QUANTUM EFFECT DESIGN, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS
AGREEMENT
MARCH 16, 1999
QUANTUM EFFECT DESIGN, INC.
AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
This Investors' Rights Agreement (the "AGREEMENT") is made as of the
16th day of March 1999, by and among Quantum Effect Design, Inc., a California
corporation (the "COMPANY"), and the parties listed on EXHIBIT A hereto, each of
which is herein referred to as an "INVESTOR."
RECITALS
A. The Company and certain of the Investors have entered into an
Investors' Rights Agreement dated as of April 16, 1998 (the "RIGHTS AGREEMENT").
B. The Company and certain of the Investors are entering into a Series
D Preferred Stock Purchase Agreement of even date herewith and/or a Unit
Purchase Agreement, pursuant to which such Investors will purchase shares of the
Company's Series D Preferred Stock and/or Common Stock (the "SERIES D
AGREEMENTS").
C. In connection with the transactions contemplated by the Series D
Agreements, the parties hereto wish to amend and restate the Rights Agreement as
set forth herein.
AGREEMENT
In consideration of the mutual covenants and agreements contained
herein and for other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto hereby agree, as follows:
1. REGISTRATION RIGHTS.
1.1 DEFINITIONS. For purposes of this Section 1:
(a) The terms "REGISTER" "REGISTERED" and "REGISTRATION"
refer to a registration effected by preparing and filing a registration
statement or similar document in compliance with the Securities Act of 1933,
as amended (the "SECURITIES ACT"), and the declaration or ordering of
effectiveness of such registration statement or document;
(b) The term "REGISTRABLE SECURITIES" means (i) the shares
of Common Stock issuable or issued upon conversion of the Series A Preferred
Stock, the Series B Preferred Stock, the Series C Preferred Stock and the
Series D Preferred Stock of the Company, (ii) the shares of Common Stock
issued to the persons or entities listed on EXHIBIT A that hold such shares,
(iii) shares of Common Stock of the Company issued (or issuable upon the
conversion or exercises of any warrant, right or other security which is
issued) to the persons or entities listed on Exhibit A pursuant to preemptive
rights or rights of first refusal, and (iv) any other shares of Common Stock
of the Company issued as (or issuable upon the conversion or exercise of any
warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of, the
shares listed in (i) and (ii); PROVIDED, HOWEVER,
1.
that the foregoing definition shall exclude in all cases any Registrable
Securities sold by a person in a transaction in which his or her rights under
this Agreement are not assigned. Notwithstanding the foregoing, Common Stock
or other securities shall only be treated as Registrable Securities if and so
long as (A) they have not been sold to or through a broker or dealer or
underwriter in a public distribution or a public securities transaction, (B)
the registration rights associated with such securities have not been
terminated pursuant to Section 1. 16 hereof;
(c) The number of shares of "REGISTRABLE SECURITIES THEN
OUTSTANDING" shall be determined by the number of shares of Common Stock
outstanding which are, and the number of shares of Common Stock issuable
pursuant to then exercisable or convertible securities which are, Registrable
Securities;
(d) The term "HOLDER" means any person owning or having the
right to acquire Registrable Securities or any assignee thereof in accordance
with Section 1. 12 of this Agreement;
(e) The term "FORM S-3" means such form under the
Securities Act as in effect on the date hereof or any successor form under
the Securities Act;
(f) The term "SEC" means the Securities and Exchange
Commission; and
(g) The term "QUALIFIED IPO" means a firm commitment
underwritten public offering by the Company of shares of its Common Stock
pursuant to a registration statement on Form S-1 under the Securities Act,
the public offering price of which is not less than $6.48 per share
(appropriately adjusted for any stock split, dividend, combination or other
recapitalization) and which results in aggregate cash proceeds to the Company
of $10,000,000 (net of underwriting discounts and commissions).
