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EXHIBIT 4.3
AWARD SOFTWARE INTERNATIONAL, INC.
INVESTORS' RIGHTS AGREEMENT
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TABLE OF CONTENTS
PAGE
I. GENERAL.......................................................... 1.
1.1 Definitions............................................. 1.
II. REGISTRATION; RESTRICTIONS ON TRANSFER........................... 3.
2.1 Restrictions on Transfer................................ 3.
2.2 Demand Registration..................................... 4.
2.3 Piggyback Registrations................................. 5.
2.4 Form S-3 Registration................................... 6.
2.5 Expenses of Registration................................ 7.
2.6 Obligations of the Company.............................. 8.
2.7 Delay of Registration; Furnishing Information........... 9.
2.8 Indemnification......................................... 9.
2.9 Assignment of Registration Rights....................... 11.
2.10 Amendment of Registration Rights........................ 11.
2.11 Limitation on Subsequent Registration Rights............ 12.
2.12 "Market Stand-Off" Agreement............................ 12.
2.13 Rule 144 Reporting...................................... 12.
III. RIGHTS OF FIRST REFUSAL.......................................... 13.
3.1 Subsequent Offerings.................................... 13.
3.2 Exercise of Rights...................................... 13.
3.3 Issuance of Equity Securities to Other Persons.......... 13.
3.4 Termination of Rights of First Refusal.................. 14.
3.5 Transfer of Rights of First Refusal..................... 14.
3.6 Excluded Securities..................................... 14.
3.7 Catch-up Rights......................................... 14.
IV. MISCELLANEOUS.................................................... 15.
4.1 Governing Law........................................... 15.
4.2 Survival................................................ 15.
4.3 Successors and Assigns.................................. 15.
4.4 Severability............................................ 16.
4.5 Amendment and Waiver.................................... 16.
4.6 Delays or Omissions..................................... 16.
4.7 Notices................................................. 16.
4.8 Attorneys' Fees......................................... 16.
4.9 Titles and Subtitles.................................... 16.
4.10 Counterparts............................................ 17.
4.11 Termination Of Prior Agreements......................... 17.
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INVESTORS' RIGHTS AGREEMENT
THIS INVESTORS' RIGHTS AGREEMENT (this "Agreement") is entered into as
of January __, 1996, by and among AWARD SOFTWARE INTERNATIONAL, INC., a
California corporation (the "Company"), and the persons and entities set forth
on Exhibit A (collectively referred to hereinafter as the "Investors" and each
individually as an "Investor").
RECITALS
WHEREAS, the Company proposes to sell and issue up to 1,140,066 shares
of its Common Stock and a warrant to purchase up to 544,788 shares of its Common
Stock to Vobis Microcomputer AG ("Vobis") pursuant to that certain Securities
Purchase Agreement of even date herewith (the "Purchase Agreement");
WHEREAS, certain of the Investors are parties to either that certain
Common Stock Purchase Agreement, dated as of July 17, 1995, or that certain
Investors' Rights Agreement, dated as of September 30, 1995 (together, the
"Prior Agreements"), which provide such Investors with registration rights;
WHEREAS, such Investors desire to supersede those rights set forth in
such agreements with the rights set forth in this Agreement; and
WHEREAS, it is a condition precedent of entering into the Purchase
Agreement that the Company and all the Investors to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in this
Agreement and in the Purchase Agreement, the parties mutually agree as follows:
I. GENERAL.
1.1 DEFINITIONS. As used in this Agreement the following terms shall
have the following respective meanings:
"COMMON STOCK" means the Company's common stock, no par value.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"FORM S-3" means such form under the Securities Act as in effect on the
date hereof or any successor registration form under the Securities Act
subsequently adopted by the SEC which permits inclusion or incorporation of
substantial information by reference to other documents filed by the Company
with the SEC.
"HOLDER" means any person owning of record Registrable Securities that
have not been sold to the public or any assignee of record of such Registrable
Securities in accordance with Section 2.10 hereof.
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"INITIAL OFFERING" means the Company's first firm commitment
underwritten public offering of its Common Stock registered under the Securities
Act.
"REGISTER," "REGISTERED," and "REGISTRATION" refer to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act, and the declaration or ordering of effectiveness of such
registration statement or document.
"REGISTRABLE SECURITIES" means (i) the Shares; (ii) the Underlying
Shares and (iii) any Common Stock of the Company now or hereafter held by the
Investors. Notwithstanding the foregoing, Registrable Securities shall not
include any securities sold by a person to the public either pursuant to a
registration statement or Rule 144 or sold in a private transaction in which the
transferror's rights under Article II of this Agreement are not assigned.
"REGISTRABLE SECURITIES THEN OUTSTANDING" shall be the number of
shares determined by calculating the total number of shares of the Company's
Common Stock that are Registrable Securities and either (1) are then issued and
outstanding or (2) are issuable pursuant to then exercisable or convertible
securities.
"REGISTRATION EXPENSES" shall mean all expenses incurred by the Company
in complying with Sections 2.2, 2.3 and 2.4 hereof, including, without
limitation, all registration and filing fees, printing expenses, fees and
disbursements of counsel for the Company, reasonable fees and disbursements not
to exceed Twenty Thousand Dollars ($20,000) of a single special counsel for the
Holders, blue sky fees and expenses and the expense of any special audits
incident to or required by any such registration (but excluding the compensation
of regular employees of the Company which shall be paid in any event by the
Company).
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SELLING EXPENSES" shall mean all underwriting discounts and selling
commissions applicable to the sale.
"SHARES" shall mean shares of the Company's Common Stock issued
pursuant to or covered by the Purchase Agreement or the Prior Agreements,
including the Underlying Shares.
"SEC" or "COMMISSION" means the Securities and Exchange Commission.
