EXHIBIT 10.6
CERENT CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
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This Amended and Restated Investors' Rights Agreement (the "Agreement") is
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made as of July 20, 1999, by and among Cerent Corporation, a Delaware
corporation (the "Company"), the investors listed on Exhibit A hereto, each of
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which is herein referred to as an "Investor," and RVS Holding Company, Ajaib
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Bhadare, Xxx Xxxxxxxx and Xxxxxxxxx Xxxxxxxxxxx, each of whom is herein referred
to as a "Founder," and collectively, as the "Founders."
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RECITALS
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In connection with a financing, the Company desires to issue and sell a
promissory note convertible into Common Stock, or, in the absence of an initial
public offering, convertible Preferred Stock, to MSD Portfolio L.P.--
Investments, DBV Investments, L.P., Xxxxx X. Dell Separate Property Trust,
Xxxxxxx X. Dell Personal Income Trust (the "MSD Notes") pursuant to a
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Convertible Note Purchase greement dated July 20, 1999. In connection with a
commercial partnership agreement dated April 20, 1999, the Company previously
issued a Common Stock warrant to Xxxxxxxx Communications ("Xxxxxxxx Warrant").
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The Company and certain prior Investors have entered into a Series E Preferred
Stock Purchase Agreement dated November 24, 1998 (the "Series E Purchase
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Agreement," and together with the Series D Purchase Agreement, the Series C
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Purchase Agreement and the Series B Purchase Agreement (defined below), (the
"Purchase Agreements")) pursuant to which the Company sold to such Investors and
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such Investors purchased from the Company shares of the Company's Series E
Preferred Stock. The Company and certain prior Investors also have entered into
a Series D Preferred Stock Purchase Agreement dated July 10, 1998 ("Series D
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Purchase Agreement"), Series C Preferred Stock and Warrant Purchase Agreement
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dated August 15, 1997 (the "Series C Purchase Agreement"), and a Common Stock,
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Series B Preferred Stock and Warrant Purchase Agreement (the "Series B Purchase
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Agreement") dated April 15, 1997, pursuant to which the Company sold to such
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Investors shares of the Company's Series C Preferred Stock, Common Stock, Series
B Preferred Stock, warrants to purchase shares of the Company's Series B
Preferred Stock and warrants to purchase shares of the Company's Series C
Preferred Stock (the "Series B Warrants," "Series C Warrants," and together the
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"Warrants"). The Company and RVS Holding Company have entered into a Series A
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Preferred Stock Purchase Agreement dated March 28, 1997 pursuant to which the
Company sold Series A Preferred Stock to RVS Holding Company in exchange for
certain assets. The Company and each of the Founders, except RVS Holding
Company, have also entered into Common Stock Purchase Agreements dated March 28,
1997. A condition to the Investors' obligations under the Series E Purchase
Agreement is that the Company, the Founders and the Investors enter into this
Agreement in order to provide the Investors with (i) certain rights to register
shares of the Company's Common Stock purchased pursuant to the Purchase
Agreements or issuable upon conversion of the Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock and Series E Preferred Stock held by
the Investors, and (ii) certain rights to receive or inspect information
pertaining to the Company. The Company
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and the Founders each desires to issue warrants to induce Xxxxxxxx, and future
similarly situation commercial partners, to purchase products from the Company
pursuant to respective commercial agreements by agreeing to the terms and
conditions set forth herein.
AGREEMENT
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The parties hereby agree as follows:
1. Registration Rights. The Company and the Investors covenant and
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agree as follows:
1.1 Definitions. For purposes of this Section 1:
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(a) The terms "register," "registered," and "registration"
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refer to a registration effected by preparing and filing a registration
statement or similar document in compliance with the Securities Act of 1933, as
amended (the "Act"), and the declaration or ordering of effectiveness of such
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registration statement or document;
(b) The term "Registrable Securities" means (i) the shares
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of Common Stock purchased pursuant to the Purchase Agreements (ii) the shares of
Common Stock issuable or issued upon conversion of the Series B Preferred Stock,
the Series C Preferred Stock, the Series D Preferred Stock and the Series E
Preferred Stock purchased pursuant to the Purchase Agreements, (iii) the shares
of Common Stock issuable upon conversion of the MSD Notes (or upon the
conversion stock issuable upon conversion of the Preferred Stock issuable upon
conversion of the MSD Notes, if converted into Preferred Stock), (iv) the shares
of Common Stock issuable or issued upon conversion of the Series B Preferred
Stock and Series C Preferred Stock purchased upon exercise of the Warrants (v)
shares of Common Stock issuable or issued upon exercise of rights under
Warrants, or issuable upon conversion of Preferred Stock which is issuable upon
the exercise of Preferred Stock Warrants, to purchase Common Stock or Preferred
Stock issued by the Company concurrently herewith or after the date hereof to
providers, purchasers or licensees of products or technologies (or rights
thereto) of the Company, if such issuance is approved by the Board of Directors
of the Company, which providers, purchasers or licensees have executed a
counterpart signature page hereto and agreed to be bound by the terms hereof
(such shares of Common Stock under subsections (i), (ii), (iii), (iv) and (v)
above are collectively referred to hereinafter as the "Stock"), (vi) any other
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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 Stock, and (vii) the shares of Common Stock issued to the
Founders, including Common Stock issuable or issued upon conversion of the
Series A Preferred Stock (the "Founders' Stock"), provided, however, that, for
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the purposes of Sections 1.2 and 1.12, the Founders' Stock shall not be deemed
Registrable Securities and the Founders shall not be deemed Holders, and
provided, further, that the foregoing definition shall exclude in all cases any
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Registrable Securities sold by a person in a transaction in which such person's
rights under this Agreement are not assigned. Notwithstanding the foregoing,
shares of 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
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securities transaction, or (B) sold in a transaction exempt from the
registration and prospectus delivery requirements of the 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
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outstanding" shall be determined by the number of shares of Common Stock
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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 person owning or having the
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right to acquire Registrable Securities or any assignee thereof in accordance
with Section 1.13 hereof;
(e) The term "Form S-3" means such form under the Act as in
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effect on the date hereof or any successor form under the Act; and
(f) The term "SEC" means the Securities and Exchange
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Commission.