1.2 REQUEST FOR REGISTRATION.
(a) If the Company shall receive at any time after
the earlier of (i) April 16, 2001, or (ii) one (1) year after the effective
date of the first registration statement for a public offering of securities
of the Company (other than a registration statement relating either to the
sale of securities to employees of the Company pursuant to a stock option,
stock purchase or similar plan or an SEC Rule 145 transaction), a written
request from the Holders of at least forty percent (40%) of the Registrable
Securities then outstanding that the Company file a registration statement
under the Securities Act covering the registration of Registrable Securities
which would yield an anticipated aggregate offering price, net of
underwriting discounts and commissions, of at least $7,500,000 then the
Company shall, within ten (10) days of the receipt thereof, give written
notice of such request to all Holders and shall, subject to the limitations
of subsection 1.2(b), use its best efforts to effect as soon as practicable,
and in any event within 60 days of the receipt of such request, the
registration under the Securities Act of all Registrable Securities which the
Holders request to be registered within twenty (20) days of the mailing of
such notice by the Company in accordance with Section 3.3.
2.
(b) If the Holders initiating the registration request
hereunder ("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 1.2 and the Company shall include such information in the written
notice referred to in subsection 1.2(a). The underwriter will be selected by
a majority in interest of the Initiating Holders and shall be reasonably
acceptable to the Company. In such event, the right of any Holder to include
his Registrable Securities in such registration shall be conditioned upon
such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting (unless otherwise
mutually agreed by a majority in interest of the Initiating Holders and such
Holder) to the extent provided herein. All Holders proposing to distribute
their securities through such underwriting shall (together with the Company
as provided in subsection 1.5(e)) enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwriting. Notwithstanding any other provision of this Section 1.2, if the
underwriter advises the Initiating Holders in writing that marketing factors
require a limitation of the number of shares to be underwritten, then the
Initiating Holders shall so advise all Holders of Registrable Securities
which would otherwise be underwritten pursuant hereto, and the number of
shares of Registrable Securities that may be included in the underwriting
shall be allocated among all Holders thereof, including the Initiating
Holders, in proportion (as nearly as practicable) to the amount of
Registrable Securities of the Company owned by each Holder; PROVIDED,
HOWEVER, that the number of shares of Registrable Securities to be included
in such underwriting shall not be reduced unless all other securities are
first entirely excluded from the underwriting.
(c) Notwithstanding the foregoing, if the Company shall
furnish to Holders requesting a registration statement pursuant to this
Section 1.2, a certificate signed by the President of the Company stating
that in the good faith judgment of the Board of Directors of the Company, it
would be seriously detrimental to the Company and its shareholders for such
registration statement to be filed and it is therefore essential to defer the
filing of such registration statement, the Company shall have the right to
defer such filing for a period of not more than 120 days after receipt of the
request of the Initiating Holders; PROVIDED, HOWEVER, that the Company may
not utilize this right more than once in any twelve-month period.
(d) In addition, the Company shall not be obligated to
effect, or to take any action to effect, any registration pursuant to this
Section 1.2:
(i) After the Company has effected two (2)
registrations pursuant to this Section 1.2 and such registrations have been
declared or ordered effective;
(ii) During the period starting with the date
sixty (60) days prior to the company's good faith estimate of the date of
filing of, and ending on a date one hundred eighty (180) days after the
effective date of, a registration subject to Section 1.3 hereof; provided
that the Company is actively employing in good faith all reasonable efforts
to cause such registration statement to become effective; or
(iii) If the Initiating Holders propose to dispose
of shares of Registrable Securities that may be immediately registered on
Form S-3 pursuant to a request made pursuant to Section 1.4 below.
3.
1.3 COMPANY REGISTRATION. If (but without any obligation to do
so) the Company proposes to register (including for this purpose a
registration effected by the Company for shareholders other than the Holders)
any of its stock under the Securities Act in connection with the public
offering of such securities solely for cash (other than a registration
relating solely to the sale of securities to participants in a Company stock
plan or a transaction covered by Rule 145 under the Securities Act, a
registration in which the only stock being registered is Common Stock
issuable upon conversion of debt securities which are also being registered,
or any registration on any form which does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of the Registrable Securities), the Company shall, at such
time, promptly give each Holder written notice of such registration. Upon the
written request of each Holder given within twenty (20) days after mailing of
such notice by the Company in accordance with Section 3.3, the Company shall,
subject to the provisions of Section 1.8, cause to be registered under the
Securities Act all of the Registrable Securities that each such Holder has
requested to be registered.
