EXHIBIT 10.13
SIXTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This Sixth Amended and Restated Registration Rights Agreement
("Agreement") is entered into as of ____________ 1999 by and between Interwave
Communications International Ltd., a Bermuda corporation (the "Company") and the
Investors holding shares of the Company's Preferred Stock listed on the attached
Investor signature pages (the "Investors").
RECITALS
WHEREAS the Company and certain of the Investors have entered into a
Fifth Amended and Restated Registration Rights Agreement dated August 30, 1999
(the "Prior Rights Agreement");
WHEREAS the Company and the Investors desire to amend and restate the
Registration Rights Agreement to, among other things, provide the holders of
Series I1 Preferred Stock with the rights as Investors set forth herein;
NOW, THEREFORE, the Registration Rights Agreement is hereby amended and
restated as follows (with such amendment and restatement to be effective upon
execution of this Agreement by the Company and the holders of a majority of the
outstanding shares of Preferred Stock):
1. CERTAIN DEFINITIONS. As used in this Agreement, the following
terms shall have the following respective meanings:
1.1 "AFFILIATE" shall mean, with respect to any Person, any
Person directly or indirectly controlling, controlled by or under direct or
indirect common control with such other Person.
1.2 "COMMISSION" shall mean the Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act.
1.3 "CONVERSION STOCK" shall mean the shares of Common Stock
issuable upon conversion of the Company's Series A, Series A1, Series B, Series
B1, Series C, Series C1, Series D, Series D1, Series E, Series E1, Series F,
Series F1, Series G, Series G1, Series H, Series H1 or Series I1 Preferred
Stock.
1.4 "HOLDER" shall mean the Investors holding Registrable
Securities or securities convertible into Registrable Securities and any person
holding such securities to whom the rights under this Agreement have been
transferred in accordance with Section 3.9 hereof.
1.5 "INITIATING HOLDERS" shall mean any Holder or Holders who
in the aggregate hold at least 50% of the Registrable Securities.
1.6 "INVESTOR" shall mean a purchaser of (i) Series A, Series
A1, Series B, Series B1, Series C, Series C1, Series D, Series D1, Series E,
Series E1, Series F, Series F1, Series H, Series H1 or Series I1 Preferred Stock
of the Company pursuant to a Preferred Stock Purchase Agreement entered into by
the Company and such Investor and (ii) Series G or Series G1 Preferred
Stock of the Company pursuant to a Preferred Stock and Warrant Purchase
Agreement or Warrant issued pursuant thereto entered into by the Company and
such Investor.
1.7 "PREFERRED STOCK" means the Company's Series A, Series A1,
Series B, Series B1, Series C, Series C1, Series D, Series D1, Series E, Series
E1, Series F, Series F1, Series G, Series G1, Series H, Series H1 or Series I1
Preferred Stock.
1.8 "REGISTRABLE SECURITIES" means (i) the Conversion Stock,
(ii) 100,000 shares of Common Stock issued or issuable to Xxxxxxxx VII and/or
Xxxxxxxx Associates Fund II pursuant to option agreements under the Company's
1994 Stock Plan (the "Xxxxxxxx Shares"), (iii) Common Stock issuable upon
exercise of Common Stock Warrants issued pursuant to the Company's Loan and
Warrant Agreement dated March 3, 1999 (the "Loan Shares"), (iv) Common Stock
issuable upon exercise of a Common Stock Warrant to purchase 24,000 shares of
Common Stock issued to Nortel Networks Corporation in March 1999, (v) Common
Stock issuable upon exercise of a Common Stock Warrant issued to Intasys
Corporation (vi) Common Stock issuable upon exercise of a Common Stock Warrant
issued to MediaTel Capital ( (v) and (vi) are collectively refered to as the
"Warrant Shares") and (vii) any Common Stock of the Company issued or issuable
with respect to, or in exchange for or in replacement of the Conversion Stock,
the Xxxxxxxx Shares, the Loan Shares, the Warrant Shares or other securities
convertible into or exercisable for Preferred Stock upon any stock split, stock
dividend, recapitalization, or similar event, provided, however, that shares of
Common Stock or other securities shall cease to be Registrable Securities when:
(a) a registration statement with respect to the sale of
such securities shall have become effective under the Securities Act and such
securities shall have been disposed of in accordance with such registration
statement;
(b) all of such securities held by any person and his,
her or its Affiliates may be distributed to the public pursuant to Rule 144 (or
any successor provision) under the Securities Act in any three (3) month period
unless the aggregate Fair Market Value of such securities at the start of such
three (3) month period is greater than the lesser of (i) Ten Million Dollars
($10,000,000) or (ii) five percent (5%) of the Fair Market Value of all shares
of Common Stock outstanding at the start of such three (3) month period; or
(c) such securities shall have ceased to be outstanding.
1.9 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.
1.10 "REGISTRATION EXPENSES" shall mean all expenses, except as
otherwise stated below, incurred by the Company in complying with Sections 3.1,
3.2 and 3.3 hereof, including, without limitation, all registration,
qualification and filing fees, stock exchange, NASDAQ or NASD registration,
listing and filing fees, messenger and delivery expenses, transfer taxes,
expenses and disbursements of underwriters customarily paid by the Company in
connection with a registration (excluding underwriters fees and underwriting
discounts and commissions), accounting expenses, printing expenses, escrow
fees, fees and disbursements of counsel for the Company, blue sky fees
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and expenses, the expense of any special audits or "cold comfort" letters
required by incident to or required by any such registration, the fees and
expenses of one counsel for the selling Holders selected by them, and the
compensation of regular employees of the Company which shall be paid in any
event by the Company, but excluding underwriters fees and underwriting
discounts and commissions with respect to the Registrable Securities being
issued.
1.11 "RESTRICTED SECURITIES" shall mean the securities of the
Company required to bear the legend set forth in Section 2.2 hereof.
1.12 "SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, or any similar federal statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
1.13 "SELLING EXPENSES" shall mean all underwriting discounts,
selling commissions and stock transfer taxes if any, applicable to the
securities registered by the Holders.
2. RESTRICTIONS ON TRANSFERABILITY OF SECURITIES; COMPLIANCE WITH
SECURITIES ACT.
