior Conversion Stock
upon any stock split, stock dividend, or similar event, (2) the Common Stock of the Company issued
pursuant to the Restricted Stock Purchase Agreement (the “RSPA”) dated as of April 25, 2005 between
the Company and the Investor defined as the Purchaser therein or (3) the Exchange Related Shares
provided, however, that the Exchange Related Shares shall not be deemed Registrable Securities and
the Holders of Exchange Related Shares shall not be deemed Initiating Holders or Major Holders for
the purposes of Sections 5.1, 6 and 8 and provided further however, that the term “Registrable
Securities” shall exclude in all cases any shares of Common Stock issued upon conversion of
Preferred Stock pursuant to Article III, Section B.3(e) of the Company’s Amended and Restated
Articles of Incorporation (or any successor thereto) (the “Restated Articles”) (which Paragraph is
entitled “Special Mandatory Conversion”), as such provision may be amended from time to time
(“Special Mandatory Conversion Shares”). In addition, securities shall only be treated as
Registrable Securities if and so long as (i) they have not been registered or sold to or through a
broker, dealer, market maker or underwriter in a public distribution or a public securities
transaction and (ii) the registration rights with respect to such securities have not terminated
pursuant to Section 5.10 below.
The terms “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 the effectiveness of such registration statement.
“Registration Expenses” shall mean all expenses, except Selling Expenses, incurred by the
Company in complying with Sections 5.1, 5.2 and 5.3 below, including without limitation, (i) all
registration, qualification and filing fees, (ii) printing expenses and escrow fees, (iii) fees and
disbursements of counsel for the Company, (iv) fees and disbursements up to twenty thousand dollars
($20,000) for one counsel for the Holders, (v) “blue sky” fees and expenses, (vi) the expense of
any special audits incidental to or required by any such registration, and (vii) the compensation
of regular employees of the Company which shall be paid in any event by the Company.
“Restricted Securities” shall mean the securities of the Company required to bear the legends
set forth in Section 3 below.
“Rule 144” and “Rule 145” shall mean Rules 144 and 145, respectively, promulgated under the
Securities Act, or any similar federal rules thereunder, all as the same shall be in effect at the
time.
“Securities Act” shall mean the Securities Act of 1933, as amended, or any similar federal
rule or statute and the rules and regulations of the Commission thereunder, all as the same shall
be in effect at the time.
“Selling Expenses” shall mean all underwriting discounts, selling commissions and stock
transfer taxes applicable to the securities registered by the Holders.
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“Senior Conversion Stock” means the Common Stock issuable or issued pursuant to conversion of
the Senior Preferred Stock.
“Senior Preferred Stock” shall mean the Company’s (i) Series A Preferred Stock, (ii) Series B
Preferred Stock, (iii) Series C Preferred Stock, (iv) Series D Preferred Stock and (v) Series D-1
Preferred Stock.
“Special Junior Conversion Stock” means the Common Stock issuable or issued pursuant to
conversion of the Special Junior Preferred Stock.
2. Restrictions on Transferability. The Restricted Securities shall not be sold, assigned,
transferred or pledged except pursuant to the provisions of Section 4 below. Each Holder will
cause any proposed purchaser, assignee, transferee or pledgee of any such shares held by such
Holder to agree to take and hold such securities subject to the provisions and upon the conditions
specified in this Agreement.
3. Restrictive Legends. Each certificate representing the Senior Preferred Stock, the Senior
Conversion Stock or any other securities issued in respect of such stock upon any stock split,
stock dividend, recapitalization, merger, or similar event shall (unless otherwise permitted by the
provisions of Section 4 below) be stamped or otherwise imprinted with legends in substantially the
following form (in addition to any legends required by agreement or by applicable state securities
laws):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”). SUCH SECURITIES MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH A REGISTRATION UNLESS THE COMPANY RECEIVES AN
OPINION OF COUNSEL REASONABLY ACCEPTABLE TO IT STATING THAT SUCH SALE OR TRANSFER IS
EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE ACT.
Each certificate representing the Preferred Stock, the Conversion Stock or any other
securities issued in respect of such stock upon any stock split, stock dividend, recapitalization,
merger, or similar event shall (unless otherwise permitted by the provisions of Section 4 below) be
stamped or otherwise imprinted with legends in substantially the following forms (in addition to
any legends required by agreement or by applicable state securities laws):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO TRANSFER RESTRICTIONS
INCLUDING A LOCKUP PERIOD OF UP TO 180 DAYS FOLLOWING THE EFFECTIVE DATE OF A
REGISTRATION STATEMENT OF THE COMPANY FILED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AS SET FORTH IN AN AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF
THESE SHARES, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER.
SUCH TRANSFER RESTRICTIONS ARE BINDING ON TRANSFEREES OF THESE SHARES.
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THE SALE, PLEDGE, HYPOTHECATION OR TRANSFER OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN INVESTOR RIGHTS
AGREEMENT BY AND BETWEEN THE SHAREHOLDER AND THE COMPANY. COPIES OF SUCH AGREEMENT
MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE COMPANY.
Each Holder consents to the Company making a notation on its records and giving stop transfer
instructions to any transfer agent of its capital stock in order to implement the restrictions on
transfer established in this Agreement.
4. Notice of Proposed Transfers. The Holder of each certificate representing Restricted
Securities by acceptance thereof agrees to comply in all respects with the provisions of this
Section 4. Without in any way limiting the immediately preceding sentence, no sale, assignment,
transfer or pledge of Restricted Securities shall be made by any Holder thereof to any person
unless such person shall first agree in writing to be bound by the restrictions of this Agreement.
Prior to any proposed sale, assignment, transfer or pledge of any Restricted Securities, unless
there is in effect a registration statement under the Securities Act covering the proposed
transfer, the Holder thereof shall give written notice to the Company of such Holder’s intention to
effect such transfer, sale, assignment or pledge. Each such notice shall describe the manner and
circumstances of the proposed transfer, sale, assignment or pledge in sufficient detail, and, if
reasonably requested by the Company, the Holder shall also provide, at such Holder’s expense,
either:
(a) a written opinion of legal counsel reasonably satisfactory to the Company addressed to the
Company, to the effect that the proposed transfer of the Restricted Securities may be effected
without registration under the Securities Act, or
(b) a “no action” letter from the Commission to the effect that the transfer of such
securities without registration will not result in a recommendation by the staff of the Commission
that action be taken with respect thereto, whereupon the Holder of such Restricted Securities shall
be entitled to transfer such Restricted Securities in accordance with the terms of the notice
delivered by the Holder to the Company; provided, however, that the Company shall not request an
opinion of counsel or “no action” letter with respect to:
(i) a transfer not involving a change in beneficial ownership;
(ii) a transfer to an affiliate of such Holder (including in the case of a venture capital
fund, other venture capital funds affiliated with such fund);
(iii) a transaction involving the distribution without consideration of Restricted Securities
by the Holder to its constituent partners or members or a retired partner, or to the estate of any
such partners or retired partners; or
(iv) a transaction involving the transfer without consideration of Restricted Securities by an
individual Holder during such Holder’s lifetime by way of gift or on death by will or intestacy.
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Each certificate evidencing Restricted Securities transferred as provided above shall bear,
except if such transfer is made pursuant to Rule 144, the appropriate restrictive legend set forth
in Section 3 above, except that such certificate shall not bear such restrictive legend if in the
opinion of counsel for such Holder and counsel for the Company such legend is not required in order
to establish compliance with any provision of the Securities Act. Notwithstanding the foregoing,
each holder of Restricted Securities agrees that it will not request that a transfer of the
Restricted Securities be made or that the legend set forth in Section 3 above be removed from the
certificate representing the Restricted Securities solely in reliance on Rule 144(k), if as a
result thereof the Company would be rendered subject to the reporting requirements of the Exchange
Act.
5. Registration.
5.1 Requested Registration.
(a) Request for Registration. In case the Company shall receive a written request from
Initiating Holders that the Company file a registration statement under the Securities Act with
respect to the Registrable Securities, the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, use its best efforts to effect such registration as part of a
firm commitment underwritten public offering with underwriters reasonably acceptable to the Company
(including, without limitation, appropriate qualification under applicable state securities laws
and appropriate compliance with applicable regulations issued under the Securities Act and any
other governmental requirements or regulations) as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such Registrable Securities as are
specified in such request, together with all or such portion of the Registrable Securities of any
Holder or Holders that deliver a written notice to such effect to the Company within fifteen (15)
business days after the date of such written notice from the Company.
(b) Exceptions to Obligation to Register. Notwithstanding the foregoing, the Company shall
not be obligated to take any action to effect or complete any such registration pursuant to this
Section 5.1:
(i) In any particular jurisdiction in which the Company would be required to execute a general
consent to service of process in effecting such registration, qualification or compliance, unless
the Company is already subject to service of process in such jurisdiction and except as may be
required by the Securities Act;
(ii) Prior to the earlier of (i) six (6) months after the effective date of the Company’s
first registered public offering of its Common Stock, or (ii) June 7, 2007;
(iii) If such registration, qualification or compliance is not proposed to be part of a firm
commitment underwritten public offering with nationally recognized underwriters reasonably
acceptable to the Company;
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(iv) If, after the Company gives the notice specified, the Holders propose to sell a number of
shares of Registrable Securities and the reasonably anticipated aggregate offering proceeds, net of
Selling Expenses, are less than Seven Million Five Hundred Dollars ($7,500,000);
(v) If the resale of the Company’s securities to be covered by the required registration
statement could be registered on Form S-3;
(vi) During the period starting with the date sixty (60) days prior to the Company’s estimated
date of filing of, and ending on the date one hundred eighty (180) days immediately following the
effective date of, any registration statement pertaining to securities of the Company (other than a
registration of securities in a Rule 145 transaction or with respect to an employee benefit plan),
provided that the Company is actively employing in good faith commercially reasonable efforts to
cause such registration statement to become effective;
(vii) After the Company has effected two (2) registrations pursuant to Section 5.1(a) above;
provided that a registration that is closed or withdrawn at the request of the Holders (other than
a request for registration that is withdrawn due to a material adverse change to the Company) will
count as a registration pursuant to this subparagraph 5.1(b)(vii);
(viii) If the Company shall furnish to the Initiating Holders a certificate signed by the
President of the Company stating that in the good faith judgment of the Company’s Board of
Directors it would be seriously detrimental to the Company or its shareholders for a registration
statement to be filed in the near future; in which case the Company’s obligation to use its best
efforts to register, qualify or comply under this Section 5.1 shall be deferred for a period not to
exceed one hundred twenty (120) days from the date of receipt of the written request from the
Initiating Holders, provided that the Company may not exercise this deferral right more than once
per twelve (12) month period; or
(ix) If the Company gives notice to the Initiating Holders, within thirty (30) days after
receipt of the Initiating Holders’ notice of request for registration, of its intent to file a
registration statement covering the initial public offering of the Company’s securities within
ninety (90) days.