"UNDERLYING SHARES" shall mean the shares of the Company's Common Stock
issuable upon exercise of the Warrants.
"WARRANTS" shall mean the Warrants issued pursuant to or in connection
with the Purchase Agreement and the Prior Agreements to purchase shares of the
Company's Common Stock.
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II. REGISTRATION; RESTRICTIONS ON TRANSFER.
2.1 RESTRICTIONS ON TRANSFER.
(a) Each Holder agrees not to make any disposition of all or
any portion of the Shares or Registrable Securities unless and until:
(i) There is then in effect a registration statement
under the Securities Act covering such proposed disposition and such disposition
is made in accordance with such registration statement; or
(ii) (A) The transferee has agreed in writing to be
bound by this Section 2.1, (B) Such Holder shall have notified the Company of
the proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and (C) if
reasonably requested by the Company, such Holder shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company, that
such disposition will not require registration of such shares under the
Securities Act. It is agreed that the Company will not require opinions of
counsel for transactions made pursuant to Rule 144 except in unusual
circumstances.
(iii) Notwithstanding the provisions of paragraphs (i)
and (ii) above, no such registration statement or opinion of counsel shall be
necessary for a transfer by a Holder which is (A) a partnership to its partners
or former partners in accordance with partnership interests, (B) a corporation
to its shareholders in accordance with their interest in the corporation, (C) a
limited liability company to its members or former members in accordance with
their interest in the limited liability company, or (D) to the Holder's family
member or trust for the benefit of an individual Holder, provided the transferee
will be subject to the terms of this Section 2.1 to the same extent as if he
were an original Holder hereunder.
(b) Each certificate representing Shares or Registrable
Securities shall (unless otherwise permitted by the provisions of the Agreement)
be stamped or otherwise imprinted with a legend substantially similar to the
following (in addition to any legend required under applicable state securities
laws or as provided elsewhere in this Agreement):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND
UNTIL REGISTERED UNDER THE ACT OR UNLESS THE COMPANY HAS RECEIVED AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT
SUCH REGISTRATION IS NOT REQUIRED.
or
THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND FOR A
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PERIOD OF TWELVE MONTHS FROM THE DATE OF ISSUANCE MAY NOT BE SOLD,
PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES, ITS
TERRITORIES AND POSSESSIONS OR ANY AREA SUBJECT TO ITS JURISDICTION OR
TO ANY PERSON WHO IS A NATIONAL THEREOF OR RESIDENT THEREIN (INCLUDING
ANY ESTATE OF SUCH PERSON) OR ANY CORPORATION, PARTNERSHIP OR OTHER
ENTITY CREATED OR ORGANIZED THEREIN WITHOUT AN EFFECTIVE REGISTRATION
THEREOF UNDER SUCH ACT OR AN OPINION OF COUNSEL, SATISFACTORY TO THE
CORPORATION AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED.
(c) The Company shall be obligated to reissue promptly
unlegended certificates at the request of any holder thereof if the holder shall
have obtained an opinion of counsel (which counsel may be counsel to the
Company) reasonably acceptable to the Company to the effect that the securities
proposed to be disposed of may lawfully be so disposed of without registration,
qualification or legend, including, without limitation, pursuant to an exemption
under Rule 144 and Regulation S promulgated under the Securities Act.
(d) Any legend endorsed on an instrument pursuant to
applicable state securities laws and the stop-transfer instructions with respect
to such securities shall be removed upon receipt by the Company of an order of
the appropriate blue sky authority authorizing such removal.
2.2 DEMAND REGISTRATION.
2.2.1 Subject to the conditions of this Section 2.2, if the
Company shall receive a written request from the Holders of more than a majority
of the Registrable Securities then outstanding (the "Initiating Holders") that
the Company file a registration statement under the Securities Act covering the
registration of Registrable Securities having an aggregate offering price to the
public of at least $10,000,000 and a per share price which is at least $6.80 (as
adjusted for stock splits, stock dividends and the like) (a "Qualified Public
Offering"), then the Company shall, within thirty (30) days of the receipt
thereof, give written notice of such request to all Holders, and subject to the
limitations of this Section 2.2, effect, as soon as practicable, the
registration under the Securities Act of all Registrable Securities that the
Holders request to be registered.
2.2.2 If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request made pursuant to
this Section 2.2 and the Company shall include such information in the written
notice referred to in Section 2.2.1. In such event, the right of any Holder to
include its Registrable Securities in such registration shall be conditioned
upon such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting (unless otherwise mutually
agreed by a majority in interest of the Initiating Holders and such Holder) to
the extent provided herein. All Holders proposing to distribute their securities
through such underwriting shall enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwriting by a majority in interest of the Initiating Holders (which
underwriter or underwriters shall be
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reasonably acceptable to the Company). Notwithstanding any other provision of
this Section 2.2, if the underwriter advises the Company that marketing factors
require a limitation of the number of securities to be underwritten (including
Registrable Securities) then the Company shall so advise all Holders of
Registrable Securities which would otherwise be underwritten pursuant hereto,
and the number of shares that may be included in the underwriting shall be
allocated to the Holders of such Registrable Securities on a pro rata basis
based on the number of Registrable Securities held by all such Holders
(including the Initiating Holders). Any Registrable Securities excluded or
withdrawn from such underwriting shall be withdrawn from the registration.
