EXHIBIT 4.2
MICROTUNE, INC.
FIFTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This Fifth Amended and Restated Registration Rights Agreement (the
"Agreement") is made as of June 16, 2000, by and among Microtune, Inc., a
Delaware corporation (the "Company"), the Founder Holders (as hereinafter
defined), and the investors as listed on Exhibit A hereto, as such Exhibit may
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be amended from time to time as provided herein (the "Investors").
Recitals
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WHEREAS, the Company, the Founder Holders and certain of the Investors are
parties to that certain Fourth Amended and Restated Registration Rights
Agreement dated December 31, 1999, providing these Investors with certain
Registration Rights (the "Prior Agreement");
WHEREAS, concurrently herewith the Company is entering into a Series F
Preferred Stock Purchase Agreement dated June 16, 2000 (the "Purchase
Agreement") pursuant to which the Company is issuing to certain Investors an
aggregate of up to 2,000,000 shares of Series F Preferred Stock, par value
$0.001 per share, of the Company (the "Series F Preferred Stock");
WHEREAS, the Purchase Agreement contemplates that the parties enter into
this Agreement; and
WHEREAS, in connection with the issuance of the Series F Preferred Stock,
the Company and the Investors desire to amend and restate the Prior Agreement in
order to set forth all obligations, rights and terms with respect to the matters
set forth herein.
NOW, THEREFORE, in consideration of the above and of the mutual promises
set forth herein, the parties hereto agree to be bound by the terms of the Prior
Agreement, which is amended and restated in its entirety as follows:
SECTION 1
Definitions
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1.1 Certain Definitions. Hereafter, in this Agreement the following terms
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shall have the following respective meanings:
"Affiliate" means, with respect to any Person, any Person directly or
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indirectly controlling, controlled by, or under common control with, such other
Person. For purposes of this definition, "control" when used with respect to
any Person, means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such
Person, whether through the ownership of Voting Securities, by contract or
otherwise; the terms "controlling" and "controlled" have meanings correlative to
the foregoing.
"Beneficial ownership" or "beneficial owner" has the meaning provided
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in Rule 13d-3 promulgated under the Exchange Act. References to ownership of
Voting Securities hereunder mean record and/or beneficial ownership.
"Commission" means the Securities and Exchange Commission or any other
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federal agency at the time administering the Securities Act.
"Common Stock" means the Common Stock of the Company.
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"Conversion Stock" means the Common Stock issued or issuable pursuant
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to conversion of the Preferred Stock or exercise of the Warrants.
"Co-Seller" has the meaning set forth in Section 4.2(a).
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"Eligible Shares" has the meaning set forth in Section 4.1(a).
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"Exchange Act" means the Securities Exchange Act of 1934, as amended,
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or any successor federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Founder Holders" means Xxxxxxx X. Xxxxxx and Xxxx X. Xxxxxxxxxx for
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so long as they hold Registrable Securities.
"Holder" means any Investor holding Registrable Securities and any
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person holding Registrable Securities to whom the rights under this Agreement
have been transferred in accordance with Section 2.14 hereof.
"Indemnified Party" has the meaning set forth in Section 2.10(c).
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"Indemnifying Party" has the meaning set forth in Section 2.10(c).
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"Initiating Holders" means any Holders or transferees of Holders under
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Section 2.14 hereof who in the aggregate are holders of greater than 50% of the
Registrable Securities.
"IPO" has the meaning set forth in Section 4.1(a).
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"Person" means any person, individual, corporation, partnership,
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trust, limited liability company or other non-governmental entity or any
governmental agency, court, authority or other body (whether foreign, federal,
state, local or otherwise).
"Preferred Stock" means the Series A Preferred Stock, Series B
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Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E
Preferred Stock and Series F Preferred Stock of the Company.
"Purchase Price" has the meaning set forth in Section 4.1(a).
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"Registrable Securities" means (i) the Common Stock held by Founder
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Holders; (ii) the Conversion Stock; and (iii) any Common Stock of the Company
issued or issuable in respect of the Conversion Stock or other securities issued
or issuable pursuant to the conversion of the Preferred Stock upon any stock
split, stock dividend, recapitalization, or similar event, or any Common Stock
otherwise issued or issuable with respect to the Preferred Stock; provided,
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however, that shares of Common Stock or other securities shall only be treated
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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, whether in a registered offering, Rule 144 transaction
or otherwise, or (B) sold or are available for sale in the opinion of counsel to
the Company in a transaction exempt from the registration and prospectus
delivery requirements of the Securities Act so that all transfer restrictions
and restrictive legends with respect thereto are removed upon the consummation
of such sale; provided, however, that the Company's stock is then publicly
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traded.
The terms "register," "registered" and "registration" refer to a
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registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registration Expenses" means all expenses, except as otherwise stated
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below, incurred by the Company in complying with Sections 2.4, 2.5 and 2.6
hereof, including, without limitation, all registration, qualification and
filing fees, printing expenses, escrow fees, fees and disbursements of counsel
for the Company, blue sky fees and expenses, the expense of any special audits
incident to or required by any such registration (but excluding the compensation
of regular employees of the Company which shall be paid in any event by the
Company) and the reasonable fees and disbursements of one counsel for all
Holders in the event of four exercises of a requested registration provided for
in Section 2.4 hereof and for all registrations pursuant to Sections 2.5 and 2.6
hereof.
"Restricted Securities" means the securities of the Company required
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to bear the legend set forth in Section 2.2 hereof.
"Sale Acceptance Notice" has the meaning set forth in Section 4.1(b).
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"Sale Notice" has the meaning set forth in Section 4.1(a).
