Exhibit 4.2
OPLINK COMMUNICATIONS, INC.
THIRD AMENDED AND RESTATED RIGHTS AGREEMENT
THIRD AMENDED AND RESTATED RIGHTS AGREEMENT
THIS THIRD AMENDED AND RESTATED RIGHTS AGREEMENT (the "Agreement") is
made and entered into as of the ___ day of ___, by and among Oplink
Communications, Inc., a California corporation (the "Company"), the investors in
the Company's Series A Preferred Stock (the "Series A Investors") pursuant to
the Series A Preferred Stock Purchase Agreement dated September 30, 1995 (the
"Series A Agreement"), the investors in the Company's Series B Preferred Stock
(the "Series B Investors)pursuant to the Series B Preferred Stock Purchase
Agreement dated as of August 14, 1996 and the Series B Preferred Stock Purchase
Agreement dated as of August 8, 1997 (collectively, the "Series B Agreement"),
the investors in the Company's Series C Preferred Stock (the "Series C
Investors) pursuant to the Series C Preferred Stock Purchase Agreement dated
February 9, 1998 (the "Series C Agreement"), the investors in the Company's
Series D Preferred Stock (the "Series D Investors") pursuant to the Series D
Preferred Stock Purchase Agreement dated March 8, 1999, as amended (the "Series
D Agreement") and the investors in the Company's Series E Preferred Stock (the
"Series E Investors") pursuant to the Series E Preferred Stock Purchase
Agreement dated as of an even date herewith (the "Series E Agreement"). The
Series A Investors, the Series B Investors, the Series C Investors, the Series D
Investors and the Series E Investors are referred to collectively as the
"Investors" and are listed on the Schedule of Investors attached to this
Agreement as EXHIBIT A.
RECITALS
WHEREAS, the Company, the Series A Investors, the Series B Investors,
the Series C Investors and the Series D Investors (the "Prior Investors") are
parties to that certain Second Amended and Restated Rights Agreement dated March
8, 1999, as amended, (the "Prior Rights Agreement"); and
WHEREAS, the Prior Investors have certain registration rights and other
rights upon conversion of their Preferred Stock under the Prior Rights
Agreement; and
WHEREAS, the Company, to induce the Series E Investors to purchase up
to an aggregate of 11,000,000 shares of the Company's Series E Preferred Stock
(the "Shares") pursuant to the Series E Agreement, desires to grant certain
registration rights and other rights (the "Rights") to the Series E Investors,
and the Prior Investors desire to facilitate such grant; and
WHEREAS, the sale of the Shares to the Series E Investors is
conditioned upon the Rights being extended to the Series E Investors; and
WHEREAS, the Prior Rights Agreement may be amended, waived, diminished
or eliminated as set forth in Sections 2, 5.7 and 5.8 thereof.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties agree as follows:
Section 1. TERMINATION OF PRIOR RIGHTS. The Company and the Prior
Investors, to induce the Series E Investors to invest in the Company, accept
and agree to the termination of all prior rights under the Prior Rights
Agreement, and accept and agree to be bound by the terms of
1.
this Agreement. Without limiting the foregoing in any way, the Prior
Investors that become signatories hereto also agree to modify Section 4.1 of
the Prior Rights Agreement subject and immediately prior to the closing of
the sale of the Shares to exclude the proposed sale of the Shares pursuant to
the Series E Agreement from the right of first refusal provisions thereof,
with the effect that all such rights (including any related rights of prior
notice) shall be rendered inapplicable with respect to the sale of the Shares
under the Series E Agreement.
Section 2. AMENDMENT. Except as expressly provided in Section 5.7
herein, neither this Agreement nor any term hereof may be amended, waived,
discharged or terminated other than by a written instrument signed by the
party against whom enforcement of any such amendment, waiver, discharge or
termination is sought.
Section 3. REGISTRATION RIGHTS.
3.1 DEFINITIONS. As used in this Agreement:
(a) The terms "register," "registered," and
"registration" refer to a registration effected by preparing and filing a
registration statement in compliance with the Securities Act of 1933, as
amended (the "Act") and the subsequent declaration or ordering of the
effectiveness of such registration statement.
(b) The term "Registrable Securities" means:
(i) the shares of Common Stock issuable or issued
upon conversion of the Series A Preferred Stock, the Series B Preferred
Stock, the Series C Preferred Stock, the Series D Preferred Stock and the
Series E Preferred Stock, and
(ii) any other shares of Common Stock of the
Company issued as (or issuable upon the conversion or exercise of any
warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of, the
Series A Preferred Stock, the Series B Preferred Stock, the Series C
Preferred Stock, the Series D Preferred Stock and the Series E Preferred
Stock, excluding in all cases, however, any Registrable Securities sold by a
person in a transaction in which his or her rights under this Agreement are
not assigned; provided, however, that Common Stock or other securities shall
only be treated as Registrable Securities if and so long as they have not
been (A) sold to or through a broker or dealer or underwriter in a public
distribution or a public securities transaction, or (B) sold in a transaction
exempt from the registration and prospectus delivery requirements of the
Securities Act under Section 4(1) thereof so that all transfer restrictions,
and restrictive legends with respect thereto, if any, are removed upon the
consummation of such sale.
