EXHIBIT 10.18
AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
COPPER MOUNTAIN NETWORKS, INC.
OCTOBER 9, 1998
SECTION 1. General......................................................... 2
1.1 Definitions..................................................... 2
SECTION 2. Registration; Restrictions on Transfer.......................... 3
2.1 Restrictions on Transfer........................................ 3
2.2 Demand Registration............................................. 4
2.3 Piggyback Registrations......................................... 6
2.4 Form S-3 Registration........................................... 7
2.5 Expenses of Registration........................................ 8
2.6 Obligations of the Company...................................... 8
2.7 Termination of Registration Rights.............................. 9
2.8 Delay of Registration; Furnishing Information................... 10
2.9 Indemnification................................................. 10
2.10 Assignment of Registration Rights............................... 12
2.11 Amendment of Registration Rights................................ 12
2.12 Limitation on Subsequent Registration Rights.................... 12
2.13 "Market Stand-Off" Agreement.................................... 13
2.14 Rule 144 Reporting.............................................. 13
SECTION 3. Covenants of the Company........................................ 14
3.1 Basic Financial Information and Reporting....................... 14
3.2 Inspection Rights............................................... 14
3.3 Confidentiality of Records...................................... 15
3.4 Reservation of Common Stock..................................... 15
3.5 Employee Lock-Up and Stock Vesting.............................. 15
3.6 Proprietary Information and Inventions Agreement................ 15
3.7 Directors' Liability and Indemnification........................ 15
3.8 Board Observation Rights........................................ 15
3.9 Nondisclosure Agreement......................................... 16
3.10 Qualified Small Business........................................ 17
3.11 Legends......................................................... 19
3.12 Issuance of Additional Shares................................... 19
i.
3.13 Directed Share Program.......................................... 19
3.14 Termination of Covenants........................................ 20
SECTION 4. Rights of First Refusal......................................... 20
4.1 Subsequent Offerings............................................ 20
4.2 Exercise of Rights.............................................. 20
4.3 Rights of Oversubscription...................................... 20
4.4 Issuance of Equity Securities to Other Persons.................. 21
4.5 Termination of Rights of First Refusal.......................... 21
4.6 Transfer of Rights of First Refusal............................. 21
4.7 Excluded Securities............................................. 21
SECTION 5. Miscellaneous................................................... 22
5.1 Governing Law................................................... 22
5.2 Survival........................................................ 22
5.3 Successors and Assigns.......................................... 22
5.4 Entire Agreement................................................ 22
5.5 Severability.................................................... 23
5.6 Amendment and Waiver............................................ 23
5.7 Delays or Omissions............................................. 23
5.8 Notices......................................................... 23
5.9 Attorneys' Fees................................................. 24
5.10 Titles and Subtitles............................................ 24
5.11 Counterparts.................................................... 24
5.12 Aggregation of Holdings......................................... 24
ii.
COPPER MOUNTAIN NETWORKS, INC.
AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
THIS AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT (the "Agreement") is
entered into as of the 9th day of October, 1998, by and among COPPER MOUNTAIN
NETWORKS, INC., a California corporation (the "Company") and the purchasers of
the Company's Series A Preferred Stock ("Series A Preferred Stock"), Series B
Preferred Stock ("Series B Preferred Stock"), Series C Preferred Stock ("Series
C Preferred Stock") and Series D Preferred Stock ("Series D Preferred Stock")
set forth on Exhibit A hereto. The purchasers of the Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock and the Series D Preferred
Stock set forth on Exhibit A hereto shall be referred to hereinafter as the
"Investors" and each individually as an "Investor." The term "Investor" shall
include Silicon Valley Bank solely with respect to Section 2 hereof.
RECITALS
WHEREAS, certain of the Investors hold shares of the Company's Series A
Preferred Stock, Series B Preferred Stock and Series C Preferred Stock and such
Investors possess certain rights pursuant to that certain Amended and Restated
Investors' Rights Agreement dated October 29, 1997 (the "Prior Agreement");
WHEREAS, the undersigned Investors who hold Series A Preferred Stock,
Series B Preferred Stock and Series C Preferred Stock desire to terminate the
Prior Agreement and to accept the rights created pursuant hereto in lieu of the
rights granted to them under the Prior Agreement;
WHEREAS, the Company desires to grant Silicon Valley Bank rights solely
with respect to Section 2 hereof and Silicon Valley Bank agrees to be bound by
the obligations set forth in Section 2 as an "Investor" and "Holder" hereunder;
WHEREAS, the Company proposes to sell and issue up to 3,300,000 shares of
its Series D Preferred Stock (the "Series D Financing") to certain of the
Investors pursuant to a Series D Preferred Stock Purchase Agreement of even date
herewith (the "Purchase Agreement");
WHEREAS, as a condition to entering into the Purchase Agreement, the
purchasers of the Company's Series D Preferred Stock have requested that the
Company extend to them the registration rights, information rights and other
rights set forth below; and
WHEREAS, in connection with the consummation of the Series D Financing, the
Company and the Investors desire to provide for rights to be granted to and
covenants to be made with the Investors and the Investors and the Company hereby
agree that this Agreement shall govern the rights of the Investors as to certain
matters as set forth herein and the Investors who are parties to the Prior
Agreement hereby agree that the Prior Agreement shall be superseded and replaced
in its entirety by this Agreement.
1.
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties, covenants and conditions set forth in this Agreement and in the
Purchase Agreement, the parties mutually agree as follows:
SECTION 1. GENERAL
1.1 DEFINITIONS. As used in this Agreement the following terms shall have
the following respective meanings:
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"HOLDER" means any person owning of record Registrable Securities or
any assignee of record of such Registrable Securities in accordance with Section
2.10 hereof.
"INITIAL PUBLIC OFFERING" means the Company's first public offering of
its Common Stock registered under the Securities Act.
"PREFERRED STOCK" means the Company's Series A Preferred Stock, Series
B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock.
"REGISTER," "REGISTERED," AND "REGISTRATION" refer to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act, and the declaration or ordering of effectiveness of such
registration statement or document.
"REGISTRABLE SECURITIES" means (i) Common Stock of the Company issued
or issuable upon conversion of the Shares; (ii) for purposes of Section 2 hereof
only, Common Stock of the Company issued to Silicon Valley Bank upon exercise of
a warrant to purchase 25,000 shares of Series C Preferred Stock issued to
Silicon Valley Bank; and (iii) any 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, such above-described securities.
Notwithstanding the foregoing, Registrable Securities shall not include any
securities sold by a person to the public either pursuant to a registration
statement or Rule 144 under the Securities Act or sold in a private transaction
in which the transferor's rights under Section 2 of this Agreement are not
assigned.
"REGISTRABLE SECURITIES THEN OUTSTANDING" shall be the number of
shares determined by calculating the total number of shares of the Company's
Common Stock that are Registrable Securities and either (1) are then issued and
outstanding or (2) are issuable pursuant to then exercisable or convertible
securities.
"REGISTRATION EXPENSES" shall mean all expenses incurred pursuant to
Sections 2.2, 2.3 and 2.4 hereof, including, without limitation, all SEC and
blue sky registration and filing fees, printing expenses, transfer agent and
registrar fees, fees and disbursements of counsel for the Company, fees and
disbursements of one special counsel for the Holders (not to exceed $10,000) and
the expense of any independent accountants incident to or required thereby (but
excluding the compensation of regular employees of the Company which shall be
paid in any event by the Company).
2.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SELLING EXPENSES" shall mean all underwriting discounts and selling
commissions applicable to the sale.
"SHARES" shall mean the Preferred Stock held by the Investors listed
on Exhibit A hereto and their permitted assigns.
"FORM S-3" means such form under the Securities Act as in effect on
the date hereof or any successor registration form under the Securities Act
subsequently adopted by the SEC which permits inclusion or incorporation of
substantial information by reference to other documents filed by the Company
with the SEC.
"SEC" OR "COMMISSION" means the Securities and Exchange Commission.
SECTION 2. REGISTRATION; RESTRICTIONS ON TRANSFER
2.1 RESTRICTIONS ON TRANSFER.
(A) Each Holder agrees not to make any disposition of all or any
portion of the Shares or Registrable Securities unless and until:
(I) There is then in effect a registration statement under the
Securities Act covering such proposed disposition and such disposition is made
in accordance with such registration statement; or
(II) (A) The transferee has agreed in writing to be bound by
the terms of this Agreement, (B) such Holder shall have notified the Company of
the proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and (C) if
reasonably requested by the Company, such Holder shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company, that
such disposition will not require registration of such shares under the
Securities Act. It is agreed that the Company will not require opinions of
counsel for transactions made pursuant to Rule 144 except in unusual
circumstances.
(III) Notwithstanding the provisions of paragraphs (i) and (ii)
above, no such registration statement or opinion of counsel shall be necessary
for a transfer by a Holder which is (A) a partnership to its partners or former
partners in accordance with partnership interests, (B) a corporation to its
subsidiaries or to its shareholders in accordance with their interest in the
corporation, (C) a limited liability company to its members or former members in
accordance with their interest in the limited liability company, (D) a trust to
its grantors in accordance with their trust interests, or (E) to the Holder's
family member or trust for the benefit of an individual Holder; provided that in
each case the transferee will be subject to the terms of this Agreement to the
same extent as if he were an original Holder hereunder.
(B) Each certificate representing Shares or Registrable Securities
shall (unless otherwise permitted by the provisions of the Agreement) be stamped
or otherwise imprinted with
3.
a legend substantially similar to the following (in addition to any legend
required under applicable state securities laws or as provided elsewhere in this
Agreement):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT"), AS AMENDED, AND MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND
UNTIL REGISTERED UNDER THE ACT OR UNLESS THE COMPANY HAS RECEIVED AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY AND ITS COUNSEL
THAT SUCH REGISTRATION IS NOT REQUIRED.
(C) The Company shall be obligated to reissue promptly unlegended
certificates at the request of any holder thereof if the holder shall have
obtained an opinion of counsel (which counsel may be counsel to the Company)
reasonably acceptable to the Company to the effect that the securities proposed
to be disposed of may lawfully be so disposed of without registration,
qualification or legend.
(D) Any legend endorsed on an instrument pursuant to applicable state
securities laws and the stop-transfer instructions with respect to such
securities shall be removed upon receipt by the Company of an order of the
appropriate blue sky authority authorizing such removal.