1.4 FORM S-3 REGISTRATION. In case the Company shall receive
from any Holder or Holders of not less than thirty percent (30%) of the
Registrable Securities then outstanding a written request or requests that
the Company effect a registration on Form S-3 and any related qualification
or compliance with respect to all or a part of the Registrable Securities
owned by such Holder or Holders, the Company will:
(a) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all other
Holders; and
(b) as soon as practicable, effect such
registration and all such qualifications and compliances as may be so
requested and as would permit or facilitate the sale and distribution of all
or such portion of such Holder's or Holders' Registrable Securities as are
specified in such request, together with all or such portion of the
Registrable Securities of any other Holder or Holders joining in such request
as are specified in a written request given within 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 1.4: (i) if Form S-3 is not available
for such offering by the Holders; (ii) if the Holders, together with the
holders of any other securities of the Company entitled to inclusion in such
registration, propose to sell Registrable Securities and such other
securities (if any) at an aggregate price to the public (net of any
underwriters' discounts or commissions) of less than $1,000,000; (iii) if the
Company shall furnish to the Holders a certificate signed by the President of
the Company stating that in the good faith judgment of the Board of Directors
of the Company, it would be seriously detrimental to the Company and its
shareholders for such Form S-3 Registration to be effected at such time, in
which event the Company shall have the right to defer the filing of the Form
S-3 registration statement for a period of not more than 120 days after
receipt of the request of the Holder or Holders under this Section 1.4;
PROVIDED, HOWEVER, that the Company shall not utilize this right more than
once in any twelve-month period; (iv) if the Company has, within the twelve
(12) month period preceding the date of such request, already effected one
registration on Form S-3 for the Holders pursuant to this Section 1.4; (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; (vi) during the
period ending one hundred eighty (180) days after the effective date
4.
of a registration statement subject to Section 1.3, or (vii) if the Company
has already effected four registrations on Form S-3 for the Holders pursuant
to this Section 1.4.
(c) Subject to the foregoing, the Company shall file a
registration statement covering the Registrable Securities and other
securities so requested to be registered as soon as practicable after receipt
of the request or requests of the Holders. Registrations effected pursuant to
this Section 1.4 shall not be counted as demands for registration or
registrations effected pursuant to Sections 1.2 or 1.3, respectively.
1.5 OBLIGATIONS OF THE COMPANY. Whenever required under this
Section I to effect the registration of any Registrable Securities, the
Company shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its best efforts to cause
such registration statement to become effective, and, upon the request of the
Holders of a majority of the Registrable Securities registered thereunder,
keep such registration statement effective for up to one hundred twenty (120)
days.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection with such registration statement as may be necessary to comply
with the provisions of the Securities Act with respect to the disposition of
all securities covered by such registration statement.
(c) Furnish to the Holders such numbers 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.
(e) In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in usual
and customary form, with the managing underwriter of such offering. Each
Holder participating in such underwriting shall also enter into and perform
its obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by
such registration statement at any time when a prospectus relating thereto is
required to be delivered under the 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, such obligation to continue for one hundred
twenty (120) days.
5.
(g) Cause all such Registrable Securities registered
pursuant hereunder to be listed on each securities exchange on which similar
securities issued by the Company are then listed.
(h) Provide a transfer agent and registrar for all
Registrable Securities registered pursuant hereunder and a CUSIP number for
all such Registrable Securities, in each case not later than the effective
date of such registration.
(i) Use its best efforts to furnish, at the request of any
Holder requesting registration of Registrable Securities pursuant to this
Section 1, on the date that such Registrable Securities are delivered to the
underwriters for sale in connection with a registration pursuant to this
Section 1, if such securities are being sold through underwriters, or, if
such securities are not being sold through underwriters, on the date that the
registration statement with respect to such securities becomes effective, (i)
an opinion, dated such date, of the counsel representing the Company for the
purposes of such registration, in form and substance as is customarily given
to underwriters in an underwritten public offering, addressed to the
underwriters, if any, and to the Holders requesting registration of
Registrable Securities and (ii) a letter dated such date, from the
independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public accountants
to underwriters in an underwritten public offering, addressed to the
underwriters, if any, and to the Holders requesting registration of
Registrable Securities.