(x) Subject to the foregoing clauses, the Company shall file a registration statement covering
the Registrable Securities so requested to be registered as soon as practicable after receipt of
the request or requests of the Initiating Holders.
(c) Underwriting. In the event of a registration pursuant to this Section 5.1, the Company
shall advise the Holders as part of the notice given pursuant to Section 5.1(a)(i) above that the
right of any Holder to registration pursuant to this Section 5.1 shall be conditioned upon such
Holder’s participation in the underwriting arrangements required by this Section 5.1, and the
inclusion of such Holder’s Registrable Securities in the underwriting, to the extent requested
shall be limited to the extent provided herein.
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(d) Underwriting Agreement; Limitation of Underwritten Shares. The Company shall enter,
together with all Holders proposing to distribute their securities through such underwriting, into
an underwriting agreement in customary form with the managing underwriter selected for such
underwriting. Notwithstanding any other provision of this Section 5.1, if the managing underwriter
advises the Initiating Holders and the Company in writing that marketing factors require a
limitation of the number of shares to be underwritten, then the Company shall so advise all Holders
requesting to be included in the registration and underwriting and the number of shares of
Registrable Securities that may be included in the registration and underwriting shall be allocated
among all Holders requesting to be included in the registration and underwriting in proportion, as
nearly as practicable, to the respective amounts of Registrable Securities held by them at the time
of filing the registration statement; provided however that no shares of Registrable Securities,
other than Exchange Related Shares, shall be excluded from such offering unless all Exchange
Related Shares have been first excluded and no Exchange Related Shares shall be excluded from such
offering unless all other securities of the Company, other than Registrable Securities, are reduced
in their entirety. No Registrable Securities excluded from the underwriting by reason of the
underwriter’s marketing limitation shall be included in such registration. To facilitate the
allocation of shares in accordance with the above provisions, the Company or the underwriters may
round the number of shares allocated to any Holder to the nearest one hundred (100) shares. If any
Holder of Registrable Securities disapproves of the terms of the underwriting, such person may
elect to withdraw therefrom by written notice to the Company.
5.2 Company Registration.
(a) Notice of Registration. If at any time or from time to time the Company shall determine
to register any of its equity securities, either for its own account or the account of a Holder or
other holders, other than (i) a registration relating solely to employee benefit plans, (ii) a
registration relating solely to a Rule 145 transaction or (iii) a registration in which the only
equity security being registered is Common Stock issuable upon conversion of convertible debt
securities which are also being registered, the Company will:
(i) promptly give to each Holder written notice thereof; and
(ii) include in such registration (and any related qualifications including compliance with
“blue sky” laws), and in any underwriting involved therein, all the Registrable Securities
specified in a written request or requests, made within fifteen (15) business days after the date
of such written notice from the Company, by any Holder.
(b) Underwriting. If the registration of which the Company gives notice is for a registered
public offering involving an underwriting, the Company shall so advise the Holders as part of the
written notice given pursuant to Section 5.2(a)(i) above. In such event, the right of any Holder
to registration pursuant to this Section 5.2 shall be conditioned upon such Holder’s participation
in such underwriting, and the inclusion of Registrable Securities in the underwriting shall be
limited to the extent provided herein.
(c) Underwriting Agreement; Limitation of Underwritten Securities. All Holders proposing to
distribute their securities through such underwriting shall (together with
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the Company and all the other Holders distributing their securities through such underwriting)
enter into an underwriting agreement in customary form with the managing underwriter selected for
such underwriting by the Company. Notwithstanding any other provision of this Section 5.2, if the
managing underwriter determines that marketing factors require a limitation of the number of shares
to be underwritten, the managing underwriter may limit the Registrable Securities to be included in
such registration (i) in the case of the Company’s initial public offering, to zero (0), and (ii)
in the case of any other offering, to an amount no less than twenty-five percent (25%) of all
shares to be included in such offering. No shares of Registrable Securities, other than Exchange
Related Shares, shall be excluded from such offering unless all Exchange Related Shares have been
first excluded and no Exchange Related Shares shall be excluded from such offering unless all other
securities of the Company, other than Registrable Securities, are excluded in their entirety. The
Company shall so advise all Holders requesting to be included in the registration and underwriting
that the number of shares of Registrable Securities that may be included in the registration and
underwriting shall be allocated among all the Holders requesting to be included in the registration
and underwriting in proportion, as nearly as practicable, to the respective amounts of Registrable
Securities held by them at the time of filing the registration statement. To facilitate the
allocation of shares in accordance with the above provisions, the Company or the underwriters may
round the number of shares allocated to any Holder to the nearest one hundred (100) shares. If any
Holder disapproves of the terms of any such underwriting, such person may elect to withdraw
therefrom by written notice to the Company.
(d) Right to Terminate Registration. The Company shall have the right to terminate or
withdraw any registration initiated by it under this Section 5.2 prior to the effectiveness of such
registration whether or not any Holder has elected to include securities in such registration, and
shall promptly notify any Holder that has elected to include shares in such registration of such
termination or withdrawal. The Registration Expenses of such withdrawn registration shall be borne
by the Company in accordance with Section 5.5 hereof.
5.3 Registration on Form S-3.
(a) Request for Registration. In the event the Company receives a written request from
Holders, who, in the aggregate, hold not less than ten percent (10%) of the Registrable Securities
then outstanding, that the Company file a registration statement on Form S-3 (or any successor form
to Form S-3) for a public offering of shares of Registrable Securities the aggregate price to the
public of which would exceed one million dollars ($1,000,000) net of Selling Expenses, and the
Company is a registrant entitled to use Form S-3 to register the Registrable Securities for such an
offering, the Company shall use commercially reasonable efforts to cause such Registrable
Securities to be registered for the offering on such form and to cause such Registrable Securities
to be qualified in such jurisdictions as such Holder or Holders may reasonably request. The
Company shall inform the other Holders of the proposed registration and offer them the opportunity
to participate. In the event the registration is proposed to be part of a firm commitment
underwritten public offering, the substantive provisions of Section 5.1(d) above shall be
applicable to each such registration initiated under this Section 5.3.
(b) Exceptions to Obligation to Register. Notwithstanding the foregoing, the Company shall
not be obligated to take any action pursuant to this Section 5.3:
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(i) If, within thirty (30) days of receipt of a written request from any Holder or Holders
pursuant to this Section 5.3, the Company gives notice to such Holder or Holders of the Company’s
intention to make a public offering (other than a registration of securities in a Rule 145
transaction or with respect to an employee benefit plan) within ninety (90) days, provided that
such Holders are permitted to register such shares as requested to be registered pursuant to
Section 5.3 hereof without reduction by the underwriter thereof and provided that the Company is
actively employing in good faith commercially reasonable efforts to cause such registration
statement to become effective;
(ii) If, during the previous twelve (12) months, the Company has effected three (3)
registrations pursuant to this Section 5.3; or
(iii) If the Company shall furnish to the Holders requesting the S-3 registration a
certificate signed by the President of the Company stating that, in the good faith judgment of the
Board of Directors, it would be seriously detrimental to the Company or its shareholders for a
registration statement to be filed in the near future, in which case the Company’s obligation to
use its commercially reasonable efforts to file a registration statement shall be deferred for a
period not to exceed one hundred twenty (120) days from the receipt of the request to file such
registration by such Holders, provided that the Company may not exercise this deferral right more
than once per twelve (12) month period.
5.4 Subsequent Registration Rights. The Company shall not enter into any agreement granting
any holder or prospective holder of any securities of the Company registration rights superior to
or on a pari passu basis with the rights granted to the Holders hereunder without the written
consent of the holders of a majority of the Registrable Securities (excluding the Exchange Related
Shares).
5.5 Expenses of Registration. All Registration Expenses incurred pursuant to Section 5.1, all
registrations pursuant to Section 5.2, and pursuant to Section 5.3 shall be borne by the Company,
except for the Registration Expenses incurred pursuant to the third registration to be effected
within a twelve (12) month period pursuant to Section 5.3 as such Registration Expenses shall be
borne by the Holders requesting such registration. In the event that Initiating Holders cause the
Company to begin a registration pursuant to Section 5.1 and the request for such registration is
subsequently withdrawn by the Initiating Holders or is otherwise not successfully completed due to
no fault of the Company, all Holders shall not be deemed to have forfeited their right to one
registration under Section 5.1. Unless otherwise agreed, all Selling Expenses relating to
securities registered on behalf of the Holders and all other registration expenses shall be borne
by the Holders of such securities pro rata on the basis of the number of shares so registered or
proposed to be so registered.
5.6 Registration Procedures. The Company will keep each Holder advised in writing as to the
initiation of each registration effected by the Company pursuant to this Agreement and as to the
completion thereof. The Company will:
(a) prepare and file with the Commission a registration statement and such amendments and
supplements as may be necessary, and use commercially reasonable efforts to cause such registration
statement to become and remain effective for at least one
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hundred twenty (120) days or until the distribution described in the registration statement
has been completed;
(b) furnish to the Holders and to the underwriters of the securities being registered such
reasonable number of copies of the registration statement, preliminary prospectus, final prospectus
and such other documents as such underwriters and Holders may reasonably request in order to
facilitate the public offering of such securities;
(c) use its 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;
(d) in the event of any underwritten public offering, enter into and perform its obligations
under an underwriting agreement, in usual and customary form, with the managing underwriter(s) of
such offering. Each Holder participating in such underwriting shall also enter into and perform
its obligations under such an agreement;
(e) 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. The Company will use reasonable efforts to amend or
supplement such prospectus in order to cause such prospectus not to include any untrue statement of
a material fact or omit 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; and
(f) use its reasonable efforts to furnish, on the date that such Registrable Securities are
delivered to the underwriters for sale, if such securities are being sold through underwriters, (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, addressed to the underwriters, if any, 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 addressed to the underwriters.