2.1 RESTRICTIONS ON TRANSFERABILITY. The Preferred Stock and
the Conversion Stock shall not be sold, assigned, transferred or pledged except
upon the conditions specified in this Section 2, which conditions are intended
to ensure compliance with the provisions of the Securities Act. The Investors
will cause any proposed purchaser, assignee, transferee, or pledgee of the
Preferred Stock or the Conversion Stock held by the Investors to agree to take
and hold such securities subject to the provisions and upon the conditions
specified in this Section 2.
2.2 RESTRICTIVE LEGEND. Each certificate representing (i) the
Preferred Stock, (ii) the Conversion Stock and (iii) any other securities issued
in respect of the Preferred Stock or the Conversion Stock upon any stock split,
stock dividend, recapitalization, merger, consolidation or similar event, shall
(unless otherwise permitted by the provisions of Section 2.3 below) be stamped
or otherwise imprinted with a legend in the following form (in addition to any
legend required under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH
SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION UNLESS
THE TRANSFER IS IN ACCORDANCE WITH REGULATION S, RULE 144 OR SIMILAR RULE OR
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 SAID ACT. COPIES OF THE AGREEMENT COVERING
THE PURCHASE OF THESE SHARES AND RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT
NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO
THE SECRETARY OF THE CORPORATION AT THE PRINCIPAL EXECUTIVE OFFICES OF THE
CORPORATION.
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The Investors and Holders consent to the Company making a notation on its
records and giving instructions to any transfer agent of the Preferred Stock or
the Conversion Stock in order to implement the restrictions on transfer
established in this Section 2.
2.3 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 2.3. Prior to any
proposed sale, assignment, transfer or pledge of any Restricted Securities
(other than (i) a transfer not involving a change in beneficial ownership, or
(ii) in transactions involving the distribution without consideration of
Restricted Securities by the Investors to any of its partners, or retired
partners, or to the estate of any of its partners or retired partners, (iii) a
transfer to an affiliated fund, partnership or company, which is not a
competitor of the Company, subject to compliance with applicable securities
laws, (iv) transfers in compliance with Regulation S or Rule 144, so long as the
Company is furnished with satisfactory evidence of compliance with such Rule or
(v) any transfer by Nortel to any of its subsidiaries or to BCE, Inc. or any of
its subsidiaries), 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 shall be accompanied, at such holder's expense by either
(i) an unqualified written opinion of legal counsel who shall, and whose legal
opinion shall be, 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 (ii) 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. Each certificate evidencing the Restricted
Securities transferred as above provided shall bear, except if such transfer is
made pursuant to Rule 144 or Regulation S, the appropriate restrictive legend
set forth in Section 2.2 above, except that such certificate shall not bear such
restrictive legend if in the opinion of counsel for such holder and in the
reasonable opinion of the Company such legend is not required in order to
establish compliance with any provision of the Securities Act.
2.4 REMOVAL OF RESTRICTIONS ON TRANSFER OF SECURITIES. Any
legend referred to in Section 2.2 hereof stamped on a certificate evidencing
(i) the Preferred Stock, (ii) the Conversion Stock or (iii) any other securities
issued in respect of the Preferred Stock or the Conversion Stock upon any stock
split, stock dividend, recapitalization, merger, consolidation or similar event
and the stock transfer instructions and record notations with respect to such
security shall be removed and the Company shall issue a certificate without such
legend to the holder of such security if (x) such security is registered under
the Securities Act, (y) such holder provides the Company with an opinion of
counsel (which may be counsel for the Company) reasonably acceptable to the
Company to the effect that a public sale or transfer of such security may be
made without registration under the Securities Act or (z) such holder provides
the Company with reasonable assurances, which may, at the option of the Company,
include an opinion of counsel satisfactory to the Company, that such security
can be sold pursuant to Regulation S or Rule 144, including Section (k) of
Rule 144, under the Securities Act.
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3. REGISTRATION RIGHTS.
3.1 REQUESTED REGISTRATION.
(a) REQUEST FOR REGISTRATION. In case the Company shall
receive from: (x) the Initiating Holders holding at least forty percent (40%)
of the Registrable Securities or (y) Nortel a written request that the Company
effect any registration, qualification or compliance with respect to shares of
Registrable Securities with an expected aggregate offering price to the public
of at least $5,000,000 (such a request from Nortel is hereinafter a "Nortel
Demand"), the Company will:
(i) within ten days after the receipt by the
Company of such notice, give written notice of the proposed registration,
qualification or compliance to all other Holders; and
(ii) as soon as practicable, and in any event
within ninety (90) days of the receipt of such request, use its best efforts to
have declared or ordered effective such registration, qualification or
compliance (including, without limitation, appropriate qualification under
applicable blue sky or other 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 joining in
such request as are specified in a written request received by the Company
within 20 days after receipt of such written notice from the Company;
Provided, however, that the Company shall not be obligated to take any
action to effect any such registration, qualification or compliance pursuant to
this Section 3.1:
(1) 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 in such jurisdiction and except as may be
required by the Securities Act;
(2) Prior to the earlier of (i) December
31, 1998, or (ii) six (6) months after the effective date of the first
registration statement for a public offering of securities of the Company (other
than a registration statement relating either to the sale of securities to
employees of the Company pursuant to a stock option, stock purchase or similar
plan or a Rule 145 transaction);
(3) 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 three (3) months 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 the
Company's first registered public offering of its stock in which case the period
shall end on the date
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six (6) months following the effective date), provided that the Company is
actively employing in good faith all reasonable efforts to cause such
registration statement to become effective;
(4) After the Company has effected two
such registrations with respect to the Holders of a majority of the Registrable
Securities and one such registration with respect to a Nortel Demand pursuant to
this Section 3.1(a), and such registrations have been declared or ordered
effective; provided, however that in the event that any legal restriction or
prohibition shall result in the inability of the Holders participating in a
registration pursuant to this Section 3.1(a) to sell at least 75% of the
Registrable Securities included in such registration within 180 days of the
effectiveness thereof, then the Holders shall be entitled to demand an
additional registration pursuant to this Section 3.1(a);
(5) If the Company shall furnish to such
Holders 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, then the Company's obligation to use its best efforts to
register, qualify or comply under this Section 3.1 shall be deferred for a
period not to exceed 90 days from the date of receipt of written request from
the Initiating Holders; provided, however, that the Company shall not exercise
such right more than twice in any twelve (12) month period. If the Company
shall so postpone the filing of a registration statement, Initiating Holders
shall have the right to withdraw the request for registration by giving written
notice to the Company within 20 days after receipt of the certificate of
postponement and, in the event of such withdrawal, such request shall not be
counted toward the number of requested registrations under this Agreement.