2.2 DEMAND REGISTRATION.
(A) Subject to the conditions of this Section 2.2, if the Company
shall receive a written request from the Holders of more than twenty-five
percent (25%) of the shares of Preferred Stock then outstanding (or shares of
Common Stock issued upon conversion of the Preferred Stock or a combination of
such issued Common Stock and such Preferred Stock) (the "Initiating Holders")
that the Company file a registration statement under the Securities Act covering
the registration of Registrable Securities, then the Company shall, within
thirty (30) days of the receipt thereof, give written notice of such request to
all Holders, and subject to the limitations of this Section 2.2, use its best
efforts to effect, as soon as practicable, the registration under the Securities
Act of all Registrable Securities that the Holders request to be registered.
(B) If the Initiating Holders intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall so
advise the Company as a part of their request made pursuant to this Section 2.2
or any request pursuant to Section 2.4 and the Company shall include such
information in the written notice referred to in Section 2.2(a) or Section
2.4(a), as applicable. In such event, the right of any Holder to include its
Registrable Securities in such registration shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting (unless otherwise mutually agreed by
a majority in interest of the Initiating Holders and such Holder) to the extent
provided herein. All Holders proposing to distribute their securities through
such underwriting and the Company shall enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwriting by a majority in interest of the Initiating Holders (which
underwriter or underwriters shall be
4.
reasonably acceptable to the Company). Notwithstanding any other provision of
this Section 2.2 or Section 2.4, if the underwriter advises the Company that
marketing factors require a limitation of the number of securities to be
underwritten (including Registrable Securities) then the Company shall so advise
all Holders of Registrable Securities which would otherwise be underwritten
pursuant hereto, and the number of shares that may be included in the
underwriting shall be allocated to the Holders of such Registrable Securities
hereunder on a pro rata basis based on the number of Registrable Securities held
by all such Holders (including the Initiating Holders). Any Registrable
Securities excluded or withdrawn from such underwriting shall be withdrawn from
the registration.
(C) The Company shall not be required to effect a registration
pursuant to this Section 2.2:
(I) prior to the earlier of (A) September 30, 2000 or (B) six
months after the Initial Public Offering; or
(II) if the Holders, together with the holders of any other
securities of the Company entitled to inclusion in such registration, propose to
sell Registrable Securities and such other securities (if any) at an aggregate
price to the public of less than Five Million Dollars ($5,000,000), unless such
registration pertains to the Company's Initial Public Offering, in which case
the Company shall not be required to effect such registration unless the
aggregate gross proceeds of such offering and the per share issuance price are
sufficient to cause the automatic conversion to Common Stock of all outstanding
shares of the Company's Preferred Stock; or
(III) after the Company has effected two (2) registrations
pursuant to this Section 2.2, and such registrations have been declared or
ordered effective; or
(IV) during the period commencing with the filing of a
registration statement pertaining to the Initial Public Offering and ending on
the date one hundred eighty (180) days following the effective date of such
registration statement; provided that the Company makes reasonable good faith
efforts to cause such registration statement to become effective; or
(V) if the Company shall furnish to Holders requesting a
registration statement pursuant to this Section 2.2, a certificate signed by the
Chairman of the Board of the Company stating that the Company has engaged in
discussions with underwriters regarding an Initial Public Offering and intends
to file a registration statement related thereto as soon as practicable, in
which event the Company shall have the right to defer the filing requested by
the Initiating Holders for a period of not more than one hundred twenty (120)
days after receipt of the request of the Initiating Holders, or
(VI) if the Company shall furnish to Holders requesting a
registration statement pursuant to this Section 2.2, a certificate signed by the
Chairman of the Board of the Company stating that in the good faith judgment of
the Board of Directors of the Company, it would be seriously detrimental to the
Company and its shareholders for such registration statement to be effected at
such time, in which event the Company shall have the right to defer such filing
for a period of not more than ninety (90) days after receipt of the request of
the
5.
Initiating Holders; provided that such right to delay a request shall be
exercised by the Company not more than twice in any twelve (12) month period.
2.3 PIGGYBACK REGISTRATIONS. The Company shall notify all Holders of
Registrable Securities in writing at least thirty (30) days prior to the filing
of any registration statement under the Securities Act for purposes of a public
offering of securities of the Company (including, but not limited to,
registration statements relating to secondary offerings of securities of the
Company, but excluding registration statements relating to employee benefit
plans or with respect to corporate reorganizations or other transactions under
Rule 145 of the Securities Act) and will afford each such Holder an opportunity
to include in such registration statement all or part of such Registrable
Securities held by such Holder. Each Holder desiring to include in any such
registration statement all or any part of the Registrable Securities held by it
shall, within fifteen (15) days after the above-described notice from the
Company, so notify the Company in writing. Such notice shall state the intended
method of disposition of the Registrable Securities by such Holder. If a Holder
decides not to include all of its Registrable Securities in any registration
statement thereafter filed by the Company, such Holder shall nevertheless
continue to have the right to include any Registrable Securities in any
subsequent registration statement or registration statements as may be filed by
the Company with respect to offerings of its securities, all upon the terms and
conditions set forth herein.
(A) UNDERWRITING. If the registration statement under which the
Company gives notice under this Section 2.3 is for an underwritten offering, the
Company shall so advise the Holders of Registrable Securities. In such event,
the right of any such Holder to be included in a registration pursuant to this
Section 2.3 shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting to the extent provided herein. All Holders proposing to distribute
their Registrable Securities through such underwriting shall enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by the Company. Notwithstanding any other
provision of the Agreement, if the underwriter determines in good faith that
marketing factors require a limitation of the number of shares to be
underwritten, the number of shares that may be included in the underwriting
shall be allocated, first, to the Company; second, to the Holders on a pro rata
basis based on the total number of Registrable Securities held by the Holders;
and third, to any shareholder of the Company (other than a Holder) on a pro rata
basis. No such reduction shall reduce the amount of securities of the selling
Holders included in the registration below twenty-five percent (25%) of the
total amount of securities being offered in such registration, unless such
offering is the Initial Public Offering and such registration does not include
shares of any other selling shareholders, in which event any or all of the
Registrable Securities of the Holders may be excluded in accordance with the
immediately preceding sentence.
(B) RIGHT TO TERMINATE REGISTRATION. The Company shall have the right
to terminate or withdraw any registration initiated by it under this Section 2.3
prior to the effectiveness of such registration whether or not any Holder has
elected to include securities in such registration. The Registration Expenses of
such withdrawn registration shall be borne by the Company in accordance with
Section 2.5 hereof.
6.
2.4 FORM S-3 REGISTRATION. Following the Company's Initial Public
Offering, the Company will use its best efforts to qualify for an offering on
Form S-3 (or any successor to Form S-3) or any similar short-form registration
statement. In case the Company shall receive from any Holder or Holders of
Registrable Securities a written request or requests that the Company effect a
registration on Form S-3 (or any successor to Form S-3) or any similar short-
form registration statement and any related qualification or compliance with
respect to all or a part of the Registrable Securities owned by such Holder or
Holders, the Company will:
(A) promptly give written notice of the proposed registration, and
any related qualification or compliance, to all other Holders of Registrable
Securities; 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
fifteen (15) days after receipt of such written notice from the Company;
provided, however, that the Company shall not be obligated to effect any such
registration, qualification or compliance pursuant to this Section 2.4:
(I) if Form S-3 (or any successor or similar form) is not
available for such offering by the Holders, or
(II) if the Holders, together with the holders of any other
securities of the Company entitled to inclusion in such registration, propose to
sell Registrable Securities and such other securities (if any) at an aggregate
price to the public of less than Five Hundred Thousand Dollars ($500,000), or
(III) if the Company shall furnish to the Holders a certificate
signed by the Chairman of the Board of Directors of the Company stating that in
the good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its shareholders for such Form S-3
Registration to be effected at such time, in which event the Company shall have
the right to defer the filing of the Form S-3 Registration Statement for a
period of not more than ninety (90) days after receipt of the request of the
Holder or Holders under this Section 2.4; provided, that such right to delay a
request shall be exercised by the Company not more than once in any twelve (12)
month period, or
(IV) if the Company has, within the twelve (12) month period
preceding the date of such request, already effected two (2) registrations on
Form S-3 for the Holders pursuant to this Section 2.4, or
(V) in any particular jurisdiction in which the Company would
be required to qualify to do business or to execute a general consent to service
of process in effecting such registration, qualification or compliance.
(C) Subject to the foregoing, the Company shall file a Form S-3
Registration Statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request or requests of the Holders.
7.
2.5 EXPENSES OF REGISTRATION. Except as specifically provided herein, all
Registration Expenses incurred in connection with any registration,
qualification or compliance pursuant to Section 2.2, Section 2.3 or Section 2.4
herein shall be borne by the Company. All Selling Expenses incurred in
connection with any registrations hereunder, shall be borne by the holders of
the securities so registered pro rata on the basis of the number of shares so
registered. The Company shall not, however, be required to pay for expenses of
any registration proceeding begun pursuant to Section 2.2 or 2.4, the request of
which has been subsequently withdrawn by the Initiating Holders unless (a) the
withdrawal is made based upon material adverse information concerning the
Company of which the Initiating Holders were not aware at the time of such
request or (b) the Holders of a majority of Registrable Securities agree to
forfeit their right to one requested registration pursuant to Section 2.2 or
Section 2.4, as applicable, in which event such right shall be forfeited by all
Holders). If the Holders are required to pay the Registration Expenses, such
expenses shall be borne by the holders of securities (including Registrable
Securities) requesting such registration in proportion to the number of shares
for which registration was requested. If the Company is required to pay the
Registration Expenses of a withdrawn offering pursuant to clause (a) above, then
the Holders shall not forfeit their rights pursuant to Section 2.2 or Section
2.4 to a demand registration.
2.6 OBLIGATIONS OF THE COMPANY. Whenever required to effect the
registration of any Registrable Securities, the Company shall, as expeditiously
as reasonably possible:
(A) prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use all reasonable efforts to cause
such registration statement to become effective, and, upon the request of the
Holders of a majority of the Registrable Securities registered thereunder, keep
such registration statement effective for up to one hundred twenty (120) days
or, if earlier, until the Holder or Holders have completed the distribution
related thereto; provided, however, that such 120-day period shall be extended
by the number of days such Holder or Holders are not permitted to sell pursuant
to either a written lock-up agreement with an underwriter of the Company's
securities or a written request of an underwriter of the Company's securities to
refrain from selling Registrable Securities;
(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
Securities Act with respect to the disposition of all securities covered by such
registration statement;
(C) furnish to the Holders such number of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in order
to facilitate the disposition of Registrable Securities owned by them;
(D) use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders,
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions;
8.