1.6 FURNISH INFORMATION. It shall be a condition precedent to
the obligations of the Company to take any action pursuant to this Section 1
with respect to the Registrable Securities of any selling Holder that such
Holder shall furnish to the Company such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition of
such securities as shall be required to effect the registration of such
Holder's Registrable Securities. The Company shall have no obligation with
respect to any registration requested pursuant to Section 1.2 or Section 1.4
of this Agreement if, as a result of the application of the preceding
sentence, the number of shares or the anticipated aggregate offering price of
the Registrable Securities to be included in the registration does not equal
or exceed the number of shares or the anticipated aggregate offering price
required to originally trigger the Company's obligation to initiate such
registration as specified in subsection 1.2(a) or subsection 1.4(b)(2),
whichever is applicable.
1.7 EXPENSES OF REGISTRATION. All expenses other than
underwriting discounts and commissions incurred in connection with
registrations, filings or qualifications pursuant to Section 1.2, Section 1.3
or Section 1.4 including (without limitation) all registration, filing and
qualification fees, printers' and accounting fees, fees and disbursements of
counsel for the Company, and the reasonable fees and disbursements of one
counsel for the selling Holders selected by them with the approval of the
Company, which approval shall not be unreasonably withheld, shall be borne by
the Company; PROVIDED, HOWEVER, that the Company shall not be required to pay
for any expenses of any registration proceeding begun pursuant to Section 1.2
if the registration request is subsequently withdrawn at the request of the
Holders of a majority of the Registrable Securities to be registered (in
which case all participating Holders shall bear such expenses), unless the
Holders of a majority of the Registrable Securities agree to forfeit their
right to one demand registration pursuant to Section 1.2 ; provided further,
however, that if at the
6.
time of such withdrawal, the Holders have learned of a material adverse
change in the condition, business, or prospects of the Company from that
known to the Holders at the time of their request and have withdrawn the
request with reasonable promptness following disclosure by the Company of
such material adverse change, then the Holders shall not be required to pay
any of such expenses and shall retain their rights pursuant to Section 1.2.
1.8 UNDERWRITING REQUIREMENTS. In connection with any offering
involving an underwriting of shares of the Company's capital stock, the
Company shall not be required under Section 1.3 to include any of the
Holders' securities in such underwriting unless they accept the terms of the
underwriting as agreed upon between the Company and the underwriters selected
by it (or by other persons entitled to select the underwriters), and then
only in such quantity as the underwriters determine in their sole discretion
will not jeopardize the success of the offering by the Company. If the total
amount of securities, including Registrable Securities, requested by
shareholders to be included in such offering exceeds the amount of securities
sold other than by the Company that the underwriters determine in their sole
discretion is compatible with the success of the offering, then the Company
shall be required to include in the offering only that number of such
securities, including Registrable Securities, which the underwriters
determine in their sole discretion will not jeopardize the success of the
offering (the securities so included to be apportioned pro rata among the
selling shareholders according to the total amount of securities entitled to
be included therein owned by each selling shareholder or in such other
proportions as shall mutually be agreed to by such selling shareholders) but
in no event shall the amount of securities of the selling Holders included in
the offering be reduced below thirty-five percent (35%) of the total amount
of securities included in such offering, unless such offering is the initial
public offering of the Company's securities, in which case the selling
Holders may be excluded if the underwriters make the determination described
above. For purposes of the preceding parenthetical concerning apportionment,
for any selling shareholder which is a holder of Registrable Securities and
which is a partnership or corporation, the partners, retired partners and
shareholders of such holder, or the estates and family members of any such
partners and retired partners and any trusts for the benefit of any of the
foregoing persons shall be deemed to be a single "SELLING SHAREHOLDER," and
any pro-rata reduction with respect to such "selling shareholder" shall be
based upon the aggregate amount of shares carrying registration rights owned
by all entities and individuals included in such "selling shareholder," as
defined in this sentence.
1.9 DELAY OF REGISTRATION. No Holder shall have any right to
obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect
to the interpretation or implementation of this Section 1.