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"Securities Act" means the Securities Act of 1933, as amended, or any
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successor federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" means all underwriting discounts, selling
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commissions and stock transfer taxes applicable to the securities registered by
the Holders and, except as set forth above, all reasonable fees and
disbursements of counsel for any Holder.
"Selling Holders" has the meaning set forth in Section 4.1(a).
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"Subsidiary" means any corporation or other entity (including
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partnerships, limited liability companies or other business associations) of
which a majority of the outstanding capital stock or other voting securities or
other interests having voting power under ordinary circumstances to elect
directors or similar members of the governing body of such entity shall at the
time be held, directly or indirectly by such Person.
"Total Voting Power" of the Company (or any other corporation) refers
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to the votes or total number of votes which at the time of calculation may be
cast in the election of directors of the Company (or such corporation) at any
meeting of stockholders of the Company (or such corporation) if all securities
entitled to vote in the election of directors of the Company (or such
corporation) were present and voted at such meeting; provided that for purposes
of references herein made to any Person's "Voting Power" or percentage
beneficial ownership of "Total Voting Power," any rights (other than rights
referred to in any rights plan of the Company (or any such other corporation) or
a successor to such rights plan so long as such rights can only be transferred
together with the Voting Securities to which they attach) of such Person to
acquire Voting Securities (whether or not the exercise of any such right shall
be conditioned upon any contingency) shall be deemed to have been exercised in
full.
"Voting Securities" means all securities of the Company, entitled, in
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the ordinary course, to vote in the election of directors of the Company. Voting
Securities shall not include stockholder rights or other comparable securities
having Voting Power only upon the happening of a trigger event or comparable
contingency and which can only be transferred together with the Voting
Securities to which they attach. References herein to meetings of holders of
Voting Securities shall include meetings of any class or type thereof.
"Warrants" means the warrants issued to certain Investors to purchase
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up to an aggregate of 2,212,342 shares of Common Stock dated December 31, 1999.
SECTION 2
Restrictions on Transferability of Securities;
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Compliance with Securities Act; Registration Rights
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2.1 Restrictions on Transferability. The Preferred Stock and the Common
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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. Each Investor will cause
any proposed Investor, assignee, transferee, or pledgee of the Preferred Stock
or the Common Stock held by an Investor 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
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Stock, (ii) the Conversion Stock, (iii) the Common Stock and (iv) any other
securities issued in respect of the Preferred Stock, the Conversion Stock or the
Common 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 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.
Each Holder consents to the Company making a notation on its records
and giving instructions to any transfer agent of the Preferred Stock or the
Common 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
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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 any
of the Investors to any of its partners, or retired partners, or to the estate
of any of its partners or retired partners or to its constituent stockholders or
members or (iii) a transfer without consideration to an Investor's immediate
family members, trusts or partnerships for the benefit of the Investor or its
immediate family members or charitable trusts or foundations established by the
Investor or (iv) a transfer to an Investor's controlled Affiliate), 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 be 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,
the 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 the Company such legend is not required in order to
establish compliance with any provision of the Securities Act.
2.4 Requested Registration.
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(a) Request for Registration. In case the Company shall receive
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from Initiating Holders a written request that the Company effect any
registration, qualification or compliance with respect to not less than ten
percent (10%) of the shares (appropriately adjusted for any stock split, stock
dividend, recapitalization or similar event) of Registrable Securities, or any
lesser number of shares if the anticipated aggregate offering price, net of
underwriting discounts and commissions, would exceed $10 million, the Company
will:
(i) promptly give written notice of the proposed
registration, qualification or compliance to all other Holders and Founder
Holders; and
(ii) as soon as practicable, use its reasonable commercial
efforts to effect 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 Holders or Founder 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
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Company shall not be obligated to take any action to effect any such
registration, qualification or compliance pursuant to this Section 2.4:
(A) 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;
(B) Prior to the earlier of (1) December 31, 2001 or
(2), subject to clause (C) below, the consummation of an underwritten initial
public offering pursuant to an effective registration statement under the
Securities Act, covering the offer and sale of Common Stock for the account of
the Company;
(C) During the period starting with the date sixty (60)
days prior to the Company's good faith estimated date of filing of, and ending
on the date six (6) 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 an
employee benefit plan), provided that the Company is actively employing in good
faith all reasonable efforts to cause such registration statement to become
effective;
(D) After the Company has effected four such
registrations pursuant to this subparagraph 2.4(a), and such registrations have
been declared or ordered effective and pursuant to which Registrabe Securities
have been sold;
(E) 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 stockholders for a registration statement to be filed in the
near future, then the Company's obligation to use its reasonable commercial
efforts to register, qualify or comply under this Section 2.4 shall be deferred
for a period not to exceed 120 days from the date of receipt of written request
from the Initiating Holders.
Subject to the foregoing clauses (A) through (E), 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 this
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Section 2.4 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 2.4(a)(i). In such event, the right of any Holder to registration
pursuant to Section 2.4 shall be conditioned upon such Holder's participation in
the underwriting arrangements required by this Section 2.4, 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 and Founder Holders proposing
to distribute their securities through such underwriting) enter into an
underwriting agreement in customary form with the managing underwriter selected
for such underwriting by a majority in interest of the Initiating Holders, but
subject to the Company's reasonable approval. Notwithstanding any other
provision of this Section 2.4, 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 and underwriting shall be
allocated among all Holders and Founders Holders thereof in proportion, as
nearly as practicable, to the respective amounts of Registrable Securities held
by such Holders and Founder Holders at the time of filing the registration
statement. 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 person 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 90 days after the effective date of such registration, or
such other shorter period of time as the underwriters may require.
2.5 Company Registration.
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(a) Notice of Registration. If at any time or from time to time the
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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) in
connection with the Company's initial public offering, or (ii) a registration
relating solely to employee benefit plans, or (iii) a registration relating
solely to a Commission Rule 145 transaction, the Company will:
(i) promptly give to each Holder and Founder 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 and Founder Holder.