2.2.3 The Company shall not be required to effect a
registration pursuant to this Section 2.2:
(i) prior to earlier of the third anniversary of the
date of this Agreement or the date six months after the effective date of its
Initial Offering; or
(ii) after the Company has effected a registration
pursuant to this Section 2.2, and such registration has been declared or ordered
effective; or
(iii) during the period starting with the date of
filing of, and ending on the date one hundred eighty (180) days following the
effective date of the registration statement pertaining to the Initial Offering,
provided that the Company is making reasonable and good faith efforts to cause
such registration statement to become effective; or
(iv) if within thirty (30) days of receipt of a written
request from Initiating Holders pursuant to Section 2.2.1, the Company gives
notice to the Holders of the Company's intention to make its Initial Offering
within ninety (90) days; or
(v) if the Company shall furnish to Holders requesting
a registration statement pursuant to this Section 2.2, a certificate signed by
the Chairman of the Board stating that in the good faith judgment of the Board
of Directors of the Company, it would be seriously detrimental to the Company
and its shareholders for such registration statement to be effected at such
time, in which event the Company shall have the right to defer such filing for a
period of not more than ninety (90) days after receipt of the request of the
Initiating Holders; provided that such right to delay a request shall be
exercised by the Company no more than twice in any one-year period.
2.3 PIGGYBACK REGISTRATIONS. The Company shall notify all Holders of
Registrable Securities in writing at least thirty (30) days prior to the filing
of any registration statement under the Securities Act for purposes of a public
offering of securities of the Company (including, but not limited to,
registration statements relating to secondary offerings of securities of the
Company, but excluding registration statements relating to employee benefit
plans or with respect to corporate reorganizations or other transactions under
Rule 145 of the Securities Act) and will afford each such Holder an opportunity
to include in such registration statement all or part of such Registrable
Securities held by such Holder. Each Holder desiring to include in any such
registration statement all or any part of the Registrable Securities held by it
shall, within fifteen (15) days after the above-described notice from the
Company, so notify the Company in writing. Such notice shall state the intended
method of disposition of the Registrable Securities
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by such Holder. If a Holder decides not to include all of its Registrable
Securities in any registration statement thereafter filed by the Company, such
Holder shall nevertheless continue to have the right to include any Registrable
Securities in any subsequent such registration statement or registration
statements as may be filed by the Company with respect to offerings of its
securities, all upon the terms and conditions set forth herein.
2.3.1 UNDERWRITING. If the registration statement under which
the Company gives notice under this Section 2.3 is for an underwritten offering,
the Company shall so advise the Holders of Registrable Securities. In such
event, the right of any such Holder to be included in a registration pursuant to
this Section 2.3 shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting to the extent provided herein. All Holders proposing to distribute
their Registrable Securities through such underwriting shall enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by the Company. Notwithstanding any other
provision of this Agreement, if the underwriter determines in good faith that
marketing factors require a limitation of the number of shares to be
underwritten, the number of shares that may be included in the underwriting
shall be allocated, first, to the Company; second, to the Holders on a pro rata
basis based on the total number of Registrable Securities held by the Holders;
and third, to any shareholder of the Company (other than a Holder) on a pro rata
basis. No such reduction shall reduce the securities being offered by the
Company for its own account to be included in the registration and underwriting,
and in no event shall the amount of securities of the selling Holders included
in the registration be reduced below twenty-five percent (25%) of the total
amount of securities included in such registration, unless such offering is the
Initial Offering and such registration does not include shares of any other
selling shareholders, in which event any or all of the Registrable Securities of
the Holders may be excluded in accordance with the immediately preceding
sentence. In no event will shares of any other selling shareholder be included
in such registration which would reduce the number of shares which may be
included by Holders without the written consent of Holders of not less than a
majority of the Registrable Securities proposed to be sold in the offering.
2.3.2 RIGHT TO TERMINATE REGISTRATION. The Company shall have
the right to terminate or withdraw any registration initiated or withdraw any
registration initiated by it under this Section 2.3 prior to the effectiveness
of such registration whether or not any Holder has elected to include securities
in such registration. The Registration Expenses of such withdrawn registration
shall be borne by the Company in accordance with Section 2.5 hereof.
2.4 FORM S-3 REGISTRATION. In case the Company shall receive from any
Holder or Holders of Registrable Securities a written request or requests that
the Company effect a registration on Form S-3 (or any successor to Form S-3) or
any similar short-form registration statement and any related qualification or
compliance with respect to all or a part of the Registrable Securities owned by
such Holder or Holders, the Company will:
2.4.1 promptly give written notice of the proposed
registration, and any related qualification or compliance, to all other Holders
of Registrable Securities; and
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2.4.2 as soon as practicable, effect such registration and all
such qualifications and compliances as may be so requested and as would permit
or facilitate the sale and distribution of all or such portion of such Holder's
or Holders' Registrable Securities as are specified in such request, together
with all or such portion of the Registrable Securities of any other Holder or
Holders joining in such request as are specified in a written request given
within fifteen (15) days after receipt of such written notice from the Company;
provided, however, that the Company shall not be obligated to effect any such
registration, qualification or compliance pursuant to this Section 2.4:
(i) if Form S-3 (or any successor or similar form) is
not available for such offering by the Holders, or
(ii) if the Holders, together with the holders of any
other securities of the Company entitled to inclusion in such registration,
propose to sell Registrable Securities and such other securities (if any) at an
aggregate price to the public of less than $500,000, or
(iii) if the Company shall furnish to the Holders a
certificate signed by the Chairman of the Board of Directors of the Company
stating that in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company and its shareholders
for such Form S-3 Registration to be effected at such time, in which event the
Company shall have the right to defer the filing of the Form S-3 registration
statement for a period of not more than ninety (90) days after receipt of the
request of the Holder or Holders under this Section 2.4: provided, that such
right to delay a request shall be exercised by the Company nor more than twice
in any one-year period, or
(iv) if the Company has, within the twelve (12) month
period preceding the date of such request, already effected two (2)
registrations on Form S-3 for the Holders pursuant to this Section 2.4, or
(v) in any particular jurisdiction in which the Company
would be required to qualify to do business or to execute a general consent to
service of process in effecting such registration, qualification or compliance.