1.10 INDEMNIFICATION. In the event any Registrable Securities
are included in a registration statement under this Section 1.10:
(a) To the extent permitted by law, the Company
will indemnify and hold harmless each Holder, its directors, officers,
fiduciaries, employees and stockholders or 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
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), against any
losses, claims, damages,
7.
or liabilities (joint or several) to which they 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 thereof)
arise out of or are based upon any of the following statements, omissions or
violations (collectively a "VIOLATION"): (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, (ii) the omission or alleged omission
to state therein a material fact required to be stated therein, or necessary
to make the statements therein not misleading, or (iii) any violation or
alleged violation by the Company of the 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; and the Company
will pay to each such Holder, underwriter or controlling person, as incurred,
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability, or
action; provide , however, that the indemnity agreement contained in this
subsection 1. 1 0(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 to any Holder, underwriter or
controlling person for any such loss, claim, damage, liability, or action to
the extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished expressly
for use in connection with such registration by any such Holder, underwriter
or controlling person.
(b) To the extent permitted by law, each selling Holder
will indemnify and hold harmless the Company, each of its directors, each of
its officers who has signed the registration statement, each person, if any,
who controls the Company within the meaning of the Securities Act, any
underwriter, any other Holder selling securities in such registration
statement and any controlling person of any such underwriter or other Holder,
against any losses, claims, damages, or liabilities (joint or several) to
which any of the foregoing persons may become subject, under the 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 expressly for use in connection
with such registration; and each such Holder will pay, as incurred, any legal
or other expenses reasonably incurred by any person intended to be
indemnified pursuant to this subsection 1.10(b), in connection with
investigating or defending any such loss, claim, damage, liability, or
action; PROVIDED, HOWEVER, that the indemnity agreement contained in this
subsection 1.10(b) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected
without the consent of the Holder, which consent shall not be unreasonably
withheld; PROVIDED, that in no event shall any indemnity under this
subsection 1.10(b) exceed the net proceeds from the offering received by such
Holder, except in the case of willful fraud by such Holder.
(c) Any person entitled to indemnification under this
Agreement shall notify promptly the indemnifying party in writing of the
commencement of any action or proceeding with respect to which a claim for
indemnification may be made pursuant to this Section 1.10, but the failure of
any indemnified party to provide such notice shall not relieve the
indemnifying party of its obligations under the preceding paragraphs of this
Section 1.10, except
8.
to the extent the indemnifying party is materially prejudiced thereby, and
shall not relieve the indemnifying party from any liability which it may have
to any indemnified party otherwise than under this Section 1.10. In case any
action or proceeding is brought against an indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, unless in the reasonable
opinion of outside counsel to the indemnified party a conflict of interest
between such indemnified and indemnifying parties may exist in respect of
such claim, to assume the defense thereof jointly with any other indemnifying
party similarly notified, to the extent that it chooses, with counsel
reasonably satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party that it so chooses, the
indemnifying party shall not be liable to such indemnified party for any
legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; PROVIDED, HOWEVER, that (i) if the indemnifying party fails to
take reasonable steps necessary to defend diligently the action or proceeding
within 20 days after receiving notice from such indemnified party that the
indemnified party believes it has failed to do so; or (ii) if such
indemnified party who is a defendant in any action or proceeding which is
also brought against the indemnifying party reasonably shall have concluded
that there may be one or more legal defenses available to such indemnified
party which are not available to the indemnifying party; or (ii) if
representation of both parties by the same counsel is otherwise inappropriate
under applicable standards of professional conduct, then, in any such case,
the indemnified party shall have the right to assume or continue its own
defense as set forth above (but with no more than one firm of counsel for all
indemnified parties in each jurisdiction, except to the extent any
indemnified party or parties reasonably shall have concluded that there may
be legal defenses available to such party or parties which are not available
to the other indemnified parties or to the extent representation of all
indemnified parties by the same counsel is otherwise inappropriate under
applicable standards or professional conduct) and the indemnifying party
shall be liable for any expense therefor. No indemnifying party shall,
without the written consent of the indemnified party, effect the settlement
or compromise of, or consent to the entry of any judgment with respect to,
any pending or threatened action or claim in respect of which indemnification
or contribution may be sought hereunder (whether or not the indemnified party
is an actual or potential party to such action or claim) unless which
settlement, compromise or judgment (A) includes an unconditional release of
the indemnified party from all liability arising out of such action or claim
and (B) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section
1.10 is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, liability, claim, damage or
expense referred to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party hereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such loss,
liability, claim, damage, or expense in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one hand and of
the indemnified party on the other in connection with the statements or
omissions that resulted in such loss, liability, claim, damage or expense as
well as any other relevant equitable considerations; PROVIDED, that in no
event shall any contribution by a Holder under this Subsection 1.10(b) exceed
the net proceeds from the offering received by such Holder, less any amounts
paid by such holder under Section 1.10(b), except in the case of willful
fraud by such Holder. The relative fault of the indemnifying party and of the
indemnified party shall be
9.
