EXHIBIT 10.10
EFFICIENT NETWORKS, INC.
AMENDMENT NO. 6 TO THE INVESTORS' RIGHTS AGREEMENT
This Amendment No. 6 ("Amendment") to the Investors' Rights Agreement dated
as of July 30, 1993, as previously amended by Amendments No. 1, 2, 3, 4 and 5
thereto dated February 9, 1994, September 30, 1994, September 1, 1995, December
31, 1996 and February 17, 1998, respectively (together the "Agreement"), is made
as of this ____ day of June, 1998, by and among Efficient Networks, Inc., a
Delaware corporation (the "Company"), each of the entities listed on Schedule I
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hereto (the "Existing Investors") and Siemens Aktiengesellschaft (the "Series G
Investor"). Capitalized terms used herein which are not defined herein shall
have the definition ascribed to them in the Agreement.
RECITALS
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A. The Company desires to sell and issue to the Series G Investor, and the
Series G Investor desires to purchase from the Company, a certain number of
shares of the Company's Series G Preferred Stock pursuant to the Series G
Preferred Stock Purchase Agreement, dated as of the date hereof (the "Series G
Agreement").
B. The Existing Investors desire for the Series G Investor to invest in
the Company and, as a condition thereof and to induce such investment, the
Existing Investors are willing to enter into this Amendment to permit the Series
G Investor to become a party to the Agreement, as amended.
In consideration of the foregoing and the promises and covenants contained
herein and other good and valuable consideration the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. ADDITIONAL PARTIES TO THE AGREEMENT.
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The Series G Investor hereby enters into and becomes a party to the
Agreement. Schedule A to the Agreement is amended to include the Series G
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Investor.
2. AMENDMENTS TO AGREEMENT.
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2.1 The Series G Investor and the Existing Investors are collectively
referred to as "Investors" for the purposes of the Agreement, as amended.
2.2 Section 1.1(c) of the Agreement is amended in its entirety to read as
follows:
"(c) The term "Registrable Securities" means (1) the Common Stock
issuable or issued upon conversion of the Series A Preferred Stock, Series
B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock,
Series E Preferred Stock, Series F Preferred Stock and Series G Preferred
Stock and (2) any Common Stock of the Company issued as (or issuable upon
the conversion or exercise of any warrant, right or other security which is
issued as) a dividend or other distribution with respect to, or in exchange
for or in replacement of, such Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock, Series D Preferred Stock, Series E
Preferred Stock, Series F Preferred Stock, Series G Preferred Stock or
Common Stock, excluding in all cases, however, any Registrable Securities
sold by a person in a transaction in which his rights under this Section 1
are not assigned;"
2.3 Section 2.1(a) of the Agreement is amended in its entirety to read as
follows:
"2.1 Delivery of Financial Statements. The Company shall deliver to
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each Investor holding at least 750,000 shares of Series A Preferred Stock,
375,000 shares of Series B Preferred Stock, 250,000 shares of Series C
Preferred Stock, 250,000 shares of Series D Preferred Stock, 200,000 shares
of Series E Preferred Stock, 1,000,000 shares of Series F Preferred Stock
or 1,000,000 shares of Series G Preferred Stock:
(a) as soon as practicable, but in any event within 90 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 statements of
cash flows and stockholders' equity for such year, prepared in
accordance with generally accepted accounting principles ("gaap") and
accompanied by the audit report of independent public accountants of
nationally recognized standing selected by the Company;"
2.4 All references to "Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock and
Series F Preferred Stock" in Sections 2.4, 2.7 and 2.10 shall be deemed to
include and make additional reference to the Series G Preferred Stock.