2.4.3 Subject to the foregoing, the Company shall file a Form
S-3 registration statement covering the Registrable Securities and other
securities so requested to be registered as soon as practicable after receipt of
the request or requests of the Holders. All such Registration Expenses incurred
in connection with registrations requested pursuant to this Section 2.4 after
the first two (2) registrations shall be paid by the selling Holders pro rata in
proportion to the number of shares sold by each.
2.5 EXPENSES OF REGISTRATION. Except as specifically provided herein,
all Registration Expenses incurred in connection with any registration,
qualification or compliance pursuant to Section 2.2 or any registration under
Section 2.3 or Section 2.4 herein shall be borne by the Company. All Selling
Expenses incurred in connection with any registrations hereunder, shall be borne
by the holders of the securities so registered pro rata on the basis of the
number of shares so registered. The Company shall not, however, be required to
pay for expenses of any registration proceeding begun pursuant to Section 2.2 or
2.4, the request of which has been
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subsequently withdrawn by the Initiating Holders unless (a) the withdrawal is
based upon material adverse information concerning the Company of which the
Initiating Holders were not aware at the time of such request or (b) the Holders
of a majority of Registrable Securities agree to forfeit their right to one
requested registration pursuant to Section 2.2 or Section 2.4, as applicable, in
which event such right shall be forfeited by all Holders). If the Holders are
required to pay the Registration Expenses, such expenses shall be borne by the
holders of securities (including Registrable Securities) requesting such
registration in proportion to the number of shares for which registration was
requested. If the Company is required to pay the Registration Expenses of a
withdrawn offering pursuant to clause (a) above, then the Holders shall not
forfeit their rights pursuant to Section 2.2 or Section 2.4 to a demand
registration.
2.6 OBLIGATIONS OF THE COMPANY. Whenever required to effect the
registration of any Registrable Securities, the Company shall, as expeditiously
as reasonably possible:
2.6.1 Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use all reasonable efforts to
cause such registration statement to become effective, and, upon the request of
the Holders of a majority of the Registrable Securities registered thereunder,
keep such registration statement effective for up to ninety (90) days (except in
the case of a registration statement prepared pursuant to Section 2.4 (Form S-3)
keep effective for up to twelve (12) months) or, if earlier, until the Holder or
Holders have completed the distribution related thereto.
2.6.2 Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement.
2.6.3 Furnish to the Holders such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them.
2.6.4 Use all reasonable efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions.
2.6.5 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.
2.6.6 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
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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.
2.6.7 Furnish, at the request of a majority of the Holders
participating in the registration, on the date that such Registrable Securities
are delivered to the underwriters for sale, if such securities are being sold
through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective, (i) an opinion, dated as of such date, of the
counsel representing the Company for the purposes of such registration, in form
and substance as is customarily given to underwriters in an underwritten public
offering and reasonably satisfactory to a majority in interest of the Holders
requesting registration, addressed to the underwriters, if any, and to the
Holders requesting registration of Registrable Securities and (ii) a letter
dated as of such date, from the independent certified public accountants of the
Company, in form and substance as is customarily given by independent certified
public accountants to underwriters in an underwritten public offering and
reasonably satisfactory to a majority in interest of the Holders requesting
registration, addressed to the underwriters, if any, and if permitted by
applicable accounting standards, to the Holders requesting registration of
Registrable Securities.
2.7 DELAY OF REGISTRATION; FURNISHING INFORMATION.
2.7.1 No Holder shall have any right to obtain or seek an
injunction restraining or otherwise delaying any such registration as the result
of any controversy that might arise with respect to the interpretation or
implementation of this Article II.
2.7.2 It shall be a condition precedent to the obligations of
the Company to take any action pursuant to Section 2.2, 2.3 or 2.4 that the
selling Holders shall furnish to the Company such information regarding
themselves, the Registrable Securities held by them and the intended method of
disposition of such securities as shall be required to effect the registration
of their Registrable Securities.
2.8 INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under Sections 2.2, 2.3 or 2.4:
2.8.1 To the extent permitted by law, the Company will
indemnify and hold harmless each Holder, the partners, officers, directors and
legal counsel of each Holder, any underwriter (as defined in the Securities Act)
for such Holder and each person, if any, who controls such Holder or underwriter
within the meaning of the Securities Act or the Exchange Act, against any
losses, claims, damages, or liabilities (joint or several) to which they may
become subject under the Securities Act, the Exchange Act or other federal or
state law, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any of the following statements,
omissions or violations (collectively a "Violation") by the Company: (i) any
untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading, or
(iii) any violation or alleged violation by the Company of the Securities Act,
the Exchange Act, any state securities law or any rule or regulation
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promulgated under the Securities Act, the Exchange Act or any state securities
law in connection with the offering covered by such registration statement; and
the Company will reimburse each such Holder, partner, officer or director,
underwriter or controlling person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided however, that the indemnity
agreement contained in this Section 2.8.1 shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company, which consent shall
not be unreasonably withheld, nor shall the Company be liable in any such case
for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by such Holder, partner, officer, director, underwriter
or controlling person of such Holder.