1.2 Investors' Request for Registration.
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(a) If the Company shall receive at any time after the
earlier of (i) August 15, 2002, 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 an SEC Rule 145 transaction), a written request from
the Holders of a majority of the Registrable Securities then outstanding that
the Company file a registration statement under the Act covering the
registration of at least thirty percent (30%) of the Registrable Securities then
outstanding, 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 1.2(b), use its best efforts to effect as soon
as practicable, and in any event within sixty (60) days of the receipt of such
request, the registration under the Act of all Registrable Securities which the
Holders request to be registered within twenty (20) days of the mailing of such
notice by the Company in accordance with Section 3.5.
(b) If the Holders initiating the registration request
hereunder ("Initiating Holders") intend to distribute the Registrable Securities
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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 1.2 and the
Company shall include such information in the written notice referred to in
subsection 1.2(a). The underwriter will be selected by a majority in interest of
the Initiating Holders and shall be reasonably acceptable to the Company. 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
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provided in subsection 1.4(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 1.2, 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; provided, however,
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that the number of shares of Registrable Securities to be included in such
underwriting shall not be reduced unless all other securities are first entirely
excluded from the underwriting.
(c) Notwithstanding the foregoing, if the Company shall
furnish to Holders requesting a registration statement pursuant to this Section
1.2, 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 stockholders 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 120 days after receipt of the request of the
Initiating Holders; provided, however, that the Company may not utilize this
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right more than once in any twelve-month period.
(d) In addition, the Company shall not be obligated to
effect, or to take any action to effect, any registration pursuant to this
Section 1.2:
(i) After the Company has effected two (2)
registrations pursuant to this Section 1.2 and such registrations have been
declared or ordered effective;
(ii) 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 registration subject to Section 1.3 hereof; provided that the Company is
actively employing in good faith all reasonable efforts to cause such
registration statement to become effective; or
(iii) If the Initiating Holders propose to dispose of
shares of Registrable Securities that may be immediately registered on Form S-3
pursuant to a request made pursuant to Section 1.12 below.
1.3 Company Registration. If (but without any obligation to do
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so) the Company proposes to register (including for this purpose a registration
effected by the Company for stockholders other than the Holders) any of its
stock under the Act in connection with the public offering of such securities
solely for cash (other than a registration relating solely to the sale of
securities to participants in a Company stock plan or a transaction covered by
Rule 145 under the Act, a registration in which the only stock being registered
is Common Stock issuable upon conversion of debt securities which are also being
registered, or any registration on any form which does not include substantially
the same information as would be required to be
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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 3.5, the Company shall, subject to the provisions of
Section 1.8, cause to be registered under the Act all of the Registrable
Securities that each such Holder has requested to be registered.
1.4 Obligations of the Company. Whenever required under this
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Section 1 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;
provided, however, that such 120 day period shall be extended for a period of
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time equal to the period the Holder refrains from selling any securities
included in such registration at the request of an underwriter. The Company
shall not be required to file, cause to become effective or maintain the
effectiveness of any registration statement that contemplates a distribution of
securities on a delayed or continuous basis pursuant to Rule 415 under the Act.
(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 for up to one hundred twenty (120) days.
(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
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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
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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, and at the request of any such Holder,
prepare and furnish a reasonable number of copies of a supplement or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to purchasers of such shares, such prospectus shall not include an
untrue statement of material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading,
such obligation to continue for one hundred twenty (120) days.
(g) Cause all such Registrable Securities registered
pursuant hereunder to be listed on each securities exchange on which similar
securities issued by the Company are then listed.
(h) Provide a transfer agent and registrar for all
Registrable Securities registered pursuant hereunder and a CUSIP number for all
such Registrable Securities, in each case not later than the effective date of
such registration.
(i) Use its best efforts to furnish, at the request of any
Holder requesting registration of Registrable Securities pursuant to this
Section 1, on the date that such Registrable Securities are delivered to the
underwriters for sale in connection with a registration pursuant to this Section
1, 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.