Subject to the foregoing clauses (1) through (5), 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.
(b) UNDERWRITING. In the event that a registration
pursuant to Section 3.1 is for a registered public offering involving an
underwriting, the Company shall so advise the Holders as part of the notice
given pursuant to Section 3.1(a)(i). In such event, the right of any Holder to
registration pursuant to Section 3.1 shall be conditioned upon such Holder's
participation in the underwriting arrangements required by this Section 3.1, and
the inclusion of such Holder's Registrable Securities in the underwriting to the
extent requested shall be limited to the extent provided herein.
The Company shall (together with all Holders proposing to distribute
their securities through such underwriting) enter into an underwriting agreement
in customary form with the managing underwriter of recognized national standing
selected for such underwriting by the Company and reasonably acceptable to a
majority of the Holders proposing to distribute their securities through such
underwriting. Notwithstanding any other provision of this Section 3.1, if the
managing underwriter advises the Initiating Holders in writing that marketing
factors require a limitation of the number of shares to be underwritten, then
the Company shall so advise all holders of Registrable Securities and the number
of shares of Registrable Securities that may be included in the registration
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and underwriting shall be allocated among all Holders thereof in proportion,
as nearly as practicable, to the respective amounts of Registrable Securities
held by such Holders at the time of filing the registration statement or in
such other manner as shall be agreed to by the Company and all Holders of the
Registrable Securities proposed to be included in such registration.
Notwithstanding the foregoing, the number of shares of Registrable Securities
requested by Nortel to be included in an underwriting pursuant to a Nortel
Demand shall not be reduced unless all other securities are first entirely
excluded from such underwriting. 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 100 shares.
If any Holder of Registrable Securities disapproves of the terms of the
underwriting, such Holder may elect to withdraw therefrom by written notice to
the Company, the managing underwriter and the Initiating Holders. The
Registrable Securities and/or other securities so withdrawn shall also be
withdrawn from registration, and such Registrable Securities shall not be
transferred in a public distribution prior to 180 days after the effective date
of such registration (in the case of the Company's initial public offering) or
90 days after the effective date of such registration (in the case of any other
registration), or such other shorter period of time as the underwriters may
require.
(c) Nortel shall have the right to withdraw its
Registrable Securities from an underwriting undertaken pursuant to a Nortel
Demand if it disapproves of the terms of the underwriting by providing written
notice to the Company and the managing underwriter. In the event of such
withdrawal, such request shall not be counted as a Nortel Demand under this
Section 3.1 provided that Nortel reimburses the Company for all Registration
Expenses incurred in connection with such underwriting.
(d) A registration requested pursuant to this
Section 3.1 shall not be deemed to have been effected (i) unless a registration
statement with respect thereto has become effective and has been kept
continuously effective for a period of at least ninety (90) days (or such
shorter period which shall terminate when all the Registrable Securities covered
by such registration statement have been sold pursuant thereto), (ii) if, after
it has become effective, such registration is interfered with by any stop order,
injunction or other order or requirement of the Commission or other governmental
agency or court for any reason not attributable to Initiating Holders and has
not thereafter become effective, or (iii) if the conditions to closing specified
in the underwriting agreement, if any, entered into in connection with such
registration are not satisfied or waived, other than by reason of a failure on
the part of Initiating Holders.
3.2 COMPANY REGISTRATION.
(a) NOTICE OF REGISTRATION. If at any time or from time
to time the Company shall determine to register any of its securities, either
for its own account or the account of a security holder or holders, other than
(i) a registration relating solely to employee benefit plans, (ii) a
registration relating solely to a Rule 145 transaction, (iii) a registration
relating to the initial underwritten public offering of the Company's securities
pursuant to a registration statement filed
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under the Securities Act; provided, however, that if in the Company's
discretion it elects to permit the sale of securities by selling stockholders
in its initial public offering, the Company shall notify holders of
Registrable Securities in accordance with this Section 3.2 and shall include
securities requested to be registered in such offering by Holders of
Registrable Securities prior to including securities for the accounts of
persons other than Holders of Registrable Securities; or (iv) a registration
pursuant to Section 3.1 hereof, the Company will:
(i) promptly give to each Holder written notice
thereof; and
(ii) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any underwriting
involved therein, all the Registrable Securities specified in a written request
or requests, made within 20 days after receipt 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 a part of the written
notice given pursuant to Section 3.2(a)(i). In such event the right of any
Holder to registration pursuant to Section 3.2 shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of Registrable
Securities in the underwriting to the extent provided herein. All Holders
proposing to distribute their securities through such underwriting shall
(together with the Company) 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 3.2, 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 and other securities to be distributed through such
underwriting, but in no event shall the amount of securities of any selling
Holder included in the offering be reduced below twenty-five percent (25%) of
the Registrable Securities to be sold in the registration; provided, that if in
the Company's discretion it elects to permit the sale of securities by selling
stockholders in its initial public offering, the Company may reduce the
percentage of such initial public offering allocated to each selling Holder to
less than twenty-five percent (25%) of the Registrable Securities sought to be
included in such registration by such Holder. The Company shall so advise all
Holders distributing their securities through such underwriting of such
limitation and the number of shares of Registrable Securities that may be
included in the registration and underwriting shall be allocated among all
Holders in proportion, as nearly as practicable, to the respective amounts of
Registrable Securities held by such Holders at the time of filing the
registration statement. To facilitate the allocation of shares in accordance
with the above provisions, the Company may round the number of shares allocated
to any Holder to the nearest 100 shares. If any Holder disapproves of the terms
of any such underwriting, such Holder may elect to withdraw therefrom by written
notice to the Company and the managing underwriter. Any securities excluded or
withdrawn from such underwriting shall be withdrawn from such registration, and
shall not be transferred in a public distribution prior to 90 days after the
effective date of the registration statement relating thereto, or such other
shorter period of time as the underwriters may require.