5.7 Indemnification.
(a) The Company will indemnify each Holder, each of its officers, directors, shareholders and
partners, any underwriters (as defined in the Act) for such Holder and each person controlling such
Holder within the meaning of Section 15 of the Securities Act, with respect to which registration
has been effected pursuant to this Agreement, against all expenses, claims, losses, damages or
liabilities (or actions in respect thereof), including any of the foregoing incurred in settlement
of any litigation, commenced or threatened, arising out of or
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based on any untrue statement (or alleged untrue statement) of a material fact contained in
any registration statement, prospectus, offering circular or other document, or any amendment or
supplement thereto, incident to any such registration, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made, not misleading, or any
violation by the Company of the Securities Act, the Exchange Act, state securities laws or any rule
or regulation promulgated under such laws applicable to the Company in connection with any such
registration, and the Company will reimburse each such Holder, each of its officers, directors,
partners and shareholders and underwriter and each person controlling such Holder or underwriter,
for any legal and any other expenses reasonably incurred, as such expenses are incurred, in
connection with investigating, preparing or defending any such claim, loss, damage, liability or
action, provided that the Company will not be liable in any such case to the extent that any such
claim, loss, damage, liability or expense arises out of or is based on any untrue statement or
omission or alleged untrue statement or omission, made in reliance upon and in conformity with
written information furnished to the Company by an instrument duly executed by such Holder or
controlling person, and stated to be specifically for use therein; provided, however, that the
foregoing indemnity agreement is subject to the condition that, insofar as it relates to any such
untrue statement, alleged untrue statement, omission or alleged omission made in a preliminary
prospectus on file with the Commission at the time the registration statement becomes effective or
the amended prospectus is filed with the Commission pursuant to Rule 424(b) (the “Final
Prospectus”), such indemnity agreement shall not inure to the benefit of any Holder if a copy of
the Final Prospectus was not furnished to the person asserting the loss, liability, claim or damage
at or prior to the time such action is required by the Securities Act, and if the Final Prospectus
would have cured the defect giving rise to the loss, liability, claim or damage.
(b) Each Holder will, if Registrable Securities held by such Holder are included in the
securities as to which such registration, qualification or compliance is being effected, indemnify
the Company, each of its directors and officers who signed the registration statement, other
holders of the Company’s securities covered by such registration statement, each person who
controls the Company within the meaning of Section 15 of the Securities Act, and each other such
Holder, each of its officers and directors and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, against all claims, losses, damages and liabilities
(or actions in respect thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any such registration statement, prospectus,
offering circular or other document, or any amendment or supplement thereto, or any omission (or
alleged omission) to state therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances they were made, not misleading, or any
violation by the Holder of the Securities Act, the Exchange Act, state securities laws or any rule
or regulation promulgated under such laws applicable to the Holder in connection with any such
registration, and such Holder will reimburse the Company, such other Holders, and the directors,
officers, persons, underwriters or control persons of the Company or such other Holders for any
legal and any other expenses reasonably incurred, as such expenses are incurred, in connection with
investigating, preparing or defending any such claim, loss, damage, liability or action, but in the
case of the Company or the other Holders or their officers, directors or controlling persons, only
to the extent that such untrue statement (or
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alleged untrue statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document in reliance upon and in conformity with
information furnished to the Company by such Holder in writing; provided, however, that the total
amounts payable in indemnity by a Holder under this Section 5.7(b) shall not exceed the net
proceeds received by such Holder in the registered offering out of which such claim, loss, damage
or liability arises.
(c) Each party entitled to indemnification under this Section 5.7 (the “Indemnified Party”)
shall give notice to the party required to provide indemnification (the “Indemnifying Party”)
promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may
be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct
the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval
shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at
such party’s expense, and provided further that the failure of any Indemnified Party to give notice
as provided herein shall not relieve the Indemnifying Party of its obligations under this Agreement
unless the failure to give such notice is materially prejudicial to an Indemnifying Party’s ability
to defend such action, and provided further, that the Indemnifying Party shall not assume the
defense for matters as to which there is a conflict of interest or there are separate and different
defenses. No Indemnifying Party, in the defense of any such claim or litigation, shall, except
with the consent of each Indemnified Party (whose consent shall not be unreasonably withheld),
consent to entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a
release from all liability with respect to such claim or litigation.
(d) If the indemnification provided for in this Section 5.7 is held by a court of competent
jurisdiction to be unavailable to an Indemnified Party with respect to any loss, liability, claim,
damage or expense referred to therein, then the Indemnifying Party, in lieu of indemnifying such
Indemnified Party hereunder, shall contribute to the amount paid or payable by such Indemnified
Party as a result of such loss, liability, claim, damage, or expense 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 statements or omissions that resulted in such
loss, liability, claim, damage or expense as well as any other relevant equitable considerations;
provided, that, in no event shall any contribution by a Holder under this Section 5.7(d) when
combined with any amounts paid by such Holder pursuant to Section 5.7(b) exceed the net proceeds
received by such Holder in the offering. The relative fault of the Indemnifying Party and of the
Indemnified Party shall be determined 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.
(e) Notwithstanding the foregoing, to the extent that the provisions on indemnification and
contribution contained in the underwriting agreement entered into in connection with the
underwritten public offering of the Company’s Common Stock are in conflict with the foregoing
provisions (it being understood and agreed that the silence of the
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underwriting agreement on an issue covered by this Agreement shall not be deemed a conflict),
the provisions in the underwriting agreement shall control, except that no such provisions shall
affect the Company’s obligations to indemnify Holders pursuant to Section 5.7(a).
(f) The obligations of the Company and Holders under this Section 5.7 shall survive the
completion of any offering of Registrable Securities in a registration statement under this Section
5 and otherwise, unless such obligations are superseded by an underwriting agreement in connection
with the underwritten public offering of the Company’s Common Stock.
5.8 Information by Holder. The Holder or Holders of Registrable Securities included in any
registration shall furnish to the Company such information regarding such Holder or Holders, the
Registrable Securities held by them and the distribution proposed by such Holder or Holders as the
Company may request in writing and as shall be required in connection with any registration
referred to in this Agreement.
5.9 Rule 144 Reporting. With a view to making available the benefits of certain rules and
regulations of the Commission which may at any time permit the sale of the Restricted Securities to
the public without registration after such time as a public market exists for the Common Stock of
the Company, the Company agrees to use commercially reasonable efforts to:
(a) Make and keep public information available, as those terms are understood and defined in
Rule 144 under the Securities Act, at all times after the effective date that the Company becomes
subject to the reporting requirements of the Securities Act or the Exchange Act;
(b) File with the Commission in a timely manner all reports and other documents required of
the Company under the Securities Act and the Exchange Act (at any time after it has become subject
to such reporting requirements); and
(c) So long as a Holder owns any Restricted Securities, to furnish to the Holder forthwith
upon request and at such Holder’s expense a written statement by the Company as to its compliance
with the reporting requirements of said Rule 144 (at any time after ninety (90) days after the
effective date of the first registration statement filed by the Company for an offering of its
securities to the general public) and such other reports and documents of the Company and other
information in the possession of or reasonably obtainable by the Company as the Holder may
reasonably request in availing itself of any rule or regulation of the Commission allowing the
Holder to sell any such securities without registration.
5.10 Termination of Registration Rights. The rights granted pursuant to Sections 5.1, 5.2 and
5.3 above shall terminate upon the earlier of (i) or (ii) as follows: (i) with respect to any
Holder of the Company’s outstanding stock any time (a) after the Company has completed its IPO, (b)
when such Holder (together with its affiliates, partners and former partners) holds 1% or less of
the Company’s Common Stock, and (c) upon the date such Holder is able to sell publicly without
registration all Registrable Securities then held by such Holder, if any, within a ninety (90) day
period pursuant to Rule 144 under the Securities Act or a similar
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exemption; or (ii) with respect to all Holders on the date (a) which is four (4) years after
the effective date of the closing of the Company’s first underwritten public offering of the
Company’s Common Stock pursuant to an effective registration statement under the Securities Act, or
(b) of a bona fide business acquisition of the Company, whether by merger, consolidation, sale of
all or substantially all assets, sale or exchange of stock or otherwise. Notwithstanding the
foregoing, no Holder shall be entitled to exercise any right provided for in this Section 5 with
respect to any Special Mandatory Conversion Shares.
6. Information Rights.
6.1 Basic Financial Information and Reporting. 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 principles consistently applied (except as noted therein or as disclosed to the
recipients thereof), and will set aside on its books all such proper accruals and reserves as shall
be required under generally accepted accounting principles consistently applied.
6.2 Inspection Rights. Upon reasonable notice and request of a Major Holder, the Company will
permit each Major Holder and such Major Holder’s employees, agents or representatives, to examine
and make copies of any extracts from the records and books of account of, and visit and inspection
the properties, assets, operations, and business of the Company, and to discuss the affairs,
finances and accounts of the Company with its officers, consultants, directors, employees,
attorneys or independent accountants, including audited annual financial reports, quarterly
unaudited financial reports, monthly unaudited financial reports and annual budget and business
plans, to the extent prepared by the Company. The Company will deliver to each Major Holder (i) as
soon as practicable, but in any event within one hundred and twenty (120) days after the end of
each fiscal year of the Company, an income statement for such fiscal year, a balance sheet of the
Company and statement of shareholders’ equity as of the end of such year, and a statement of cash
flows for such year, such year end financial reports to be in reasonable detail, prepared in
accordance with generally accepted accounting principles (“GAAP”), and audited and certified by
independent public accountants of nationally recognized standing selected by the Company; (ii) as
soon as practicable, but in any event within forty-five (45) days after the end of each of the
first three (3) quarters of each fiscal year of the Company, an unaudited income statement,
statement of cash flows for such fiscal quarter and an unaudited balance sheet as of the end of
such fiscal quarter; (iii) within thirty (30) days of the end of each month, an unaudited income
statement and statement of cash flows and balance sheet for and as of the end of such month, in
reasonable detail; (iv) as soon as practicable, but in any event at least thirty (30) days prior to
the end of each fiscal year, a budget and business plan for the next fiscal year, prepared on a
monthly basis, including balance sheets, income statements and statements of cash flows for such
months and, as soon as prepared, any other budgets or revised budgets prepared by the Company; and
(v) with respect to the financial statements called for in subsections (ii) and (iii) above, an
instrument executed by the Chief Financial Officer or President of the Company certifying that such
financials were prepared in accordance with GAAP consistently applied with prior practice for
earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present
the financial condition of the Company and its results of operation for the period specified,
subject to year end audit
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adjustment. The Company shall permit the Investor and its agents and representative, to
conduct an audit of the Company’s financial statements at the expense of such Investor at any time
on reasonable notice.