1.5 Furnish Information. It shall be a condition precedent to
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the obligations of the Company to take any action pursuant to this Section 1
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. The Company shall have no obligation with respect to any
registration requested pursuant to Section 1.2 or Section 1.12 of this Agreement
if, as a result of the application of the preceding sentence, the number of
shares or the anticipated aggregate offering price of the Registrable Securities
to be included in the registration does not equal or exceed the number of shares
or the anticipated aggregate offering price required to originally trigger the
Company's obligation to initiate such registration as specified in subsection
1.2(a) and 1.12(b)(2), whichever is applicable.
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1.6 Expenses of Demand Registration. All expenses other than
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underwriting discounts and commissions incurred in connection with
registrations, filings or qualifications pursuant to Section 1.2, including
(without limitation) all registration, filing and qualification 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; provided, however, that the Company shall not be
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required to pay for any expenses of any registration proceeding begun pursuant
to Section 1.2 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 one demand registration pursuant to Section 1.2; provided
further, however, that if at the time of such withdrawal, the Holders have
learned of a material adverse change in the condition or business of the Company
from that known to the Holders at the time of their request and have withdrawn
the request with reasonable promptness following disclosure by the Company of
such material adverse change, then the Holders shall not be required to pay any
of such expenses and shall retain their rights pursuant to Section 1.2.
1.7 Expenses of Company Registration. The Company shall bear and
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pay all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
pursuant to Section 1.3 for each Holder (which right may be assigned as provided
in Section 1.13), including (without limitation) all registration, filing, and
qualification fees, printers' and accounting fees relating or apportionable
thereto and the reasonable fees and disbursements of one counsel for the selling
Holders selected by them with the approval of the Company, which approval shall
not be unreasonably withheld, but excluding underwriting discounts and
commissions relating to Registrable Securities.
1.8 Underwriting Requirements. In connection with any offering
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involving an underwriting of shares of the Company's capital stock, the Company
shall not be required under Section 1.3 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 (or by
other persons entitled to select the underwriters), and then only in such
quantity as the underwriters determine in their sole discretion will not
jeopardize the success of the offering by the Company. If the total amount of
securities, including Registrable Securities, requested by stockholders to be
included in such offering exceeds the amount of securities sold other than by
the Company that the underwriters determine in their sole discretion is
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 determine in their sole
discretion will not jeopardize the success of the offering (the securities so
included to be apportioned pro rata among the selling stockholders according to
the total amount of securities entitled to be included therein owned by each
selling stockholder, provided that the number of shares of Registrable
Securities to be included in such underwriting shall not be reduced unless all
other securities held by persons other than the Holders or the Company are first
entirely excluded from the underwriting, and provided further that the number of
shares of Registrable Securities held by the Holders to be included in such
underwriting shall not be reduced unless all Registrable Securities held by the
Founders are first entirely excluded
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from the underwriting), but in no event shall the amount of securities of the
Holders included in the offering be reduced below thirty percent (30%) 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 such
amount may be reduced to zero percent (0%). For purposes of the preceding
parenthetical concerning apportionment, for any selling stockholder which is a
holder of Registrable Securities and which is a partnership or corporation, the
partners, retired partners and stockholders 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
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stockholder," and any pro-rata reduction with respect to such "selling
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stockholder" shall be based upon the aggregate amount of shares carrying
registration rights owned by all entities and individuals included in such
"selling stockholder," as defined in this sentence.
1.9 Delay of Registration. No Holder shall have any right to
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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 1.
1.10 Indemnification. In the event any Registrable Securities are
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included in a registration statement under this Section 1:
(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 "Exchange Act"), against any losses, claims, damages, or liabilities (joint
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or several) to which they may become subject under the Act, the Exchange Act or
other federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based upon any
of the following statements, omissions or violations (collectively a
"Violation"): (i) any untrue statement or alleged untrue statement of a material
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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 Exchange Act, any state securities law or any rule or
regulation promulgated under the Act, the Exchange Act or any state securities
law; and the Company will pay to each such Holder, underwriter or controlling
person, as incurred, any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement contained
in this subsection 1.10(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.
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(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 Exchange Act or other federal or state
law, insofar as such losses, claims, damages, or liabilities (or actions in
respect thereto) arise out of or are based upon any Violation, in each case to
the extent (and only to the extent) that such Violation occurs in reliance upon
and in conformity with written information furnished by such Holder 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 1.10(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
1.10(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 1.10(b) exceed the net
proceeds from the offering received by such Holder, except in the case of
willful fraud by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 1.10 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 1.10, 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
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(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the reasonable 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
1.10, 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 1.10.
(d) If the indemnification provided for in this Section 1.10 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
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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; provided, that, in no event
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shall any contribution by a Holder under this Subsection 1.10(d) exceed the net
proceeds from the offering received by such Holder, except in the case of
willful fraud by such Holder. 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.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in 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 1.10 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and otherwise.
1.11 Reports Under Securities Exchange Act of 1934. With a view to
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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 so long as the
Company remains subject to the periodic reporting requirements under Sections 13
or 15(d) of the Exchange Act;
(b) take such action, including the voluntary registration of
its Common Stock under Section 12 of the Exchange 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 Exchange 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 Exchange Act (at
any time after it has become subject to such reporting requirements), or that it
-10-
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.