(c) The number of shares of "Registrable Securities
then outstanding" shall be determined by the number of shares of Common Stock
outstanding which are, and the number of shares of Common Stock issuable
pursuant to then exercisable or convertible securities which are, Registrable
Securities.
(d) The term "Holder" means any holder of outstanding
Registrable Securities who acquired such Registrable Securities in a
transaction or series of transactions not involving any registered public
offering.
2.
(e) The term "Initiating Holders" means any Holder or
Holders who in the aggregate hold no less than thirty percent (30%) of the
outstanding Registrable Securities.
(f) The term "Form S-3" means such form under the Act
as in effect on the date hereof or any registration form under the Act
subsequently adopted by the Securities and Exchange Commission ("SEC") which
permits inclusion or incorporation of substantial information by reference to
other documents filed by the Company with the SEC.
3.2 REQUESTED REGISTRATION.
(a) If the Company shall receive at any time after the
earlier of (i) two (2) years from the date of this Agreement, 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 SEC
Rule 145 transaction), a written request from the Initiating Holders that the
Company file a registration statement under the Act covering the registration
of not less than thirty percent (30%) of the Registrable Securities then
outstanding, (or any lesser number of shares if the anticipated aggregate
offering price, net of underwriting discounts and commissions would exceed
$10,000,000), then the Company shall, within ten (10) days of the receipt
thereof, give written notice of such request to all Holders and shall,
subject to the limitations of subsection 3.2(b), use its best efforts to
effect as soon as practicable, and in any event within ninety (90) days of
the receipt of such request, the registration under the Act of all
Registrable Securities which the Holders request to be registered in a
written request given within twenty (20) days of the mailing of such notice
by the Company in accordance with Section 5.5.
(b) If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request made pursuant to
this Section 3.2 and the Company shall include such information in the
written notice referred to in subsection 3.2(a). In such event, the right of
any Holder to include his 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 (together with
the Company as provided in subsection 3.4(e)) 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.
Notwithstanding any other provision of this Section 3.2, if the underwriter
advises the Initiating Holders in writing that marketing factors require a
limitation of the number of shares to be underwritten, then the Initiating
Holders shall so advise all Holders of Registrable Securities which would
otherwise be underwritten pursuant hereto, and the number of shares of
Registrable Securities that may be included in the underwriting shall be
allocated among all Holders thereof, including the Initiating Holders, in
proportion (as nearly as practicable) to the amount of Registrable Securities
of the Company owned by each Holder.
(c) The Company is obligated to effect only two (2)
such registrations pursuant to this Section 3.2.
3.
(d) Notwithstanding the foregoing, if the Company shall
furnish to Holders requesting a registration statement pursuant to this
Section 3.2, a certificate signed by the President 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
registration statement to be filed and it is therefore essential to defer the
filing of such registration statement, 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, however, that the
Company may not utilize this right more than once in any twelve (12) month
period.
(e) Notwithstanding the foregoing, the Company
shall not be obligated to effect, or to take any action to effect, any such
registration pursuant to this Section 3.2 during the period starting with the
date sixty (60) days prior to the Company's good faith estimate of the date
of filing of, and ending on a date one hundred eighty (180) days after the
effective date of, a Company-initiated registration; provided the Company is
actively employing in good faith all reasonable efforts to cause such
registration statement to become effective.
3.3 COMPANY REGISTRATION. If (but without any obligation to
do so) the Company proposes to register (including for this purpose a
registration effected by the Company for shareholders other than the Holders)
any of its Common Stock or other securities under the Act in connection with
a public offering of such securities solely for cash (other than a
registration relating either to the sale of securities to participants in a
Company stock option, stock purchase or similar plan or to a SEC Rule 145
transaction, or a registration on any form which does not include
substantially the same information as would be required to be included in a
registration statement covering the sale of the Registrable Securities), the
Company shall, at such time, promptly give each Holder written notice of such
registration. Upon the written request of each Holder given within twenty
(20) days after mailing of such notice by the Company in accordance with
Section 5.5, the Company shall, subject to the provisions of Section 3.8, use
its best efforts to cause to be registered under the Act all of the
Registrable Securities that each such Holder has requested to be registered.
3.4 OBLIGATIONS OF THE COMPANY. Whenever required under
this Section 3 to effect the registration of any Registrable Securities, the
Company shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration
statement with respect to such Registrable Securities and use its best
efforts to cause such registration statement to become effective, and, upon
the request of the Holders of a majority of the Registrable Securities
registered thereunder, keep such registration statement effective for up to
one hundred twenty (120) days.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection with such registration statement as may be necessary to comply
with the provisions of the Act with respect to the disposition of all
securities covered by such registration statement.
4.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may reasonably
request in order to facilitate the disposition of Registrable Securities
owned by them.
(d) 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.
(e) 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.
Each Holder participating in such underwriting shall also enter into and
perform its obligations under such an agreement.
(f) 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 Act of the happening of any
event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact
or omits to state a material fact required to be stated therein or necessary
to make the statements therein not misleading in the light of the
circumstances then existing.