6.3 Termination. The rights granted in this Section 6 shall expire (i) upon the effective
date of the initial public offering of the Company’s securities, (ii) at such time as the Company
is required to file reports pursuant to Section 13 or 15(d) of the Exchange Act, or (iii) upon a
bona fide business acquisition of the Company, whether by merger, consolidation, sale of all or
substantially all assets, sale or exchange of stock or otherwise, whichever shall occur first, and
as to Special Mandatory Conversion Shares, on the closing of the applicable Mandatory Offering (as
defined in Article III, Section B.3(e) of the Company’s Restated Articles).
7. Lockup Agreement. Each Investor, iFone Shareholder, Holder and transferee hereby agrees
that, in connection with the initial public offering of any securities of the Company under the
Securities Act for the account of the Company, if so requested by the Company or any representative
of the underwriters (the “Managing Underwriter”), such Investor, iFone Shareholder, Holder or
transferee shall not lend, offer, pledge, sell, contract to sell, sell any option or contract to
purchase or grant any option or warrant to purchase or otherwise transfer any securities of the
Company during the period specified by the Company’s Board of Directors at the request of the
Managing Underwriter (the “Market Standoff Period”), with such period not to exceed one hundred
eighty (180) days following the effective date of the registration statement of the Company filed
under the Securities Act for the initial public offering of its securities; provided that all
officers and directors of the Company and holders of at least one percent (1%) of the Company’s
voting securities are bound by and have entered into similar agreements. The Company may impose
stop-transfer instructions with respect to securities subject to the foregoing restrictions until
the end of such Market Standoff Period.
8. Right of First Offer on Company Issuance.
8.1 Right of First Offer. The Company hereby grants to each Major Holder a right of first
offer (“Right of First Offer”) to purchase such Major Holder’s Pro Rata Share (as defined in
Section 8.3 below) of any New Securities (as defined in Section 8.4 below) which the Company may,
from time to time, propose to issue and sell. Each Major Holder shall be entitled to assign or
apportion the right of first offer hereby granted it among itself and its partners and affiliates
(including in the case of a venture capital fund other venture capital funds affiliated with such
fund) in such proportions as it deems appropriate. Notwithstanding the foregoing, the Right of
First Offer shall not apply to any Major Holder if (i) the offer of New Securities is being made
only to accredited investors, within the meaning of Rule 501 of Regulation D of the Securities Act,
as presently in effect, and (ii) such Major Holder is not an accredited investor at the time of the
offer of New Securities.
8.2 Over-Allotment Option. In the event that the Major Holders together do not purchase all
of the New Securities that the Major Holders may purchase pursuant to the Right of First Offer
granted in Section 8.1 above, then those Major Holders that shall have purchased their full Pro
Rata Share of such New Securities shall also have the right to purchase up to all of the remaining
New Securities which all Major Holders are entitled to purchase under this Section 8 (the
“Over-Allotment Option”), in addition to such New Securities as they shall already have
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elected to purchase, if they shall have so elected, as provided for in Section 8.5(a) below.
If more than one Major Holder elects to exercise such Major Holder’s Over-Allotment Option, and the
aggregate number of shares of New Securities such Major Holders elect to purchase exceeds the
remaining aggregate number of shares of New Securities which Major Holders are entitled to purchase
under this Section 8, then the shares of New Securities to be purchased pursuant to the
Over-Allotment Option shall be divided among such Major Holders according to their respective Pro
Rata Share, or on such other basis as such Major Holders may agree upon in writing.
8.3 “Pro Rata Share.” Each Major Holder’s “Pro Rata Share,” for purposes of this Section 8,
is equal to the fraction obtained by dividing (a) the sum of the total number of shares Registrable
Securities held by such Major Holder by (b) the total number of shares of Common Stock outstanding
or issuable upon exercise of outstanding options and warrants or the conversion of the Preferred
Stock (excluding any Special Mandatory Conversion Shares).
8.4 “New Securities.” Except as set forth below, “New Securities” shall mean any shares of
capital stock of the Company, including Common Stock and Preferred Stock, whether or not now
authorized, and rights, options or warrants to purchase said shares of Common Stock or Preferred
Stock and securities of any type whatsoever that are, or may by their terms become, convertible
into said shares of Common Stock or Preferred Stock. Notwithstanding the foregoing, “New
Securities” shall not include the following:
(a) the shares of Common Stock issued upon the conversion of Preferred Stock;
(b) securities issued pursuant to options, warrants, or other rights to acquire securities of
the Company that are outstanding on the date of this Agreement;
(c) shares of Common Stock, or options or other rights to purchase Common Stock, issued or
granted to officers, directors or employees of, or consultants to, this Corporation pursuant to a
stock grant, option plan or purchase plan or other employee stock incentive program approved by the
Board of Directors;
(d) securities issued or issuable to financial institutions or lessors in connection with real
estate leases, commercial credit arrangements, equipment financings or similar transactions
approved by the Board of Directors, the principal purpose of which is non-equity financing;
(e) securities issued by the Company pursuant to a strategic partnership, joint venture or
other arrangement approved by the Board of Directors the principal purpose of which is non-equity
financing;
(f) securities issued by way of dividend or other distribution on shares of Common Stock
excluded from the definition of New Securities by clauses (i), (ii), (iii), (iv), (v), (ix) and
(xi) on shares of Common Stock so excluded;
(g) shares of Common Stock or other securities issued as a dividend or distribution on the
Preferred Stock or any event for which an appropriate adjustment to the Preferred Stock is made;
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(h) securities issued pursuant to a stock split or other similar reorganization for which an
appropriate adjustment to the Preferred Stock is made;
(i) securities issued by the Company for consideration other than cash pursuant to a merger,
consolidation, acquisition, or similar business combination approved by the Board of Directors,
including the approval of the directors elected solely by the Preferred Stock;
(j) shares of Special Junior Preferred Stock, or options or other rights to purchase shares of
Special Junior Preferred Stock, provided that such issuance is approved by the Board of Directors;
(k) securities issued pursuant to a public offering of the Company’s securities; or
(l) securities issued pursuant to a vote of a majority of the holders of Preferred Stock,
voting as a single class, not as a separate series, on an as converted basis, that such shares
shall not be deemed New Securities.
8.5 Procedure. In the event the Company proposes to undertake an issuance of New Securities,
it shall give each Major Holder written notice (the “Company Notice”) of its intention, describing
the amount and type of New Securities to be issued, and the price and terms upon which the Company
proposes to issue the same. Each Major Holder shall have fifteen (15) days from the date of
receipt of the Company Notice to exercise such Major Holder’s Right of First Offer to purchase up
to such Major Holder’s respective Pro Rata Share of such New Securities for the price and upon the
terms specified in the Company Notice by delivering written notice (the “Right of First Offer
Election Notice”) to the Company and stating therein the quantity of New Securities to be
purchased.
(a) If the Company shall have received one or more Right of First Offer Election Notices
within fifteen (15) days from the date all Major Holders are deemed to have received the Company
Notice as described in Section 15 hereof, in which one or more (but less than all) Major Holders
have elected to purchase their full Pro Rata Share of the New Securities, the Company shall
immediately give each such Major Holder notice (the “Over-Allotment Notice”) indicating the
aggregate amount of New Securities as to which the Investors shall not have exercised their
respective Rights of First Offer. Each Major Holder who shall have elected to purchase at least
its full Pro Rata Share of such New Securities, pursuant to this Section 8, shall have ten (10)
days after deemed receipt of the Over-Allotment Notice, as described in Section 15 hereof, to give
notice (the “Over-Allotment Election Notice”) to the Company whether it elects to exercise its
Over-Allotment Option granted in Section 8.2 hereof (and, if so, the maximum number of additional
shares of New Securities it elects to purchase pursuant thereto).
(b) Settlement for the New Securities to be purchased by the Major Holders pursuant to this
Section 8.5 shall be made in cash within thirty (30) days from the Major Holders’ deemed date of
receipt of the Company Notice; provided, however, that if the terms of payment for the New
Securities specified in the Company Notice were other than cash against delivery, each Major Holder
shall pay in cash to the Company the fair market value of such
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consideration as mutually agreed upon by the Company and a majority of the Major Holders who
elect to purchase New Securities or, if no such agreement is reached, as determined by the
Company’s Board of Directors, which determination shall be final, within five (5) days of such
determination if such determination is made after twenty-five (25) days following receipt of the
Company Notice.
(c) The Company shall have ninety (90) days after the deemed receipt of the Company Notice to
sell the New Securities not elected to be purchased by Major Holders at the price and upon terms no
more favorable to the purchasers of such securities than specified in the Company Notice. In the
event the Company has not sold some or all of the New Securities within such ninety (90) day
period, the Company shall not thereafter issue or sell any unsold New Securities without first
offering such securities to the Major Holders in the manner provided above.
(d) If any Major Holder shall have failed to deliver to the Company its Right of First Offer
Election Notice or Over-Allotment Election Notice within the time periods described in this Section
8.5, such Major Holder shall be deemed to have waived its Right of First Offer and Over-Allotment
Option, as the case may be, as to such financing to which such notice pertains.