1.12 Form S-3 Registration. After its initial public offering,
---------------------
the Company shall use its best efforts to qualify for registration on Form S-3
or any comparable or successor form or forms. In case the Company shall receive
from any Holder or Holders of not less than thirty percent (30%) of the
Registrable Securities then outstanding 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
(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 twenty (20) 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
1.12: (1) if Form S-3 is not available for such offering by the Holders; (2) 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) having an aggregate price to the
public (net of any underwriters' discounts or commissions) of less than
$500,000; (3) 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 stockholders 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
1.12; provided, however, that the Company shall not utilize this right more than
once in any twelve month period; (4) if the Company has completed an initial
public offering of its Common Stock within the 180 day period preceding the date
of such request; (5) if the Company has, within the twelve (12) month period
preceding the date of such request, already effected two registrations on Form
S-3 for the Holders pursuant to this Section 1.12; or (6) 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
-11-
expenses incurred in connection with a registration requested pursuant to this
Section 1.12, including (without limitation) all registration, filing,
qualification, printers' and accounting fees and the reasonable fees and
disbursements of one special counsel for the selling Holder or Holders and
counsel for the Company, but excluding any underwriters' discounts or
commissions associated with Registrable Securities, shall be borne by the
Company. Registrations effected pursuant to this Section 1.12 shall not be
counted as demands for registration or registrations effected pursuant to
Sections 1.2 or 1.3, respectively.
1.13 Assignment of Registration Rights. The rights to cause the
---------------------------------
Company to register Registrable Securities pursuant to this Section 1 may be
assigned (but only with all related obligations) by a Holder to a transferee or
assignee of at least 50,000 shares of such securities (as adjusted for stock
splits, stock dividends, recapitalizations and the like), provided the Company
is, within a reasonable time after such transfer, furnished with written notice
of the name and address of such transferee or assignee and the securities with
respect to which such registration rights are being assigned; provided that the
transferee or assignee agrees in writing to be bound by all obligations under
this Agreement; and provided, further, that such assignment shall be effective
only if immediately following such transfer the further disposition of such
securities by the transferee or assignee is restricted under the Act.
Notwithstanding anything to the contrary provided herein, rights to cause the
Company to register Registrable Securities may be assigned by a Holder to any
partner, retired partner (including spouses and ancestors, lineal descendants
and siblings of such partners or spouses who acquire Registrable Securities by
gift, will or intestate succession) or affiliate of such Holder, without regard
to the number of shares of Registrable Securities transferred to such partner,
retired partner, or affiliate; provided that all assignees and transferees who
would not qualify individually for assignment of registration rights shall have
a single attorney-in-fact for the purpose of exercising any rights, receiving
notices or taking any action under Section 1.
1.14 "Market Stand-Off" Agreement. Each Holder hereby agrees
---------------------------
that, during the period of duration (up to, but not exceeding, 180 days)
specified by the Company and an underwriter of Common Stock or other securities
of the Company, following the date of the final prospectus distributed in
connection with a registration statement of the Company filed under the Act, it
shall not, to the extent requested by the Company and such underwriter, directly
or indirectly sell, offer to sell, contract to sell (including, without
limitation, any short sale), grant any option to purchase or otherwise transfer
or dispose of (other than to donees who agree to be similarly bound) any
securities of the Company held by it at any time during such period except
Common Stock purchased in the public offering and Common Stock purchased in an
open market transaction; 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) all officers and directors of the Company, all one-
percent securityholders, and all other persons with registration rights (whether
or not pursuant to this Agreement) enter into similar agreements.
-12-
In order to enforce the foregoing covenant, the Company may
impose stop-transfer instructions with respect to the Registrable Securities of
each Holder (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period, and each Holder agrees
that, if so requested, such Holder will execute an agreement in the form
provided by the underwriter containing terms which are essentially consistent
with the provisions of this Section 1.14.
Notwithstanding the foregoing, the obligations described in this
Section 1.14 shall not apply to a registration relating solely to employee
benefit plans on Form S-1 or Form S-8 or similar forms which may be promulgated
in the future, or a registration relating solely to an SEC Rule 145 transaction
on Form S-4 or similar forms which may be promulgated in the future.
1.15 Termination of Registration Rights. No Holder shall be
----------------------------------
entitled to exercise any right provided for in this Section 1 after the earlier
of (i) five (5) years following the consummation of the sale of securities
pursuant to a registration statement filed by the Company under the Act in
connection with the initial firm commitment underwritten offering of its
securities to the general public, or (ii) such time as Rule 144 or another
similar exemption under the Act is available for the sale of all of such
Holder's shares during a three (3)-month period without registration.
2. Covenants of the Company.
------------------------
2.1 Delivery of Financial Statements.
--------------------------------
(a) The Company shall deliver to each Investor, and
transferees thereof, holding at least 50,000 shares of Registrable Securities
(as adjusted for stock splits, stock dividends, recapitalizations and the like):
(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 and statement of
stockholder's equity as of the end of such year, and a statement of 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 an independent public accounting firm of nationally
recognized standing selected by the Company;
(ii) as soon as practicable, but in any event within
thirty (30) days after the end of each of the first three (3) quarters of each
fiscal year of the Company, an unaudited profit or loss statement, a statement
of cash flows for such fiscal quarter and an unaudited balance sheet as of the
end of such fiscal quarter;
(b) The Company shall deliver to each Investor, and
transferees thereof, holding at least 50,000 shares of Registrable Securities
(as adjusted for stock splits, stock dividends, recapitalizations and the like):
-13-
(i) within thirty (30) days of the end of each month,
an unaudited income statement and a statement of cash flows and balance sheet
for and as of the end of such month, in reasonable detail, commencing after the
third month following the effective date of the Purchase Agreement;
(ii) as soon as practicable, but in any event thirty
(30) days prior to the end of each fiscal year, a budget 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.