(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(s) 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 Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits 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 to such
Holder a reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such shares, such prospectus shall not include an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or incomplete
in the light of the circumstances then existing;
(G) furnish, at the request of a majority of the Holders
participating in the registration, on the date that such Registrable Securities
are delivered to the underwriters for sale, if such securities are being sold
through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective, (i) an opinion, dated as of such date, of the
counsel representing the Company for the purposes of such registration, in form
and substance as is customarily given to underwriters in an underwritten public
offering and reasonably satisfactory to a majority in interest of the Holders
requesting registration, addressed to the underwriters, if any, and to the
Holders requesting registration of Registrable Securities and (ii) a letter
dated as of such date, from the independent certified public accountants of the
Company, in form and substance as is customarily given by independent certified
public accountants to underwriters in an underwritten public offering and
reasonably satisfactory to a majority in interest of the Holders requesting
registration, addressed to the underwriters, if any, and if permitted by
applicable accounting standards, to the Holders requesting registration of
Registrable Securities;
(H) use its best efforts to have the Company's Common Stock listed on
the Nasdaq National Market or a stock exchange; and
(I) use its best efforts to obtain a transfer agent, a registrar and
a cusip number for the Company's Common Stock.
2.7 TERMINATION OF REGISTRATION RIGHTS. All registration rights granted
under this Section 2 shall terminate and be of no further force and effect after
the fifth anniversary of the closing of the Company's Initial Public Offering.
In addition, a Holder's registration rights shall expire if (i) the Company has
completed its Initial Public Offering and is subject to the provisions of the
Exchange Act and (ii) all Registrable Securities held by and issuable to such
Holder (and its affiliates, partners and former partners) may be sold under Rule
144 during any ninety (90) day period.
9.
2.8 DELAY OF REGISTRATION; FURNISHING INFORMATION.
(A) No Holder shall have any right to obtain or seek an injunction
restraining or otherwise delaying any such registration as the result of any
controversy that might arise with respect to the interpretation or
implementation of this Section 2.
(B) It shall be a condition precedent to the obligations of the
Company to take any action pursuant to Section 2.2, 2.3 or 2.4 that the selling
Holders shall furnish to the Company such information regarding themselves, the
Registrable Securities held by them and the intended method of disposition of
such securities as shall be reasonably required to effect the registration of
their Registrable Securities.
2.9 INDEMNIFICATION. In the event any Registrable Securities are included
in a registration statement under Sections 2.2, 2.3 or 2.4:
(A) To the maximum extent permitted by law, the Company will
indemnify and hold harmless each Holder, the partners, officers, directors and
legal counsel of each Holder, any underwriter (as defined in the Securities Act)
for such Holder and each person, if any, who controls such Holder or underwriter
within the meaning of the Securities Act or the Exchange Act, against any
losses, claims, damages, or liabilities (or actions in respect thereof),
including any of the foregoing incurred in settlement of any litigation
commenced or threatened to which they may become subject, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any of the following statements, omissions or violations
(collectively a "Violation") by the Company: (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation promulgated under the Securities Act,
the Exchange Act or any state securities law in connection with the offering
covered by such registration statement; and the Company will reimburse each such
Holder, partner, officer or director, legal counsel, underwriter or controlling
person for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided however, that the indemnity agreement contained in this Section
2.9(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 such Holder, partner,
officer, director, underwriter or controlling person of such Holder.
(B) To the extent permitted by law, each Holder will, if Registrable
Securities held by such Holder are included in the securities as to which such
registration qualifications or compliance is being effected, indemnify and hold
harmless the Company, each of its directors, its officers, and legal counsel and
each person, if any, who controls the Company within the
10.
meaning of the Securities Act, any underwriter and any other Holder selling
securities under such registration statement or any of such other Holder's
partners, directors or officers or any person who controls such Holder, against
any losses, claims, damages or liabilities (or actions in respect thereof),
including any of the foregoing incurred in settlement of any litigation or
threatened litigation to which the Company or any such director, officer, legal
counsel, controlling person, underwriter or other such Holder, or partner,
director, officer or controlling person of such other Holder may become subject
under the Securities Act, the Exchange Act or other federal or state law,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereto) arise out of or are based upon any Violation, in each case to the
extent (and only to the extent) that such Violation occurs in reliance upon and
in conformity with written information furnished by such Holder under an
instrument duly executed by such Holder and stated to be specifically for use in
connection with such registration; and each such Holder will reimburse any legal
or other expenses reasonably incurred by the Company or any such director,
officer, legal counsel, controlling person, underwriter or other Holder, or
partner, officer, director or controlling person of such other Holder in
connection with investigating or defending any such loss, claim, damage,
liability or action if it is judicially determined that there was such a
Violation; provided, however, that the indemnity agreement contained in this
Section 2.9(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 further, that in no event shall any indemnity under this Section 2.9
exceed the net proceeds from the offering received by such Holder.
(C) Promptly after receipt by an indemnified party under this Section
2.9 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 2.9, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if materially prejudicial to its ability to
defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 2.9, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this Section 2.9.
(D) If the indemnification provided for in this Section 2.9 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any losses, claims, damages or liabilities referred to herein,
the indemnifying party, in lieu of indemnifying such indemnified party
thereunder, shall to the extent permitted by applicable law contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the indemnified
party on the other in connection with the Violation(s)
11.
that resulted in such loss, claim, damage or liability, as well as any other
relevant equitable considerations. The relative fault of the indemnifying party
and of the indemnified party shall be determined by a court of law by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission; provided, that in no event shall any
contribution by a Holder hereunder exceed the proceeds from the offering
received by such Holder.
(E) The obligations of the Company and Holders under this Section 2.9
shall survive completion of any offering of Registrable Securities in a
registration statement and the termination of this agreement. 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.
2.10 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the Company to
register Registrable Securities pursuant to this Section 2 may be assigned by a
Holder to a transferee or assignee of Registrable Securities which (i) is a
subsidiary, parent, general partner, grantor, limited partner or retired partner
of a Holder, (ii) is a Holder's family member or trust for the benefit of an
individual Holder, or (iii) acquires at least one hundred thousand (100,000)
shares of Registrable Securities (as adjusted for stock splits and
combinations); provided, however, (A) the transferor shall, within ten (10) days
after such transfer, furnish to the Company written notice of the name and
address of such transferee or assignee and the securities with respect to which
such registration rights are being assigned and (B) such transferee shall agree
to be subject to all restrictions set forth in this Agreement.
2.11 AMENDMENT OF REGISTRATION RIGHTS. Any provision of this Section 2 may
be amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of (i) the Company; (ii) the Holders of at least two-thirds of
the Registrable Securities then outstanding, voting together as a separate
class; and (iii) if such amendment materially adversely affects solely the
rights, preferences and privileges of the Series D Preferred Stock, the written
consent of the holders of at least fifty percent (50%) of the Series D Preferred
Stock then outstanding, voting together as a separate class shall also be
required. Any amendment or waiver effected in accordance with this Section 2.11
shall be binding upon each Holder and the Company. By acceptance of any
benefits under this Section 2, Holders of Registrable Securities hereby agree to
be bound by the provisions of this Section 2.11 hereunder.
2.12 LIMITATION ON SUBSEQUENT REGISTRATION RIGHTS. After the date of this
Agreement, the Company shall not, without the prior written consent of the
Holders of fifty percent (50%) of the Registrable Securities then outstanding,
enter into any agreement with any holder or prospective holder of any securities
of the Company that would grant such holder registration rights.
12.
2.13 "MARKET STAND-OFF" AGREEMENT. Each Holder hereby agrees that such
Holder shall not sell or otherwise transfer or dispose of any Registrable
Securities held by such Holder (other than those included in the registration)
for a period specified by the representative of the underwriters of Common Stock
(or other securities) of the Company not to exceed one hundred eighty (180) days
following the effective date of a registration statement of the Company filed
under the Securities Act, provided that:
(I) such agreement shall apply only to the Company's Initial
Public Offering;
(II) all officers and directors of the Company, each Holder and
holders of at least one percent (1%) of the Company's outstanding shares of
capital stock (calculated on an as-converted-to-common-stock basis) enter into
similar agreements; and
(III) such agreement shall provide that any discretionary waiver
or termination of the restrictions of such agreement by the Company or
representatives of the underwriters shall apply to all persons subject to such
agreement pro rata based on the number of shares held if such waiver or
termination exceeds 25,000 shares of Common Stock (or other securities on an as-
converted basis) per individual or 100,000 shares of Common Stock (or other
securities on an as-converted basis) in the aggregate.
Each Holder agrees to execute and deliver such other agreements as may be
reasonably requested by the Company or the underwriter which are consistent with
the foregoing or which are necessary to give further effect thereto. The
obligations described in this Section 2.13 shall not apply to a registration
relating solely to employee benefit plans on Form S-8 or similar forms that may
be promulgated in the future, or a registration relating solely to a Commission
Rule 145 transaction on Form S-4 or similar forms that may be promulgated in the
future. The Company may impose stop-transfer instructions with respect to the
shares of Common Stock (or other securities) subject to the foregoing
restriction until the end of said one hundred eighty (180) day period.
2.14 RULE 144 REPORTING. With a view to making available to the Holders
the benefits of certain rules and regulations of the SEC which may permit the
sale of the Registrable Securities to the public without registration, the
Company agrees to use its commercially reasonable best efforts to:
(A) Make and keep public information available, as those terms are
understood and defined in SEC Rule 144 or any similar or analogous rule
promulgated under the Securities Act, at all times after the effective date of
the first registration filed by the Company for an offering of its securities to
the general public;
(B) File with the SEC, in a timely manner, all reports and other
documents required of the Company under the Exchange Act;
(C) So long as a Holder owns any Registrable Securities, furnish to
such Holder forthwith upon request: a written statement by the Company as to its
compliance with the reporting requirements of said Rule 144 of the Securities
Act, and of the Exchange Act (at any time after it has become subject to such
reporting requirements); a copy of the most recent
13.
annual or quarterly report of the Company; and such other reports and documents
as a Holder may reasonably request in availing itself of any rule or regulation
of the SEC allowing it to sell any such securities without registration.