8.6 Waiver of Right of First Offer. The Right of First Offer may be waived as to any given
issuance of New Securities on behalf of all Major Holders, by Major Holders holding a majority of
the Registrable Securities then held by all Major Holders or their permitted assignees or
transferees, subject to the Special Mandatory Conversion provision set forth in the Company’s
Restated Articles.
8.7 Right of First Offer Not Applicable. The provisions of this Section 8 shall not apply to
a Mandatory Offering to the extent of the Aggregate Investment Amount (as such terms are defined in
Article III, Section B.3(e) of the Company’s Restated Articles).
8.8 Termination and Assignment. The Right of First Offer granted in this Section 8 shall
expire upon the effective date of the initial public offering of the Company’s securities or upon a
bona fide business acquisition of the Company, whether by merger, consolidation, sale of assets,
sale or exchange of stock or otherwise, and as to Special Mandatory Conversion Shares on the
closing of the applicable Mandatory Offering (as defined in Article III, Section B.3(e) of the
Company’s Restated Articles).
8.9 Company Right to Terminate Issuance of New Securities. Notwithstanding the foregoing, the
Company may in its sole discretion terminate any proposed issuance of New Securities in respect of
which the Company has given Company Notice, at any time prior to the consummation thereof. The
foregoing provision shall apply even in the event one or more Investors shall have exercised their
Rights of First Offer hereunder; provided, however, that no New Securities shall then have been
issued.
9. Restricted Activities. Without the prior written consent or vote of a majority of the
Board of Directors of the Company, neither the Company nor its subsidiaries (if any) shall,
together or alone:
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(a) mortgage or pledge, or create a security interest in, permit any subsidiary to mortgage,
pledge or create a security interest in, all or substantially all of the property of the Company or
such subsidiary company;
(b) own, or permit any subsidiary company to own, any stock or other securities of any
subsidiary company or other corporation, partnership or entity unless it is wholly owned by the
Company;
(c) make any material loans or advances to employees, except in the ordinary course of
business as part of travel advances or salary, except promissory notes issued for the purchase of
shares of this Corporation; or
(d) make material guarantees except in ordinary course.
10. Covenants of the Company.
10.1 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.
10.2 Insurance. The Company will purchase directors and officers insurance in an amount
deemed appropriate by the Board of Directors.
10.3 Proprietary Information and Inventions Agreement. The Company shall require all
employees and consultants to execute and deliver a Proprietary Information and Inventions Agreement
substantially in a form approved by the Company’s counsel or Board of Directors.
11. Transfer of Rights. The rights granted under Sections 5, 6 and 8 of this Agreement (the
“Rights”) are not assignable except to any party that (i) acquires at least 385,208 shares of the
transferring Holder’s Registrable Securities (appropriately adjusted for recapitalizations, stock
splits and the like), or all of the transferring Holder’s shares, if less, and (ii) agrees in
writing to be bound by the terms of this Agreement. Notwithstanding the foregoing, the Rights may
be assigned without compliance with the 385,208 share minimum described above to (x) any
constituent partner, member or shareholder of a Holder that is a partnership, limited liability
company or corporation, (y) a family member of a Holder or trust for the benefit of a Holder, the
spouse of a Holder or issue of a Holder or (z) any affiliated corporation, partnership, limited
liability company or other entity (including in the case of a venture capital fund other venture
capital funds affiliated with such fund) of which at least a seventy-five percent (75%) interest is
owned or controlled, directly or indirectly, by one or more of the persons described in (x) or (y).
The Company shall be furnished with prompt written notice of any transfer of the Rights pursuant
this Section 11, which notice shall include the name and address of the transferee or assignee and
the securities with respect to which such registration rights are being assigned. Any permitted
transferee under this Section 11 shall thereupon be deemed to be a Holder and shall agree in
writing to be bound by the terms and conditions of this Agreement.
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12. Amendment. Except as otherwise provided herein, additional parties may be added to this
Agreement, any provision of this Agreement may be amended or 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 Investors holding over fifty percent (50%) of the
Registrable Securities then outstanding and held by all Investors. Notwithstanding the foregoing,
the registration rights granted with respect to the Exchange Related Shares held by the iFone
Shareholders under Section 5 of this Agreement may not be eliminated and may not be otherwise
changed in a manner that (1) is adverse to the iFone Shareholders and also (2) treats the iFone
Shareholders differently from other Holders generally, without the written consent of iFone
Shareholders holding over fifty percent (50%) of all Exchange Related Shares then outstanding and
held by iFone Shareholders. Any amendment or waiver shall be effected in accordance with Section
5.4 or Section 8 above, as applicable, and shall be binding upon each Holder, each future holder of
any of Registrable Securities and the Company.
13. Governing Law. This Agreement and the legal relations among the parties hereto arising
hereunder shall be governed by and interpreted in accordance with the laws of the State of
California. The parties hereto agree to submit to the jurisdiction of the federal and state courts
of the State of California with respect to the breach or interpretation of this Agreement or the
enforcement of any and all rights, duties, liabilities, obligations, powers and other relations
among the parties hereto arising under this Agreement.
14. Entire Agreement. This Agreement constitutes the full and entire understanding and
agreement among the parties hereto regarding the matters set forth herein. 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.
15. Notices, etc. All notices and other communications required or permitted hereunder shall
be effective upon receipt, shall be in writing and shall be mailed by registered or certified mail,
postage prepaid, or otherwise delivered by facsimile transmission, by hand or by messenger,
addressed:
(a) If to an iFone Shareholders, to the address or fax number listed after such iFone
Shareholder’s name on the Schedule of iFone Shareholders attached hereto as Exhibit B or at such
other address as such iFone Shareholder shall have furnished to the Company, with copies to (such
copy shall not constitute notice):
Xxxxxx, Cutler, Pickering, Xxxx and Xxxx, LLP
0000 Xxxxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxx Xxxxxx, Esq. & Xxxxxx X. Xxxxx, Esq.
Fax Number: (000) 000-0000
0000 Xxxxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxx Xxxxxx, Esq. & Xxxxxx X. Xxxxx, Esq.
Fax Number: (000) 000-0000
and
-00-
Xxxxxx, Xxxxxx, Xxxxxxxxx, Xxxx and Xxxx, LLP
0 Xxxxxxx Xxxxxxx
Xxxxxx, XX0X 0XX Xxxxxx Xxxxxxx
Attention: Xxxxxxx Xxxxx, Esq.
Fax Number: 00 00 0000 0000
0 Xxxxxxx Xxxxxxx
Xxxxxx, XX0X 0XX Xxxxxx Xxxxxxx
Attention: Xxxxxxx Xxxxx, Esq.
Fax Number: 00 00 0000 0000
(b) if to a Holder other than an iFone Shareholder, to the address or fax number previously
provided by such Holder to the Company (which, in the case of each of the Investors, shall be the
address or fax number listed after such Investor’s name on the Schedule of Investors attached
hereto as Exhibit A) or at such other address as such Holder shall have furnished to the Company.
(c) if to the Company, to:
Glu Mobile Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attn: President
Fax: (000) 000-0000
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attn: President
Fax: (000) 000-0000
or at such other address as the Company shall have furnished to the Holders, with a copy to:
Fenwick & West LLP
Silicon Valley Center
000 Xxxxxxxxxx Xx.
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxx, Esq.
Fax: (000) 000-0000
Silicon Valley Center
000 Xxxxxxxxxx Xx.
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxx, Esq.
Fax: (000) 000-0000
Each such notice or other communication shall for all purposes of this Agreement be treated as
effective or having been given when received if delivered personally, if sent by facsimile, the
first business day after the date of confirmation that the facsimile has been successfully
transmitted to the facsimile number for the party notified, or, if sent by mail, at the earlier of
its receipt or seventy-two (72) hours after the same has been deposited in a regularly maintained
receptacle for the deposit of United States mail, addressed and mailed as aforesaid.
16. 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.
17. Severability. In the event any provision of this Agreement shall be determined to be
invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions of this Agreement shall not in any way be affected or impaired thereby.
18. Counterparts. This Agreement may be executed in any number of counterparts, each of which
shall be an original and all of which together shall constitute one instrument.
-22-
19. Attorneys’ Fees. If any legal action is necessary to enforce or interpret the terms of
this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees, costs and
necessary disbursements in addition to any other relief to which such party may be entitled.
20. Aggregation of Stock Held by Affiliates. For the purpose of determining the availability
of any rights hereunder, any shares of Registrable Securities held by entities which control, are
controlled by, or are under common control with another entity shall be aggregated.
21. Conditioned Upon the Closing. This Agreement shall be of no further force or effect and
shall become null and void ab initio upon the termination of the Exchange Agreement.
22. Original Agreement and Waiver. The Original Agreement and all predecessors thereto are
hereby amended and restated in each of their entireties and each shall be of no further force or
effect.