(c) The Company shall deliver to each Investor, with
respect to the financial statements called for in subsections (a)(ii) and (b)(i)
of this Section 2.1, an instrument executed by the Chief Financial Officer or
President of the Company and certifying that such financials were prepared in
accordance with GAAP consistently applied with prior practice for earlier
periods (with the exception of footnotes that may be required by GAAP) and
fairly present the financial condition of the Company and its results of
operation for the period specified, subject to year-end audit adjustment,
provided that the foregoing shall not restrict the right of the Company to
change its accounting principles consistent with GAAP, if the Board of Directors
determines that it is in the best interest of the Company to do so; and
(d) such other information relating to the financial
condition, business, prospects or corporate affairs of the Company as any such
Investor or any assignee of any such Investor may from time to time reasonably
request, provided, however, that the Company shall not be obligated under this
subsection (d) or any other subsection of Section 2.1 to provide information
which it deems in good faith to be a trade secret or similar confidential
information.
2.2 Inspection. The Company shall permit each Investor, and
----------
transferees thereof, holding at least 100,000 shares of Registrable Securities
(as adjusted for stock splits, stock dividends and the like), at such 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 the
Investor; provided, however, that the Company shall not be obligated pursuant to
this Section 2.2 to provide access to any information which it reasonably
considers to be a trade secret or similar confidential information. The
inspection rights referred to in this Section 2.2 may be assigned (but only with
all related obligations) by a Holder to a transferee or assignee of at least
100,000 shares of such securities (as adjusted for stock splits, stock
dividends, recapitalizations and the like), provided the Company is, within a
reasonable time after such transfer, furnished with written notice of the name
and address of such transferee or assignee and the securities with respect to
which such registration rights are being assigned; and provided, further, that
such assignment shall be effective only if immediately following such transfer
the further disposition of such securities by the transferee or assignee is
restricted under the Act.
-14-
2.3 Termination of Information and Inspection Covenants. The
---------------------------------------------------
covenants set forth in Sections 2.1 and 2.2 shall terminate as to Investors and
be of no further force or effect when the first sale of securities pursuant to a
registration statement filed by the Company under the Act in connection with the
firm commitment underwritten offering of its securities to the general public is
consummated or when the Company first becomes subject to the periodic reporting
requirements of Sections 13 or 15(d) of the Exchange Act, whichever event shall
first occur.
2.4 Right of First Offer. Subject to the terms and conditions
--------------------
specified in this Section 2.4, the Company hereby grants to each Major Investor
(as hereinafter defined) a right of first offer with respect to future sales by
the Company of its Shares (as hereinafter defined). For purposes of this
Section 2.4, a "Major Investor" shall mean any person who holds at least 50,000
--------------
shares of the Company's Preferred Stock (or the Common Stock issued upon
conversion thereof) (as adjusted for stock splits, stock dividends,
recapitalizations and the like). For purposes of this Section 2.4, Major
Investor includes any general partners and affiliates of a Major Investor. A
Major Investor who chooses to exercise the right of first offer may designate as
purchasers under such right itself or its partners or affiliates in such
proportions as it deems appropriate.
Each time the Company proposes to offer any shares of, or
securities convertible into or exercisable for any shares of, any class of its
capital stock ("Shares"), the Company shall first make an offering of such
------
Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice by certified mail
("Notice") to the Major Investors stating (i) its bona fide intention to offer
------
such Shares, (ii) the number of such Shares to be offered, and (iii) the price
and terms, if any, upon which it proposes to offer such Shares.
(b) Within 15 calendar days after delivery of the Notice,
the Major Investor may elect to purchase or obtain, at the price and on the
terms specified in the Notice, up to that portion of such Shares which equals
the proportion that the number of shares of Common Stock issued and held, or
issuable upon conversion and exercise of all convertible or exercisable
securities then held, by such Major Investor bears to the total number of shares
of Common Stock then outstanding (assuming full conversion and exercise of all
convertible or exercisable securities). The Company shall promptly, in writing,
inform each Major Investor that purchases all the shares available to it (each,
a "Fully-Exercising Investor") of any other Major Investor's failure to do
-------------------------
likewise. During the ten (10)-day period commencing after receipt of such
information, each Fully-Exercising Investor shall be entitled to obtain that
portion of the Shares for which Major Investors were entitled to subscribe but
which were not subscribed for by the Major Investors that is equal to the
proportion that the number of shares of Common Stock issued and held, or
issuable upon conversion and exercise of all convertible or exercisable
securities then held, by such Fully-Exercising Investor bears to the total
number of shares of Common Stock then outstanding (assuming full conversion and
exercise of all convertible or exercisable securities).