(b) Underwriting. If the registration of which the Company gives
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notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders and Founder Holders as a part of the written
notice given pursuant to Section 2.5(a)(i). In such event the right of any
Holder and Founder Holders to registration pursuant to this Section 2.5 shall be
conditioned upon such Holder's or Founder Holder's participation in such
underwriting and the inclusion of Registrable Securities in the underwriting to
the extent provided herein. All Holders and Founder Holders proposing to
distribute their securities through such underwriting shall (together with the
Company and the other holders distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the
managing underwriter selected for such underwriting by the Company.
Notwithstanding any other provision of this Section 2.5, if the managing
underwriter determines that marketing factors require a limitation of the number
of shares to be underwritten, the managing underwriter may limit the Registrable
Securities to be included in such registration. The Company shall so advise all
Holders and Founder Holders and other holders distributing their securities
through such underwriting and the number of shares of Registrable Securities
that may be included in the registration and underwriting shall be allocated
among all Holders and Founder Holders and such other holders in proportion, as
nearly as practicable, to the respective amounts of Registrable Securities held
by such Holders and Founder Holders and such other 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 and Founder Holder or other holder to the nearest 100 shares. If
any Holder and Founder Holder or other holder disapproves of the terms of any
such underwriting, he 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
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right to terminate or withdraw any registration initiated by it under this
Section 2.5 prior to the effectiveness of such registration whether or not any
Holder or Founder Holder has elected to include securities in such registration.
2.6 Registration on Form S-3.
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(a) If any Holder or Holders holding in the aggregate not less than
15% of the then-outstanding Registrable Securities request that the Company file
a registration statement on Form S-3 (or any successor form to Form S-3) for a
public offering of shares of the Registrable Securities the reasonably
anticipated aggregate offering 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 commercially reasonable efforts to cause
such Registrable Securities to be registered for the offering on such form and
to cause such Registrable Securities to be qualified in such jurisdictions as
the Holder or Holders may reasonably request; provided, however, that the
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Company shall not be required to effect more than one registration pursuant to
this Section 2.6 in any six (6) month period. The substantive provisions of
Sections 2.4(a)(i)-(ii) and 2.4(b) shall be applicable to each registration
initiated under this Section 2.6.
(b) Notwithstanding the foregoing, the Company shall not be
obligated to take any action pursuant to this Section 2.6: (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, an offering solely to employees or any other registration which is
not appropriate for the registration of Registrable Securities); (iii) 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 six (6) 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 an employee benefit plan), provided that the
Company is actively employing in good faith commercially reasonable efforts to
cause such registration statement to become effective; 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 stockholders for
registration statements to be filed in the near future, then the Company's
obligation to use commercially reasonable efforts to file a registration
statement shall be deferred for a period not to exceed 120 days from the receipt
of the request to file such registration by such Holder.
2.7 Limitations on Subsequent Registration Rights. From and after the
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date hereof, the Company shall not enter into any agreement granting any holder
or prospective holder of any securities of the Company registration rights with
respect to such securities unless (i) such new
registration rights, including standoff obligations, are on a pari passu basis
with those rights of the Holders hereunder; or (ii) such new registration
rights, including standoff obligations, are subordinate to the registration
rights granted to the Holders hereunder. Any such additional parties may execute
a counterpart of this Agreement, and upon execution by such additional parties
and by the Company, shall be considered a Holder for all purposes of this
Agreement.
2.8 Expenses of Registration. All Registration Expenses shall be borne by
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the Company. Unless otherwise stated, all Selling Expenses relating to
securities registered on behalf of the Holders and all other Registration
Expenses shall be borne by the Holders of such securities pro rata on the basis
of the number of shares so registered.
2.9 Registration Procedures. In the case of each registration,
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qualification or compliance effected by the Company pursuant to this Section 2,
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 commercially reasonable efforts to cause
such registration statement to become and remain effective for at least one
hundred eighty (180) days or until the distribution described in the
registration statement has been completed;
(b) 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, preliminary prospectus, final prospectus
and such other documents as such Holder and such underwriters may reasonably
request in order to facilitate the public offering of such securities.
2.10 Indemnification.
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(a) The Company will indemnify each Holder and Founder Holder, each
of their respective officers and directors and partners, and each person
controlling such Holder or Founder 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 2, 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
and liabilities (or actions in respect thereof), including any of the foregoing
incurred in settlement of any litigation, commenced or threatened, arising out
of or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any 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 or any rule or regulation promulgated under the Securities Act
applicable to the Company in connection with any such registration,
qualification or compliance, and the Company will reimburse each such Holder and
Founder Holder, each of their respective officers, directors and partners and
each person controlling such Holder or Founder 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, Founder Holder, controlling person or underwriter and stated to be
specifically for use therein.
(b) Each Holder and Founder Holder will, if Registrable Securities
held by such Holder or Founder Holder are included in the securities as to which
such registration, qualification or compliance is being effected, indemnify the
Company, each of their respective directors and officers, 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 such Holder and Founder Holder,
each of their respective officers and directors and partners and each person
controlling such other Holder or Founder 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, and will reimburse
the Company, such other Holders and Founder Holders, such directors, officers,
partners, 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 or Founder Holder and stated to be specifically for
use therein. Notwithstanding the foregoing, the liability of each Holder and
Founder Holder under this subsection (b) shall be limited in an amount equal to
the initial public offering price of the shares sold by such Holder or Founder
Holder, unless such liability arises out of or is based on willful conduct by
such Holder or Founder Holder.