2.8.2 To the extent permitted by law, each Holder will, if
Registrable Securities held by such Holder are included in the securities as to
which such registration qualifications or compliance is being effected,
indemnify and hold harmless the Company, each of its directors, its officers,
and legal counsel and each person, if any, who controls the Company within the
meaning of the Securities Act, any underwriter and any other Holder selling
securities under such registration statement or any of such other Holder's
partners, directors or officers or any person who controls such Holder, against
any losses, claims, damages or liabilities (joint or several) to which the
Company or any such director, officer, controlling person, underwriter or other
such Holder, or partner, director, officer or controlling person of such other
Holder may become subject under the Securities Act, the Exchange Act or other
federal or state law, insofar as such losses, claims, damages or liabilities (or
actions in respect thereto) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by such
Holder under an instrument duly executed by such Holder and stated to be
specifically for use in connection with such registration; and each such Holder
will reimburse any legal or other expenses reasonably incurred by the Company or
any such director, officer, controlling person, underwriter or other Holder, or
partner, officer, director or controlling person of such other Holder in
connection with investigating or defending any such loss, claim, damage,
liability or action if it is judicially determined that there was such a
Violation; provided, however, that the indemnity agreement contained in this
Section 2.8.2 shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is effected without the
consent of the Holder, which consent shall not be unreasonably withheld;
provided further, that in no event shall any indemnity under this Section 2.8
exceed the proceeds from the offering received by such Holder.
2.8.3 Promptly after receipt by an indemnified party under
this Section 2.8 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 2.8, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel
10.
13
retained by the indemnifying party would be inappropriate due to actual or
potential differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time of the commencement of
any such action, if materially prejudicial to its ability to defend such action,
shall relieve such indemnifying party of any liability to the indemnified party
under this Section 2.8, but the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 2.8.
2.8.4 If the indemnification provided for in this Section 2.8
is held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any losses, claims, damages or liabilities referred to
herein, the indemnifying party, in lieu of indemnifying such indemnified party
thereunder, shall to the extent permitted by applicable law contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the indemnified
party on the other in connection with the Violation(s) that resulted in such
loss, claim, damage or liability, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by a court of law by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission; provided, that in no event shall any contribution by a
Holder hereunder exceed the proceeds from the offering received by such Holder.
2.8.5 The obligations of the Company and Holders under this
Section 2.8 shall survive completion of any offering of Registrable Securities
in a registration statement. No Indemnifying Party, in the defense of any such
claim or litigation, shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such Indemnified Party of a release from all liability in respect to such
claim or litigation.
2.9 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the Company
to register Registrable Securities pursuant to this Article II may be assigned
by a Holder to a transferee or assignee of Registrable Securities which (i) is a
subsidiary, parent, general partner, limited partner or retired partner of a
Holder, (ii) is a Holder's family member or trust for the benefit of an
individual Holder, or (iii) acquires at least eighty-three thousand (83,000)
shares of Registrable Securities (as adjusted for stock splits and
combinations); provided, however, (A) the transferor shall, within ten (10) days
after such transfer, furnish to the Company written notice of the name and
address of such transferee or assignee and the securities with respect to which
such registration rights are being assigned and (B) such transferee shall agree
to be subject to all restrictions set forth in this Agreement.
2.10 AMENDMENT OF REGISTRATION RIGHTS. Any provision of this Article II
may be amended and the observance thereof may be waived (either generally or in
a particular instance and either retroactively or prospectively), only with the
written consent of the Company and the Holders of at least a majority of the
Registrable Securities. Any amendment or waiver effected
11.
14
in accordance with this Section 2.11 shall be binding upon each Holder and the
Company. By acceptance of any benefits under this Article II, Holders of
Registrable Securities hereby agree to be bound by the provisions hereunder.
2.11 LIMITATION ON SUBSEQUENT REGISTRATION RIGHTS. After the date of
this Agreement, the Company shall not, without the prior written consent of the
Holders of a majority of the Registrable Securities, enter into any agreement
with any holder or prospective holder of any securities of the Company that
would grant such holder registration rights senior to those granted to the
Holders hereunder.
2.12 "MARKET STAND-OFF" AGREEMENT. If requested by the Company as the
representative of the underwriters of Common Stock (or other securities) of the
Company, each Holder shall not sell or otherwise transfer or dispose of any
Shares Common Stock (or other securities) of the Company held by such each
Holder (other than those included in the registration) for a period specified by
the representative of the underwriters not to exceed one hundred eighty (180)
days following the effective date of a registration statement of the Company
filed under the Securities Act, provided that:
(i) such agreement shall apply only to the Company's Initial
Offering; and
(ii) all officers and directors of the Company shall enter into
similar agreements.
The obligations described in this Section 2.12 shall not apply to a
registration relating solely to employee benefit plans on Form S-1 or Form S-8
or similar forms that may be promulgated in the future, or a registration
relating solely to a Commission Rule 145 transaction on Form S-4 or similar
forms that may be promulgated in the future. The Company may impose
stop-transfer instructions with respect to the shares of Common Stock (or other
securities) subject to the foregoing restriction until the end of said one
hundred eighty (180) day period.
2.13 RULE 144 REPORTING. With a view to making available to the Holders
the benefits of certain rules and regulations of the SEC which may permit the
sale of the Registrable Securities to the public without registration, the
Company agrees to use its best efforts to:
(a) Make and keep public information available, as those terms
are understood and defined in SEC Rule 144 or any similar or analogous rule
promulgated under the Securities Act, at all times after the effective date of
the first registration filed by the Company for an offering of its securities to
the general public;
(b) File with the SEC, in a timely manner, all reports and
other documents required of the Company under the Exchange Act;
(c) So long as a Holder owns any Registrable Securities,
furnish to such Holder forthwith upon request: a written statement by the
Company as to its compliance with the reporting requirements of said Rule 144 of
the Securities Act, and of the Exchange Act (at any time after it has become
subject to such reporting requirements); a copy of the most recent
12.
15
annual or quarterly report of the Company; and such other reports and documents
as a Holder may reasonably request in availing itself of any rule or regulation
of the SEC allowing it to sell any such securities without registration.