-15-
(c) The Company may, during the 45-day period following the
expiration of the period provided in subsection 2.4(b) hereof, offer the
remaining unsubscribed portion of the Shares to any person or persons at a price
not less than, and upon terms no more favorable to the offeree than those
specified in the Notice. If the Company does not enter into an agreement for the
sale of the Shares within such period, or if such agreement is not consummated
within 60 days of the execution thereof, the right provided hereunder shall be
deemed to be revived and such Shares shall not be offered unless first reoffered
to the Major Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not
be applicable (i) to the issuance or sale of Common Stock (or options therefor)
to employees, consultants and directors of the Company, pursuant to plans or
agreements approved by the Board of Directors for the primary purpose of
soliciting or retaining their services, or (ii) to or after consummation of the
sale of securities pursuant to a registration statement filed by the Company
under the Act in connection with the initial firm commitment underwritten
offering of its securities to the general public in which the Preferred Stock
will automatically convert into Common Stock, or (iii) to the issuance of
securities pursuant to the conversion or exercise of convertible or exercisable
securities, or (iv) to the issuance of securities in connection with a bona fide
business acquisition of or by the Company, whether by merger, consolidation,
sale of assets, sale or exchange of stock or otherwise, (v) to the issuance of
securities to financial institutions or lessors in connection with commercial
credit arrangements, equipment financings, or similar transactions approved by
the Board of Directors, or (vi) to the issuance of warrants to purchase Common
Stock or Preferred Stock issued concurrently herewith or after the date hereof
to providers, purchasers or licensees of products or technologies (or rights
thereto) of the Company.
2.5 Certain Covenants Relating to SBA Matters. For so long as at
-----------------------------------------
least 50,000 shares of the Company's stock are held by an SBIC Investor (as
defined below), the Company shall keep the following covenants:
(a) Use of Proceeds. The proceeds from the issuance and
---------------
sale of the Series E Preferred Stock pursuant to the Series E Purchase Agreement
(the "Proceeds") shall be used by the Company for its growth, modernization or
--------
expansion. The Company shall provide each Investor which is a licensed Small
Business Investment Company (a "SBIC Investor") and the Small Business
-------------
Administration (the "SBA") reasonable access to the Company's books and records
---
for the purpose of confirming the use of Proceeds.
(b) Business Activity. For a period of one year following
-----------------
the Closing under the Series D Purchase Agreement and the Series E Purchase
Agreement, the Company shall not change the nature of its business activity if
such change would render the Company ineligible as provided in 13 C.F.R. Section
107.720.
(c) Compliance. The Company will at all times comply with
----------
the non-discrimination requirements of 13 C.F.R. Parts 112, 113 and 117.
-16-
(d) Information for SBIC Investor. Within 45 days after the
-----------------------------
end of each fiscal year and at such other times as an SBIC Investor may
reasonably request, the Company shall deliver to such SBIC Investor a written
assessment, in the form and substance satisfactory to such SBIC Investor, of the
economic impact of such SBIC Investor's financing specifying the full-time
equivalent jobs created or retained in connection with such investment, and the
impact of the financing on the Company's business in terms of profits and on
taxes paid by the Company and its employees. Upon request, the Company agrees to
promptly provide each SBIC Investor with sufficient information to permit such
Investor to comply with their obligations under the Small Business Investment
Act of 1958, as amended, and the regulations promulgated thereunder and related
thereto; provided, however, each SBIC Investor agrees that it will protect any
-------- -------
information which the Company labels as confidential to the extent permitted by
law. Any submission of any financial information under this Section shall
include a certificate of the Company's President, Chief Executive Officer,
Treasurer or Chief Financial Officer.
2.6 Qualified Small Business Stock. For so long as any shares of
------------------------------
the Stock are held by an Investor (or a transferee in whose hands such shares
the Stock are eligible to qualify as "qualified small business stock") as
defined in Section 1202(c) of the Internal Revenue Code of 1982, as amended (the
"Code"), the Company will use reasonable efforts to comply with the reporting
----
and recordkeeping requirements of Section 1202 of the Code, any regulations
promulgated thereunder and any similar state laws and regulations, and agrees
not to repurchase any stock of the Company if such repurchase would constitute a
"significant redemption" within the meaning of Section 1202(c)(3)(B) of the Code
with respect to the Stock.
2.7 Voting Agreement. The Company covenants that each Purchaser
----------------
who purchases Series E Preferred Stock after the initial Closing as defined in
Section 1.2 of the Series E Purchase Agreement will, as a condition to their
purchase, become a party to the Amended and Restated Voting Agreement dated
November 24, 1998 between the Company and the individual entities described
therein.
3. Miscellaneous.
-------------
3.1 Successors and Assigns. Except as otherwise provided herein,
----------------------
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 (including
transferees of any of the Preferred Stock or any Common Stock issued upon
conversion thereof). Nothing in this Agreement, express or implied, is intended
to confer upon any party other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations, or liabilities under
or by reason of this Agreement, except as expressly provided in this Agreement.
3.2 Governing Law. This Agreement and all acts and transactions
-------------
pursuant hereto shall be governed, construed and interpreted in accordance with
the laws of the State of California, without giving effect to principles of
conflicts of laws.
-17-
3.3 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.