(c) Each party entitled to indemnification under this Section 2.10
(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 2 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. No Indemnifying Party, in the defense of any such claim
or litigation, shall, except with the consent of each Indemnified Party, consent
to entry of any judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation.
2.11 Termination of Registration Rights. The registration rights granted
----------------------------------
pursuant to this Agreement shall terminate as to any Holder on the first day
when such Holder has the right to sell all securities under Rule 144 under the
Securities Act within the next three-month period by virtue of the shares of
Common Stock held by such Holder being less than one percent of the then
outstanding shares of Common Stock of the Company as shown on the Company's then
most recent published report or statement.
2.12 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 2.
2.13 Rule 144 Reporting. With a view to making available the benefits of
------------------
certain rules and regulations of the Commission which may at any time permit the
sale of the Restricted Securities to the public without registration, after such
time as a public market exists for the Common Stock of the Company, the Company
agrees to use its reasonable commercial efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all times after
the effective date that the Company becomes subject to the reporting
requirements of the Securities Act or the Exchange Act;
(b) Use its reasonable commercial efforts to file with the
Commission in a timely manner all reports and other documents required of the
Company under the Securities Act and the Exchange Act (at any time after it has
become subject to such reporting requirements); and
(c) So long as an Investor owns any Restricted Securities to
furnish to the Investor 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 an Investor may reasonably request in availing
itself of any rule or regulation of the Commission allowing an Investor to sell
any such securities without registration.
2.14 Transfer of Registration Rights. The rights to cause the Company to
-------------------------------
register securities granted Investors under Sections 2.4, 2.5 and 2.6 may be
assigned to a transferee or assignee reasonably acceptable to the Company in
connection with any transfer or assignment of
Registrable Securities by an Investor provided that: (i) such transfer may
otherwise be effected in accordance with applicable securities laws, and (ii)
such assignee or transferee acquires at least 100,000 shares of Registrable
Securities (appropriately adjusted for stock splits, stock dividends, reverse
stock splits, recapitalizations and the like). Notwithstanding the foregoing,
the rights to cause the Company to register securities may be assigned to any
constituent partner, member, shareholder, beneficiary, or Affiliate of an
Investor, without compliance with item (ii) above, provided written notice
thereof is promptly given to the Company.
2.15 Standoff Agreement. Each Holder agrees in connection with the
------------------
Company's initial public offering of the Company's securities that, upon request
of the Company or the underwriters managing any underwritten offering of the
Company's securities, not to sell, make any 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 and each
holder of more than 1% of the outstanding shares of the Company's capital stock
also agree to such restrictions.
SECTION 3
Standstill Agreement
--------------------
3.1 Investors' Ownership of Company Securities. On the date hereof, upon
------------------------------------------
the completion of the transactions contemplated by the Purchase Agreement, the
Investors hold the shares of capital stock as set forth on Exhibit A.
---------
3.2 Standstill Provisions. No Investor shall acquire, directly or
---------------------
indirectly, or shall cause or permit any of its Subsidiaries or Affiliates to
acquire, directly or indirectly (through market purchases or otherwise),
ownership of any Voting Securities of the Company without the prior unanimous
written consent of the Board of Directors of the Company if as a result of such
acquisition of Voting Securities (i) the total number of shares of Preferred
Stock of the Company (computed on an as converted to Common Stock basis) held by
such Investor and its Subsidiaries and Affiliates is equal to or greater than
fifty percent (50%) of the total number of shares of Preferred Stock of the
Company then outstanding (computed on an as converted to Common Stock basis) or
(ii) the total number of Voting Securities of the Company held by such Investor
and its Subsidiaries and Affiliates represents fifty percent (50%) or more of
the Total Voting Power of the Company; provided, however, that the prior
unanimous written consent of the Board of Directors of the Company shall not be
required for the acquisition of any Voting Securities of the Company directly
from the Company or resulting from a stock split, stock dividend or similar
recapitalization by the Company or as a result of any anti-dilution adjustments
contained in the terms of the Preferred Stock or the Warrants. With respect to
the calculation of the number of shares of Preferred Stock or Voting Securities
of the Company held by an Investor in the preceding sentence, all warrants and
options held by such Investor, whether or not then exercisable, shall be deemed
to have been exercised and
shall be included in the number of shares of Preferred Stock or Voting
Securities, as the case may be, then held by such Investor.
3.3 Termination. The provisions of this Section 3 shall terminate with
-----------
respect to any Investor at such time as such Investor beneficially owns in the
aggregate Voting Securities of the Company representing less than five percent
(5%) of the Total Voting Power of the Company.
SECTION 4
Stockholder Sale and Drag Along Rights
--------------------------------------
4.1 Stockholder Sale Right.
----------------------
(a) In the event that, prior to December 31, 2003, the Company has
not consummated an underwritten initial public offering of Common Stock ("IPO"),
then the holders (the "Selling Holders") of at least a majority of the then
outstanding Conversion Shares (collectively, the "Eligible Shares") may, by
written notice delivered to the Company within 180 days after December 31, 2003
(the "Sale Notice"), request that the Company purchase all Eligible Shares held
by such Selling Holders. The Sale Notice shall include the proposed terms of the
proposed sale, including the price to be paid for the Eligible Shares, which
shall be an amount in cash equal to the fair market value of the Eligible Shares
as determined by an independent investment banking firm selected and compensated
by the Selling Holders (the "Purchase Price").