(g) Furnish, at the request of any Holder requesting
registration of Registrable Securities pursuant to this Section 3, on the
date that such Registrable Securities are delivered to the underwriters for
sale in connection with a registration pursuant to this Section 3, 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 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 Securities and (ii) a letter dated such date, from the
independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public accountants
to underwriters in an underwritten public offering, addressed to the
underwriters, if any, and to the Holders requesting registration of
Registrable Securities.
3.5 FURNISH INFORMATION. It shall be a condition precedent
to the obligations of the Company to take any action pursuant to this Section
3 with respect to the Registrable Securities of any selling Holder that such
Holder shall furnish to the Company such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition of
such securities as shall be required to effect the registration of such
Holder's Registrable Securities.
3.6 EXPENSES OF DEMAND REGISTRATION. All expenses other
than underwriting discounts and commissions incurred in connection with
registrations, filings or qualifications pursuant to Section 3.2, including
(without limitation), all registration, filing and qualification
5.
fees, printers and accounting fees, fees and disbursements of counsel for the
Company, and the reasonable fees and disbursements of one counsel for the
selling Holders shall be borne by the Company with respect to two (2) such
registrations; provided, however, that the Company shall not be required to
pay for any expenses of any registration proceeding begun pursuant to
Section 3.2 if the registration request is subsequently withdrawn at the
request of the Holders of a majority of the Registrable Securities to be
registered (in which case all participating Holders shall bear such
expenses), unless the Holders of a majority of the Registrable Securities
agree to forfeit their right to the demand registration pursuant to
Section 3.2; provided further, however, that if at the time of such
withdrawal, the Holders have learned of a material adverse change in the
condition, business, or prospects of the Company from that known to the
Holders at the time of their request, then the Holders shall not be required
to pay any of such expenses and shall retain their rights pursuant to
Section 3.2.
3.7 EXPENSES OF COMPANY REGISTRATION. The Company shall
bear and pay all expenses incurred in connection with any registration,
filing or qualification of Registrable Securities with respect to the
registrations pursuant to Section 3.3 for each Holder (which right may be
assigned as provided in Section 3.13), including (without limitation) all
registration, filing, and qualification fees, printers and accounting fees
relating or apportionable thereto and the fees and disbursements of one
counsel for the selling Holders selected by them, but excluding underwriting
discounts and commissions relating to Registrable Securities.
3.8 UNDERWRITING REQUIREMENTS. In connection with any
offering involving an underwriting of shares being issued by the Company, the
Company shall not be required under Section 3.3 to include any of the
Holders' securities in such underwriting unless they accept the terms of the
underwriting as agreed upon between the Company and the underwriters selected
by it, and then only in such quantity as will not, in the opinion of the
underwriters, jeopardize the success of the offering by the Company. If the
total amount of securities, including Registrable Securities, requested by
shareholders to be included in such offering exceeds the amount of securities
sold other than by the Company that the underwriters reasonably believe
compatible with the success of the offering, then the Company shall be
required to include in the offering only that number of such securities,
including Registrable Securities, which the underwriters believe will not
jeopardize the success of the offering (the securities so included to be
apportioned pro rata among the selling shareholders according to the total
amount of securities entitled to be included therein owned by each selling
shareholder or in such other proportions as shall mutually be agreed to by
such selling shareholders); but in no event shall (i) the amount of
securities of the selling Holders included in the offering be reduced below
fifteen percent (15%) of the total amount of securities included in such
offering, unless such offering is the initial public offering of the
Company's securities, in which case the selling shareholders may be excluded
if the underwriters make the determination described above and no other
shareholder's securities are included or (ii)notwithstanding (i) above, any
shares being sold by a shareholder exercising a demand registration right
similar to that granted in Section 3.2 be excluded from such offering. For
purposes of the preceding parenthetical concerning apportionment, for any
selling shareholder which is a holder of Registrable Securities and which is
a partnership or corporation, the partners, retired partners and shareholders
of such holder, or the estates and family members of any such partners and
retired partners and any trusts for the benefit of any of the foregoing
persons shall be deemed to be a single "selling shareholder," and any pro
rata reduction with respect to such "selling shareholder" shall be based upon
the aggregate amount of
6.
shares carrying registration rights owned by all entities and individuals
included in such "selling shareholder," as defined in this sentence.
3.9 DELAY OF REGISTRATION. No Holder shall have any right
to obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect
to the interpretation or implementation of this Section 3.
3.10 INDEMNIFICATION. In the event any Registrable
Securities are included in a registration statement under this Section 3:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless each Holder, any underwriter (as defined in the
Act) for such Holder and each person, if any, who controls such Holder or
underwriter within the meaning of the Act or the Securities Exchange Act of
1934, as amended (the "1934 Act"), against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject under the
Act, the 1934 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"): (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 Act, the 1934 Act, any state
securities law or any rule or regulation promulgated under the Act, the 1934
Act or any state securities law; and the Company will pay as incurred to each
such Holder, underwriter or controlling person, any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability, or action; provided that the Company
will not be liable in any such case to the extent that any such loss, claim,
damage, liability, or action arises out of or is based on any untrue
statement or omission based upon written information furnished to the Company
by such Holder or underwriter and stated to be specifically for use therein;
and provided further that the indemnity agreement contained in this
subsection 3.10(a) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability, or action if such settlement is effected
without the consent of the Company (which consent shall not be unreasonably
withheld), nor shall the Company be liable in any such case for any such
loss, claim, damage, liability, or action to the extent that it arises out of
or is based upon a Violation which occurs in reliance upon and in conformity
with written information furnished expressly for use in connection with such
registration by any such Holder, underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder
will indemnify and hold harmless the Company, each of its directors, each of
its officers who has signed the registration statement, each person, if any,
who controls the Company within the meaning of the Act, any underwriter, any
other Holder selling securities in such registration statement and any
controlling person of any such underwriter or other Holder, against any
losses, claims, damages, or liabilities (joint or several) to which any of
the foregoing persons may become subject, under the Act, the 1934 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
7.