[SIGNATURE PAGE TO FOLLOW]
-23-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set
forth above.
| COMPANY: | ||||||
| GLU MOBILE INC. | ||||||
| By: | /s/ L. Xxxxxxx Xxxxxxx | |||||
| L. Xxxxxxx Xxxxxxx | ||||||
| President and Chief Executive Officer | ||||||
| Address: | 0000 Xxxxxxx Xxxxx, Xxxxx 000 | |||||
| Xxx Xxxxx, XX 00000 |
Signature Page to the Amended and Restated Investors’ Rights Agreement
| IFONE SHAREHOLDERS: | ||||||||
| /s/ Denis Guyennot | ||||||||
| Denis Guyennot | ||||||||
| Address: | Les Hauts de Vaugreniers | |||||||
| 0, Xxxxx xx Xxxxxx | ||||||||
| 0000 | ||||||||
| Xxxxxxxxxx-Xxxxxx | ||||||||
| Xxxxxx | ||||||||
| /s/ Xxxxx Xxxx | ||||||||
| Xxxxx Xxxx | ||||||||
| Address: | The Xxx Xxxx | |||||||
| Xxxx Xxx Xxxxx | ||||||||
| Xxxx, Xxxxxxxx | ||||||||
| XX000XX XX | ||||||||
| /s/ Xxxxx Xxxxx | ||||||||
| Xxxxx Xxxxx | ||||||||
| Address: | XX Xxx 0 | |||||||
| 000x Xxxxxxxxx Xxxx | ||||||||
| Xxxxxxx, Xxxxxx | ||||||||
| XX00 0XX XX | ||||||||
| /s/ Xxxxxx X’Xxxxxxx | ||||||||
| Xxxxxx X’Xxxxxxx | ||||||||
| Address: | Xxx Xxxxx Xxxxx | |||||||
| Xxxxxx Xxxx | ||||||||
| Xxxxxxx, Xxxxxxxxx | ||||||||
| X00 0XX XX | ||||||||
Signature Page to the Amended and Restated Investors’ Rights Agreement
| IFONE SHAREHOLDERS: | ||||||
| LOLA, A SOCIETE ANONYME MONEGASQUE | ||||||
| By: | /s/ Denis Guyennot | |||||
| Name: | Denis Guyennot | |||||
| Its: | President Délegé | |||||
| Address: | Palais de la Scala | |||||
| 0 Xxxxxx Xxxxx Xxxxxx | ||||||
| XX 00000 Xxxxxx |
| THE BUCKINGHAM TRUST | ||||||
| By: | /s/ Illegible | |||||
| Name: | Illegible | |||||
| Its: | Director of Corporate Trustee | |||||
| Address: | Trustees of the Buckingham Trust | |||||
| Marlborough Trust Company Ltd | ||||||
| XX Xxx 00, Xxxxxxx Xxxxx, | ||||||
| Xx Xxxxxxxxxxx, | ||||||
| Xx Xxxxx Xxxx, Xxxxxxxx XX0 0XX | ||||||
| Channel Islands UK |
Signature Page to the Amended and Restated Investors’ Rights Agreement
| INVESTORS: | ||||||
| GRANITE GLOBAL VENTURES II L.P. | ||||||
| By: | Granite Global Ventures II L.L.C. | |||||
| Its: | General Partner | |||||
| By: | /s/ Hany Nada | |||||
| Name: | Hany Nada | |||||
| Its: | Managing Director | |||||
| Address: | c/o Granite Global Ventures | |||||
| 0000 Xxxx Xxxx Xxxx | ||||||
| Xxxxx 000 | ||||||
| Xxxxx Xxxx, XX 00000 | ||||||
| Fax: | (000) 000-0000 |
| GGV II ENTREPRENEURS FUND L.P. | ||||||
| By: | Granite Global Ventures II L.L.C. | |||||
| Its: | General Partner | |||||
| By: | /s/ Hany Nada | |||||
| Name: | Hany Nada | |||||
| Its: | Managing Director | |||||
| Address: | c/o Granite Global Ventures | |||||
| 0000 Xxxx Xxxx Xxxx | ||||||
| Xxxxx 000 | ||||||
| Xxxxx Xxxx, XX 00000 | ||||||
| Fax: | (000) 000-0000 |
Signature Page to the Amended and Restated Investors’ Rights Agreement
| INVESTORS: | ||||||
| NEW ENTERPRISE ASSOCIATES 10, L.P. | ||||||
| By: | NEA Partners 10, L.P. | |||||
| Its: | General Partner | |||||
| By: | ||||||
| Xxxxxxx Xxxxx | ||||||
| Its: | General Partner | |||||
| Address: | 0000 Xxxx Xxxx Xxxx | |||||
| Xxxxx Xxxx, XX 00000 | ||||||
| Fax: | (000) 000-0000 |
Signature Page to the Amended and Restated Investors’ Rights Agreement
| INVESTORS: | ||||||
| NEW ENTERPRISE ASSOCIATES 10, L.P. | ||||||
| By: | NEA Partners 10, L.P. | |||||
| Its: | General Partner | |||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||||
| Name: | Xxxxxx X. Xxxxxxx, III | |||||
| Its: | Administrative General Partner & Chief Operating Office | |||||
| Address: | 0000 Xxxx Xxxx Xxxx | |||||
| Xxxxx Xxxx, XX 00000 | ||||||
| Fax: | (000) 000-0000 |
| XXX XXXXXXXX 0000, X.X. | ||||||
| By: | NEA Ventures 2001, L.P. | |||||
| Its: | General Partner | |||||
| By: | /s/ Xxxxxx X. Xxxxx | |||||
| Name: | Xxxxxx X. Xxxxx | |||||
| Its: | General Partner | |||||
| Address: | 0000 Xxxx Xxxx Xxxx | |||||
| Xxxxx Xxxx, XX 00000 | ||||||
| Fax: | (000) 000-0000 |
Signature Page to the Amended and Restated Investors’ Rights Agreement
| INVESTORS: | ||||||
| SIENNA LIMITED PARTNERSHIP III, L.P. | ||||||
| By: | Sienna Associates III, L.L.C. | |||||
| Its: | General Partner | |||||
| By: | /s/ Xxxxxx X. Xxxxx | |||||
| Xxxxxx X. Xxxxx | ||||||
| Its: | Managing Member | |||||
| Address: | 0000 Xxxxxxxxx Xxx, Xxxxx 000 | |||||
| Xxxxxxxxx, XX 00000 | ||||||
| Fax: | (000) 000-0000 |
Signature Page to the Amended and Restated Investors’ Rights Agreement
| INVESTORS: | ||||||
| TWI GLU MOBILE HOLDINGS INC. | ||||||
| By: | /s/ Xxxxxx Xxx | |||||
| Xxxxxx Xxx | ||||||
| Its: | Vice President | |||||
| Address: | c/o Time Warner Investments | |||||
| Time Warner Inc. | ||||||
| One Time Xxxxxx Xxxxxx | ||||||
| Xxx Xxxx, XX 00000 | ||||||
| Fax: | (000) 000-0000 |
Signature Page to the Amended and Restated Investors’ Rights Agreement
| INVESTORS: | ||||||
| BAVP, L.P. | ||||||
| By: | BA Venture Partners VI, LLC | |||||
| Its: | General Partner | |||||
| By: | /s/ Xxxx X’Xxxxxxxx | |||||
| Name: | Xxxx X’Xxxxxxxx | |||||
| Its: | Managing Member | |||||
| Address: | 000 Xxxxx Xxxx, Xxxxx 000 | |||||
| Xxxxxx Xxxx, XX 00000 | ||||||
| Attn: Xxxxxx Xxxxxxx | ||||||
| Fax: | (000) 000-0000 |
Signature Page to the Amended and Restated Investors’ Rights Agreement
| INVESTORS: | ||||||
| JAFCO AMERICA TECHNOLOGY FUND III, LP | ||||||
| JAFCO AMERICA TECHNOLOGY CAYMAN FUND III, LP | ||||||
| JAFCO USIT FUND III, LP | ||||||
| JAFCO AMERICA TECHNOLOGY AFFILIATES FUND III, LP | ||||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||||
| Xxxxx X. Xxxxxxxxx | ||||||
| Managing Member | ||||||
| Jav Management Associates III, L.L.C. | ||||||
| Its General Partner | ||||||
| Address: | 000 Xxxxxxxx Xxxxxx Xxx Xxxxx | |||||
| Xxxx Xxxx, XX 00000 Attn: Xxxxx Xxxxxxxxx |
||||||
| Fax: | (000) 000-0000 |
| GLOBESPAN CAPITAL PARTNERS IV, L.P. | ||||||
| GCP IV AFFILIATES FUND, L.P. | ||||||
| JAFCO GLOBESPAN USIT IV, L.P. | ||||||
| By: | Globespan Management Associates IV, L.P. | |||||
| Its: | Sole General Partner | |||||
| By: | Globespan Management Associates IV, LLC | |||||
| Its: | Sole General Partner | |||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||||
| Xxxxx X. Xxxxxxxxx | ||||||
| Member | ||||||
| Address: | 000 Xxxxxxxx Xxxxxx Xxx Xxxxx | |||||
| Xxxx Xxxx, XX 00000 | ||||||
| Attn: Xxxxx Xxxxxxxxx | ||||||
| Fax: | (000) 000-0000 |
Signature Page to the Amended and Restated Investors’ Rights Agreement
| INVESTORS: | ||||||
| GLOBESPAN CAPITAL PARTNERS (CAYMAN) IV, L.P. | ||||||
| By: | Globespan Management Associates IV, L.P. | |||||
| Its: | Sole General Partner | |||||
| By: | Globespan Management Associates IV, LLC | |||||
| Its: | Sole General Partner | |||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||||
| Xxxxx X. Xxxxxxxxx | ||||||
| Member | ||||||
| Address: | 000 Xxxxxxxx Xxxxxx Xxx Xxxxx | |||||
| Xxxx Xxxx, XX 00000 | ||||||
| Attn: Xxxxx Xxxxxxxxx | ||||||
| Fax: | (000) 000-0000 |
| GLOBESPAN CAPITAL PARTNERS IV GmbH & Co. KG | ||||||
| By: | Globespan Management Associates IV, GmbH | |||||
| Its: | General Partner | |||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||||
| Xxxxx X. Xxxxxxxxx | ||||||
| Managing Director | ||||||
| Address: | 000 Xxxxxxxx Xxxxxx Xxx Xxxxx | |||||
| Xxxx Xxxx, XX 00000 | ||||||
| Attn: Xxxxx Xxxxxxxxx | ||||||
| Fax: | (000) 000-0000 |
Signature Page to the Amended and Restated Investors’ Rights Agreement
| INVESTORS: | ||||||
| /s/ Xxx Xxxxxxxxx | ||||||
| Xxx Xxxxxxxxx | ||||||
Signature Page to the Amended and Restated Investors’ Rights Agreement
| INVESTORS: | ||||||
| XXXXX FAMILY 2003 REVOCABLE TRUST | ||||||
| /s/ Xxxxxxx X. Xxxxx | ||||||
| Xxxxxxx X. Xxxxx, Principal | ||||||
| Address: | 000 Xxxxxx Xxxxxx | |||||
| Xxx Xxxxxxxxx, XX 00000 | ||||||
| Fax: | 000-000-0000 | |||||
Signature Page to the Amended and Restated Investors’ Rights Agreement
| INVESTORS: | ||||||
| CLEF, LP | ||||||
| By: | Clef General Partner, LLC | |||||
| Its: | General Partner | |||||
| By: | ||||||
| Xxxxxx Xxxxxxx | ||||||
| Its: | Sole Member | |||||
| Address: | ||||||
| Fax: | ||||||
Signature Page to the Amended and Restated Investors’ Rights Agreement
| INVESTORS: | ||||||
| PINNACLE VENTURES I-A (Q), L.P. | ||||||
| PINNACLE VENTURES I-B, L.P. | ||||||
| PINNACLE VENTURES AFFILIATES, L.P. | ||||||
| By: | Pinnacle Ventures Management I, L.L.C. | |||||
| Their: | General Partner | |||||
| By: | ||||||
| Xxxxxx X. Xxxxxx | ||||||
| Its: | Chief Financial Officer | |||||
| Address: | ||||||
| Fax: | ||||||
| PINNACLE VENTURES II-B (Q), L.P. | ||||||
| PINNACLE VENTURES II-C, L.P. | ||||||
| PINNACLE VENTURES II-R, L.P. | ||||||
| By: | Pinnacle Ventures Management II, L.L.C. | |||||
| Their: | General Partner | |||||
| By: | ||||||
| Xxxxxx X. Xxxxxx | ||||||
| Its: | Chief Financial Officer | |||||
| Address: | ||||||
| Fax: | ||||||
Signature Page to the Amended and Restated Investors’ Rights Agreement
EXHIBIT A
Investors
NEW ENTERPRISE ASSOCIATES 10, L.P.