(b) In the event the Company desires to purchase all of the
Eligible Shares, or arrange for the sale of the Eligible Shares to a third
party, on the terms and conditions no less favorable than those specified in the
Sale Notice, the Company shall notify the Selling Holders in writing on or prior
to the thirtieth (30th) business day after receipt by the Company of the Sale
Notice (the "Sale Acceptance Notice"). If the Company fails to deliver a Sale
Acceptance Notice as provided in the preceding sentence, the Company will be
deemed to have rejected its right to purchase the Eligible Shares. If the
Company delivers the Sale Acceptance Notice covering all of the Eligible Shares,
the Company shall purchase (or, if applicable, cause a third party to purchase)
such Eligible Shares at a closing to be held at the Company's offices, or such
other place as may be mutually agreed by the Company and the Selling Holders,
within thirty (30) calendar days after the date of the Sale Acceptance Notice.
The Sale Acceptance Notice shall indicate the scheduled closing time, date and
place.
4.2 Selling Holders Drag Rights.
---------------------------
(a) In the event the Company does not exercise its right to
purchase the Eligible Shares from the Selling Holders pursuant to Section 4.1,
or elects to purchase such shares but fails to do so within the time period
specified in Section 4.1(b), the Selling Holders shall have the right to require
each holder of Eligible Shares who is not a Selling Holder (each, a "Co-Seller")
to transfer all of such Co-Seller's Eligible Shares. Any such sale of Eligible
Shares by the Co-Sellers shall be at the same price and otherwise made on
identical terms as the terms applicable to the sale of Eligible Shares by the
Selling Holders; provided that (a) the Co-Sellers shall not be required to make
--------
any representations or warranties in connection with such sale other than
representations and warranties as to (i) such Co-Seller's ownership of its
Eligible Shares to be sold free and clear of all liens, claims and encumbrances,
(ii) such Co-Seller's power and authority to effect such sale, and (iii) such
matter pertaining to compliance with securities laws as the transferee may
reasonably require, and (b) none of the Holders of Series F Preferred Stock
shall (i) be liable pursuant to any agreement relating to the sale of such Co-
Seller's Eligible Shares for any breach of any representations, warranties,
covenants or agreements contained in such agreement for an amount which exceeds
the aggregate value received or to be received by such Holders of Series F
Preferred Stock in connection with such sale or (ii) be required in connection
with such sale to enter into any agreement relating to the conduct of business
of such Holders of Series F Preferred Stock. The right of the Selling Holders to
cause the Co-Sellers to sell their Eligible Shares pursuant to this Section 4.2
will expire at the close of business on the 180th day after the date the Company
refused to exercise its right to purchase the Selling Holders' Eligible Shares
or, if applicable, the 180th day after the date the Company was required to
purchase such shares but failed to do so.
(b) Notice of Drag Sale. The Selling Holders shall give each Co-
-------------------
Seller at least twenty (20) days' prior written notice of any sale under this
Section 4.2 as to which the Selling Holders intend to exercise their rights
under this Section 4.2. If the Selling Holders elect to exercise their rights
under this Section 4.2, the Co-Sellers shall take such actions as may be
reasonably required and otherwise cooperate in good faith with the Selling
Holders in connection with consummating the sale of their Eligible Shares
(including, without limitation, the voting of any Common Stock, Preferred Stock
or other voting securities of the Company to approve the proposed sale). At the
closing of any sale pursuant to this Section 4.2, each Co-Seller shall deliver
certificates for all Eligible Shares to be sold by such Co-Seller (or, in the
case of any Warrants, the Warrants), duly endorsed for transfer, with the
signature guaranteed, to the transferee against payment of the appropriate
purchase price.
4.3 Payment of Expenses. All transactions fees and expenses, including
-------------------
reasonable attorney's fees, incurred by the Company, the Selling Holder and the
Co-Sellers in connection with a transaction pursuant to this Section 4 shall be
the responsibility of, and shall be paid by, the party incurring such
transaction fees and expenses; provided that if, in connection with a
transaction covered by Section 4.2, the buyer is entitled to transactions fees
(including any finder's fees, advisory services or the like) or reimbursement
for any such expenses or fees, such fees, expenses or other payments shall be
the responsibility of, and shall be paid by, the Selling Holders and Co-Sellers
pro rata in accordance with the number of Eligible Shares sold by such Selling
Holder or Co-Seller.
SECTION 5
Miscellaneous
-------------
5.1 Governing Law. This Agreement shall be governed and construed in all
-------------
respects in accordance with the laws of the State of Texas as applied to
agreements made and performed in Texas by residents of the State of Texas.
5.2 Entire Agreement; Amendment. This Agreement constitutes the full and
---------------------------
entire understanding and agreement between the parties with regard to the
subjects hereof, and no party shall be liable or bound to any other party in any
manner by any warranties, representations or covenants except or specifically
set forth herein. Except as expressly provided 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; provided, however, that
-----------------
Investors holding a majority of the Conversion Stock may, with the Company's
prior written consent, waive, modify or amend on behalf of all Investors, any
provisions hereof; provided, further, however, that no such amendment shall
--------------------------
impose any liabilities or obligations on, or increase any liabilities or
obligations of, any Holder, or shall affect any Holder differently from the
other Holders.
5.3 Notices, etc. All notices and other communications required or
------------
permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid or otherwise delivered by hand or by messenger,
addressed (a) if to an Investor, at such Investor's address set forth in Exhibit
-------
A, or at such other address as such Investor shall have furnished to the Company
-
in writing, (b) if to a Founder Holder, to 0000 Xxxx Xxxxx Xxxxxxx, Xxxxx 000,
Xxxxx, Xxxxx, 00000, Tel: (000) 000-0000, Fax: (000) 000-0000, or at such other
address as such Founder Holder shall have furnished to the Company in writing,
or (c) if to the Company, one copy should be sent to its address 0000 Xxxx Xxxxx
Xxxxxxx, Xxxxx 000, Xxxxx, Xxxxx, 00000, Tel: (000) 000-0000, Fax: (972) 673-
1602, and addressed to the attention of the Corporate Secretary or at such other
address as the Company shall have furnished to the Investors and Founder
Holders.