(c) RIGHT TO TERMINATE REGISTRATION. The Company shall
have the right to terminate or withdraw any registration initiated by it under
this Section 3.2 prior to the effectiveness
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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 3.4
hereof.
3.3 REGISTRATION ON FORM S-3.
(a) If any Holder or Holders of in excess of one
percent (1%) of the Registrable Securities request that the Company file a
registration statement on Form S-3 (or any successor form to Form S-3), or
any similar short-term registration statement, for a public offering of
Registrable Securities, the reasonably anticipated aggregate price to the
public of which, net of underwriting discounts and commissions, would exceed
$1,000,000 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 its best efforts to cause such Registrable Securities to be registered on
such form for the offering and to cause such Registrable Securities to be
qualified in such jurisdictions as the Holder or Holders may reasonably
request; provided, however, that the Company shall not be required to effect
more than four registrations pursuant to this Section 3.3 or more than one
such registration in any twelve (12) month period. After the Company's first
public offering of its securities, the Company will use its best efforts to
qualify for Form S-3 registration or a similar short-form registration. The
provisions of Sections 3.1(b) and 3.2(a) shall be applicable to each
registration initiated under this Section 3.3. The number of registrations
which may be requested by the Holders under this Section 3.3 shall not exceed
four (4).
(b) Notwithstanding the foregoing, the Company shall not
be obligated to take any action pursuant to this Section 3.3: (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 in
such jurisdiction and except as may be required by the Securities Act; (ii) if
the Company, within ten (10) days of the receipt of the request of the
Initiating Holders, gives notice of its bona fide intention to effect the filing
of a registration statement with the Commission within ninety (90) days of
receipt of such request (other than with respect to a registration statement
relating to a Rule 145 transaction, or an offering solely to employees);
(iii) during the period starting with the date ninety (90) days prior to the
Company's estimated date of filing of, and ending on the date three (3) months
immediately following, the effective date of any registration statement
pertaining to securities of the Company (other than a registration relating
solely to a Rule 145 transaction or relating solely to employee benefit plans)
provided that the Company is actively employing in good faith all reasonable
efforts to cause such registration statement to become effective; or (iv) if the
Company shall furnish to such Holder 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
registration statements to be filed in the near future, then the Company's
obligation to use its best efforts to file a registration statement shall be
deferred for a period not to exceed 90 days from the receipt of the request to
file such registration by such Holder; provided, however, that the Company shall
not exercise such right more than twice in any twelve (12) month period. If the
Company shall so postpone the filing of a registration statement, such
requesting Holder or Holders under this Section 3.3 shall have the right to
withdraw the request for registration by giving written notice to the Company
within 20 days after receipt of the certificate of postponement and, in the
event of such
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withdrawal, such request shall not be counted toward the number of requested
registrations under this Section 3.3.
3.4 EXPENSES OF REGISTRATION. All Registration Expenses
incurred in connection with registrations pursuant to Sections 3.1, 3.2 and 3.3
shall be borne by the Company. All Selling Expenses relating to securities
registered on behalf of a Holder shall be borne by such Holder.
3.5 REGISTRATION PROCEDURES. In the case of each registration,
qualification or compliance effected by the Company pursuant to this Section 3,
the Company will keep each Holder advised in writing as to the initiation of
each registration, qualification and compliance and as to the completion
thereof. At its expense the Company will:
(a) Prepare and file with the Commission a registration
statement with respect to such securities and use its best efforts to cause such
registration statement to become and remain effective for at least eighteen
months or until the distribution described in the Registration Statement has
been completed (provided, however, that before filing such registration
statement, the Company shall furnish such registration statement (including all
exhibits, which may be furnished in redacted form if the Company is requesting
confidential treatment with respect to any such exhibits) to each Holder
participating in the registration, each such Holder's counsel, and each
underwriter, if any, participating in the offering of the Registrable Securities
and its counsel);
(b) Notify each Holder of the Commission's request for
any amendment to or supplement of the registration statement and the prospectus
used in connection with such registration statement, and prepare and file with
the Commission such amendments and supplements to such registration statement
and prospectus 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 (provided, however, that before filing such amendment or
supplement thereto, the Company shall furnish such documents (including all
exhibits, which may be furnished in redacted form if the Company is requesting
confidential treatment with respect to any such exhibits) to each Holder
participating in the registration, each such Holder's counsel, and each
underwriter, if any, participating in the offering of the Registrable Securities
and its counsel).
(c) Furnish to the Holders participating in such
registration and to the underwriters of the securities being registered such
reasonable number of copies of the registration statement and each amendment and
supplement thereto (in each case including all exhibits), preliminary
prospectus, final prospectus and such other documents as such underwriters may
reasonably request in order to facilitate the public offering of such
securities.
(d) Furnish, at the request of any Holder requesting
registration of Registrable Securities, on the date that Registrable Securities
are delivered to the underwriters for sale in connection with a registration
pursuant to this Agreement, 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, a copy of (i) an opinion, dated 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 to the Holders requesting
registration of Registrable
-10-
Securities and (ii), to the extent permitted by SFAS 72 or other applicable
accounting pronouncements, a letter dated such date, from the independent
auditors of the Company, in form and substance as is customarily given by
independent auditors to underwriters in an underwritten public offering
addressed to the underwriters, if any and to the Holders requesting
registration of Registrable Securities.
(e) Use its best 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.
(f) Deliver promptly to counsel to each Holder and each
underwriter, if any, participating in the offering of the Registrable
Securities, copies of all correspondence between the Commission and the Company,
its counsel or auditors and all memoranda relating to discussions with the
Commission or its staff with respect to such registration statement.
(g) 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 of such offering (provided
that the Holders shall also enter into and perform their obligations under such
an agreement if the Holders have requested the inclusion of any Registrable
Securities in such offering (subject to Section 3.16).
(h) Make available its employees and personnel and
otherwise provide reasonable assistance to the underwriters (taking into account
the needs of the Company's businesses) in their marketing of Registrable
Securities.