3.4 Titles and Subtitles. The titles and subtitles used in this
--------------------
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
3.5 Notices. Unless otherwise provided, any notice required or
-------
permitted by this Agreement shall be in writing and shall be deemed sufficient
upon delivery, when delivered personally or by overnight courier or sent by
telegram or fax, or forty-eight (48) hours after being deposited in the U.S.
mail, as certified or registered mail, with postage prepaid, and addressed to
the party to be notified at such party's address as set forth below or on
Exhibit A hereto or as subsequently modified by written notice.
---------
3.6 Expenses. 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 attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
3.7 Amendments and Waivers. Any term of this Agreement may be
----------------------
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders of
a majority of the Registrable Securities then outstanding, not including the
Founders' Stock; provided that if such amendment has the effect of affecting the
--------
Founders' Stock (i) in a manner different than securities issued to the
Investors and (ii) in a manner adverse to the interests of the holders of the
Founders' Stock, then such amendment shall require the consent of the holder or
holders of a majority of the Founders' Stock. Any amendment or waiver effected
in accordance with this paragraph shall be binding upon each holder of any
Registrable Securities then outstanding, each future holder of all such
Registrable Securities, and the Company.
3.8 Severability. If one or more provisions of this Agreement
------------
are held to be unenforceable under applicable law, the parties agree to
renegotiate such provision in good faith. In the event that the parties cannot
reach a mutually agreeable and enforceable replacement for such provision, then
(x) such provision shall be excluded from this Agreement, (y) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (z) the
balance of the Agreement shall be enforceable in accordance with its terms.
3.9 Aggregation of Stock. All shares of the Stock or Registrable
--------------------
Securities held or acquired by affiliated entities or persons shall be
aggregated together for the purpose of determining the availability of any
rights under this Agreement.
[Signature Page Follows]
-18-
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first above written.
COMPANY:
CERENT CORPORATION
By: /s/ Xxxx Xxxxx
-------------------------------------
Title: Chief Executive Officer
----------------------------------
FOUNDERS:
RVS HOLDING COMPANY
By: /s/ Xxxxxx Xxxxx
-------------------------------------
Xxxxxx Xxxxx, President
/s/ Xxxxx Xxxxxxx
----------------------------------------
XXXXX XXXXXXX
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first above written.
COMPANY:
CERENT CORPORATION
By: /s/ Xxxx Xxxxx
------------------------------------
Title: Chief Executive Officer
---------------------------------
INVESTOR:
NORWEST VENTURE PARTNERS VI, LP
By: Itasca VC Partners VI, LLP
its General Partner
/s/ Xxxxxx Xxxxx
------------------------------------
By: Xxxxxx Xxxxx, General Partner
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first above written.
COMPANY:
CERENT CORPORATION
By: /s/ Xxxx Xxxxx
--------------------------------------
Title: Chief Executive Officer
-----------------------------------
INVESTOR:
NORWEST VENTURE PARTNERS VI, LP
By: Itasca VC Partners VI, LLP
its General Partner
/s/ Xxxxxx Xxxxx
-----------------------------
By: Xxxxxx Xxxxx,
General Partner
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first above written.
COMPANY:
CERENT CORPORATION
By: /s/ Xxxx Xxxxx
----------------------------------------
Title: Chief Executive Officer
--------------------------------------
INVESTOR:
INTEGRAL CAPITAL PARTNERS III,
L.P.
By: Integral Capital Management
III, L.P.
its General Partner
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------
Xxxxxx X. Xxxxxxx
a General Partner
INTEGRAL CAPITAL PARTNERS
INTERNATIONAL III, L.P.
By: Integral Capital Management
III, L.P.
its Investment General
Partner
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------
Xxxxxx X. Xxxxxxx
a General Partner
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first above written.
COMPANY:
CERENT CORPORATION
By: /s/ Xxxx Xxxxx
----------------------------------------
Title: Chief Executive Officer
-------------------------------------
INVESTOR:
ADVANCED FIBRE COMMUNICATIONS,
INC.
By: /s/ Xxxxxx Xxxxx
---------------------------
Title: Chief Executive Officer
-------------------------
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first above written.
COMPANY:
CERENT CORPORATION
By: /s/ Xxxx Xxxxx
----------------------------------------
Title: Chief Executive Officer
-------------------------------------
INVESTOR:
XXXXXXX XXXXXXX XXXXXXXX &
XXXXX VIII, L.P.
By: KPCB VIII Associates,
Its General Partner
By: /s/ Xxxxx Xxxxxx
----------------------------
Title:_________________________
KPCB VIII FOUNDERS FUND, L.P.
By: KPCB VIII Associates,
Its General Partner
By: /s/ Xxxxx Xxxxxx
----------------------------
Title:_________________________
KPCB INFORMATION SCIENCES
ZAIBATSU FUND II, L.P.
By: KPCB VII Associates,
Its General Partner
By: /s/ Xxxxx Xxxxxx
----------------------------
Title:_________________________
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first above written.