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective or having been given when delivered if
delivered personally, or, if sent by mail, at the earlier of its receipt or
seventy-two (72) hours after the same has been deposited in a regularly
maintained receptacle for the deposit of the United States mail, addressed and
mailed as aforesaid.
5.4 Severability. In the event that any provision of this Agreement
------------
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; provided that no such severability shall be effective if
it materially changes the economic benefit of this Agreement to any party.
5.5 Titles and Subtitles. The titles and subtitles used in this Agreement
--------------------
are used for convenience only and are not considered in construing or
interpreting this Agreement.
5.6 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which may be executed by less than all of the Investors,
each of which shall be enforceable against the parties actually executing such
counterparts, and all of which together shall constitute one instrument.
5.7 Amendments to Exhibit A. Notwithstanding Section 5.2 of this
-----------------------
Agreement, Exhibit A of this Agreement may be amended from time to time by the
---------
Company to add as signatories to this Agreement additional Investors that
purchase Series F Preferred Stock pursuant to the Series D stock purchase
agreement.
5.8 Termination of Prior Agreement; Amendment. Pursuant to Section 5.2 of
-----------------------------------------
the Prior Agreement, the Holders of a majority of the Conversion Stock and the
Company hereby amend and restate the Prior Agreement on behalf of all Holders,
and any Founder Holder or Investor who does not sign this Agreement shall be
bound by the terms and conditions of this Agreement, pursuant to the provisions
of Section 5.2 of the Prior Agreement, as if that Founding Holder or Investor
had signed this Agreement.
5.9 Telecopy Execution and Delivery. A facsimile, telecopy or other
-------------------------------
reproduction of this Agreement may be executed by one or more parties hereto,
and an executed copy of this Agreement may be delivered by one or more parties
hereto by facsimile or similar electronic transmission device pursuant to which
the signature of or on behalf of such party can be seen, and such execution and
delivery shall be considered valid, binding and effective for all purposes. At
the request of any party hereto, all parties hereto agree to execute an original
of this Agreement as well as any facsimile, telecopy or other reproduction
hereof.
IN WITNESS WHEREOF, the parties have executed this Fifth Amended and
Restated Registration Rights Agreement as of the date first above written.
MICROTUNE, INC.
By: /S/ Xxxxxxx X. Xxxxxx
-------------------------------------------------------
Xxxxxxx X. Xxxxxx, Chairman and Chief Executive Officer
FOUNDER HOLDERS
/S/ Xxxxxxx X. Xxxxxx /S/ Xxxx X. Xxxxxxxxxx
------------------------------------------------ ----------------------
Xxxxxxx X. Xxxxxx Xxxx X. Xxxxxxxxxx
INVESTOR
Cisco Systems, Inc.
------------------------------------------------
(Print Name of Investor)
By: /S/ X. Xxxxx
-------------------------------------------
(Signature of authorized person)
X. Xxxxx
------------------------------------------------
INVESTOR
Com21, Inc.
------------------------------------------------
(Print Name of Investor)
By: /S/ Xxxxxxx X. Xxxxxx
-------------------------------------------
(Signature of authorized person)
Xxxxxxx X. Xxxxxx, Vice President, Manufacturing
------------------------------------------------
INVESTOR
3Com Ventures, Inc.
-------------------------------------
(Print Name of Investor)
By: /S/ Xxxxx Xxxxx
--------------------------------
(Signature of authorized person)
Xxxxx Xxxxx, President
-------------------------------------
INVESTOR
Motorola, Inc.
-------------------------------------
(Print Name of Investor)
By: /S/ Xxxxxxx X. Xxxxx
--------------------------------
(Signature of authorized person)
Xxxxxxx X. Xxxxx, Corporate Vice President and Director Business Development
----------------------------------------------------------------------------
INVESTOR
HMTF/Temic Microtune Cayman, L.P.
-------------------------------------
(Print Name of Investor)
By: /S/ Xxxxxxxx X. Xxxxxx, Xx.
--------------------------------
(Signature of authorized person)
Xxxxxxxx X. Xxxxxx, Xx.
-------------------------------------
INVESTOR
Quantum Industrial Partners L.D.C.
-------------------------------------
(Print Name of Investor)
By: /S/ Xxxxxxx X. Xxxx
--------------------------------
(Signature of authorized person)
Xxxxxxx X. Xxxx, Attorney-in-Fact
-------------------------------------
INVESTOR
Xxxxxx Xxxxx
-------------------------------------
(Print Name of Investor)
By: /S/ Xxxxxxx X. Xxxx
--------------------------------
(Signature of authorized person)
Xxxxxxx X. Xxxx, Attorney-in-Fact
-------------------------------------
INVESTOR
Quantum Industrial Partners L.D.C.
-------------------------------------
(Print Name of Investor)
By: /S/ Xxxxxxx X. Xxxx
--------------------------------
(Signature of authorized person)
Xxxxxxx X. Xxxx, Attorney-in-Fact
-------------------------------------
INVESTOR
IVP Investors Fund I, L.P.