conformity with written information furnished by such Holder expressly for
use in connection with such registration; and each such Holder will pay, as
incurred, any legal or other expenses reasonably incurred by any person
intended to be indemnified pursuant to this subsection 3.10(b), in connection
with investigating or defending any such loss, claim, damage, liability, or
action; provided, however, that the indemnity agreement contained in this
subsection 3.10(b) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected
without the consent of the Holder, which consent shall not be unreasonably
withheld; provided that in no event shall any indemnity under this
subsection 3.10(b) exceed the net proceeds from the offering received by such
Holder.
(c) Promptly after receipt by an indemnified party
under this Section 3.10 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 3.10, deliver to the indemnifying party a written notice of the
commencement thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume the defense
thereof with counsel mutually satisfactory to the parties; provided, however,
that an indemnified party shall have the right to retain its own counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential
differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 3.10, 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 3.10.
(d) If the indemnification provided for in this
Section 3.10 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. In no case
shall a Holder's obligation pursuant to this subsection exceed the net
proceeds from the offering received by such Holder.
(e) Notwithstanding the foregoing, to the extent that
the provisions on indemnification and contribution contained in the
underwriting agreement entered into in
8.
connection with the underwritten public offering are in conflict with the
foregoing provisions, the provisions in the underwriting agreement shall
control.
(f) The obligations of the Company and Holders under
this Section 3.10 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 3, and otherwise.
3.11 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a
view to making available to the Holders the benefits of Rule 144 promulgated
under the Act and any other rule or regulation of the SEC that may at any
time permit a Holder to sell securities of the Company to the public without
registration or pursuant to a registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as
those terms are understood and defined in SEC Rule 144, at all times after
ninety (90) days after the effective date of the first registration statement
filed by the Company for the offering of its securities to the general public;
(b) take such action, including the voluntary
registration of its Common Stock under Section 12 of the 1934 Act, as is
necessary to enable the Holders to utilize Form S-3 for the sale of their
Registrable Securities, such action to be taken as soon as practicable after
the end of the fiscal year in which the first registration statement filed by
the Company for the offering of its securities to the general public is
declared effective;
(c) file with the SEC in a timely manner all reports
and other documents required of the Company under the Act and the 1934 Act;
and
(d) furnish to any Holder, so long as the Holder owns
any Registrable Securities, forthwith upon request (i) a written statement by
the Company that it has complied with the reporting requirements of SEC Rule 144
(at any time after ninety (90) days after the effective date of the first
registration statement filed by the Company), the Act and the 1934 Act (at
any time after it has become subject to such reporting requirements), or that
it qualifies as a registrant whose securities may be resold pursuant to Form S-3
(at any time after it so qualifies), (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed
by the Company, and (iii) such other information as may be reasonably
requested in availing any Holder of any rule or regulation of the SEC which
permits the selling of any such securities without registration or pursuant
to such form.
3.12 FORM S-3 REGISTRATION. In case the Company shall
receive from any Holder or Holders of the Registrable Securities, or from the
holders of a majority of the then outstanding Series E Preferred Stock, or
Common Stock issued upon conversion thereof, a written request or requests
that the Company effect a registration on Form S-3 and any related
qualification or compliance with respect to all or a part of the Registrable
Securities owned by such Holder or Holders, the Company will:
(a) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all other
Holders; and
9.
(b) as soon as practicable, effect such
registration and all such qualifications and compliances as may be so requested
and as would permit or facilitate the sale and distribution of all or such
portion of such Holder's or Holders' Registrable Securities as are specified in
such request, together with all or such portion of the Registrable Securities of
any other Holder or Holders joining in such request as are specified in a
written request given within fifteen (15) days after receipt of such written
notice from the Company; provided, however, that the Company shall not be
obligated to effect any such registration, qualification or compliance, pursuant
to this Section 3.12, (i) if Form S-3 is not available for such offering by the
Holders; (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 (net of any underwriters' discounts or commissions) of less than
$500,000; (iii) if the Company shall furnish to the Holders a certificate signed
by the president 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
3.12; provided, however, that the Company shall not utilize this right more than
once in any twelve (12) month period; (iv) with respect to a request from a
Holder, if the Company has already effected two (2) registrations on Form S-3
for the Holders pursuant to this Section 3.12; 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.
(c) Subject to the foregoing, the Company shall
file a 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 expenses incurred in connection with
two (2) registrations requested by Holders and two (2) registrations requested
by the holders of a majority of the then outstanding Series E Preferred Stock,
or Common Stock issued upon conversion thereof, pursuant to Section 3.12,
including (without limitation) all registration, filing, qualification,
printer's and accounting fees and the reasonable fees and disbursements of one
counsel for the selling Holder or Holders, shall be borne by the Company.