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the indemnifying party or by the
indemnified party and the parties' relative intent, knowledge, access to
information, and opportunity to correct or prevent such statement or omission.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering
are in conflict with the foregoing provisions, the provisions in the
underwriting agreement shall control.
(f) The obligations of the Company and Holders under this
Section 1.10 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and otherwise.
1.11 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view
to making available to the Holders the benefits of Rule 144 promulgated under
the Securities Act and any other rule or regulation of the SEC that may at
any time permit a Holder to sell securities of the Company to the public
without registration or pursuant to a registration on Form S-3, the Company
agrees to:
(a) make and keep public information available, as those
terms are understood and defined in SEC Rule 144, at all times after ninety
(90) days after the effective date of the first registration statement filed
by the Company for the offering of its securities to the general public so
long as the Company remains subject to the periodic reporting requirements
under Sections 13 or 15(d) of the Exchange Act;
(b) take such action, including the voluntary registration
of its Common Stock under Section 12 of the Exchange Act, as is necessary to
enable the Holders to utilize Form S-3 for the sale of their Registrable
Securities, such action to be taken as soon as practicable after the end of
the fiscal year in which the first registration statement filed by the
Company for the offering of its securities to the general public is declared
effective;
(c) file with the SEC in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act; and
(d) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of SEC Rule 144
(at any time after ninety (90) days after the effective date of the first
registration statement filed by the Company), the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements), or that it qualifies as a registrant whose securities may be
resold pursuant to Form S-3 (at any time after it so qualifies), (ii) a copy
of the most recent annual or quarterly report of the Company and such other
reports and documents so filed by the Company, and (iii) such other
information as may be reasonably requested in availing any Holder of any rule
or regulation of the SEC which permits the selling of any such securities
without registration or pursuant to such form.
1.12 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the
Company to register Registrable Securities pursuant to this Section I may be
assigned (but only with all
10.
related obligations) by a Holder to a transferee or assignee of at least
100,000 shares of such securities (or all of such Holder's Registrable
Securities, if less), PROVIDED the Company is, within a reasonable time after
such transfer, furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned; and PROVIDED, FURTHER, that such
assignment shall be effective only if immediately following such transfer the
further disposition of such securities by the transferee or assignee is
restricted under the Securities Act. For the purposes of determining the
number of shares of Registrable Securities held by a transferee or assignee,
the holdings of transferees and assignees of a partnership who are partners,
affiliates or retired partners of such partnership (including spouses and
ancestors, lineal descendants and siblings of such partners or spouses who
acquire Registrable Securities by gift, will or intestate succession) shall
be aggregated together and with the partnership; PROVIDED that all assignees
and transferees who would not qualify individually for assignment of
registration rights shall have a single attorney-in-fact for the purpose of
exercising any rights, receiving notices or taking any action under Section 1.
1.13 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and
after the date of this Agreement, the Company shall not, without the prior
written consent of the Holders of a majority of the outstanding Registrable
Securities, enter into any agreement with any holder or prospective holder of
any securities of the Company which would allow such holder or prospective
holder (a) to include such securities in any registration filed under Section
1.2 hereof, unless under the terms of such agreement, such holder or
prospective holder may include such securities in any such registration only
to the extent that the inclusion of his securities will not reduce the amount
of the Registrable Securities of the Holders which is included or (b) to make
a demand registration which could result in such registration statement being
declared effective prior to the earlier of either of the dates set forth in
subsection 1.2(a) or within one hundred twenty (120) days of the effective
date of any registration effected pursuant to Section 1.2.