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
XXX XXXXXXXX 0000, X.X.
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
SIENNA LIMITED PARTNERSHIP III, L.P.
0000 Xxxxxxxxx Xxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
0000 Xxxxxxxxx Xxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
XXXXXXX XXXXX & XXXXX INVESTMENT, L.L.C.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Fax: (000) 000-0000
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Fax: (000) 000-0000
XXXXX XXX
000-X Xxxxxxxxx Xxxx., #000
Xxxxxx Xxxx, XX 00000
000-X Xxxxxxxxx Xxxx., #000
Xxxxxx Xxxx, XX 00000
XXXXXX X. XXXXXXXX, III
000 Xxxxxxxxxx Xx., 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
000 Xxxxxxxxxx Xx., 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
XXXXX XXXXXX
0000 00xx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
0000 00xx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
JAFCO AMERICA TECHNOLOGY FUND III, LP
JAFCO AMERICA TECHNOLOGY CAYMAN FUND III, LP
JAFO USIT FUND III, LP
JAFCO AMERICA TECHNOLOGY AFFILIATES FUND III, LP
GLOBESPAN CAPITAL PARTNERS IV, LP
GCP IV AFFILIATES FUND, L.P.
GLOBESPAN CAPITAL PARTNERS (CAYMAN) IV, LP
JAFCO GLOBESPAN USIT IV, LP
GCP IV AFFILIATES FUND, L.P.
GLOBESPAN CAPITAL PARTNERS IV GMBH & CO. KG
000 Xxxxxxxx Xxxxxx Xxx Xxxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx
Fax: (000) 000-0000
JAFCO AMERICA TECHNOLOGY CAYMAN FUND III, LP
JAFO USIT FUND III, LP
JAFCO AMERICA TECHNOLOGY AFFILIATES FUND III, LP
GLOBESPAN CAPITAL PARTNERS IV, LP
GCP IV AFFILIATES FUND, L.P.
GLOBESPAN CAPITAL PARTNERS (CAYMAN) IV, LP
JAFCO GLOBESPAN USIT IV, LP
GCP IV AFFILIATES FUND, L.P.
GLOBESPAN CAPITAL PARTNERS IV GMBH & CO. KG
000 Xxxxxxxx Xxxxxx Xxx Xxxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx
Fax: (000) 000-0000
A-1
BAVP, L.P.
000 Xxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Fax: (000) 000-0000
000 Xxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to
Xxxxxx Godward, LLP
0000 Xxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000-0000
Attn: Xxxxx Xxxxxx, Esq.
Fax: (000) 000-0000
0000 Xxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000-0000
Attn: Xxxxx Xxxxxx, Esq.
Fax: (000) 000-0000
GC&H INVESTMENTS, LLC
Xxx Xxxxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000-0000
Fax: 000-000-0000
Xxx Xxxxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000-0000
Fax: 000-000-0000
GRANITE GLOBAL VENTURES II L.P.
GGV II ENTREPRENEURS FUND L.P.
c/o Granite Global Ventures
0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
GGV II ENTREPRENEURS FUND L.P.
c/o Granite Global Ventures
0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to
Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP
0000 Xxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000-0000
Attn: Xxxxxxx Xxxxxxx Xxxxxx, Esq.
Fax: (000) 000-0000
0000 Xxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000-0000
Attn: Xxxxxxx Xxxxxxx Xxxxxx, Esq.
Fax: (000) 000-0000
TWI GLU MOBILE HOLDINGS INC.
c/o Time Warner Investments
Time Warner Inc.
One Time Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Managing Director
Fax: (000) 000-0000
c/o Time Warner Investments
Time Warner Inc.
One Time Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Managing Director
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to
Time Warner Legal
One Time Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel
Fax: (000) 000-0000
One Time Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel
Fax: (000) 000-0000
A-2
XXX XXXXXXXXX
0000 Xxxxxxxx Xx.
Xxxx Xxxxxx, XX 00000
0000 Xxxxxxxx Xx.
Xxxx Xxxxxx, XX 00000
XXXXX FAMILY 2003 REVOCABLE TRUST
Xxxxxxx X. Xxxxx, Principal
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxx, Principal
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
CLEF, LP
c/o Xxxxxx Xxxxxxx Associates International
0000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxxxxxxx, XX. 00000
c/o Xxxxxx Xxxxxxx Associates International
0000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxxxxxxx, XX. 00000
PINNACLE VENTURES I-A (Q), L.P.
PINNACLE VENTURES I-B, L.P.
PINNACLE VENTURES I AFFILIATES, L.P.
PINNACLE VENTURES II-B (Q), L.P.
PINNACLE VENTURES II-C, L.P.
PINNACLE VENTURES II-R, L.P.
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
PINNACLE VENTURES I-B, L.P.
PINNACLE VENTURES I AFFILIATES, L.P.
PINNACLE VENTURES II-B (Q), L.P.
PINNACLE VENTURES II-C, L.P.
PINNACLE VENTURES II-R, L.P.
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
A-3
EXHIBIT B
iFone Shareholders
DENIS GUYENNOT
Les Hauts de Vaugreniers
0, Xxxxx xx Xxxxxx
0000
Xxxxxxxxxx-Xxxxxx
Xxxxxx
Les Hauts de Vaugreniers
0, Xxxxx xx Xxxxxx
0000
Xxxxxxxxxx-Xxxxxx
Xxxxxx
LOLA, A SOCIETE ANONYME MONEGASQUE
Palais de la Scala
0 Xxxxxx Xxxxx Xxxxxx
XX 00000 Xxxxxx
Palais de la Scala
0 Xxxxxx Xxxxx Xxxxxx
XX 00000 Xxxxxx
XXXXX XXXX
Xxx Xxx Xxxx
Xxxx Xxx Xxxxx
Xxxx, Xxxxxxxx
XX00 0XX XX
Xxx Xxx Xxxx
Xxxx Xxx Xxxxx
Xxxx, Xxxxxxxx
XX00 0XX XX
XXXXX XXXXX
XX Xxx 0
000x Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxx
XX00 0XX XX
XX Xxx 0
000x Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxx
XX00 0XX XX
XXXXXX X’XXXXXXX
Xxx Xxxxx Xxxxx
Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxx
X00 0XX UK
Xxx Xxxxx Xxxxx
Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxx
X00 0XX UK
THE BUCKINGHAM TRUST
Trustees of the Buckingham Trust
Marlborough Trust Company Ltd
XX Xxx 00, Xxxxxxx Xxxxx,
Xx Xxxxxxxxxxx,
Xx Xxxxx Xxxx, Xxxxxxxx XX0 0XX
Channel Islands UK
Trustees of the Buckingham Trust
Marlborough Trust Company Ltd
XX Xxx 00, Xxxxxxx Xxxxx,
Xx Xxxxxxxxxxx,
Xx Xxxxx Xxxx, Xxxxxxxx XX0 0XX
Channel Islands UK
AMENDMENT NO. 1 AND JOINDER TO THE
AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT
AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT
This Amendment No. 1 and Joinder to the Amended and Restated Investors Rights Agreement (this
“Amendment”) is made and entered into as of
May 5, 2006 (the “Effective Date”) by and among Glu
Mobile Inc., a California corporation (the “Company”), the undersigned shareholders of the Company
that are parties to the Original Agreement (as defined below) (“Existing Investors”) and the
entities purchasing warrants exercisable for shares of the Company’s Series D Preferred Stock
listed on Annex A (the “Warrant Investors”).
RECITALS
WHEREAS, the Existing Investors possess certain rights, including registration rights and
other rights pursuant to the Amended and Restated Investors’ Rights Agreement dated as of March 29,
2006 by and among the Company and the investors identified on the Schedule of Investors attached as
Exhibit A thereto (the “Original Agreement”). Capitalized terms not otherwise defined herein shall
have the meanings set forth in the Original Agreement.
WHEREAS, the Original Agreement may be amended with the written consent of the Company and the
holders of a majority of the Registrable Securities then outstanding.
WHEREAS, the Company proposes to enter the Warrant Purchase Agreements of even date herewith
by and between the Company and each of the Warrant Investors, pursuant to which the Warrant
Investors will purchase warrants exercisable for an aggregate of 318,937 shares of the Company’s
Series D Preferred Stock.
WHEREAS, the Company and the undersigned Existing Investors, as holders of greater than a
majority of the Registrable Securities then outstanding of the Company, desire to enter this
Amendment to provide the Warrant Investors with certain rights under the Original Agreement.