Registrations effected pursuant to this Section 3.12 shall not be counted as
demands for registration or registrations effected pursuant to Section 3.2 or
3.3. The Holders shall bear all expenses pro rata for additional S-3
registrations effected at the request of the holders of a majority of the then
outstanding Series B Preferred Stock, or Common Stock issued upon conversion
thereof.
3.13 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to
cause the Company to register Registrable Securities pursuant to this Section 3
may be assigned by a Holder to a transferee or assignee of at least 400,000
shares of Series A, Series B, Series C or Series D Preferred Stock or 100,000
shares of Series E Preferred Stock provided the Company is, within a reasonable
time after such transfer, furnished with written notice of the name and address
of such assignee and the securities with respect to which such registration
rights are being assigned; and provided, further, that such assignment shall be
effective only if immediately following such transfer or assignment the further
disposition of such securities by the transferee or assignee is restricted under
the Act. The foregoing share limitations shall not apply, however, to transfers
by a Holder to shareholders, partners or retired partners of the Holder
(including spouses and
10.
ancestors, lineal descendants and siblings of such partners or spouses who
acquire Registrable Securities by gift, will or intestate succession) if all
such transferees or assignees agree in writing to appoint a single
representative as their attorney in fact for the purpose of receiving any
notices and exercising their rights under this Section 3.
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
3.2 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 eighty (180) days of the effective date of any
registration effected pursuant to Section 3.2.
3.15 "MARKET STAND-OFF" AGREEMENT. The Holder hereby
agrees that during the period of duration (up to, but not exceeding 180 days)
specified by the Company and the lead underwriter following the effective date
of a registration statement of the Company filed under the Act, it shall not, to
the extent requested by the underwriter, sell or otherwise transfer or dispose
of (other than to donees who agree to be similarly bound) any Common Stock of
the Company held by it at any time during such period except Common Stock
included in such registration; provided, however, that:
(a) such agreement shall be applicable only to
the first such registration statement of the Company which covers Common Stock
(or other securities) to be sold on its behalf to the public in an underwritten
offering; and
(b) each officer and director of the Company and
all other persons with registration rights (whether or not pursuant to this
Agreement) enters into a similar agreement.
To enforce the foregoing covenant, the Company may impose stop-transfer
instructions with respect to the Registrable Securities of the Holder (and the
shares or securities of every other person subject to the foregoing restriction)
until the end of such period.
3.16 TERMINATION OF REGISTRATION RIGHTS. No Holder shall
be entitled to exercise any right provided for in this Section 3: (a) after
eight (8) years following the consummation of the Company's sale of its Common
Stock in a bona fide, faro commitment underwriting pursuant to a registration
statement on Form S-1 under the Securities Act of 1933, as amended, which
results in aggregate gross cash proceeds to the Company in excess of $50,000,000
and the public offering price of which is not less than $8.00 per share
(adjusted to reflect subsequent stock dividends, stock splits or
recapitalization) (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 SEC Rule 145 transaction); or (b) at and after
such time following the
11.
Company's initial public offering as such Holder holds Registrable Securities
equal to one percent (1%)or less of the outstanding stock of the Company and
is able to dispose of all of its Registrable Securities in one three-month
period pursuant to the provisions of Rule 144.
Section 4. ADDITIONAL RIGHTS.
4.1 RIGHT OF FIRST REFUSAL. Subject to the terms and
conditions specified in this Section 4.1, the Company hereby grants to each
Investor that immediately after the effective date of this Agreement will hold
not less than 250,000 shares of Series E Preferred Stock, 400,000 shares of
Series C or Series D Preferred Stock or 1,000,000 shares of Series A or Series B
Preferred Stock (a "Major Investor") a right of first refusal with respect to
future sales by the Company of its New Securities (as hereinafter defined). For
purposes of this Section 4.1, the term Major Investor includes any partners,
shareholders or affiliates of an Investor. Subject to Section 4.1(f) below, an
Investor shall be entitled to apportion the right of first refusal hereby
granted among itself and its partners, shareholders and affiliates in such
proportions as it deems appropriate.
(a) In the event the Company proposes to issue
New Securities, it shall give each Major Investor written notice (the "Notice")
of its intention stating (i) a description of the New Securities it proposes to
issue, (ii) the number of shares of New Securities it proposes to offer, (iii)
the price per share at which, and other terms on which, it proposes to offer
such New Securities and (iv) the number of shares that the Major Investor has
the right to purchase under this Section 4.1, based on the Major Investor's
Percentage (as defined in Section 4.1(d)(ii)).
(b) Within twenty (20) days after the Notice is
given (in accordance with Section 5.5), the Major Investor may elect to
purchase, at the price specified in the Notice, up to the number of shares of
the New Securities proposed to be issued that the Major Investor has the right
to purchase as specified in the Notice. An election to purchase shall be made in
writing and must be given to the Company within such twenty (20) day period (in
accordance with Section 5.5). The closing of the sale of New Securities by the
Company to the participating Major Investor upon exercise of its rights under
this Section 4.1 shall take place simultaneously with the closing of the sale of
New Securities to third parties.