2.5 Section 2.4(d) is amended to read in its entirety as follows:
"(d) The right of first offer in this paragraph 2.4 shall not be
applicable (i) to the issuance or sale of shares of Common Stock (or
options or warrants therefor) to employees, consultants, directors or
officers for the primary purpose of soliciting or retaining their
employment or service when the total number of shares of Common Stock so
issued (and not repurchased at cost by the Company in connection with the
termination of employment or service) does not exceed 7,500,000 (subject to
appropriate adjustment for stock splits, stock dividends, combinations or
other recapitalizations) since
the date of the Company's incorporation, (ii) to or after consummation of a
bona fide, firmly underwritten public offering of shares of Common Stock,
registered under the Act pursuant to a registration statement on Form S-1
(or successor form), (iii) the issuance of securities pursuant to the
conversion or exercise of convertible or exercisable securities outstanding
on the date hereof, (iv) the issuance of securities in connection with a
bona fide business acquisition of or by the Company, whether by merger,
consolidation, sale of assets, sale or exchange of stock or otherwise, (v)
the issuance of all shares of preferred stock of the Company since the date
of incorporation through the date hereof or (vi) the issuance after the
date hereof of Series G Preferred Stock, or Common Stock in lieu of such
issuance, to the Series G Investor (but only to the extent that such
issuance does not exceed 6% of the then outstanding capital stock of the
Company on a fully diluted basis) at a price of at least $2.92 per share
(subject to appropriate adjustment for stock splits, stock dividends,
combinations or other recapitalizations)."
2.6 Section 3.2 is amended to read in its entirety as follows:
"3.2 Governing Law. This Agreement shall be governed by and
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construed under the laws of the State of Delaware."
2.7 Section 3 of the Agreement is amended to add new Sections 3.11, 3.12
and 3.13 to read as follows:
"3.11 Waiver of Jury Trial. Each of the parties hereto waives any
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right it may have to trial by jury in respect of any litigation based on,
or arising out of, under or in connection with this Agreement or any other
document contemplated hereby or any course of conduct of conduct, course of
dealing, verbal or written statement or action of any party hereto. This
provision is a material inducement to each party entering into this
Agreement.
3.12 Limitation of Liability. In no event shall any party hereto be
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liable for claims, actions, damages or liabilities arising under or in
connection with this Agreement which are consequential, incidental or
punitive damages.
3.13 Arbitration. Any controversy or dispute among the parties
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arising in connection with this Agreement shall be submitted to a panel of
three arbitrators and finally settled by arbitration in accordance with the
commercial arbitration rules of the American Arbitration Association. Each
of the disputing parties shall appoint one arbitrator, and these two
arbitrators shall independently select a third arbitrator. Arbitration
shall take place in Wilmington, Delaware or such other location as the
arbitrators may select. The prevailing party in such arbitration shall be
entitled to the award of all costs and attorneys' fees in connection with
such action but, in such action
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or otherwise in respect to any claim or liabilities, shall in no event be
entitled to the receipt of any consequential or punitive damages. Any award
for monetary damages resulting from nonpayment of sums due hereunder shall
bear interest from the date on which such sums were originally due and
payable. Judgment upon the award rendered may be entered in any court
having jurisdiction or application may be made to such court for judicial
acceptance of the award and an order of enforcement, as the case may be."
3. WAIVER AND CONSENT.
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Each Existing Investor, pursuant to any rights such Existing Investor may
have under the Agreement, hereby, on behalf of himself and the other Investors
under the Agreement, (a) waives all rights under, and any notice required by,
Section 3 of the Agreement relating to any rights to purchase or rights of first
refusal with respect to the sale of the shares of Series G Preferred Stock, (b)
consents to adding as a party to the Agreement the Series G Investor, and (c)
consents to the registration rights hereby provided the Series G Investor, which
consent is given pursuant to Section 1.14 of the Agreement.
4. EFFECT OF AMENDMENT.
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Except as amended and set forth above, the Agreement shall continue in full
force and effect.
5. COUNTERPARTS.
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This Amendment may be executed in any number of counterparts, each which
will be deemed an original, and all of which together shall constitute one
instrument.
6. SEVERABILITY.
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If one or more provisions of this Amendment are held to be unenforceable
under applicable law, such provision shall be excluded from this Amendment and
the balance of the Amendment shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
7. ENTIRE AGREEMENT.
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This Amendment, together with the Agreement, constitutes the full and
entire understanding and agreement between the parties with regard to the
subjects hereof and thereof.
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8. GOVERNING LAW.
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This Amendment shall be governed by and construed under the laws of the
State of Delaware.
This Amendment is hereby executed as of the date first above written.