1.14 "MARKET STAND-OFF" AGREEMENT. Each Holder hereby agrees
that, during the period of duration (up to, but not exceeding, 180 days)
specified by the Company and an underwriter of Common Stock or other
securities of the Company, following the effective date of the registration
statement of the Company filed under the Securities Act in connection with
its initial public offering, it shall not, to the extent requested by the
Company and such underwriter, directly or indirectly sell, offer to sell,
contract to sell (including, without limitation, any short sale), grant any
option to purchase or otherwise transfer or dispose of (other than to donees
or constituent partners who agree to be similarly bound) any securities of
the Company held by it at the commencement of that period except Common Stock
included in such registration; PROVIDED, HOWEVER, that all officers and
directors of the Company and all other persons with registration rights
(whether or not pursuant to this Agreement) enter into similar agreements.
Notwithstanding anything herein to the contrary, nothing in this Agreement
shall restrict Xxxxxxx, Xxxxx & Co. and its affiliates from engaging in
brokerage, investment advisory, investment company, financial advisory,
anti-raid advisory, financing, asset management, trading, market making,
arbitrage and other similar activities conducted in the ordinary course of
its and its affiliates' business.
In order to enforce the foregoing covenant, the Company may impose
stoptransfer instructions with respect to the Registrable Securities of each
Holder (and the shares or securities
11.
of every other person subject to the foregoing restriction) until the end of
such period, and each Holder agrees that, if so requested, such Holder will
execute an agreement in the form provided by the underwriter containing terms
which are essentially consistent with the provisions of this Section 1.14.
Notwithstanding the foregoing, the obligations described in this
Section 1. 14 shall not apply to a registration relating solely to employee
benefit plans on Form S- I or Form S-8 or similar forms which may be promulgated
in the future, or a registration relating solely to an SEC Rule 145 transaction
on Form S-4 or similar forms which may be promulgated in the future.
1.15 TERMINATION OF REGISTRATION RIGHTS. No Holder shall be
entitled to exercise any right provided for in this Section I after the
earlier of (i) four (4) years following the consummation of a Qualified IPO,
(ii) such time as Rule 144 (without regard to Rule 144(k)) or another similar
exemption under the Securities Act is available for the sale of all of such
Holder's shares during a three (3) month period without registration, or
(iii) such time as the Holder holds Registrable Securities constituting less
than one percent (1%) of the outstanding voting securities of the Company.
2. COVENANTS OF THE COMPANY.
2.1 DELIVERY OF FINANCIAL STATEMENTS. The Company shall deliver
to each Holder of at least 250,000 shares of Registrable Securities, (except
for a Holder reasonably deemed by the Company to be a competitor of the
Company):
(a) as soon as practicable, but in any event within ninety
(90) days after the end of each fiscal year of the Company, an income
statement for such fiscal year, a balance sheet of the Company and statement
of shareholder's equity as of the end of such year, and a statement of cash
flows for such year, such year-end financial reports to be in reasonable
detail, prepared in accordance with generally accepted accounting principles
("GAAP"), and audited and certified by an independent public accounting firm
of nationally recognized standing selected by the Company;
(b) as soon as practicable, but in, any event within
forty-five (45) days after the end of each of the first three (3) quarters of
each fiscal year of the Company, an unaudited profit or loss statement and an
unaudited balance sheet as of the end of such fiscal quarter and as of the
end of each month during such quarter, in reasonable detail and prepared in
accordance with GAAP;
(c) as soon as practicable, but in any event thirty (30)
days prior to the end of each fiscal year, a budget and business plan for the
next fiscal year, prepared on a monthly basis, including balance sheets and
sources and applications of funds statements for such months, and, as soon as
prepared, any other budgets or revised budgets prepared by the Company and
approved by the board of directors;
(d) with respect to such financial statements called for in
subsection (b) of this Section 2.1, an instrument executed by the Chief
Financial Officer or President of the Company and certifying that such
financials were prepared in accordance with GAAP consistently applied with
prior practice for earlier periods (with the exception of footnotes that
12.