(c) The Company shall have ninety (90) days
after the last date on which the Major Investor's right of first refusal lapsed
to enter into an agreement (pursuant to which the sale of New Securities covered
thereby shall be closed, if at all, within forty-five (45) days from the
execution thereof) to sell the New Securities which the Major Investor did not
elect to purchase under this Section 4.1, at or above the price and upon terms
not materially more favorable to the purchasers of such securities than the
terms specified in the initial Notice given in connection with such sale. In the
event the Company has not entered into an agreement to sell the New Securities
within such ninety (90) day period (or sold and issued New Securities in
accordance with the foregoing within forty-five (45) days from the date of said
agreement), the Company shall not thereafter issue or sell any New Securities
without first offering such New Securities to the Major Investor in the manner
provided in this Section 4.1.
(d) (i) "New Securities" shall mean any shares
of, or securities convertible into or exercisable for any shares of, any class
of the Company's capital stock;
12.
provided that "New Securities" does not include: (i) the Series A, Series B,
Series C, Series D or Series E Preferred Stock, or the Common Stock issuable
upon conversion thereof; (ii) securities issued pursuant to the acquisition
of another business entity by the Company by merger, purchase of
substantially all of the assets of such entity, or other reorganization
whereby the Company owns not less than a majority of the voting power of such
entity; (iii) shares, or options to purchase shares, of the Company's Common
Stock and the shares of Common Stock issuable upon exercise of such options,
issued pursuant to a stock option plan or restricted stock plan approved by
the Board of Directors and shareholders of the Company to employees, officers
and directors of, or consultants, advisors or other persons performing
services for, the Company; (iv) shares of the Company's Common Stock or
Preferred Stock of any series issued in connection with any stock split,
stock dividend or recapitalization of the Company; (v)Common Stock issued
upon exercise of warrants, options or convertible securities if the issuance
of such warrants, options or convertible securities was a result of the
exercise of the right of first refusal granted under this Section 4.1 or was
subject to the right of first refusal granted under this Section 4.1; (vi)
securities issued to financial institutions in connection with the extension
of credit to the corporation or in connection with the lease of equipment and
in both cases for other than equity financing purposes; and (v) securities
sold to the public in an offering pursuant to a registration statement filed
with the Securities and Exchange Commission under the Act.
(i) The applicable "Percentage" for the
Major Investor shall be the number of shares of New Securities calculated by
dividing (i) the total number of shares of Common Stock owned by the Major
Investor (assuming conversion of all shares of Preferred Stock and exercise of
any options or warrants held by said Major Investor) by (ii) the total number of
shares of Common Stock outstanding at the time the Notice is given (assuming
conversion of all shares of Preferred Stock and exercise of all outstanding
rights, options and warrants to acquire Common Stock of the Company). Each Major
Investor shall have the right of over-allotment such that if any Major Investor
fails to exercise its right hereunder to purchase its Percentage share of New
Securities, the other Major Investors may purchase the non-purchasing Major
Investor's portion on a pro rata basis within ten (10) days from the date such
non-purchasing Major Investor fails to exercise its right hereunder to purchase
its Percentage share of New Securities.
(e) The right of first refusal granted under
this Section 4.1 shall expire upon the consummation of the Company's sale of its
Common Stock in a bona fide, firm commitment underwriting pursuant to a
registration statement on Form S-1 under the Securities Act of 1933, as amended,
which results in aggregate gross cash proceeds to the Company in excess of
$50,000,000 and the public offering price of which is not less than $8.00 per
share (adjusted to reflect subsequent stock dividends, stock splits or
recapitalization) (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 SEC Rule 145 transaction).
(f) The right of first refusal granted under
this section may only be assigned by an Investor to a transferee or assignee of
the Investor's shares of the Company's stock acquiring the lesser of (a) at
least 400,000 shares of the a Series A, Series B, Series C or Series D
Investor's shares of the Company's Common Stock or at least 100,000 shares of
the Series E Investor's Shares of the Company's Common Stock (treating all
shares of Preferred Stock for this purpose as though converted into Common
Stock) (equitably adjusted for any
13.
stock splits, subdivision stock dividends, changes, combinations or the like)
or (b) all of the Investor's remaining shares of the Company's stock. In the
event that the Investor shall assign its right of first refusal pursuant to
this Section 4.1 in connection with the transfer of less than all of its
shares of the Company's stock, the Investor shall also retain its fight of
first refusal.
4.2 DELIVERY OF FINANCIAL STATEMENTS.
(a) The Company shall deliver to each Holder:
(i) as soon as practicable, but in any event within ninety (90) days after the
end of each fiscal year of the Company, an income statement for such fiscal
year, a balance sheet of the Company as of the end of such year, and statements
of income and cash flows for such year, such year-end financial reports to be in
reasonable detail, prepared in accordance with generally accepted accounting
principles ("GAAP"), and audited and certified by independent public accountants
of nationally recognized standing selected by the Company.
(b) The Company shall deliver to each Major
Investor:
(i) as soon as practicable, but in any
event within forty-five (45) days after the end of each fiscal quarter, a
balance sheet of the Company as of the end of each such quarterly period, and
statements of income and cash flows for such period and for the current fiscal
year to date, prepared in accordance with GAAP, subject to changes resulting
from normal year-end audit adjustments, all in reasonable detail and certified
by the principal financial or accounting officer of the Company, except that
such financial statements need not contain the notes required by GAAP.