(i) Cause all such Registrable Securities registered
pursuant to this Agreement to be listed on each securities exchange or national
market system on which similar securities issued by the Company are then listed
or traded.
(j) Provide a transfer agent and registrar for all
Registrable Securities registered pursuant to such registration statement and a
CUSIP number for all such Registrable Securities, in each case not later than
the effective date of such registration.
(k) Use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering the
period of at least twelve (12) months, but not more than eighteen (18) months,
beginning with the first month after the effective date of the registration
statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act.
(l) Promptly notify each Holder and each managing
underwriter, if any, participating in the offering of the securities covered
by such registration statement (i) when such registration statement, any
pre-effective amendment, the prospectus or any prospectus supplement related
thereto or post-effective amendment to such registration statement has been
filed, and, with respect to such registration statement or any post-effective
amendment, when the same has become
-11-
effective; (ii) of any request by the Commission for amendments or
supplements to such registration statement or the prospectus related thereto
or for additional information; (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of such registration statement or the
initiation of any proceedings for that purpose; (iv) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of any of the Registrable Securities for sale under the
securities or blue sky laws of any jurisdiction or the initiation of any
proceeding for such purpose; (v) at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, upon discovery
that, or upon 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 any material fact
required to be stated therein or necessary to make the statements therein not
misleading, in the light of the circumstances under which they were made, and
in the case of this clause (v), at the request of any Holder, promptly
prepare and furnish to it, each of the other Holders and each managing
underwriter, if any, participating in the offering of the Registrable
Securities a reasonable number of copies of a supplement to or an amendment
of such prospectus as may be necessary so that, as thereafter delivered to
the purchasers of such securities, such prospectus shall not include an
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 under which they were made.
3.6 INDEMNIFICATION.
(a) The Company will indemnify each Holder, each of its
officers, directors, partners and legal counsel, and each person controlling
such Holder within the meaning of Section 15 of the Securities Act, with respect
to which registration, qualification or compliance has been effected pursuant to
this Section 3, and each underwriter, if any, and each person who controls any
underwriter within the meaning of Section 15 of the Securities Act, 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 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,
qualification or compliance, 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
Securities Exchange Act of 1934, as amended (the "Exchange Act") or any state
securities law or any rule or regulation promulgated under the Securities Act,
the Exchange Act or any state securities law applicable to the Company in
connection with any such registration, qualification or compliance, and the
Company will reimburse each such Holder, each of its officers, directors,
partners, and legal counsel and each person controlling such Holder, each such
underwriter and each person who controls any such underwriter, for any legal and
any other expenses reasonably 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, controlling person or
underwriter and stated to be specifically for use therein.
-12-
(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, officers, and legal counsel, each underwriter, if any, of the
Company's securities covered by such a registration statement, each person who
controls the Company or such underwriter within the meaning of Section 15 of the
Securities Act, and each other Holder, each of its officers, directors, partners
and legal counsel 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) 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 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 any violation by the Holder of the Securities Act, the Exchange
Act or any state securities law or any rule or regulation promulgated under the
Securities Act, the Exchange Act or any state securities law applicable to the
Holder in connection with any such registration, qualification or compliance,
and the Holder will reimburse the Company, such Holders, such directors,
officers, persons, underwriters or control persons for any legal or any other
expenses reasonably incurred in connection with investigating or defending any
such claim, loss, damage, liability or action, in each case to the extent, but
only to the extent, that such untrue statement (or 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 written information furnished to the Company by an instrument
duly executed by such Holder and stated to be specifically for use therein.
Notwithstanding the foregoing, the liability of each Holder under this
subsection (b) shall be limited in an amount equal to the proceeds to such
Holder of Registrable Securities sold pursuant to such registration statement,
prospectus, offering circular or other document as contemplated herein, unless
such liability resulted from willful misconduct by such Holder. A Holder will
not be required to enter into any agreement or undertaking in connection with
any registration under this Section 3 providing for any indemnification or
contribution on the part of such Holder greater than the Holder's obligations
under this Section 3.6(b).
(c) Each party entitled to indemnification under this
Section 3.6 (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 Section 3 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
separate and different defenses but shall bear the expense of such defense
nevertheless. 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
-13-
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.
(d) If the indemnification provided for in this Section
3.6 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. 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. If the allocation provided in this subsection (d) is not
permitted by applicable law, the Indemnifying Party, in lieu of indemnifying the
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 shall be appropriate to reflect not only the
relative fault but also the relative benefits received by the Indemnifying Party
and Indemnified Party from the offering of the securities covered by such
registration statement as well as any other relevant equitable considerations.
The parties hereto agree that it would not be just and equitable if
contributions pursuant to this subsection (d) were to be determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. In addition, no person shall be obligated to
contribute hereunder any amounts in payment for any settlement of any action or
claim effected without such person's consent, which consent shall not be
unreasonably withheld. Notwithstanding anything in this subsection (d) to the
contrary, no Indemnifying Party (other than the Company) shall be required to
contribute any amount in excess of the net proceeds received by such party from
the sale of Registrable Securities in the offering to which the losses,
liabilities, claims, damages or expenses of the Indemnified Party relate.
3.7 CERTAIN RIGHTS OF HOLDER IF NAMED IN A REGISTRATION
STATEMENT. If any statement contained in a registration statement under the
Securities Act or in any filing under the state securities laws of any
jurisdiction refers to a Holder by name or otherwise as the holder of any
securities of the Company, then such Holder shall have the right to require
(i) the insertion therein of language, in form and substance satisfactory to
such Holder, to the effect that the holding by the Investor of such securities
does not necessarily make such Holder a "controlling person" of the Company
within the meaning of the Securities Act and is not to be construed as a
recommendation by such Holder of the investment quality of the Company's debt or
equity securities covered thereby and that such holding does not imply that such
Holder will assist in meeting any future financial requirements of the Company
or (ii) in the event that such reference to a Holder by name or otherwise is
not, in the reasonable judgment of such Holder as advised by its counsel,
required by the
-14-
Securities Act or any of the rules and regulations promulgated thereunder, or
any state securities laws of any jurisdiction, the deletion of the reference
to such Holder.