AGREEMENT
NOW, THEREFORE, the Company, the Warrant Investors and the undersigned Existing Investors
hereby agree as follows:
1. Section 1 of the Original Agreement is hereby amended as follows:
1.1 The definition of “Registrable Securities” is amended and restated to read in its entirety
as follows:
“Registrable Securities” means (1) the Senior Conversion Stock and any Common Stock
of the Company issuable or issued with respect to the Senior Preferred Stock or
Senior Conversion Stock upon any stock split, stock dividend, or similar event, (2)
the Common Stock of the Company issued pursuant to the Restricted Stock Purchase
Agreement (the “RSPA”) dated as of April 25, 2005
between the Company and the Investor defined as the Purchaser therein or (3) the
Exchange Related Shares provided, however, that the Exchange Related Shares and the
Pinnacle Warrant Shares shall not be deemed Registrable Securities and the Holders
of Exchange Related Shares and Pinnacle Warrant Shares shall not be deemed
Initiating Holders or Major Holders for the purposes of Section 5.1 (it being
understood that a demand registration triggered under Section 5.1, would trigger the
Company’s obligations under Section 5.2 and the Exchange Related Shares and the
Pinnacle Warrant Shares would be Registrable Securities under Section 5.2 for that
purpose), 6 and 8 and provided further however, that the term “Registrable
Securities” shall exclude in all cases any shares of Common Stock issued upon
conversion of Preferred Stock pursuant to Article III, Section B.3(e) of the
Company’s Amended and Restated Articles of Incorporation (or any successor thereto)
(the “Restated Articles”) (which Paragraph is entitled “Special Mandatory
Conversion”), as such provision may be amended from time to time (“Special Mandatory
Conversion Shares”). In addition, securities shall only be treated as Registrable
Securities if and so long as (i) they have not been registered or sold to or through
a broker, dealer, market maker or underwriter in a public distribution or a public
securities transaction and (ii) the registration rights with respect to such
securities have not terminated pursuant to Section 5.10 below.
1.2 The following definitions of are added:
“Pinnacle Warrants” means those certain Warrants to Purchase Preferred Stock issued
to affiliates of Pinnacle Ventures, L.L.C. (“Pinnacle Ventures”) concurrently with a
Loan and Security entered, by and among the Company, Pinnacle Ventures, as agent and
the lenders identified on Schedule 1 thereto, on or about April ___, 2006 (the
“Pinnacle Investors”).
“Pinnacle Warrant Shares” means the Common Stock of the Company (i) issuable or
issued upon exercise of the Pinnacle Warrants, (ii) issuable or issued upon
conversion of the Series D Preferred Stock issuable or issued upon exercise of the
Pinnacle Warrants, or (iii) issuable or issued with respect to the either of the
foregoing upon any stock split, stock dividend, or similar event.
2. The Company and the Investors hereby amend the Original Agreement to include each of the
Pinnacle Investors as an “Investor” thereunder. All notices and other communications under the
Original Agreement shall be made to the Pinnacle Investors at the addresses specified Annex A and
thereafter at such other address, notice of which is given in accordance with Section 15 of the
Original Agreement, and Exhibit A to the Original Agreement is hereby amended to add each of the
Pinnacle Investors and their respective addresses as specified Annex A hereto. Each of the Warrant
Investors hereby joins and agrees to be bound by all the terms and conditions of the Original
Agreement, as amended by the Amendment, as an “Investor” thereunder. Section 12 of the Original
Agreement is hereby amended to add the following sentence as the penultimate sentence of such
Section:
Notwithstanding the foregoing, the registration rights granted with respect to the
Pinnacle Warrant Shares held by the Pinnacle Investors under Section 5 of this
Agreement may not be eliminated and may not be otherwise changed in a manner that
(1) is adverse to the Pinnacle Investors and also (2) treats the Pinnacle Investors
differently from other Holders generally, without the written consent of Pinnacle
Investors holding over fifty percent (50%) of all Pinnacle Warrant Shares then
outstanding and held by Pinnacle Investors.
3. Except as specifically set forth herein, the Original Agreement remains in full force and
effect.
4. This Amendment may be executed in two or more counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same agreement.
5. This Amendment shall be governed by and construed under the internal laws of the State of
California as applied to agreements among California residents entered into and to be performed
entirely within California, without reference to principles of conflict of laws or choice of laws.
6. This Amendment and the documents referred to herein constitute the entire agreement and
understanding of the parties with respect to the subject matter of this Amendment, and supersede
any and all prior understandings and agreements, whether oral or written, between or among the
parties hereto with respect to the specific subject matter hereof.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the Effective Date.
| THE COMPANY: | ||||
| GLU MOBILE INC. | ||||
By:
|
/s/ L. Xxxxxxx Xxxxxxx | |||
| L. Xxxxxxx Xxxxxxx | ||||
Its:
|
President and CEO | |||
[SIGNATURE PAGE TO GLU MOBILE INC. AMENDMENT NO. 1 AND JOINDER TO THE AMENDED
AND RESTATED INVESTORS RIGHTS AGREEMENT]
AND RESTATED INVESTORS RIGHTS AGREEMENT]
| EXISTING INVESTORS | EXISTING INVESTORS | |||||||||
| (individual signature block): | (entity signature block): | |||||||||
| (print/type complete name of entity) | ||||||||||
| By: | ||||||||||
| (signature) | (signature) | |||||||||
Name:
|
Name: | |||||||||
| Title: | ||||||||||
[SIGNATURE PAGE TO GLU MOBILE INC. AMENDMENT NO. 1 AND JOINDER TO THE AMENDED
AND RESTATED INVESTORS RIGHTS AGREEMENT]
AND RESTATED INVESTORS RIGHTS AGREEMENT]
| EXISTING INVESTORS: | ||||||
| NEW ENTERPRISE ASSOCIATES 10, L.P. | ||||||
| By: | NEA Partners 10, L.P. | |||||
| Its: | General Partner | |||||
| By: | ||||||
| Its: | General Partner | |||||
| Address: | 0000 Xxxx Xxxx Xxxx | |||||
| Xxxxx Xxxx, XX 00000 | ||||||
| Fax: | (000) 000-0000 |
[SIGNATURE PAGE TO GLU MOBILE INC. AMENDMENT NO. 1 AND JOINDER TO THE AMENDED
AND RESTATED INVESTORS RIGHTS AGREEMENT]
AND RESTATED INVESTORS RIGHTS AGREEMENT]
| EXISTING INVESTORS: | ||||||
| NEW ENTERPRISE ASSOCIATES 10, L.P. | ||||||
| By: | NEA Ventures 2001, L.P. | |||||
| Its: | General Partner | |||||
| By: | /s/ Xxxxxx X. Xxxxxxx III | |||||
| Name: | Xxxxxx X. Xxxxxxx III | |||||
| Its: | General Partner | |||||
| Address: | 0000 Xxxx Xxxx Xxxx | |||||
| Xxxxx Xxxx, XX 00000 | ||||||
| Fax: | (000) 000-0000 |
| XXX XXXXXXXX 0000, X.X. | ||||||
| By: | NEA Ventures 2001, L.P. | |||||
| Its: | General Partner | |||||
| By: | /s/ Xxxxxx X. Xxxxx | |||||
| Name: | Xxxxxx X. Xxxxx | |||||
| Its: | General Partner | |||||
| Address: | 0000 Xxxx Xxxx Xxxx | |||||
| Xxxxx Xxxx, XX 00000 | ||||||
| Fax: | (000) 000-0000 |
[SIGNATURE PAGE TO GLU MOBILE INC. AMENDMENT NO. 1 AND JOINDER TO THE AMENDED
AND RESTATED INVESTORS RIGHTS AGREEMENT]
AND RESTATED INVESTORS RIGHTS AGREEMENT]
| EXISTING INVESTORS: | ||||||
| SIENNA LIMITED PARTNERSHIP III, L.P. | ||||||
| By: | Sienna Associates III, L.L.C. | |||||
| Its: | General Partner | |||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||||
| Its: | Member | |||||
| Address: | 0000 Xxxxxxxxx Xxx, Xxxxx 000 | |||||
| Xxxxxxxxx, XX 00000 | ||||||
| Fax: | (000) 000-0000 |
[SIGNATURE PAGE TO GLU MOBILE INC. AMENDMENT NO. 1 AND JOINDER TO THE AMENDED
AND RESTATED INVESTORS RIGHTS AGREEMENT]
AND RESTATED INVESTORS RIGHTS AGREEMENT]
| EXISTING INVESTORS: | ||||||
| BAVP, L.P. | ||||||
| By: | BA Venture Partners VI, LLC | |||||
| Its: | General Partner | |||||
| By: | /s/ Xxxxxx Xxxxxxx | |||||
| Name: | Xxxxxx Xxxxxxx | |||||
| Its: | Member | |||||
| Address: | 000 Xxxxx Xxxx, Xxxxx 000 | |||||
| Xxxxxx Xxxx, XX 00000 | ||||||
| Attn: Xxxxxx Xxxxxxx | ||||||
| Fax: | (000) 000-0000 |
[SIGNATURE PAGE TO GLU MOBILE INC. AMENDMENT NO. 1 AND JOINDER TO THE AMENDED
AND RESTATED INVESTORS RIGHTS AGREEMENT]
AND RESTATED INVESTORS RIGHTS AGREEMENT]
| WARRANT INVESTORS | WARRANT INVESTORS | |||||||||||
| (individual signature block): | (entity signature block): | |||||||||||
| Pinnacle Ventures
I-A(Q), L.P. Pinnacle Ventures I-B, L.P. Pinnacle Ventures Affiliates, L.P. |
||||||||||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||||||||||
| (signature) | ||||||||||||
Name:
|
Name: | Xxxxxx X. Xxxxxx | ||||||||||
| Title: | Chief Financial Officer | |||||||||||
[SIGNATURE PAGE TO GLU MOBILE INC. AMENDMENT NO. 1 AND JOINDER TO THE AMENDED
AND RESTATED INVESTORS RIGHTS AGREEMENT]
AND RESTATED INVESTORS RIGHTS AGREEMENT]
ANNEX A
Schedule of Warrant Investors
1. Pinnacle Ventures I Equity Holdings, L.L.C.
2. Pinnacle Ventures I Affiliates, L.P.
3. Pinnacle Ventures II Equity Holdings, L.L.C.
2. Pinnacle Ventures I Affiliates, L.P.
3. Pinnacle Ventures II Equity Holdings, L.L.C.