III. RIGHTS OF FIRST REFUSAL.
3.1 SUBSEQUENT OFFERINGS. Each Investor shall have a right of first
refusal to purchase its pro rata share of all Equity Securities, as defined
below, that the Company may, from time to time, propose to sell and issue after
the date of this Agreement, other than the Equity Securities excluded by Section
3.6 hereof. Each Investor's pro rata share is equal to the ratio of (A) the
number of shares of the Company's Common Stock that are held by such Investor
plus the number of shares of Common Stock issuable upon exercise of any Warrant
held by such Investor immediately prior to the issuance of such Equity
Securities to (B) the total number of shares of the Company's Common Stock
outstanding plus the number of shares of Common Stock issuable upon exercise of
the Warrants immediately prior to the issuance of the Equity Securities. The
term "Equity Securities" shall mean (i) any Common Stock, Preferred Stock or
other security of the Company, (ii) any security convertible, with or without
consideration, into any Common Stock, Preferred Stock or other security
(including any option to purchase such a convertible security), (iii) any
security carrying any warrant or right to subscribe to or purchase any Common
Stock, Preferred Stock or other security or (iv) any such warrant or right.
3.2 EXERCISE OF RIGHTS. If the Company proposes to issue any Equity
Securities, it shall give each Investor written notice of its intention,
describing the Equity Securities, the price and the terms and conditions upon
which the Company proposes to issue the same. Each Investor shall have fifteen
(15) days from the giving of such notice to agree to purchase up to its pro rata
share of the Equity Securities for the price and upon the terms and conditions
specified in the notice by giving written notice to the Company and stating
therein the quantity of Equity Securities to be purchased. Notwithstanding the
foregoing, the Company shall not be required to offer or sell such Equity
Securities to any Investor who would cause the Company to be in violation of
applicable federal securities laws by virtue of such offer or sale.
3.3 ISSUANCE OF EQUITY SECURITIES TO OTHER PERSONS. If not all of the
Investors elect to purchase their pro rata share of the Equity Securities, then
the Company shall promptly notify in writing the Investors who do so elect and
shall offer such Investors the right to acquire such unsubscribed shares. The
Investors shall have five (5) days after receipt of such notice to notify the
Company of its election to purchase all or a portion thereof of the unsubscribed
shares. If the Investors fail to exercise in full the rights of first refusal,
the Company shall have ninety (90) days thereafter to sell the Equity Securities
in respect of which the Investor's rights were not exercised, at a price and
upon general terms and conditions materially no more favorable to the purchasers
thereof than specified in the Company's notice to the Investors pursuant to
Section 3.2 hereof. If the Company has not sold such Equity Securities within
days of the notice provided pursuant to Section 3.2, the Company shall not
thereafter issue or sell any Equity Securities, without first offering such
securities to the Investors in the manner provided above.
13.
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3.4 TERMINATION OF RIGHTS OF FIRST REFUSAL. The rights of first refusal
set forth in Sections 3.1, 3.2 and 3.3 above shall terminate upon the closing
date of the registration statement pertaining to a Qualified Public Offering.
3.5 TRANSFER OF RIGHTS OF FIRST REFUSAL. The rights of first refusal of
each Investor under this Article III may be transferred to the same parties,
subject to the same restrictions, as any transfer of registration rights
pursuant to Section 2.9.
3.6 EXCLUDED SECURITIES. The rights of first refusal established by
this Article III shall have no application to any of the following Equity
Securities:
3.6.1 shares of Common Stock (and/or options, warrants or
other Common Stock purchase rights issued pursuant to such options, warrants or
other rights) issued or to be issued to employees, officers or directors of, or
consultants or advisors to the Company or any subsidiary, pursuant to stock
purchase or stock option plans or other arrangements that are approved by the
Board of Directors;
3.6.2 stock issued pursuant to any rights or agreements
outstanding as of the date of this Agreement, options and warrants (other than
options, warrants or other Common Stock purchase rights covered by Section 3.6.1
above) outstanding as of the date of this Agreement; and stock issued pursuant
to any such rights or agreements granted after the date of this Agreement,
provided that the rights of first refusal established by this Article III
applied with respect to the initial sale or grant by the Company of such rights
or agreements;
3.6.3 any Equity Securities issued for consideration other
than cash pursuant to a merger, consolidation, acquisition or similar business
combination;
3.6.4 shares of Common Stock issued in connection with any
stock split, stock dividend or recapitalization by the Company;
3.6.5 any Equity Securities issued pursuant to any equipment
leasing arrangement, or bank financing;
3.6.6 any Equity Securities that are issued by the Company
pursuant to a registration statement filed under the Securities Act; and
3.6.7 shares of the Company's Common Stock or Preferred Stock
issued in connection with strategic transactions involving the Company and other
entities, including (A) joint ventures, manufacturing, marketing or distribution
arrangements or (B) technology transfer or development arrangements; provided
that such strategic transactions and the issuance of shares therein, has been
approved by the Company's Board of Directors.
3.7 CATCH-UP RIGHTS. In the event the Company (a) issues any shares of
Common Stock and/or grants any options, warrants or other Common Stock purchase
rights exercisable for Common Stock in a transaction that is not subject to the
right of first refusal established by this Article III by reason of Section
3.6.1 and after such transaction the Employee Stock Pool, as hereinafter
defined, is greater than 1,500,000 (as adjusted appropriately for any stock
splits,
14.