COMPANY:
CERENT CORPORATION
By: /s/ Xxxx Xxxxx
----------------------------------------
Title: Chief Executive Officer
-------------------------------------
INVESTOR:
UTILITY COMPETITIVE ADVANTAGE
FUND, L.L.C
By: ARETE COMPETITIVE ADVANTAGE
PARTNERS, L.L.C.,
Managing Member
By: ARETE VENTURES, L.L.C.,
Managing Member
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------
Xxxxxxx X. Xxxxxx,
Managing Director
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first above written.
COMPANY:
CERENT CORPORATION
By: /s/ Xxxx Xxxxx
----------------------------------------
Title: Chief Executive Officer
-------------------------------------
INVESTOR:
TELESOFT PARTNERS IA, L.P.
By: TeleSoft IA-GP, Inc.,
General Partner
By: /s/ Xxxxx Xxxxx
----------------------------
Xxxxx Xxxxx
President and Chairman
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first above written.
COMPANY:
CERENT CORPORATION
By: /s/ Xxxx Xxxxx
----------------------------------------
Title: Chief Executive Officer
-------------------------------------
INVESTOR:
CISCO SYSTEMS, INC.
By: /s/ Xxxx Xxxxxxxx
----------------------------
Print Name: Xxxx X. Xxxxxxxx
--------------------
Title: CEO and President
--------------------------
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first above written.
COMPANY:
CERENT CORPORATION
By: /s/ Xxxx Xxxxx
----------------------------------------
Title: Chief Executive Officer
-------------------------------------
INVESTOR:
XXXXXXXX COMMUNICATIONS, INC.,
D/B/A XXXXXXXX NETWORKS
By: /s/ Xxxxxxxx Communications,
Inc.
----------------------------
Print Name:____________________
Title:_________________________
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first above written.
COMPANY:
CERENT CORPORATION
By: /s/ Xxxx Xxxxx
----------------------------------------
Title: Chief Executive Officer
-------------------------------------
INVESTOR:
MSD Portfolio L.P. -- Investments
By: /s/ MSD Portfolio L.P. --
---------------------------
Investments
---------------------------
Print Name:____________________
Title:_________________________
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first above written.
COMPANY:
CERENT CORPORATION
By: /s/ Xxxx Xxxxx
---------------------------
Title: Chief Executive Officer
------------------------
INVESTOR:
DBV INVESTMENTS, L.P.
By: /s/ DBV Investments, L.P.
---------------------------
Print Name: __________________
Title: _______________________
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first above written.
COMPANY:
CERENT CORPORATION
By: /s/ Xxxx Xxxxx
---------------------------
Title: Chief Executive Officer
------------------------
INVESTOR:
XXXXX X. DELL SEPARATE PROPERTY
TRUST
By: /s/ Xxxxx X. Dell Separate Property Trust
-----------------------------------------
Print Name:____________________________
Title: ________________________________
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first above written.
COMPANY:
CERENT CORPORATION
By: /s/ Xxxx Xxxxx
-------------------------------
Title: Chief Executive Officer
----------------------------
INVESTOR:
XXXXXXX X. DELL PERSONAL INCOME
TRUST
By: /s/ Xxxxxxx X. Dell Personal
-------------------------------
Income Trust
------------
Print Name: ______________________
Title: ___________________________
EXHIBIT A
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INVESTORS
Series E
Preferred Stock
---------------
Aggregate
Name and Address No. of Shares Price Per Purchase
of Purchaser to be Purchased Share Price
Norwest Venture Partners VI, LP 436,868 $6.50 $ 2,839,642
000 Xxxxxx Xxxxxx, Xxx. 000
Xxxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxx
Advanced Fibre Communications, Inc. 211,226 6.50 $ 1,372,969
0 Xxxxxx Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
Xxxxxxx Xxxxxxx Xxxxxxxx & Xxxxx VIII, L.P. 184,320 6.50 $ 1,198,080
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
KPCB VIII Founders Fund, L.P. 10,680 6.50 $ 69,420
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
KPCB Information Sciences Zaibatsu Fund II, 5,000 6.50 $ 32,500
L.P.
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
Integral Capital Partners III, L.P. 127,644 6.50 $ 829,686
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Integral Capital Partners International III, 29,410 6.50 $ 119,165
L.P.
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Telesoft Partners 550,000 6.50 $ 3,575,000
000 Xxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
Series E
Preferred Stock
---------------
Aggregate
Name and Address No. of Shares Price Per Purchase
of Purchaser to be Purchased Share Price
Utility Competitive Advantage Fund, L.L.C. 350,000 6.50 $ 2,275,000
Arete Ventures, L.L.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxx Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Cisco Systems, Inc. 2,000,000 6.50 $ 13,000,000
c/o Xxxx X. Xxxx
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
Two Embarcadero Place
0000 Xxxx Xxxx
Xxxx Xxxx, XX 00000-0000
TOTALS 3,905,148 $ 25,383,462
COMMERCIAL WARRANTS
Commercial Partner Number
of Issued Warrant
Shares
(Class)
Xxxxxxxx Communications, d/b/a Xxxxxxxx 100,000
Networks (Common)
TOTALS
CONVERTIBLE NOTE SHARES
Investor Amount of Note
MSD Porfolio L.P. -- Investments, DBV $30,000,000
Investments, L.P. Xxxxx X. Dell Separate
Property Trust, Xxxxxxx X. Dell Personal
Income Trust
TOTALS