EFFICIENT NETWORKS, INC., a Delaware corporation
By:_______________________________________
Xxxx X. Xxxxx, President
Address: 0000 Xxxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
EXISTING INVESTORS: CROSSPOINT VENTURE PARTNERS 1993
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By:_______________________________________
General Partner
Address: 00000 XxxXxxxxx Xxxx., Xxx. 000
Xxxxxx, Xxxxxxxxxx 00000
CROSSPOINT 1993 ENTREPRENEURS FUND
By:_______________________________________
General Partner
Address: 00000 XxxXxxxxx Xxxx., Xxx. 000
Xxxxxx, Xxxxxxxxxx 00000
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ENTERPRISE PARTNERS II L.P.
By: Enterprise Management Partners II, L.P., Its
General Partner
By:_________________________________
General Partner
Address: 00000 Xxx Xxxxxxx Xxxxxxxxx
Xxxxx 000
Los Angeles, California 90049
ENTERPRISE PARTNERS II ASSOCIATES, L.P.
By: Enterprise Management Partners II, L.P., Its
General Partner
By:_________________________________
General Partner
Address: 00000 Xxx Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
OCEAN PARK VENTURES, L.P.
By:_______________________________________
General Partner
Address: 00000 Xxx Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
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EL DORADO VENTURES III, L.P.
By: El Dorado Venture Partners III, Its General
Partner
By:_________________________________
General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
EL DORADO C & L FUND, L.P.
By: El Dorado Venture Partners III, Its General
Partner
By:_________________________________
General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
EL DORADO TECHNOLOGY IV, L.P., a California
Limited Partnership
By: El Dorado Venture Partners III, Its General
Partner
By:_________________________________
General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
MENLO VENTURES VI, L.P.
By: MV Management VI, L.P.
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By:_________________________________
General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
MENLO ENTREPRENEURS FUND VI, L.P.
By: MV Management VI, L.P., Its General
Partner
By:_________________________________
General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
APERTURE ASSOCIATES, L.P.
By:_______________________________________
General Partner
Address: 000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
TEXAS INSTRUMENTS INCORPORATED
By:_______________________________________
Address: 0000 Xxxxxxxxx Xxx
Attn: Corp. Development
Mail Stop 3995
Xxxxxx, Xxxxx 00000
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ADC TELECOMMUNICATIONS, INC.
By:_______________________________________
Address: 0000 Xxxx 00xx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
C.D. TECHNICOM S.A.
By:_______________________________________
Address: Xxxxxx Xxxxxxxx, 00
0000 XXXXX Xxxxxxx
SERIES G INVESTOR:
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SIEMENS AKTIENGESELLSCHAFT
By:_______________________________________
Address: Xxxxxxxxxxxxxx 00
00000 Xxxxxx
Xxxxxxx
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SCHEDULE I
SCHEDULE OF INVESTORS
Name and Address
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Crosspoint Venture Partners 1993
00000 XxxXxxxxx Xxxx., Xxxxx 000
Xxxxxx, XX 00000
Crosspoint 1993 Entrepreneurs Fund
00000 XxxXxxxxx Xxxx., Xxxxx 000
Xxxxxx, XX 00000
Enterprise Partners II, L.P.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Enterprise Partners II Associates, L.P.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 92660049
Ocean Park Ventures, L.P.
00000 Xxx Xxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxxxx, XX 00000
El Dorado Ventures III, L.P.
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
El Dorado C & L Fund, L.P.
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
El Dorado Technology IV, L.P.
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Menlo Ventures VI, L.P.
0000 Xxxx Xxxx Xxxx
Xxxx. 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Menlo Entrepreneurs Fund VI, L.P.
0000 Xxxx Xxxx Xxxx
Xxxx. 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
C.D. Technicom X.X.
Xxxxxx Xxxxxxxx, 00
0000 XXXXX, Xxxxxxx
Aperture Associates, L.P.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Texas Instruments Incorporated
0000 Xxxxxxxxx Xxx
Mail Stop 39951
Xxxxxx, Xxxxx 00000
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ADC Telecommunications, Inc.
0000 Xxxx 00xx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
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