17
stock dividends or other such changes in the capitalization of the Company) or
(b) issues any Equity Securities in a transaction that is not subject to the
right of first refusal established by this Article III by reason of Sections
3.6.3, 3.6.5, 3.6.6 (unless such offering is for a Qualified Public Offering) or
3.6.7, the Company will give Vobis written notice of such grant or issuance not
later that ten (10) days after it has occurred, providing relevant details of
the transaction including the purchase price of the Equity Securities issued and
the Vobis Purchase Price (as defined below). For purposes hereof, the Employee
Stock Pool, as of a given date, shall be the sum of (i) the number of shares of
Common Stock issuable upon exercise of options, warrants or other Common Stock
purchase rights granted to employees, officers or directors of, or consultants
or advisors to the Company or any subsidiary ("Employee Rights") and then
outstanding and (ii) the number of shares of Common Stock previously issued upon
exercise of Employee Rights outstanding at any time after the date of this
Agreement, minus the number of any such shares of Common Stock as to which Vobis
has previously been given notice in respect of its rights hereunder (all such
numbers having been adjusted appropriately for any stock splits, stock dividends
or other such changes in the capitalization of the Company). For purposes of
this Section 3.7, the "Vobis Purchase Price" shall mean the purchase price for
which the Vobis Group (as defined below) may exercise its rights under this
Section 3.7 to purchase securities from the Company which shall equal: (i) in
the case of direct issuances of Common Stock under (a) above, the fair market
value of the Common Stock on the date of issuance; (ii) in the case of the
issuances of Employee Rights under (a) above, the fair market of the underlying
Common Stock on the date of grant of such Employee Right; (iii) in the case of
any Equity Securities covered by (b) above, the actual price paid or payable
with respect to such Equity Securities; and (iv) in the event the consideration
for the Equity Securities issued by the Company under (a) or (b) above was other
than cash, the fair market value of such consideration as reasonably determined
in good faith by the Board of Directors of the Company as of the date of
issuance of such Equity Securities; provided, however, that notwithstanding the
above, if the fair market value as determined in (i) or (ii) above is higher
than the price paid or payable in connection with any issuances under (i) or
(ii) above, then the Vobis Purchase Price shall equal the average of such fair
market value and such actual purchase price paid or payable for such issuance.
Vobis and any of its wholly-owned subsidiaries holding Registrable Securities
(collectively, the "Vobis Group") shall have the right, exercisable at any time
within thirty (30) days after such notice is given, to purchase from the Company
at the Vobis Purchase Price specified that number of Equity Securities (which
shall be Common Stock in the case of any Employee Rights) as is necessary to
restore its percentage ownership interest (determined in accordance with Section
3.1) to the percentage ownership interest of the Vobis Group immediately prior
to such issuance, but in no event to greater than seventeen and one-half percent
(17.5%). Notwithstanding the foregoing, in the case of transactions involving
the issuance of Common Stock and Employee Rights representing less than three
and one-half percent (3.5%) of the Common Stock outstanding immediately prior to
the first of such transactions, the Company may at its election defer giving
such notice until issuances in that and any subsequent transactions as to which
notice has been deferred hereunder, constitute in the aggregate three and
one-half percent (3.5%) or more of the Common Stock outstanding. In such case,
the notice given by the Company shall specify the information called for herein
with respect to each such transaction, and the right of the Vobis Group to
purchase with respect to all such transactions shall be at the Vobis Purchase
Price applicable to the shares of Common Stock sold or issuable upon exercise of
Employee Rights granted in such transactions. The rights granted to the Vobis
Group under this Section 3.7 shall terminate and be of no further force or
effect on the earlier of (A) the
15.
18
closing date of a Qualified Public Offering or (B) on the day prior to a
transaction (or the first of a series of transactions to be covered by a
deferred notice) to which this Section 3.7 would otherwise apply, if on such
date the percentage ownership interest of the Vobis Group (determined in
accordance with Section 3.1) is less than eight percent (8%). Notwithstanding
the foregoing, in the event of a Qualified Public Offering in which the Company
offers in excess of 1,500,000 shares, as presently constituted (including any
shares to be offered under any overallotment option), the Company agrees to give
the Vobis Group the opportunity to purchase in a single transaction up to twelve
percent (12.0%) of such excess in such offering. Any right to purchase Equity
Securities under this Section 3.7 may be allocated among the members of the
Vobis Group on such basis as Vobis may determine.
IV. MISCELLANEOUS.
4.1 GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of California as applied to agreements among
California residents entered into and to be performed entirely within
California.
4.2 SURVIVAL. The representations, warranties, covenants, and
agreements made herein shall survive any investigation made by any Holder and
the closing of the transactions contemplated hereby.
4.3 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors, and administrators of the
parties hereto and shall inure to the benefit of and be enforceable by each
person who shall be a holder of Registrable Securities from time to time;
provided, however, that prior to the receipt by the Company of adequate written
notice of the transfer of any Registrable Securities specifying the full name
and address of the transferee, the Company may deem and treat the person listed
as the holder of such shares in its records as the absolute owner and holder of
such shares for all purposes, including the payment of dividends or any
redemption price.
4.4 SEVERABILITY. In case any provision of the Agreement shall be
invalid, illegal, or unenforceable, the validity, legality, and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
4.5 AMENDMENT AND WAIVER. Except as otherwise expressly provided, this
Agreement may be amended or modified, and the observance of any term of this
Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively), only upon the written consent of the Company
and the holders of at least a majority of the Registrable Securities; provided,
however, only Vobis may waive or amend the rights granted under Section 3.7.
4.6 DELAYS OR OMISSIONS. It is agreed that no delay or omission to
exercise any right, power, or remedy accruing to any Holder, upon any breach,
default or noncompliance of the Company under this Agreement shall impair any
such right, power, or remedy, nor shall it be construed to be a waiver of any
such breach, default or noncompliance, or any acquiescence therein, or of any
similar breach, default or noncompliance thereafter occurring. It is further
16.
19
agreed that any waiver, permit, consent, or approval of any kind or character on
any Holder's part of any breach, default or noncompliance under the Agreement or
any waiver on such Holder's part of any provisions or conditions of this
Agreement must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement, by law, or otherwise afforded to Holders, shall be cumulative and not
alternative.