SECTION 3. COVENANTS OF THE COMPANY
3.1 BASIC FINANCIAL INFORMATION AND REPORTING.
(A) The Company will maintain true books and records of account in
which full and correct entries will be made of all its business transactions
pursuant to a system of accounting established and administered in accordance
with generally accepted accounting principles consistently applied, and will set
aside on its books all such proper accruals and reserves as shall be required
under generally accepted accounting principles consistently applied.
(B) As soon as practicable after the end of each fiscal year of the
Company, and in any event within one hundred twenty (120) days thereafter, the
Company will furnish each Investor a consolidated balance sheet of the Company,
as at the end of such fiscal year, and a consolidated statement of income and a
consolidated statement of cash flows of the Company, for such year, all prepared
in accordance with generally accepted accounting principles consistently applied
and setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail. Such financial statements shall be
accompanied by a report and opinion thereon by independent public accountants of
national standing selected by the Company's Board of Directors.
(C) The Company will furnish each Investor, as soon as practicable
after the end of the first, second and third quarterly accounting periods in
each fiscal year of the Company, and in any event within forty-five (45) days
thereafter, a consolidated balance sheet of the Company as of the end of each
such quarterly period, and a consolidated statement of income and a consolidated
statement of cash flows of the Company for such period and for the current
fiscal year to date, prepared in accordance with generally accepted accounting
principles, with the exception that no notes need be attached to such statements
and year-end audit adjustments may not have been made.
(D) So long as an Investor (with its affiliates) shall own not less
than two hundred fifty thousand (250,000) shares of Registrable Securities (as
adjusted for stock splits and combinations) (a "Major Investor"), the Company
will furnish each such Major Investor at least thirty (30) days prior to the
beginning of each fiscal year an annual budget and operating plans for such
fiscal year (and as soon as available, any subsequent revisions thereto).
(E) For a period of three (3) years following the Company's Initial
Public Offering, the Company shall furnish to each Major Investor copies of the
Company's Form 10-Ks, Form 10-Qs, Form 8-Ks and Annual Reports to shareholders
promptly after such documents are filed with the SEC.
3.2 INSPECTION RIGHTS. Each Major Investor shall have the right to visit
and inspect any of the properties of the Company or any of its subsidiaries, and
to discuss the affairs, finances and accounts of the Company or any of its
subsidiaries with its officers, and to review such information as is reasonably
requested all at such reasonable times and as often as may be
14.
reasonably requested; provided, however, that the Company shall not be obligated
under this Section 3.2 with respect to a competitor of the Company or with
respect to information which the Board of Directors determines in good faith is
confidential and should not, therefore, be disclosed.
3.3 CONFIDENTIALITY OF RECORDS. Each Investor agrees to use, and to use
its best efforts to insure that its authorized representatives use, the same
degree of care as such Investor uses to protect its own confidential information
to keep confidential any information furnished to it which the Company
identifies as being confidential or proprietary (so long as such information is
not in the public domain), except that such Investor may disclose such
proprietary or confidential information to any partner, subsidiary or parent of
such Investor for the purpose of evaluating its investment in the Company as
long as such partner, subsidiary or parent is advised of and agrees to be bound
by the confidentiality provisions of this Section 3.3.
3.4 RESERVATION OF COMMON STOCK. The Company will at all times reserve
and keep available, solely for issuance and delivery upon the conversion of its
Preferred Stock, all Common Stock issuable from time to time upon such
conversion.
3.5 EMPLOYEE LOCK-UP AND STOCK VESTING. Unless otherwise approved by the
Board of Directors, all stock options and other stock equivalents issued after
the date of this Agreement to employees, directors, consultants and other
service providers shall be subject to a "market stand-off" requirement
substantially similar to that set forth in Section 2.13 hereof and shall be
subject to vesting as follows: (i) twenty-five percent (25%) of such stock
shall vest at the end of the first year following the earlier of the date of
issuance or such person's services commencement date with the company, and (ii)
seventy-five percent (75%) of such stock shall vest on a monthly basis over the
remaining three (3) years. With respect to any shares of stock purchased by any
such person, the Company's repurchase option shall provide that upon such
person's termination of employment or service with the Company, with or without
cause, the Company or its assignee (to the extent permissible under applicable
securities laws and other laws) shall have the option to purchase at cost any
unvested shares of stock held by such person.
3.6 PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT. The Company shall
require all employees and consultants to execute and deliver a Proprietary
Information and Inventions Agreement in a form acceptable to the Investors and
the Company.
3.7 DIRECTORS' LIABILITY AND INDEMNIFICATION. The Company's Articles of
Incorporation and Bylaws shall provide (i) for elimination of the liability of
directors to the maximum extent permitted by law and (ii) for indemnification of
directors for acts on behalf of the Company to the maximum extent permitted by
law.
3.8 BOARD OBSERVATION RIGHTS. So long as Intel Corporation ("Intel") and
its affiliates continue to own at least Two Hundred Fifty Thousand (250,000)
shares of the Company's Series B Preferred Stock, until the effectiveness of the
registration statement covering the Company's Initial Public Offering, the
Company shall allow one representative designated by Intel (which representative
shall be approved by the Company's Board of Directors, such approval not to be
unreasonably withheld) to attend all meetings of the Company's Board of
Directors in a nonvoting capacity, and, in connection therewith, the
15.
Company shall give such representative copies of all notices, minutes, consents
and other materials, financial or otherwise (including annual budgets and
operating plans), which the Company provides to its Board of Directors;
provided, however, that at the request of the Board of Directors, the Intel
representative will leave the meeting (or not be provided with materials) if and
when (and only with respect to the limited period or materials that) the Board
of Directors believes in good faith that sensitive information will be discussed
or disclosed that should not be shared with Intel employees.
3.9 NONDISCLOSURE AGREEMENT.
(A) The terms and conditions of the investment in the Company by Intel
Corporation ("Intel"), including pursuant to this Agreement, the Series D Stock
Purchase Agreement (the "Purchase Agreement") the Voting Agreement and the Right
of First Refusal and Co-Sale Agreement (the "Co-Sale Agreement") (collectively,
the "Financing Terms"), shall be considered confidential information and shall
not be disclosed by any party hereto to any third party except in accordance
with the provisions set forth below.
(B) Within sixty (60) days of the Closing, the Company may issue a
press release disclosing that Intel has invested in the Company; provided that
the release does not disclose any of the Financing Terms and the final form of
the press release is approved in advance in writing by Intel. No other
announcement regarding Intel's investment in the Company in a press release,
conference, advertisement, announcement, professional or trade publication, mass
marketing materials or otherwise to the general public may be made without
Intel's prior written consent.
(C) Notwithstanding the foregoing, (i) any party may disclose any of
the Financing Terms to its current or bona fide prospective investors,
employees, investment bankers, lenders, accountants and attorneys, in each case
only where such persons or entities are under appropriate nondisclosure
obligations; (ii) any party may disclose (other than in a press release or other
public announcement described in subsection (b)) solely the fact that Intel is
an Investor in the Company to any third parties without the requirement for the
consent of any other party or nondisclosure obligations; and (iii) Intel may
disclose its investment in the Company and the Financing Terms to third parties
or to the public at its sole discretion and, if it does so, the other parties
hereto shall have the right to disclose to third parties any such information
disclosed in a press release or other public announcement by Intel.
(D) In the event that any party is requested or becomes legally
compelled (including without limitation, pursuant to securities laws
regulations) to disclose the Financing Terms, in contravention of the provisions
of this Section 3.9, such party (the "Disclosing Party") shall provide Intel
with prompt written notice of that fact so that Intel may seek (with the
cooperation and reasonable efforts of the other parties) a protective order,
confidential treatment or other appropriate remedy. In such event, the
Disclosing Party shall furnish only that portion of the Financing Terms which is
legally required and shall exercise reasonable efforts to obtain reliable
assurance that confidential treatment will be accorded such information to the
extent reasonably requested by Intel.
16.
(E) The provisions of this Section 3.9 shall be in addition to, and
not in substitution for, the provisions of any separate nondisclosure agreement
executed by any of the parties hereto with respect to the transactions
contemplated hereby. Additional disclosures and exchange of confidential
information between the Company and Intel (including without limitation, any
exchanges of information with any Intel board observer) shall be governed by the
terms of the Corporate Non-Disclosure Agreement No. 91232 dated February 18,
1998, executed by the Company and Intel, and any Confidential Information
Transmittal Records provided in connection therewith.
(F) All notices required under this section shall be made pursuant to
Section 5.8 of this Agreement.
3.10 QUALIFIED SMALL BUSINESS.
(A) During the period of time (the "Investor's Holding Period") any
shares of Preferred Stock are held by an Investor or a transferee in whose hands
such shares of Preferred Stock are eligible for classification as Qualified
Small Business Stock (a "Qualified Transferee"), the Company will use its
commercially reasonable best efforts to satisfy the "active business
requirement" of section 1202(e) of the Code. Without limiting the foregoing,
during the Investor's Holding Period the Company will use its commercially
reasonable best efforts to use at least 80 percent (by value) of its assets in
one or more "qualified trades or businesses," defined in section 1202(e)(3) of
the Code as any trade or business other than:
(I) any trade or business involving the performance of services
in the fields of health, law, engineering, architecture, accounting, actuarial
science, performing arts, consulting, athletics, financial services, brokerage
services or any other trade or business the principal asset of which is the
reputation or skill of one or more employees;
(II) any banking, insurance, financing, leasing, investing or
similar business;
(III) any farming business (including the business of raising or
harvesting trees);
(IV) any business involving the production or extraction of
products of a character with respect to which a deduction is allowable under
section 613 or 613A of the Code (relating to depletion); or
(V) any business of operating a hotel, motel, restaurant or
similar business.
(B) During the Investor's Holding Period, the Company will use its
commercially reasonable best efforts not to permit more than 10 percent of the
value of the Company's assets (in excess of liabilities) to consist of stock or
securities of any other corporation which is not a subsidiary of the Company
(other than assets described in section 1202(e)(6) of the Code, relating to
working capital). For purposes of this Section 3.10 (b), a subsidiary is a
corporation in which the Company owns more than 50 percent of the combined
17.
voting power of all classes of voting stock and more than 50 percent in value of
all outstanding stock of such corporation.
(C) During the Investor's Holding Period, the Company will use its
commercially reasonable best efforts not to permit more than 10 percent of the
total value of the Company's assets to consist of real property not used in the
active conduct of a qualified trade or business. For purposes of this Section
3.10 (c), the ownership of, dealing in or renting of real property is not
treated as the active conduct of a qualified trade or business.