-------------------------------------
(Print Name of Investor)
By: /S/ T. Xxxxx Xxxxxx
--------------------------------
(Signature of authorized person)
T. Xxxxx Xxxxxx, General Partner
-------------------------------------
INVESTOR
Institutional Venture Partners VII
-------------------------------------
By its general partner
-------------------------------------
Institutional Venture Management VII
-------------------------------------
(Print Name of Investor)
By: /S/ T. Xxxxx Xxxxxx
--------------------------------
(Signature of authorized person)
T. Xxxxx Xxxxxx, General Partner
-------------------------------------
(Print name and title of signatory)
INVESTOR
Institutional Venture Management VII
-------------------------------------
(Print Name of Investor)
By: /S/ T. Xxxxx Xxxxxx
--------------------------------
(Signature of authorized person)
T. Xxxxx Xxxxxx, General Partner
-------------------------------------
(Print name and title of signatory)
INVESTOR
Institutional Venture Partners VII
-------------------------------------
By its general partner
-------------------------------------
Institutional Venture Management VII
-------------------------------------
(Print Name of Investor)
By: /S/ T. Xxxxx Xxxxxx
--------------------------------
(Signature of authorized person)
T. Xxxxx Xxxxxx, General Partner
-------------------------------------
(Print name and title of signatory)
INVESTOR
IVP Founders Fund I, L.P.
-------------------------------------
By its general partner
-------------------------------------
Institutional Venture Management VI
-------------------------------------
(Print Name of Investor)
By: /S/ T. Xxxxx Xxxxxx
--------------------------------
(Signature of authorized person)
T. Xxxxx Xxxxxx, General Partner
--------------------------------
(Print name and title of signatory)
EXHIBIT A
---------
Names, Addresses and Shares of Investors
---------------------------------------------------------------------------------------------------------------------------------
Series A Series B Series C Series D Series E Series F Common
Name and Address Preferred Preferred Preferred Preferred Preferred Preferred Stock
---------------------------------------------------------------------------------------------------------------------------------
3Com Ventures, Inc.
x/x Xxxxx Xxxx 000,000
0000 Xxxxxxxx Xxxxx
Mail Stop 1508
X.X. Xxx 0000
Xxxxx Xxxxx, XX 00000-0000
---------------------------------------------------------------------------------------------------------------------------------
Cisco Systems, Inc. 200,000
Mail Stop SJ-10-5
000 X. Xxxxxx Xxxxx
xXxx Xxxx, XX 00000
---------------------------------------------------------------------------------------------------------------------------------
Com21, Inc. 100,000
000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
-------------------------------------------------------------------------------------------------------------------------------
Motorola, Inc. 300,000
Broadband Communications Sector
c/o General Counsel
000 Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
---------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Series A Series B Series C Series D Series E Series F Common
Name and Address Preferred Preferred Preferred Preferred Preferred Preferred Stock
-----------------------------------------------------------------------------------------------------------------------------------
TIN Vermogensverwaltungsqesellschaft mbH 419,792
X/x Xxxxxx Xxxxxxxxx
Xxxxxxxxxx 00x.00000
Xxxxxxxxxxxxxxxxxxxx, Xxxxxxx
-----------------------------------------------------------------------------------------------------------------------------------
Seligman New Technologies Fund, Inc.
c/o J.& X. Xxxxxxxx & Co. Incorporated 202,500
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Att. Xxxxx X. Xxxxxx
-----------------------------------------------------------------------------------------------------------------------------------
Seligman Investment Opportunities
(Master) Fund - NTV Portfolio 47,500
c/o J.& X. Xxxxxxxx & Co. Incorporated
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Att. Xxxxx X. Xxxxxx
-----------------------------------------------------------------------------------------------------------------------------------
Essex Private Placement Fund II
Limited Partnership 166,667
c/o Xxxxx Xxxxxxxxx
Essex Investments Management Co Inc.
000 Xxxx Xxxxxx
Xxxxxx XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
HMTF Temic/Microtune Cayman, L.P. 833,334 2,898,721
c/o Hicks, Muse, Xxxx & Xxxxx
Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Series A Series B Series C Series D Series E Series F Common
Name and Address Preferred Preferred Preferred Preferred Preferred Preferred Stock
-----------------------------------------------------------------------------------------------------------------------------------
Alps Electric Co., Ltd. 100,000
0-0, Xxxxxxxx-xxxxxx-xxx, Xxx-xx,
Xxxxx, Xxxxx, 000-0000.
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxx 16,667
0000 Xxxxx Xxxxx Xx.
Xxxxx, Xxxxx 00000
-----------------------------------------------------------------------------------------------------------------------------------
Xxxx X. Xxxxxxx 750
c/o Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
8911 Capitol of Xxxxx Xxxxxxx
Xxxxxxx 000, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
-----------------------------------------------------------------------------------------------------------------------------------
AK Investments, Inc.
c/o Amkor, Xxxxx Xxxxx 200,000
0000 Xxxxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Xxxx X. and Xxxxx X. Xxxxxxxx Family
Trust U/A/D 8/12/93 5,000
00000 Xxxx Xxxxx
Xxxxxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Bayview Investors, Ltd.
c/o Xxxxxxxx Xxxxxxxx- Xxxxxxxxx 50,000
Xxxxxxxx Company
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Xxxx X. Xxxxxxx
Xxxxxxxxx, Xxxxxx & Xxxxxxxx 4,150
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000-0000
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Series A Series B Series C Series D Series E Series F Common
Name and Address Preferred Preferred Preferred Preferred Preferred Preferred Stock
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxx
3728 Shenandoah 8,300
Xxxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxx X. Xxxxxxxxxx, Xx.