3.8 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, qualification or compliance referred to in this Section 3.
3.9 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:
(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 Securities Exchange Act of 1934, as
amended.
(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);
(c) So long as a Holder owns any Restricted Securities,
furnish to the Holder forthwith upon request a written statement by the Company
as to its compliance with the reporting requirements of said Rule 144 (at any
time after 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 of the Securities Act and the Exchange Act (at any time after it has become
subject to such reporting requirements), a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents of the
Company and other information in the possession of or reasonably obtainable by
the Company as a Holder may reasonably request in availing itself of any rule or
regulation of the Commission allowing a Holder to sell any such securities
without registration.
3.10 TRANSFER OF REGISTRATION RIGHTS. The rights to cause the
Company to register securities granted Holders under Sections 3.1, 3.2 and 3.3
and the benefits of the other provisions of this Agreement may be assigned to a
transferee or assignee in connection with any transfer or assignment of
Registrable Securities by a Holder of not less than 100,000 shares of
Registrable Securities, or to any transferee or assignee who is a constituent
partner of a Holder or the estate of such constituent partner, provided that
such transfer may otherwise be effected in accordance with applicable securities
laws.
3.11 STANDOFF AGREEMENT. Each Holder agrees, so long as such
Holder holds at least one percent (1%) of the Company's outstanding voting
equity securities, in connection with the Company's initial public offering of
the Company's securities, upon request of the Company or the underwriters
managing any underwritten offering of the Company's securities, not to sell,
make any
-15-
short sale of, loan, grant any option for the purchase of, or otherwise
dispose of any Registrable Securities (other than those included in the
registration) without the prior written consent of the Company or such
underwriters, as the case may be, for such period of time (not to exceed one
hundred eighty (180) days) from the effective date of such registration as
may be requested by the underwriters; provided, that the officers and
directors of the Company who own stock of the Company also agree to such
restrictions. The Company hereby agrees that, if it shall have received a
request for registration pursuant to Section 3.1 or 3.3 hereof, and if such
request for registration shall not have been withdrawn or abandoned, the
Company shall not effect any public or private offer, sale or other
distribution of its securities or effect any registration of any of its
equity securities under the Securities Act (subject to the provisions of
Sections 3.1 and 3.3 hereof) (other than a registration on Form S-8 or any
successor or similar form which is then in effect), whether or not for sale
for its own account, until a period of ninety (90) days (or such shorter
period as the Holders of a majority of the Registrable Securities included in
such requested registration shall agree) shall have elapsed from the
effective date of such requested registration (and the Company shall so
provide in any registration rights agreements hereafter entered into with
respect to any of its securities).
3.12 RULE 144A INFORMATION. Whenever the Company receives a
request for the following information from Initiating Holders on or after
December 31, 1998, then the Company shall within 60 days after the date of such
request provide the information required in Rule 144A(d)(4) to such Initiating
Holders and any person or persons designated by the Initiating Holders as a
prospective buyer in a transaction pursuant to Rule 144A. The Company's
obligations pursuant to this Section 3.12 shall extend to any person who
acquires shares of the Company's Preferred Stock and/or Conversion Stock as a
result of a transaction pursuant to Rule 144A.
3.13 TERMINATION OF REGISTRATION RIGHTS. The rights granted
under this Section 3 shall terminate on the fifth anniversary of the closing of
the first firm commitment underwritten public offering pursuant to an effective
registration statement under the Securities Act covering the offer and sale of
Common Stock at an aggregate offering price of not less than $25,000,000 and, in
the case of (i) the Series G Preferred Stock or Series G1 Preferred Stock at a
price to the public in such offering greater than or equal to $7.00 per share
and (ii) in the case of the Series H Preferred Stock or Series H1 Preferred
Stock at a price to public in such offering greater than or equal to $4.00 per
share.
3.14 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and
after the date of this Agreement, the Company shall not, without the prior
written consent of the Holders of a majority of the outstanding Registrable
Securities, enter into any agreement with any holder or prospective holder of
any securities of the Company which would allow such holder or prospective
holder (a) to include such securities in any registration filed under Section
3.1 or Section 3.2 hereof, unless under the terms of such agreement, such holder
or prospective holder may include such securities in any such registration only
to the extent that the inclusion of his securities will not reduce the amount of
the Registrable Securities of the Holders which is included or (b) to make a
demand registration which could result in such registration statement being
declared effective prior to the earlier of either of the dates set forth in
subsection 3.2(a) or within one hundred twenty (120) days of the effective date
of any registration effected pursuant to Section 3.1.
-16-
3.15 GRANT OF ADDITIONAL REGISTRATION RIGHTS. The Company may,
with the approval of its board of directors and subject to compliance with
Section 3.13 above, grant the registration rights set forth herein to a
subsequent purchaser of securities of the Company, provided that such purchaser
agrees to execute this agreement as a party hereto and, by so doing, agrees to
be bound by the provisions hereof.
3.16 UNDERWRITING AGREEMENTS. If any Holder is a party to any
underwriting agreement in connection with any underwritten offering hereunder,
such Holder may require that any or all of the representations and warranties
by, and the other agreements on the part of, the Company to and for the benefit
of such underwriters shall also be made to and for the benefit the Holders
participating in the offering and that any or all of the conditions precedent to
the obligations of such underwriters under such underwriting agreement be
conditions precedent to the obligations of such Holders. No holder shall be
required to make any representations or warranties to or agreements with the
Company or the underwriters other than representations, warranties or agreements
regarding the Holder, such Holder's ownership of and title to the Registrable
Securities, such Holder's intended method of distribution and any other
representations required by law, and any liability of such Holder to any
underwriter or other person under such underwriting agreement shall be limited
to the extent set forth in Section 3.6(b).
3.17 PREPARATION; REASONABLE INVESTIGATION. In connection with
the preparation and filing of each registration statement under the Securities
Act pursuant to this Agreement, the Company will give each Holder, its
underwriters, if any, and their respective counsel and accountants the
opportunity to participate in the preparation of such registration statement,
each prospectus included therein or filed with the Commission, and, to the
extent practicable, each amendment thereof or supplement thereto, and give each
of them such access to its books and records and such opportunities to discuss
the business of the Company with its officers and employees and the independent
public accountants who have certified its financial statements as shall be
necessary, in the opinion of such Holders' and such underwriters' respective
counsel, to conduct a reasonable investigation within the meaning of the
Securities Act.