(D) During the Investor's Holding Period, the Company shall submit all
such reports to its shareholders and to the Internal Revenue Service ("IRS") as
may be prescribed by the IRS. In addition, within ten (10) days after any
Investor has delivered to the Company a written request therefor, the Company
shall deliver to such Investor a certificate, executed by the Company's Chief
Executive Officer or Chief Financial Officer and in a form satisfactory to the
Investor, informing the Investor whether such Investor's interest in the Company
constitutes "qualified small business stock" as defined in Section 1202(c) of
the Code; provided, however, that the Company shall not be required to provide
more than four (4) such certificates to any Investor in any 12 month period. The
Company's obligation to furnish such certificate pursuant to this Section 3.10
(d) shall continue notwithstanding the fact that a class of the Company's stock
may be traded on an established securities market.
(E) During the Investor's Holding Period, the Company shall notify
each Investor (i) at least 10 business days prior to taking or omitting to take
any action which action or omission could reasonably be expected to cause the
Preferred Stock to cease to be eligible for classification as Qualified Small
Business Stock and (ii) of any other action or occurrence that constitutes a
breach of the Company's covenants set forth herein, as soon as practicable after
the Company becomes aware that such other action or occurrence has occurred or
is proposed to occur. The Company acknowledges that, in such event, an Investor
or Qualified Transferee may wish to sell such Investor's or Qualified
Transferee's Preferred Stock promptly and, in such event, the Company will use
its commercially reasonable best efforts, subject to compliance with applicable
securities laws, to facilitate such a sale of Preferred Stock by any Investor or
Qualified Transferee.
(F) For the one-year period following the date of issuance of the
Series D Preferred shares, the Company shall not redeem or otherwise repurchase
shares of its stock having an aggregate value (at the time of purchase) which,
when combined with the aggregate value of shares redeemed or repurchased during
the period commencing on the date that is one year prior to the date hereof
("the Redemption Measurement Date"), other than Excluded Repurchases, would
exceed five percent of the value of all of the Company's outstanding stock on
the Redemption Measurement Date.
(G) During the Investor's Holding Period, and to the extent that each
of the following limits do not prevent the Company from relocating its assets or
hiring employees outside California to improve the profitability or productivity
of the Company, the Company will use its commercially reasonable best efforts:
18.
(I) to use at least 80 percent (by value) of its assets in the
active conduct of one or more qualified trades or businesses within California,
determined in accordance with section 18152.5(e) of the Revenue & Taxation Code;
and
(II) to have no more than 20 percent of the Company's total
payroll expense be attributable to employment located outside of California.
(H) During the Investor's Holding Period, the Company shall submit
all such reports to its shareholders and to the California Franchise Tax Board
("FTB") as may be prescribed by the FTB, including filing FTB Form 3565, Small
Business Stock Questionnaire, with its California franchise or income tax return
for the current income year and providing a copy of the same to the Investors.
(I) During the Investor's Holding Period, the Company shall notify
each Investor at least 15 days prior to taking or omitting to take any action
which action or omission could reasonably be expected to cause the Shares to
cease to be eligible for classification as California Qualified Small Business
Stock, in which case the provisions of the last sentence of Subsection (e) of
this Section 3.10 shall apply.
(J) All covenants of the Company contained in this Section 3.10 shall
survive and remain in effect following the completion of the Initial Public
Offering; provided, however, that, following the Initial Public Offering, and
subject to the Company's continuing obligations under Sections 3.10(d) and (e)
above, the Company shall not be prohibited from taking or omitting to take any
action which would cause the capital stock of the Company to cease to be
eligible for classification as Qualified Small Business Stock if the Board of
Directors of the Company expressly determines in good faith that such action or
omission is necessary to protect the best interests of the Company and its
shareholders.
3.11 LEGENDS. The Company shall within sixty (60) days after the Closing
Date cause each of the shares of the Company's Common and Preferred Stock to
bear the legends required by the Purchase Agreement, the Voting Agreement and
the Right of First Refusal and Co-Sale Agreement.
3.12 ISSUANCE OF ADDITIONAL SHARES. The Company will not issue any
authorized but unissued shares of Series D Preferred Stock without the consent
of the Company's Board of Directors, which consent shall include the director
nominee of the Investors affiliated with Technology Crossover Management II,
L.L.C.
3.13 DIRECTED SHARE PROGRAM. In the event of an Initial Public Offering,
the Company shall request that the managing underwriters of the Initial Public
Offering establish a directed share program (the "Program") in connection with
the Initial Public Offering. The Program shall consist of at least that number
of shares of capital stock determined by dividing $2,000,000 by the Initial
Public Offering price (the "Program Shares"). The Company shall cause the
managing underwriters to give priority to the holders of the Company's Series D
Preferred Stock (the "Series D Holders") with respect to the Program Shares in
allocating the shares available for purchase in the Program. The Series D
Holders, pro rata in accordance with their relative holdings of Series D
Preferred Stock, shall have the option, but not the obligation, to
19.
purchase all or any portion of the Program Shares at the Initial Public Offering
price. Series D Holders exercising the right to purchase their full pro rata
amount of the Program Shares shall have the further right to purchase any non-
fully exercising Series D Holder's Program Shares. The Program Shares shall be
subject to the 180 day lock-up pursuant to Section 2.13 hereof.
3.14 TERMINATION OF COVENANTS. With the exception of Section 3.10 hereof,
all covenants of the Company contained in Section 3 of this Agreement shall
expire and terminate as to each Investor upon the effectiveness of the
registration statement pertaining to the Initial Public Offering; provided,
however, that the covenants set forth in Section 3.1(e) will expire three (3)
years after the closing of the Company's Initial Public Offering.
SECTION 4. RIGHTS OF FIRST REFUSAL.
4.1 SUBSEQUENT OFFERINGS. Each Investor shall have a right of first
refusal to purchase its Pro Rata Share of all Equity Securities, as defined
below, that the Company may, from time to time, propose to sell and issue after
the date of this Agreement, other than the Equity Securities excluded by Section
4.7 hereof. Each Investor's "Pro Rata Share" is equal to the ratio of (A) the
number of shares of the Company's Common Stock (including all shares of Common
Stock issued or issuable upon conversion of the Shares or upon the exercise of
any outstanding warrants or options) which such Investor is deemed to be a
holder immediately prior to the issuance of such Equity Securities to (B) the
total number of shares of the Company's outstanding Common Stock (including all
shares of Common Stock issued or issuable upon conversion of the Shares or upon
the exercise of any outstanding warrants or options) immediately prior to the
issuance of the Equity Securities. The term "Equity Securities" shall mean (i)
any Common Stock, Preferred Stock or other security of the Company, (ii) any
security convertible, with or without consideration, into any Common Stock,
Preferred Stock or other security (including any option to purchase such a
convertible security), (iii) any security carrying any warrant or right to
subscribe to or purchase any Common Stock, Preferred Stock or other security or
(iv) any such warrant or right.
4.2 EXERCISE OF RIGHTS. If the Company proposes to issue any Equity
Securities, it shall give each Investor written notice of its intention,
describing the Equity Securities, the price and the terms and conditions upon
which the Company proposes to issue the same. Each Investor shall have fifteen
(15) days from the giving of such notice to agree to purchase its Pro Rata Share
of the Equity Securities for the price and upon the terms and conditions
specified in the notice by giving written notice to the Company and stating
therein the quantity of Equity Securities to be purchased. Notwithstanding the
foregoing, the Company shall not be required to offer or sell such Equity
Securities to any Investor who would cause the Company to be in violation of
applicable federal securities laws by virtue of such offer or sale. If the price
of the Equity Securities is not in cash, then the Board of Directors shall
determine the fair market value cash equivalent of such Equity Securities for
purposes of this notice.
4.3 RIGHTS OF OVERSUBSCRIPTION. If not all of the Investors elect to
purchase their Pro Rata Share of the Equity Securities (unless a material
portion of the Equity Securities are to be issued to an investor who (together
with its affiliates) has not previously invested in the Company and a majority
in interest of the Investors elect not to purchase their Pro Rata Shares of such
Equity Securities), in which case the Right of Oversubscription set forth herein
shall not
20.
apply), then the Company shall promptly notify in writing the Investors who do
so elect and shall offer such Investors the right to acquire such unsubscribed
shares (the "Unsubscribed Shares"). Each such Investor shall have five (5) days
after receipt of such notice to notify the Company of its election to purchase
all or a portion thereof of the Unsubscribed Shares. However, if more than one
such Investor elects to purchase the Unsubscribed Shares, each such Investor
shall be entitled to purchase only the portion of such Unsubscribed Shares equal
to (A) the number of shares of the Company's Common Stock (including all shares
of Common Stock issued or issuable upon conversion of the Shares) held by such
Investor immediately prior to the issuance of the Equity Securities divided by
(B) the total number of shares of the Company's Common Stock (including all
shares of Common Stock issued or issuable upon conversion of the Shares) held by
all such Investors who elect to purchase the Unsubscribed Shares immediately
prior to the issuance of the Equity Securities.
4.4 ISSUANCE OF EQUITY SECURITIES TO OTHER PERSONS. If the Investors fail
to exercise in full the rights of first refusal, the Company shall have ninety
(90) days thereafter to sell the Equity Securities in respect of which the
Investor's rights were not exercised, at a price and upon general terms and
conditions materially no more favorable to the purchasers thereof than specified
in the Company's notice to the Investors pursuant to Section 4.2 hereof. If the
Company has not sold such Equity Securities within ninety (90) days of the
notice provided pursuant to Section 4.2, the Company shall not thereafter issue
or sell any Equity Securities, without first offering such securities to the
Investors in the manner provided above.
4.5 TERMINATION OF RIGHTS OF FIRST REFUSAL. The rights of first refusal
and over subscription established by this Section 4 shall not apply to the
Company's Initial Public Offering, and shall terminate upon the effective date
of the registration statement pertaining to the Initial Public Offering.
4.6 TRANSFER OF RIGHTS OF FIRST REFUSAL. The rights of first refusal of
each Investor under this Section 4 may be transferred to the same parties,
subject to the same restrictions as any transfer of registration rights pursuant
to Section 2.10.