0 Xxxxxxxxxx Xxxxx 4,150
Xxxxx Xxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Caxton International Limited
c/o Xxxx Xxxxxxxx 83,300
000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxx
X.X. Xxx 000 0,000
Xxxx, XX 00000-0000
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxx
DRF Equity Partners, L.P. 25,000
000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Xxxx Xxxxxxxxxxxxx
c/o Xxxxxxx X. Xxxx 193,750 50,000
Xxxxx Fund Management
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxx
Milestone Construction, Inc. 3,500
0000 Xxxxxx Xxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Series A Series B Series C Series D Series E Series F Common
Name and Address Preferred Preferred Preferred Preferred Preferred Preferred Stock
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxx
c/o Xxxxxxx X. Xxxx 19,375 6,250
Xxxxx Fund Management
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Xxxx Xxxxxxxxx
c/o Xxxxxxx X. Xxxx 19,375
Xxxxx Fund Management
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxxxxx
X. Xxxxxxxx & Associates, Inc. 16,650
0000 Xxxxxxx Xxx
Xxxxxxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Series A Series B Series C Series D Series E Series F Common
Name and Address Preferred Preferred Preferred Preferred Preferred Preferred Stock
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxx X. Xxxxxxx
00000 Xxxxxx Xxxx 00,000
Xxxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxx Family Trust
H. Xxxxxx Xxxxxx, Trustee 8,300
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
X. Xxxxxx and Xxxxx X. Xxxxxxxx
Trustees of the Xxxxxxxx Family UDT 10,000
11/06/89
00 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Institutional Venture
Management VII 12,000 9,000 13,333
c/o Xxxxx XxXxxxxxx
0000 Xxxx Xxxx Xxxx, Xxxx. 0
Xxxxx 000
Xxxxx Xxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Institutional Venture Partners VII
c/o Xxxxx XxXxxxxxx 567,000 425,250 646,667
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Intel Corporation
Attn.: General Counsel 250,000 33,333
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Invemed Associates, Inc.
c/o Xxxxxxxx X. Xxxxxx 193,750
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Series A Series B Series C Series D Series E Series F Common
Name and Address Preferred Preferred Preferred Preferred Preferred Preferred Stock
-----------------------------------------------------------------------------------------------------------------------------------
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
IVP Founders Fund I, L.P.
c/o Xxxxx XxXxxxxxx 21,000 15,750 6,667
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxx
c/o Xxxxxxx X. Xxxx 19,375 6,250
Xxxxx Fund Management
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxxx X. Xxxxxx
c/o Invemed Associates, Inc. 19,375 8,333
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxx
0000 Xxxxxx Xxxxx 0,000
Xxxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxx
0000 Xxxxxx Xxxxx 0,000
Xxxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxx Family Limited
Partnership 41,650
0000 X. Xxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Xx. Xxxxxxx X. Xxxxxxx
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Series A Series B Series C Series D Series E Series F Common
Name and Address Preferred Preferred Preferred Preferred Preferred Preferred Stock
-----------------------------------------------------------------------------------------------------------------------------------
c/o Invemed Associates, Inc. 170,313 20,834
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxxxx Xxxxxx
0000 Xxxxxxx Xxxxxx 000,000
Xxx Xxxxxxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxx X. and Xxxxxx X. Xxxxx 0000
Xxxxxxx Xxxxx 0,000
Xxxxxx, XX 00000-0000
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxx
23220 Xxxx Xxxx Dr. 15,000
Xxx Xxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Xxxx XxXxxxx
c/o Xxxxxxx X. Xxxx 1,938 5,000 5,000
Xxxxx Fund Management
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
G. Xxxxx Xxxxxx
Unifi, Inc. 19,375 8,333
0000 Xxxx Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Mercurius Partners, LP -
Xxxx Xxxxxxxxx 19,375 15,833
x/x Xxxxx Xxxx Xxxxxxxxxx
XXX Xxxxxx Xxxxxx, Xxxxxx-Xx
Xxxxx, Xxxxx 107-0062
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxx
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Series A Series B Series C Series D Series E Series F Common
Name and Address Preferred Preferred Preferred Preferred Preferred Preferred Stock
-----------------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxxx Xxxxxx 0,000
Xxxx Xxxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Xxxx Xxxxxxxxx
c/o Xxxxxxx X. Xxxx 9,687
Xxxxx Fund Management
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Quantum Industrial Partners LDC
c/o Xxxxxxx X. Xxxx 1,550,000 166,667 203,333
Xxxxx Fund Management
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
X. Xxxxxxx Raisin
c/o Bear Xxxxxxx 10,000 4,166
One Sansome Street
40th Floor - Citicorp Center
Xxx Xxxxxxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxx X. and Xxxxxxx Xxxxxxxx
00000 XX 0xx Xxxxx 8,300
Xxxxx Xxxxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxxxx Xxxxxxxxxxx 12,500
0000 Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxxx X. Xxxxxxx
1524 XxXxxxxx Blvd., E. 16,667
Xxxxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Xxxx Xxxxxxx
c/o Xxxxxxx X. Xxxx 1,938
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Series A Series B Series C Series D Series E Series F Common
Name and Address Preferred Preferred Preferred Preferred Preferred Preferred Stock
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxx Fund Management
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxx
Xxxxx Fund Management 757,563
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Sunrise Capital Fund 1, LLC
000 X. Xxxx Xxxxxx 20,000 20,000
Xxx Xxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Xx. Xxxxxx Xxxxxx
c/o Xx. Xxxxx Xxxx 9,687 4,167
Salem Nationalease
000 Xxxxxxxx Xxxx.
Xxxxxxx-Xxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Series A Series B Series C Series D Series E Series F Common
Name and Address Preferred Preferred Preferred Preferred Preferred Preferred Stock
-----------------------------------------------------------------------------------------------------------------------------------
Telos Venture Partners L.P.
c/o Xxxxx Xxxxxxx 125,000
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx 0000
Xxxxx Xxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Xxxx Xxxxxx
c/o Xxxxxxx X. Xxxx 3,875
Xxxxx Fund Management
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
White Rock Capital Offshore, Ltd.
c/o White Rock Capital 54,183
0000 Xxxxxx Xxxxx Xxxx., Xxxxx 000
Xxxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
White Rock Capital Partners, L.P.
c/o White Rock Capital 44,500
0000 Xxxxxx Xxxxx Xxxx., Xxxxx 000
Xxxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