3.18 NO INCONSISTENT AGREEMENTS. The Company will not, on or
after the date of this Agreement, enter into any agreement with respect to its
securities which is inconsistent with the rights granted to each Holder in this
Agreement or otherwise conflicts with the provisions hereof. The Company has
not previously entered into any agreement with respect to its securities
granting any registration rights to any person other than the registration
rights granted pursuant to this Agreement. The rights granted to the holders of
Registrable Securities hereunder do not in any way conflict with and are not
inconsistent with any other agreements to which the Company is a party or by
which it is bound.
4. GENERAL PROVISIONS.
4.1 AMENDMENT AND WAIVER. Any term of this Agreement may be
amended 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 with the written consent of the Company and the holders
of a majority of the shares of the Common Stock issued or issuable upon
conversion of
-17-
the Preferred Stock. Any amendment or waiver effected in accordance with
this Section 4.1 shall be binding upon each Holder of Registerable Securities
each future holder of all such securities and the Company.
4.2 GOVERNING LAW. This Agreement shall be governed by and
construed under the laws of the State of California.
4.3 CHOICE OF FORUM. All actions and proceedings to enforce,
or which arise in connection with or relate to, this Agreement shall be brought
and litigated exclusively in the United States District Court, Northern District
of California (or, in the event such court does not have jurisdiction, the
courts of the State of California located in such district), unless such actions
or proceedings are required to be brought in another court to obtain subject
matter jurisdiction over the matter in controversy. In any such actions or
proceedings, service of process may be made upon the other parties hereto by
registered or certified mail, return receipt requested, to its address indicated
herein, which service shall be deemed effective 10 days after mailing. Each of
the parties hereto (i) consents to the jurisdiction of such court or courts and
to service of process by registered or certified mail, as provided above, or by
any other manner provided by the law of the State of California and the rules of
such courts and (ii) waives any right it may have to asset the doctrine of forum
non conveniens, to assert that it is not subject to the jurisdiction of such
courts or to object to venue to the extent any proceeding is brought in
accordance with this Section.
4.4 WAIVER OF TRIAL BY JURY. THE COMPANY AND THE INVESTORS
WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY ACTION UNDER THIS AGREEMENT ARISING
OUT OF THE TRANSACTION CONTEMPLATED HEREBY OR THEREBY, REGARDLESS OF WHICH PARTY
INITIATES SUCH ACTION OR ACTIONS.
4.5 SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided, the provisions of this Agreement shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors, and administrators of
the parties.
4.6 SEVERABILITY. In case any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be unenforceable,
this Agreement shall continue in full force and effect without said provision;
provided, however, that no such severability shall be effective if it materially
changes the economic benefit of this Agreement to any party.
4.7 NOTICES. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed effectively given
upon personal delivery or upon deposit with the United States Post Office, by
first class mail, postage prepaid, addressed: (a) if to the Investors, at the
Investors' address as set forth on the signature page, or at such other address
as the Investors shall have furnished to the Company in writing, (b) if to the
Company, at its current address or at such other address as the Company shall
have furnished to the Investors in writing and (c) if to a subsequent Holder, to
the address such Subsequent Holder shall have furnished to the Company in
writing.
4.8 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which is an original, and all of which together shall
constitute one instrument.
-18-
4.9 ATTORNEY'S FEES. If any action at law or in equity 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-19-
IN WITNESS WHEREOF, the Company and Investors have executed this Sixth
Amended and Restated Registration Rights Agreement on the date first above
written.
"COMPANY"
INTERWAVE COMMUNICATIONS INTERNATIONAL, LTD.
a Bermuda corporation
By: ________________________________________________
Title (if appropriate) _____________________________
Address ____________________________________________
____________________________________________
____________________________________________
INTERWAVE COMMUNICATIONS INTERNATIONAL, LTD.
SIGNATURE PAGE TO
SIXTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the Company and Investors have executed this Sixth
Amended and Restated Registration Rights Agreement on the date first above
written.
"INVESTORS"
XXXXXXXX VII
a California Limited Partnership
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Attn: Xxxxx Xxxx
By Xxxxxxxx Management Partners,
a California limited partnership, its
General Partner
By: ________________________________________________
Title (if appropriate) _____________________________
Address ____________________________________________
____________________________________________
____________________________________________
INTERWAVE COMMUNICATIONS INTERNATIONAL, LTD.
SIGNATURE PAGE TO
SIXTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the Company and Investors have executed this Sixth
Amended and Restated Registration Rights Agreement on the date first above
written.
"INVESTORS"
XXXXXXXX ASSOCIATES FUND II
a California Limited Partnership
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Attn: Xxxxx Xxxx
By: ________________________________________________
Title (if appropriate) _____________________________
Address ____________________________________________
____________________________________________
____________________________________________
INTERWAVE COMMUNICATIONS INTERNATIONAL, LTD.
SIGNATURE PAGE TO
FIFTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the Company and Investors have executed this Sixth
Amended and Restated Registration Rights Agreement on the date first above
written.
"INVESTORS"
EXCELlink
6th Floor Xxxx Xxxx Xxxxxxxx
00-00 Xxx Xxxxx Xxxx Xxxxxxx
Xxxx Xxxx,
Xxxxx
Attn: Xxxxxxx Xxxxx
By: ________________________________________________
Title (if appropriate) _____________________________
Address ____________________________________________
____________________________________________
____________________________________________
INTERWAVE COMMUNICATIONS INTERNATIONAL, LTD.
SIGNATURE PAGE TO
FIFTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the Company and Investors have executed this Sixth
Amended and Restated Registration Rights Agreement on the date first above
written.
"INVESTORS"
MAINWELL CORPORATION
32 Xxxxxx Xxxx
#04-38 Nassim Mansion
1025 Singapore
C/O Xxxxx Xxx
By: ________________________________________________
Title (if appropriate) _____________________________
Address ____________________________________________
____________________________________________
____________________________________________
INTERWAVE COMMUNICATIONS INTERNATIONAL, LTD.