4.7 EXCLUDED SECURITIES. The rights of first refusal and over subscription
established by this Section 4 shall have no application to any of the following
Equity Securities:
(A) Common Stock (and/or options, warrants or other Common Stock
purchase rights issued pursuant to such options, warrants or other rights) and
Series A Preferred Stock issued or to be issued to employees, officers or
directors of, or consultants or advisors to the Company or in connection with
services rendered to the Company or any subsidiary, pursuant to stock purchase
or stock option plans or other arrangements that are approved by the Board of
Directors;
(B) stock issued pursuant to any rights or agreements outstanding as
of the date of this Agreement, options and warrants outstanding as of the date
of this Agreement, and stock issued pursuant to any such rights or agreements
granted after the date of this Agreement, provided that the rights of first
refusal established by this Section 4 applied with respect to the initial sale
or grant by the Company of such rights or agreements;
21.
(C) any Equity Securities issued for consideration other than cash
pursuant to a merger, consolidation, acquisition or similar business
combination;
(D) shares of Common Stock issued in connection with any stock split,
stock dividend or recapitalization by the Company;
(E) shares of Common Stock issued upon conversion of the Shares;
(F) any Equity Securities issued pursuant to any equipment leasing
arrangement, or debt financing from a bank or similar financial institution;
(G) any Equity Securities that are issued by the Company pursuant to
a registration statement filed under the Securities Act; and
(H) shares of the Company's Common Stock or Preferred Stock issued in
connection with strategic transactions involving the Company and other entities,
including (A) joint ventures, manufacturing, marketing or distribution
arrangements or (B) technology transfer or development arrangements; provided
that such strategic transactions and the issuance of shares therein, has been
approved by the Company's Board of Directors.
SECTION 5. MISCELLANEOUS.
5.1 GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of California as applied to agreements among
California residents entered into and to be performed entirely within
California.
5.2 SURVIVAL. The representations, warranties, covenants, and agreements
made herein shall survive any investigation made by any Holder and the closing
of the transactions contemplated hereby. All statements as to factual matters
contained in any certificate or other instrument delivered by or on behalf of
the Company pursuant hereto in connection with the transactions contemplated
hereby shall be deemed to be representations and warranties by the Company
hereunder solely as of the date of such certificate or instrument.
5.3 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors, and administrators of the parties hereto
and shall inure to the benefit of and be enforceable by each person who shall be
a holder of Registrable Securities from time to time; provided, however, that
prior to the receipt by the Company of adequate written notice of the transfer
of any Registrable Securities specifying the full name and address of the
transferee, the Company may deem and treat the person listed as the holder of
such shares in its records as the absolute owner and holder of such shares for
all purposes, including the payment of dividends or any redemption price.
5.4 ENTIRE AGREEMENT. This Agreement, the Exhibits and Schedules hereto,
the Purchase Agreement and the other documents delivered pursuant thereto
constitute 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 in any manner by any representations, warranties, covenants and agreements
except as specifically set forth herein and therein.
22.
5.5 SEVERABILITY. In case any provision of the Agreement shall be
invalid, illegal, or unenforceable, the validity, legality, and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
5.6 AMENDMENT AND WAIVER.
(A) Except as otherwise expressly provided, this Agreement may be
amended or modified only upon the written consent of: (i) the Company; (ii) the
Holders of at least two-thirds of the Registrable Securities then outstanding,
voting as a separate class; and (iii) if such amendment materially adversely
affects solely the rights, preferences, and privileges of the Series D Preferred
Stock, the written consent of the holders of at least fifty percent (50%) of the
Series D Preferred Stock then outstanding, voting together as a separate class
shall also be required.
(B) Except as otherwise expressly provided, the obligations of the
Company and the rights of the Holders under this Agreement may be waived only
with the written consent of: (1) the Holders of at least a two-thirds of the
Registrable Securities; and, (2) if such waiver materially adversely affects
solely the rights, preferences or privileges of the Series D Preferred Stock the
written consent of the holders of at least fifty percent (50%) of the Series D
Preferred Stock then outstanding shall also be required.
(C) Sections 3.8 and 3.9 of this Agreement may not be amended or
modified, and no waiver with respect thereto shall be effective, without the
written consent of Intel.
(D) Section 3.10, Section 3.12, Section 3.13 and Section 3.14 (as
relates to Section 3.10, Section 3.12 and Section 3.13) of this Agreement may
not be amended or modified, and no waiver with respect thereto shall be
effective, without the written consent of Technology Crossover Management II,
L.L.C.
5.7 DELAYS OR OMISSIONS. It is agreed that no delay or omission to
exercise any right, power, or remedy accruing to any Holder, upon any breach,
default or noncompliance of the Company under this Agreement shall impair any
such right, power, or remedy, nor shall it be construed to be a waiver of any
such breach, default or noncompliance, or any acquiescence therein, or of any
similar breach, default or noncompliance thereafter occurring. It is further
agreed that any waiver, permit, consent, or approval of any kind or character on
any Holder's part of any breach, default or noncompliance under the Agreement or
any waiver on such Holder's part of any provisions or conditions of this
Agreement must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement, by law, or otherwise afforded to Holders, shall be cumulative and not
alternative.
5.8 NOTICES. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (i) upon personal delivery to the
party to be notified, (ii) when sent by confirmed telex or facsimile if sent
during normal business hours of the recipient; if not, then on the next business
day, (iii) five (5) days after having been sent by registered or certified mail,
return receipt requested, postage prepaid, or (iv) one (1) day after deposit
with a nationally recognized overnight courier, specifying next day delivery,
with written verification of receipt. All communications shall be sent to the
party to be notified at the address or addresses as set
23.
forth on the signature pages hereof or Exhibit A hereto or at such other address
or addresses as such party may designate by ten (10) days advance written notice
to the other parties hereto.
5.9 ATTORNEYS' FEES. In the event that any dispute among the parties to
this Agreement should result in litigation, the prevailing party in such dispute
shall be entitled to recover from the losing party all fees, costs and expenses
of enforcing any right of such prevailing party under or with respect to this
Agreement, including without limitation, such reasonable fees and expenses of
attorneys and accountants, which shall include, without limitation, all fees,
costs and expenses of appeals.
5.10 TITLES AND SUBTITLES. The titles of the sections and subsections of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
5.11 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
5.12 AGGREGATION OF HOLDINGS. All shares of Preferred Stock (or Common
Stock issuable or issued upon conversion thereof) held or acquired by affiliated
entities or persons shall be aggregated together for purposes of determining the
availability of any rights under this Agreement.
24.
IN WITNESS WHEREOF, the parties hereto have executed this INVESTORS' RIGHTS
AGREEMENT as of the date set forth in the first paragraph hereof.
COMPANY:
COPPER MOUNTAIN NETWORKS, INC.
By: /s/ XXXXXXX XXXXXXX
_________________________________________
Xxxxxxx Xxxxxxx
President and Chief Executive Officer
INVESTORS:
TCV II, V.O.F.
a Netherlands Antilles General Partnership
By: Technology Crossover Management II, L.L.C.,
Its: Investment General Partner
By: /s/ XXXXXX X. XXXXXX
_________________________________________
Xxxxxx X. Xxxxxx
Chief Financial Officer
TECHNOLOGY CROSSOVER VENTURES II, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II, L.L.C.
Its: General Partner
By: /s/ XXXXXX X. XXXXXX
_________________________________________
Xxxxxx X. Xxxxxx
Chief Financial Officer
25.
TCV II (Q), L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II, L.L.C.
Its: General Partner
By: /s/ XXXXXX X. XXXXXX
_________________________________________
Xxxxxx X. Xxxxxx
Chief Financial Officer
TCV II STRATEGIC PARTNERS, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II, L.L.C.
Its: General Partner
By: /s/ XXXXXX X. XXXXXX
_________________________________________
Xxxxxx X. Xxxxxx
Chief Financial Officer
TECHNOLOGY CROSSOVER VENTURES II, C.V.
a Netherlands Antilles Limited Partnership
By: Technology Crossover Management II, L.L.C.
Its: Investment General Partner
By: /s/ XXXXXX X. XXXXXX
_________________________________________
Xxxxxx X. Xxxxxx
Chief Financial Officer
JULIET CHALLENGER, INC.
By: /s/ XXXXXX X. XxXXXXXXX
_________________________________________
Xxxxxx X. XxXxxxxxx
Vice President
26.
XXXXX X. XXXXXXX, XXXXX XXXXXXXX XXXXXXX AND
X.X. XXXXXXXXXXXX, TRUSTEES OF THE XXXXX X.
XXXXXXX TRUST U/A DATED NOV. 18, 1985
By: /s/ X.X. XXXXXXXXXXXX
_________________________________________
X.X. Xxxxxxxxxxxx, Trustee
X.X. XXXXXXXXXXXX AND XXXXXX X. XXXXXX,
TRUSTEES, U/A/T DATED 12/30/76 FOR CHILDREN
OF JULIET XXX XXXXXXX XXXXXXX
By: /s/ X.X. XXXXXXXXXXXX
__________________________________________
X.X. Xxxxxxxxxxxx, Trustee
By: /s/ XXXXXX X. XXXXXX
__________________________________________
Xxxxxx X. Xxxxxx, Trustee
X.X. XXXXXXXXXXXX AND XXXXXX X. XXXXXX,
TRUSTEES U/A/T DATED 12/30/76 FOR CHILDREN
OF XXXXX XXX XXXXXXX, XX.
By: /s/ X.X. XXXXXXXXXXXX
_________________________________________
X.X. Xxxxxxxxxxxx, Trustee
By: /s/ XXXXXX X. XXXXXX
_________________________________________
Xxxxxx X. Xxxxxx, Trustee
X.X. XXXXXXXXXXXX AND XXXXXX X. XXXXXX,
TRUSTEES U/A/T DATED 12/30/76 FOR CHILDREN
OF XXXXXXX XXXXXXX XXXXXXX
By: /s/ X.X. XXXXXXXXXXXX
_________________________________________
X.X. Xxxxxxxxxxxx, Trustee
By: /s/ XXXXXX X. XXXXXX
_________________________________________
Xxxxxx X. Xxxxxx, Trustee
27.
X.X. XXXXXXXXXXXX AND XXXXXX X. XXXXXX,
TRUSTEES U/A/T DATED 12/30/76 FOR CHILDREN
OF XXXXXX XXXXXXX XXXXXX
By: /s/ X.X. XXXXXXXXXXXX
_________________________________________
X.X. Xxxxxxxxxxxx, Trustee
By: /s/ XXXXXX X. XXXXXX
_________________________________________
Xxxxxx X. Xxxxxx, Trustee
THE XXXXXXX FOUNDATION
By: /s/ XXXXXX X. XXXXX
_________________________________________
Xxxxxx X. Xxxxx
President
XXXXX X. XXXXXXX FOUNDATION
By: /s/ XXXXXX X. XXXXX
_________________________________________
Xxxxxx X. Xxxxx
President
CHARTER GROWTH CAPITAL, L.P.