(ii) as soon as practicable, but in any
event within thirty (30) days prior to the end of each fiscal year, a budget and
business plan for the next fiscal year, prepared on a monthly basis, including
balance sheets and sources and applications of funds statements for such months
and, as soon as prepared, any other budgets or revised budgets prepared by the
Company; and
(iii) such other information relating to
the financial condition, business, prospects or corporate affairs of the Company
as the Holder may from time to time request; provided, however, that the Company
shall not be obligated to provide information which it deems in good faith to be
proprietary.
4.3 INSPECTION. The Company shall permit each Major
Investor, at such Major Investor's expense, to visit and inspect the Company's
properties, to examine its books of account and records and to discuss the
Company's affairs, finances and accounts with its officers, all at such
reasonable times as may be requested by such Major Investor; provided, however,
that the Company shall not be obligated pursuant to this Section 4.3 to provide
access to any information which it reasonably considers to be a trade secret or
similar confidential information.
4.4 TERMINATION OF INFORMATION AND INSPECTION COVENANTS.
The covenants set forth in Sections 4.2 and 4.3 shall terminate as to the
Holders and be of no further force or effect immediately upon the consummation
of the Company's sale of its Common Stock in a bona fide, firm commitment
underwriting pursuant to a registration statement on Form S- 1 trader the Act,
14.
which results in aggregate gross cash proceeds to the Company in excess of
$25,000,000 and the public offering price of which is not less than $6.00 per
share (adjusted to reflect subsequent stock dividends, stock splits or
recapitalization) (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 SEC Rule 145 transaction).
4.5 OBSERVER RIGHT. Subject to the provisions of this
Section 4.5, the Company shall invite a representative of each holder of at
least 1,000,000 shares of Series E Preferred or 2,400,000 shares of Series D
Preferred (with shares held by affiliated holders being aggregated for this
purpose, provided the affiliated group designates a single representative) to
attend all meetings of its Board of Directors in a nonvoting observer capacity
and, in this respect, shall give such representative copies of all notices,
minutes, consents, and other materials that it provides to its directors (the
"Observer Right"); provided, however, that such representative shall agree to
hold in confidence and trust and to act in a fiduciary manner with respect to
all information so provided; and, provided further, that the Company reserves
the right to withhold any information and to exclude such representative from
any meeting or portion thereof if access to such information or attendance for
such meeting could adversely affect the attorney-client privilege between the
Company and its counsel or would result in disclosure of trade secrets to such
representative. The Observer Right shall terminate upon the consummation of the
Company's sale of its Common Stock in a bona fide, firm commitment underwriting
pursuant to a registration statement on Form S-1 under the Securities Act of
1933, as amended, which results in aggregate gross cash proceeds to the Company
in excess of $50,000,000 and the public offering price of which is not less than
$8.00 per share (adjusted to reflect subsequent stock dividends, stock splits or
recapitalization) (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 SEC Rule 145 transaction).
Section 5. MISCELLANEOUS.
5.1 ASSIGNMENT. Subject to the provisions of Section 3.13
hereof, the terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective successors and assigns of the parties hereto.
5.2 THIRD PARTIES. Nothing in this Agreement, express or
implied, is intended to confer upon any party, other than the parties hereto,
and their respective successors and assigns, any rights, remedies, obligations
or liabilities under or by reason of this Agreement, except as expressly
provided herein.
5.3 GOVERNING LAW. This Agreement shall be governed by
and construed under the laws of the State of California in the United States of
America as applied to agreements among California residents entered into and to
be performed entirely within California.
5.4 COUNTERPARTS. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
15.
5.5 NOTICES. Any notice required or permitted by this
Agreement shall be in writing and shall be sent by prepaid airmail, return
receipt requested, addressed to the other party at the address shown below or at
such other address for which such party gives notice hereunder. Such notice
shall be deemed to have been given ten (10) days after deposit in the mail.
5.6 SEVERABILITY. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, portions of such
provisions, or such provisions in their entirety, to the extent necessary, shall
be severed from this Agreement, and the balance of this Agreement shall be
enforceable in accordance with its terms.
5.7 AMENDMENT AND WAIVER. Any provision of this Agreement
may be amended with the written consent of the Company and the Holders of at
least a majority of the outstanding shares of the Registrable Securities. Any
amendment or waiver effected in accordance with this paragraph shall be binding
upon each Holder of Registrable Securities and the Company. In the event that an
underwriting agreement is entered into between the Company and any Holder, and
such underwriting agreement contains terms differing from this Agreement, as to
any such Holder the terms of such underwriting agreement shall govern.
5.8 EFFECT OF AMENDMENT OR WAIVER. Investors and their
respective successors and assigns acknowledge that by the operation of Section
5.7 hereof the holders of a majority of the outstanding Registrable Securities,
acting in conjunction with the Company, will have the right and power to
diminish or eliminate all rights pursuant to this Agreement.