SIGNATURE PAGE TO
FIFTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the Company and Investors have executed this Sixth
Amended and Restated Registration Rights Agreement on the date first above
written.
"INVESTORS"
XXXXXX INTERNATIONAL HOLDING, INC.
000 Xxxx Xxxxxxx Xxx
Xxx Xxxx, XX 00000
Attn: Dr. Xxxxxx Xxxx
By: ________________________________________________
Title (if appropriate) _____________________________
Address ____________________________________________
____________________________________________
____________________________________________
INTERWAVE COMMUNICATIONS INTERNATIONAL, LTD.
SIGNATURE PAGE TO
FIFTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the Company and Investors have executed this Sixth
Amended and Restated Registration Rights Agreement on the date first above
written.
"INVESTORS"
XXXXXX XXXXXXXX VENTURE CAPITAL FUND II, LP
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: X. Xxxxxxx
By Xxxxxx Xxxxxxx Venture Partners II L.P.,
Its General Partner
By Xxxxxx Xxxxxxx Venture Capital II, Inc.,
Managing General Partner
By: ________________________________________________
Title (if appropriate) _____________________________
Address ____________________________________________
____________________________________________
____________________________________________
INTERWAVE COMMUNICATIONS INTERNATIONAL, LTD.
SIGNATURE PAGE TO
FIFTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the Company and Investors have executed this Sixth
Amended and Restated Registration Rights Agreement on the date first above
written.
"INVESTORS"
XXXXXX XXXXXXXX VENTURE CAPITAL FUND II, CV
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: X. Xxxxxxx
By Xxxxxx Xxxxxxx Venture Partners II L.P.,
Its General Partner
By Xxxxxx Xxxxxxx Venture Capital II, Inc.,
Managing General Partner
By: ________________________________________________
Title (if appropriate) _____________________________
Address ____________________________________________
____________________________________________
____________________________________________
INTERWAVE COMMUNICATIONS INTERNATIONAL, LTD.
SIGNATURE PAGE TO
FIFTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the Company and Investors have executed this Sixth
Amended and Restated Registration Rights Agreement on the date first above
written.
"INVESTORS"
XXXXX AND ASSOCIATES
Xxxxxxx Xxxxx
37th Floor
Asia Pacific Finance Xxxxx
Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxx
Xxxx Xxxx
Attn: Xxxxx Xxxxx
By: ________________________________________________
Title (if appropriate) _____________________________
Address ____________________________________________
____________________________________________
____________________________________________
INTERWAVE COMMUNICATIONS INTERNATIONAL, LTD.
SIGNATURE PAGE TO
FIFTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the Company and Investors have executed this Sixth
Amended and Restated Registration Rights Agreement on the date first above
written.
"INVESTORS"
MKT HOLDINGS LIMITED LLC
000 Xxxxxxx Xxx.
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
C/O Xx. Xxxxxxx Xxxx
By: ________________________________________________
Title (if appropriate) _____________________________
Address ____________________________________________
____________________________________________
____________________________________________
INTERWAVE COMMUNICATIONS INTERNATIONAL, LTD.
SIGNATURE PAGE TO
FIFTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the Company and Investors have executed this Sixth
Amended and Restated Registration Rights Agreement on the date first above
written.
"INVESTORS"
NORTEL NETWORKS CORPORATION
0000 Xxxxx Xxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxx X0X0X0
Attn: ______________
By: ________________________________________________
Title (if appropriate) _____________________________
By: ________________________________________________
Title (if appropriate) _____________________________
INTERWAVE COMMUNICATIONS INTERNATIONAL, LTD.
SIGNATURE PAGE TO
FIFTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the Company and Investors have executed this Sixth
Amended and Restated Registration Rights Agreement on the date first above
written.
"INVESTORS"
HOLODECK LIMITED
X/X 00xx Xxxxx
Xxxxxxxxx Xxxxx
00 Xxxxxxxx Xxxx
Xxxxxxx Xxxx Xxxx
Hong Kong
Attn: Xxxxx Xxxx
By: ________________________________________________
Title (if appropriate) _____________________________
Address ____________________________________________
____________________________________________
____________________________________________
INTERWAVE COMMUNICATIONS INTERNATIONAL, LTD.
SIGNATURE PAGE TO
FIFTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the Company and Investors have executed this Sixth
Amended and Restated Registration Rights Agreement on the date first above
written.
"INVESTORS"
UCOM INTERNATIONAL COMPANY LIMITED
000 Xxxxxxxxxxxx Xxxx.
16th Floor, Tower A
Vibhaud, Rangsit Road
Chatuchak, Bangkok
Thailand 10900
Attn: Sumeth Amornjaruchit
By: ________________________________________________
Title (if appropriate) _____________________________
Address ____________________________________________
____________________________________________
____________________________________________
INTERWAVE COMMUNICATIONS INTERNATIONAL, LTD.
SIGNATURE PAGE TO
FIFTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the Company and Investors have executed this Sixth
Amended and Restated Registration Rights Agreement on the date first above
written.
"INVESTORS"
INTASYS CORPORATION
By: ________________________________________________
Title (if appropriate) _____________________________
Address ____________________________________________
____________________________________________
____________________________________________
INTERWAVE COMMUNICATIONS INTERNATIONAL, LTD.
SIGNATURE PAGE TO
FIFTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the Company and Investors have executed this Sixth
Amended and Restated Registration Rights Agreement on the date first above
written.
"INVESTORS"
MEDIATEL CAPITAL
By: ________________________________________________
Title (if appropriate) _____________________________
Address ____________________________________________
____________________________________________
____________________________________________
INTERWAVE COMMUNICATIONS INTERNATIONAL, LTD.
SIGNATURE PAGE TO
FIFTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the Company and Investors have executed this Sixth
Amended and Restated Registration Rights Agreement on the date first above
written.
"INVESTORS"
ALCATEL USA, INC.
By: ________________________________________________
Title (if appropriate) _____________________________
Address ____________________________________________
____________________________________________
____________________________________________
INTERWAVE COMMUNICATIONS INTERNATIONAL, LTD.
SIGNATURE PAGE TO
SIXTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