By: /s/ XXXXX X. XxXXXXXXX
_________________________________________
Xxxxx X. XxXxxxxxx
CGC INVESTORS, L.P.
By: /s/ XXXXX X. XxXXXXXXX
_________________________________________
Xxxxx X. XxXxxxxxx
28.
CHARTER GROWTH CAPITAL CO-INVESTMENT FUND, L.P.
By: /s/ XXXXX X. XxXXXXXXX
_________________________________________
Xxxxx X. XxXxxxxxx
RHO MANAGEMENT TRUST I
By: RHO Management Company, Inc.
As Investment Advisor
By: /s/ XXXXXX XXXX
_________________________________________
Name: Xxxxxx Xxxx
_______________________________________
Title: President
______________________________________
XXXXXX XXXXXXX VENTURE PARTNERS III, L.P.
By: /s/ XXXXXX XXXXXX
_________________________________________
Xxxxxx Xxxxxx
XXXXXX XXXXXXX VENTURE INVESTORS III, L.P.
By: /s/ XXXXXX XXXXXX
_________________________________________
Xxxxxx Xxxxxx
THE XXXXXX XXXXXXX VENTURE PARTNERS
ENTREPRENEUR FUND, L.P.
By: /s/ XXXXXX XXXXXX
_________________________________________
Xxxxxx Xxxxxx
UMBTRU
By: /s/ XXXX XxXXXXX
_________________________________________
Xxxx XxXxxxx
29.
BAYVIEW INVESTORS V, L.P.
By: /s/ XXXXX XXXXX
_________________________________________
Xxxxx Xxxxx
CFO Xxxxxxxxx Xxxxxxxx
LINCOLN INVESTORS, L.P.
By: CHM Capital Management Corp.
Its General Partner
By: /s/ XXXXX X. XXXXXXXX
_________________________________________
Xxxxx X. Xxxxxxxx
Its President
ANDREESSEN 1996 LIVING TRUST
By: /s/ XXXXXXX XXXX
_________________________________________
Xxxxxxx Xxxx, Trustee
ULTIMA PARTNERS LIMITED
By: /s/ XXXXXX X. XXXXXXX
_________________________________________
Xxxxxx X. Xxxxxxx
XXXXXXX X. XXXX & XXXXX X. XXXX, TRUSTEES
FBO THE XXXX FAMILY REV TRUST
UTA DATED 2-21-97
By: /s/ XXXXXXX X. XXXX
_________________________________________
Xxxxxxx X. Xxxx, Trustee
30.
CANAAN EQUITY, L.P.
By: Canaan S.B.I.C. Partners II LLC
Its General Partner
By: /s/ XXXX X. XXXXX
_________________________________________
Xxxx X. Xxxxx
Member/Manager
INTERWEST PARTNERS VI, LP
By: InterWest Management Partners VI, LLC
Its General Partner
By: /s/ XXXXXX X. XXXXXX
_________________________________________
Xxxxxx X. Xxxxxx
General Partner
INTERWEST INVESTORS VI, LP
By: InterWest Management Partners VI, LLC
Its General Partner
By: /s/ XXXXXX X. XXXXXX
_________________________________________
Xxxxxx X. Xxxxxx
General Partner
GREYLOCK EQUITY LIMITED PARTNERSHIP
By: Greylock Equity GP Limited
Its General Partner
By: /s/ XXXXX XXXXX
_________________________________________
Xxxxx Xxxxx
A General Partner
31.
XXXXXX XXXX VENTURES
a California Limited Partnership
By: /s/ TRENCH XXXX
_________________________________________
Xxxxx Xxxx
General Partner
TOW PARTNERS
a California Limited Partnership
By: /s/ XXXX X. WYTH
_________________________________________
Xxxx X. Wyth
General Partner
ANVEST, L.P.
By: /s/ XXXXX X. XXXXXXXX
_________________________________________
Xxxxx X. Xxxxxxxx
General Partner
/s/ G. XXXXXXX XXXXX, XX.
____________________________________________
G. Xxxxxxx Xxxxx, Xx.
/s/ XXXXX X. XXXXXXXX
____________________________________________
Xxxxx X. Xxxxxxxx
/s/ XXXXXXX X. XXXXXXX, XX.
____________________________________________
Xxxxxxx X. Xxxxxxx, Xx.,
Trustee of the Younger Living Trust
/s/ X. XXXXXX
____________________________________________
Xxxxx Fargo Bank, Trustee
SHV M/P/T FBO Xxxxxxx X. Xxxxxxx, Xx.
/s/ XXXXX XXXX
____________________________________________
Xxxxx Xxxx
32.
/s/ X. XXXXXX
____________________________________________
Xxxxx Fargo Bank, Trustee
SHV M/P/T FBO Xxxxx Xxxx
/s/ XXXXXX X. XXXXXXX
____________________________________________
Xxxxxx X. Xxxxxxx
/s/ X. XXXXXX
____________________________________________
Xxxxx Fargo Bank, Trustee
SHV M/P/T FBO Xxxxxxx X. Xxxxxxx, Acct. No. 506192
MATRIX PARTNERS IV, L.P.
By: Matrix IV Management Co., L.P.
Its General Partner
By: /s/ XXXX X. XXXXX
_________________________________________
Xxxx X. Xxxxx
General Partner
MATRIX IV ENTREPRENEURS FUND, L.P.
By: Matrix IV Management Co., L.P.
Its General Partner
By: /s/ XXXX X. XXXXX
_________________________________________
Xxxx X. Xxxxx
General Partner
GC&H INVESTMENTS
By: /s/ XXXX X. XXXXXXX
_________________________________________
Xxxx X. Xxxxxxx
Executive Partner
33.
WS INVESTMENT COMPANY 97B
By: /s/ XXXXXX XXXXXXX
--------------------------------------
Xxxxxx Xxxxxxx
COMDISCO, INC.
By: /s/ XXX XXXX
--------------------------------------
Xxx Xxxx
President of Comdisco Ventures Division
INTEL CORPORATION
By: /s/ XXXXXX XXXXXXX
--------------------------------------
Name: Xxxxxx Xxxxxxx
------------------------------------
Title: Vice President & Treasurer
-----------------------------------
/s/ XXXXXX X. XXXXXX
-----------------------------------------
Xxxxxx X. Xxxxxx
/s/ XXXXX XXXXXXXX
-----------------------------------------
Xxxxx Xxxxxxxx
/s/ XXXXX XXXXXX
-----------------------------------------
Xxxxx Xxxxxx
/s/ XXXXX XXXXXXXXX
-----------------------------------------
Xxxxx Xxxxxxxxx
Xxxxxxxxx Public Relations
34.
/s/ XXXXXXX XXXXXXX
____________________________________________
Xxxxxxx Xxxxxxx
KOREA TECHNOLOGY BANKING CORPORATION
By: /s/ JUNG-XXXX XXXX
_________________________________________
Jung-Xxxx Xxxx
Chief Officer/International Business
/s/ XXXXX XXXXXX
____________________________________________
Xxxxx Xxxxxx
/s/ XXXXX XXXXXX
____________________________________________
Xxxxx Xxxxxx
/s/ XXXXX XXXXXX
____________________________________________
Xxxxx Xxxxxx
/s/ XXXXXXX XXXXXXX
____________________________________________
Xxxxxxx Xxxxxxx
/s/ XXXX XXXXXX
____________________________________________
Xxxx Xxxxxx
/s/ XXXXXXX XXXXX
____________________________________________
Xxxxxxx Xxxxx
XXXXXXXX HOLDING, L.P.
By: /s/ XXXXX XXXXX
____________________________________________
Xxxxx Xxxxx
/s/ XXXXX X. XXXXXXXX
____________________________________________
Xxxxx X. Xxxxxxxx, Trustee
The Xxxxxxxx Living Trust
35.
EXHIBITS
Exhibit A -- Schedule of Investors
EXHIBIT A
SCHEDULE OF INVESTORS
NAME AND ADDRESS
----------------
TCV II, V.O.F. InterWest Investors VI, L.P.
00 Xxxx Xxxxxx, Xxxxx 000 0000 Xxxx Xxxx Xxxx
Xxxxxxxx, Xxx Xxxxxx 00000 Xxxxxxxx 0, Xxxxx 000
(000) 000-0000 Xxxxx Xxxx, Xxxxxxxxxx 00000
000 Xxxx Xxxxxx, Xxx. 000
Xxxx Xxxx, XX 00000
(000) 000-0000
Technology Crossover Ventures II, L.P. InterWest Partners VI, L.P.
00 Xxxx Xxxxxx, Xxxxx 000 0000 Xxxx Xxxx Xxxx
Xxxxxxxx, Xxx Xxxxxx 00000 Xxxxxxxx 0, Xxxxx 000
(000) 000-0000 Xxxxx Xxxx, Xxxxxxxxxx 00000
000 Xxxx Xxxxxx, Xxx. 000
Xxxx Xxxx, XX 00000
(000) 000-0000
TCV II (Q), L.P. Canaan Equity, L.P.
00 Xxxx Xxxxxx, Xxxxx 000 0000 Xxxx Xxxx Xxxx, Xxx. 000
Xxxxxxxx, Xxx Xxxxxx 00000 Xxxxx Xxxx, XX 00000
(973) 467-5320
000 Xxxx Xxxxxx, Xxx. 000
Xxxx Xxxx, XX 00000
(000) 000-0000
TCV II Strategic Partners, L.P. Matrix Partners IV, L.P.