4.7 NOTICES. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (i) upon personal delivery to the
party to be notified, (ii) when sent by confirmed telex or facsimile if sent
during normal business hours of the recipient; if not, then on the next business
day, (iii) if to an Investor located in the United States, five (5) days after
having been sent by registered or certified mail, return receipt requested,
postage prepaid, or (iv) if to an Investor located in the United States, one (1)
day, and if to an Investor located outside of the United States, four (4)
business days, after deposit with an internationally recognized overnight
courier, specifying express delivery, with written verification of receipt. All
communications shall be sent to the party to be notified at the address as set
forth on the signature pages hereof or Exhibit A hereto or at such other address
as such party may designate by ten (10) days advance written notice to the other
parties hereto.
4.8 ATTORNEYS' FEES. In the event that any dispute among the parties to
this Agreement should result in litigation, the prevailing party in such dispute
shall be entitled to recover from the losing party all fees, costs and expenses
of enforcing any right of such prevailing party under or with respect to this
Agreement, including without limitation, such reasonable fees and expenses of
attorneys and accountants, which shall include, without limitation, all fees,
costs and expenses of appeals.
4.9 TITLES AND SUBTITLES. The titles of the sections and subsections of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
4.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
4.11 TERMINATION OF PRIOR AGREEMENTS. The Investors hereby agree to the
termination of (i) that certain Investors' Rights Agreement, dated as of
September 30, 1995 (the "Rights Agreement") and (ii) Sections 6 and 7 of that
certain Common Stock Purchase Agreement, dated as of July 17, 1995 (the "Prior
Agreement"), and hereby agree that the Company shall have no further obligations
under the Rights Agreement and Sections 6 and 7 of the Prior Agreement and that
the rights granted hereunder are in lieu thereof. As required by Section 4.5 of
the Rights Agreement and Section 8.4 of the Prior Agreement, the undersigned
represent at least two-thirds (66 2/3%) of the Registrable Securities and all of
the Purchasers, respectively, thereunder. Notwithstanding anything herein to the
contrary, unless otherwise amended or modified by this Section 4.11, the rights
and obligations of the parties under the Prior Agreement (excluding Sections 6
and 7 thereof) shall remain in full force and effect.
17.
20
18.
21
[THIS SPACE INTENTIONALLY LEFT BLANK]
19.
22
IN WITNESS WHEREOF, the parties hereto have executed this Investors'
Rights Agreement as of the date set forth in the first paragraph hereof.
COMPANY INVESTORS
AWARD SOFTWARE INTERNATIONAL, INC. VENROCK ASSOCIATES
By: By:
------------------------------- ------------------------------------
Title: Title:
---------------------------- ---------------------------------
Address: 000 Xxxx Xxxxxxxxxxx Xxxx Address: 00 Xxxxxxxxxxx Xxxxx, Xx 0000
Xxxxxxxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
VENROCK ASSOCIATES II, L.P.
By:
------------------------------------
Title:
---------------------------------
Address: 00 Xxxxxxxxxxx Xxxxx, Xx 0000
Xxx Xxxx, XX 00000
INVESTORS' RIGHTS AGREEMENT
23
XXXXXX CAPITAL PARTNERS II, L.P.
By:
-----------------------------------
Title:
--------------------------------
Address: 000 Xxxxxxx Xxxxxx
Xxxxx 0
Xxx Xxxxxxxxx, XX 00000-0000
XXXXXX TECHNOLOGY VENTURES II, L.P.
By:
-----------------------------------
Title:
--------------------------------
Address: 000 Xxxxxxx Xxxxxx
Xxxxx 0
Xxx Xxxxxxxxx, XX 00000-0000
INVESTORS' RIGHTS AGREEMENT
24
VOBIS MICROCOMPUTER AG
By:
---------------------------------
Title:
------------------------------
Address: Xxxxx-Xxxxxx-Xxx. 00
X-00000 Xxxxxxxx
Xxxxxxx
INVESTORS' RIGHTS AGREEMENT
25
CHAILEASE VENTURE CAPITAL CO., LTD.
By:
------------------------------------------
Title:
---------------------------------------
Address: 5th Fl., Xx. 000 Xx-Xxxx X. Xx.
Xxxxxx, Xxxxxx
KOOS VENTURE CAPITAL CO., LTD.
By:
------------------------------------------
Title:
---------------------------------------
Address: 5th Fl., Xx. 000 Xx-Xxxx X. Xx.
Xxxxxx, Xxxxxx
CHINATRUST VENTURE CAPITAL CO., LTD.
By:
------------------------------------------
Title:
---------------------------------------
Address: 5th Fl., Xx. 000 Xx-Xxxx X. Xx.
Xxxxxx, Xxxxxx
INVESTORS' RIGHTS AGREEMENT
26
HANTECH VENTURE CAPITAL CO., LTD.
By:
-----------------------------------------
Title:
--------------------------------------
Address: Suite 3201, 32F, International
Trade Xxxxxxxx
Xx. 000, Xxxxxxx Xxxx, Xxx. 0
Xxxxxx Xxxxxx
INVESTORS' RIGHTS AGREEMENT
27
XXXX XXXX INVESTMENT
By:
------------------------
Title:
---------------------
Address:
-------------------
-------------------
-------------------
INVESTORS' RIGHTS AGREEMENT
28
EXHIBIT A
SCHEDULE OF INVESTORS
Venrock Associates
Venrock Associates II, X.X.
Xxxxxx Capital Partners II, X.X.
Xxxxxx Technology Ventures II, L.P.
Vobis Microcomputer AG
Chailease Venture Capital Co., Ltd.
Koos Venture Capital Co., Ltd.
Chinatrust Venture Capital Co., Ltd.
Hantech Venture Capital Co., Ltd.
Xxxx Xxxx Investment