5.9 RIGHTS OF HOLDERS. Each Holder of Registrable
Securities shall have the absolute right to exercise or refrain from exercising
any right or rights that such Holder may have by reason of this Agreement,
including, without limitation, the right to consent to the waiver or
modification of any obligation under this Agreement, and such Holder shall not
incur any liability to any other holder of any securities of the Company as a
result of exercising or refraining from exercising any such right or rights.
5.10 DELAYS OR OMISSIONS. No delay or omission to exercise
any right, power or remedy accruing to any party to this Agreement upon any
breach or default of the other party, shall impair any such right, power or
remedy of such non-breaching party nor shall it be construed to be a waiver of
any such breach or default, or an acquiescence therein, or of or in any similar
breach or default thereafter occurring; nor shall any waiver of any single
breach or default be deemed a waiver of any other breach or default theretofore
or thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any party of any breach or default under this
Agreement, or any waiver on the part of any party of any provisions or
conditions of this Agreement, must be made in writing and shall be effective
only to the extent specifically set forth in such writing. All remedies, either
under this Agreement, or by law or otherwise afforded to any Holder, shall be
cumulative and not alternative.
5.11 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.
16.
IN WITNESS WHEREOF, the parties hereto have executed this Third Amended
and Restated Rights Agreement as of the day and year first above written.
COMPANY:
OPLINK COMMUNICATIONS, INC.
By: /s/ Xxxxxx X. Xxx
---------------------------------
Title: Chairman
SERIES E INVESTORS:
-----------------------------------
(Printed Name)
By:
--------------------------------
Title:
-----------------------------
Address:
---------------------------
-----------------------------------
PRIOR INVESTORS:
-----------------------------------
(Printed Name)
By:
--------------------------------
Title:
-----------------------------
Address:
---------------------------
-----------------------------------
17.
EXHIBIT A
SCHEDULE OF INVESTORS
LAST NAME FIRST NAME LAST NAME FIRST NAME
--------- ---------- --------- ----------
AP Venture Partners I Xxx, Xxxx-Xxxxx
Baotung Venture Capital Corp. Kuotung Venture Capital Co.
Bentley, J. Xxxxxx Xxx, Xxxxx-Shou & Xxxx Xxxxxx-Xxxx
Xxxxxxxxxx, Xxx & Xxxxxx X. Xxx, Xxxx
Xxxxxxxxx, Xxxxx X. Xxx, Yeals
Chai, Xxxxx Xxx, Zong-Tang
Xxxxx, Xxxx-Xxxx Xxx, You-Xxxx
Xxxxx, Xxxx Xxx Xxx, Xxx-Chuan & X.X.
Xxxxx, Chi-Xxxx Xxx, Xxxxxx
Xxxxx, Xxxx and Xxxxxx Xxxxx Fund I X.X.
Xxxx, K. Xxxxx & Xxxxx X. Xxxxx Fund II X.X.
Xxxx, Xxxxxxx Xxxxxx, Xxxxxxx
Xxxx, Ling Yen Pac-Link Fund
Xxxx, Xxx-Xxx Xxx, Xxx-Zen
Chieh & Xxxx Xxxxx Living Trust Plumbo, Xxxxxx
Xxxxx, Ju-Xxxxx Xxxxx, Xxxxxxxxx
Xxxx, Lung-Xxxx Xxxx, Xxxxx
Xxxx, Yonwen Sia, Xxxxxxx X.
Xxxxx-Shan Venture Capital Co. Son, Daiyu
Corning Incorporated Xxxxxxxx, Xxxxxx
Crescendo III, L.P. Xxx Xxxx Venture Capital Investment Corporation
Crescendo III Executive Fund, L.P. Taiwan Tea Co.
Crescendo III, GbR Xxx, Xxxxxxx
Din Sheng Development Investment Co. Techgains Corp.
Xxxxxxxx, Xxxxx & Xxxxxx Techgains International Corp.
Xxxxx Corporation The Xxx X. Xxx Trust
Forefront Venture Partners, X.X. Xxxx, Cheng-Xxxxx
Xxxxxx, Xxxx Xxxx, Xxx X.
Futung Venture Capital Co. Xxxx, Xxxx
FuYu Venture Capital Investment Corp. Xxxx, Xxx-Xxxx
FuYu (Cayman) Venture Capital Fund Wantung Venture Capital Co.
Green, Xxxx Xxxx, Xxxxxxx X. and Xxxxxxxxx
Xxxx, Xxxxxx X. Worldview Technology Partners III, X.X.
Xxxxxxxxx Family Partnership Worldview Technology International III, L.P.
Xxxxxxxxx, Xxxxx Worldview Strategic Partners III, X.X.
Xxxxxxxx, Xxxxxx X. Xxx, Ho-Tzu
Herzop, Xxxxxx Xxx, Xxxxx
Xxxxx, Xxxxx Xxxx & Xxxxx Xxxx Yen, Xxxx-Xxxx
Hua, Li-xxxx Xx, Xxxxx
Xxxxx, Xxxxx X. VCM Treuhand Beteiligungsverwaltung GmbH
Huitung Investment (BVI) Limited
InveStar Burgeon Venture Capital, Inc.
InveStar Dayspring Venture Capital, Inc.
InveStar Excelsus Venture Capital (Int'l) Inc., LDC
Kasahara, Xxxxxx
Xx, Xxxx Xxxx-Xxx