00 Xxxx Xxxxxx, Xxxxx 000 0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxx Xxxxxx 00000 Xxxxx Xxxx, XX 00000
(000) 000-0000 (415) 854-3131
000 Xxxx Xxxxxx, Xxx. 000
Xxxx Xxxx, XX 00000
(000) 000-0000
NAME AND ADDRESS
----------------
Technology Crossover Ventures II. C.V. Greylock Equity Limited Partnership
00 Xxxx Xxxxxx, Xxxxx 000 One Federal Street, 26th Floor
Millburn, New Jersey 07041 Xxxxxx, XX 00000
(000) 000-0000 (000) 000-0000
000 Xxxx Xxxxxx, Xxx. 000 000 Xxxx Xxxx Xxxx, Xxxxx X-000
Xxxx Xxxx, XX 00000 Xxxx Xxxx, XX 00000-0000
(000) 000-0000 Attn: Xxxxx Xxxxx
(000) 000-0000
Juliet Challenger, Inc. Xxxxxx Hill Ventures,
Attn: Xxxxxx X. XxXxxxxxx a California Limited Partnership
000 Xxxxxx Xxxxxx, Xxxxx 000 755 Page Xxxx Xxxx
Xxxxxxxxxx, XX 00000 Xxxxx X-000
Xxxx Xxxx, CA 94304
(000) 000-0000
Xxxxx X. Xxxxxxx, Xxxxx Xxxxxxxx Xxxxxxx X.X. Grefenstette and Xxxxxx X. Xxxxxx,
and X.X. Xxxxxxxxxxxx, Trustees of the Trustees U/A/T dated 12/30/76 for
Xxxxx X. Xxxxxxx Trust U/A dated Children of Xxxxxx Xxxxxxx Xxxxxx
Nov. 18, 1985 Attn: Xxxxxxx Xxxxx
Attn: Xxxxxxx Xxxxx 0000 Xxxxx Xxxxxxxx
0000 Xxxxx Xxxxxxxx Xxxxxxxxxx, XX 00000
Xxxxxxxxxx, XX 00000 (000) 000-0000
(000) 000-0000
X.X. Xxxxxxxxxxxx and Xxxxxx X. Xxxxxx, The Xxxxxxx Foundation
Trustees U/A/T dated 12/30/76 for Children Attn: Xxxxxxx Xxxxx
of Juliet Xxx Xxxxxxx Xxxxxxx 2000 Grant Building
Attn: Xxxxxxx Xxxxx Xxxxxxxxxx, XX 00000
1800 Grant Building (000) 000-0000
Xxxxxxxxxx, XX 00000
(000) 000-0000
X.X. Xxxxxxxxxxxx and Xxxxxx X. Xxxxxx, Xxxxx X. Xxxxxxx Foundation
Trustees U/A/T dated 12/30/76 for Children Attn: Xxxxxxx Xxxxx
of Xxxxx Xxx Xxxxxxx, Xx. 2000 Grant Building
Attn: Xxxxxxx Xxxxx Xxxxxxxxxx, XX 00000
1800 Grant Building (000) 000-0000
Xxxxxxxxxx, XX 00000
(000) 000-0000
NAME AND ADDRESS
----------------
X.X. Xxxxxxxxxxxx and Xxxxxx X. Xxxxxx, Charter Growth Capital
Trustees U/A/T dated 12/30/76 for Children Attn: Xxxxx X. XxXxxxxxx
of Xxxxxxx Xxxxxxx Xxxxxxx 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Attn: Xxxxxxx Xxxxx Xxxx Xxxx, XX 00000
1800 Grant Building (000) 000-0000
Xxxxxxxxxx, XX 00000
(000) 000-0000
CGC Investors, L.P. William Xxxxx Xxxxxxxxx
Attn: Xxxxx X. XxXxxxxxx 0000 Xxxxxx Xxxxxxx Xxxxxxx, Xxx. 000
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000 Xxxxxxx, XX 00000
Xxxx Xxxx, XX 00000 (000) 000-0000
(000) 000-0000
Xxxxxx Xxxxxxx Venture Investors III, X.X. Xxxxxx Xxxxxxx Venture Partners
Attn: Xxxxxx Xxxxxx III, L.P.
0000 Xxxx Xxxx Xxxx Xxxx: Xxxxxx Xxxxxx
Xxxxxxxx 0, Xxxxx 000 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000 Xxxxxxxx 0, Xxxxx 000
(000) 000-0000 Xxxxx Xxxx, XX 00000
(000) 000-0000
Charter Growth Capital Co-Investment Fund, X.X. Xxxxxx Xxxxxxx Venture Partners
Attn: Xxxxx X. XxXxxxxxx Entrepreneur Fund, L.P.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000 Attn: Xxxxxx Xxxxxx
Xxxx Xxxx, XX 00000 0000 Xxxx Xxxx Xxxx
(000) 000-0000 Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
(000) 000-0000
UMBTRU Bayview Investors V, L.P.
Attn: Xxxx XxXxxxx c/o BancBoston Xxxxxxxxx Xxxxxxxx
UMB Bank Attn: Xxxxx Xxxxx
0 Xxxxxxx Xxxx Plaza, 8/th/ Floor 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
(000) 000-0000 (000) 000-0000
Lincoln Investors, L.P. Xxxxxxx X. Xxxx & Xxxxx X. Xxxx
Attn: Xxxxx X. Xxxxxxxx Trustees FBO The Xxxx Family
000 Xxxxx Xxxxxx, Xxxxx 0000 Rev Trust UTA dated 2-21-97
Xxx Xxxx, XX 00000 0000 Xxxxxxxxx Xxxxxx
(000) 000-0000 Xxxxxxxxxxxx, XX 00000
NAME AND ADDRESS
----------------
Matrix IV Entrepreneurs Fund, L.P. Ultima Partners Limited
0000 Xxxx Xxxx Xxxx, Xxxxx 000 Attn: Xxxxxx X. Xxxxxxx
Xxxxx Xxxx, XX 00000 Synetics S.F.S. Inc.
(650) 854-3131 0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
(000) 000-0000
Xxxxx X. Xxxxxxxx Tow Partners,
755 Page Mill Road a California Limited Partnership
Suite A-200 755 Page Mill Road, Suite A-200
Palo Alto, CA 94304 Xxxx Xxxx, XX 00000
(000) 000-0000 (000) 000-0000
Andreessen 1996 Living Trust Xxxxxxx X. Xxxxxxx, Xx., Trustee
c/o Xxxxxxx X. Xxxx of the Younger Living Trust
00000 Xxxx Xxxxxx, Xxxxx 000 000 Xxxx Xxxx Xxxx
Xxx Xxxxx, XX 00000 Suite A-200
(000) 000-0000 Xxxx Xxxx, XX 00000
(000) 000-0000
Intel Corporation Xxxxx Xxxxx Xxxx, Xxxxxxx
Xxxxxxxx Xxxxxxxxxx, XX0-000 SHV M/P/T FBO Xxxxxxx X. Xxxxxxx
Attn: Xxxxx Xxxxxxxxx c/o Wells Fargo Bank
0000 Xxxxxxx Xxxxxxx Xxxx. Business Retirement Programs
Xxxxx Xxxxx, XX 00000 Account. No. 506192
(000) 000-0000 Attention: Xxxxx Xxxxxx
MAC 0101 021
000 Xxxxxxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
(000) 000-0000
Xxxxxx X. Xxxxxx Xxxxx Xxxxxxxx
c/o Copper Mountain Networks, Inc. c/o Copper Mountain Networks, Inc.
0000 Xxxxxxxx Xxxxxx Xxxxxxxxx 0000 Xxxxxxxx Xxxxxx Xxxxxxxxx
Xxx Xxxxx, XX 00000 Xxx Xxxxx, XX 00000
Xxxxxx X. Xxxxxxx Comdisco Ventures
755 Page Mill Road Attn: Xxxx Xxxxxx
Suite A-200 0000 Xxxxx Xxxxx Xxxx
Xxxx Xxxx, XX 00000 Xxxxxxxx, XX 00000
(000) 000-0000 (000) 000-0000
NAME AND ADDRESS
----------------
GC&H Investments Korea Technology Banking Corporation
c/o Cooley Godward llp Attn: Xx. Xxxx Xxxx Xxxx
One Maritime Plaza, 20th Floor Chief Officer, International Business
Xxx Xxxxxxxxx, XX 00000 KTB Building, 00/xx/ Xxxxx
00-00 Xxxxx-xxxx, Xxxxxxxxxxxx-xx
Xxxxx 000-000 Xxxxx
(00-0) 0000-0000
Xxxxx Fargo Bank, Trustee Xxxxx Xxxxxx
SHV M/P/T FBO Xxxxxxx X. Xxxxxxx, Xx. 000 Xxxx Xxxxxxxx, Xxxxx 0000
Attention: Xxxxx Xxxxxx Xxx Xxxxx, XX 00000
MAC 0101 021
000 Xxxxxxxxxx,0/xx/ Xxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxxxxxx Public Relations Xxxxx X. Xxxxxx
0000 Xxxxxx Xxxxxxx Xxxxxxx, Xxx. 000 000 Xxxx Xxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000 Xxx Xxxxx, XX 00000
(000) 000-0000
Xxxxx Xxxxxx
Anvest L.P. 000 Xxxx Xxxxxxxx, Xxxxx 0000
000 Xxxx Xxxx Xxxx Xxx Xxxxx, XX 00000
Xxxxx X-000
Xxxx Xxxx, XX 00000
(000) 000-0000
Xxxxx X. Xxxxxx Xxxxxxx Xxxxxxx
0000 Xxxxxx Xxxxxx Copper Mountain Networks
Xxx Xxxxxxxxx, XX 00000 0000 Xxxxxxxxxxx Xxx
Xxxx Xxxx, XX 00000
(000) 000-0000
Xxxxx Fargo Bank Trustee Xxxxx Xxxx
SHV M/P/T FBO Xxxxx Xxxx 755 Page Mill Road
Attn: Xxxxx Xxxxxx Xxxxx X-000
000 Xxxxxxxxxx Xxxxxx, 0/xx/ Xxxxx Xxxx Xxxx, XX 00000
MAC 0101 021 (000) 000-0000
(000) 000-0000
NAME AND ADDRESS
----------------
Xxxx Xxxxxx G. Xxxxxxx Xxxxx, Xx.
00 Xxxxxxxx Xxx 000 Xxxx Xxxx Xxxx
Xxxxxxx, XX 00000 Xxxxx X-000
Xxxx Xxxx, XX 00000
(000) 000-0000
Xxxxxxx Xxxxxxx Xxxxx X. Xxxxxxxx, Trustee
Harvard Business School The Xxxxxxxx Living Trust
Xxxxx Xxxx 000, Xxxxxxx Xxxxx Xxxxxxx 000 Xxxx Xxxx Xxxx, Xxxxx X-000
Xxxxxx, XX 00000 Xxxx Xxxx, XX 00000
(000) 000-0000
Xxxxx Xxxxx Xxxxxxxx Holding, L.P.
000 Xxxx Xxxx Xxxx, Xxxxx X-000 000 Xxxx Xxxx Xxxx, Xxxxx X-000
Xxxx Xxxx, XX 00000 Xxxx Xxxx, XX 00000
(000) 000-0000 (000) 000-0000