may be required by GAAP) and fairly present the financial condition of the
Company and its results of operation for the period specified, provided that
the foregoing shall not restrict the right of the Company to change its
accounting principles consistent with GAAP, if the Board of Directors
determines that it is in the best interest of the Company to do so;
(e) such other information related to the financial
condition, business, prospects or corporate affairs of the Company as the
Investor may from time to time request, PROVIDED, HOWEVER, that the Company
shall not be obligated under this subsection (f) or any other subsection of
Section 2.1 to provide information which it deems in good faith to be a trade
secret or similar confidential information.
2.2 INSPECTION. The Company shall permit each Holder of at least
500,000 shares of Registrable Securities (except for a Holder reasonably
deemed by the Company to be a competitor of the Company), at such Holder's
expense, to visit and inspect the Company's properties, to examine its books
of account and records and to discuss the Company's affairs, finances and
accounts with its officers, all at such reasonable times as may be requested
by the Investor; PROVIDED, HOWEVER, that the Company shall not be obligated
pursuant to this Section 2.2 to provide access to any information which it
reasonably considers to be a trade secret or similar confidential information.
2.3 RIGHT OF FIRST OFFER. Subject to the terms and conditions
specified in this Section 2.3, the Company hereby grants to each Investor
and/or its affiliates holding at least 500,000 shares of Registrable
Securities (except for Comdisco, Inc., which shall be granted rights
hereunder notwithstanding any failure to hold such number of shares of
Registrable Securities) a right of first offer with respect to future sales
by the Company of its Shares (as hereinafter defined). For purposes of this
Section 2.3, Investor includes any general partners and affiliates of an
Investor. An Investor who chooses to exercise the right of first offer may
designate as purchasers under such right itself or its partners or affiliates
in such proportions as it deems appropriate.
Each time the Company proposes to offer any shares of, or securities
convertible into or exercisable for any shares of, any class of its capital
stock ("SHARES"), the Company shall first make an offering of such Shares to
each Investor in accordance with the following provisions:
(a) The Company shall deliver a notice by certified mail
("NOTICE") to the Investors stating (i) its bona fide intention to offer such
Shares, (ii) the number of such Shares to be offered, and (iii) the price and
terms, if any, upon which it proposes to offer such Shares.
(b) Within 15 calendar days after delivery of the Notice,
the Investor may elect to purchase or obtain, at the price and on the terms
specified in the Notice, up to that portion of such Shares which equals the
proportion that the number of shares of Common Stock issued and held, or
issuable upon conversion and exercise of all convertible or exercisable
securities then held, by such Investor bears to the total number of shares of
Common Stock then outstanding (assuming full conversion and exercise of all
convertible or exercisable securities). The Company shall promptly, in
writing, inform each Investor that purchases all the shares available to it
(each, a "FULLY-EXERCISING INVESTOR") of any other Investor's failure to do
likewise.
13.
During the ten (10)-day period commencing after receipt of such information,
each Fully-Exercising Investor shall be entitled to obtain that portion of
the Shares for which Investors were entitled to subscribe but which were not
subscribed for by the Investors that is equal to the proportion that the
number of shares of Common Stock issued and held, or issuable upon conversion
and exercise of all convertible or exercisable securities then held, by such
Fully Exercising Investor bears to the total number of shares of Common Stock
then outstanding (assuming full conversion and exercise of all convertible or
exercisable securities) and held by all Fully-Exercising Investors.
(c) The Company may, during the 45-day period following the
expiration of the period provided in subsection 2.3(b) hereof, offer the
remaining unsubscribed portion of the Shares to any person or persons at a
price not less than, and upon terms no more favorable to the offeree than
those specified in the Notice. If the Company does not enter into an
agreement for the sale of the Shares within such period, or if such agreement
is not consummated within 60 days of the execution thereof, the right
provided hereunder shall be deemed to be revived and such Shares shall not be
offered unless first reoffered to the Investors in accordance herewith.
(d) The right of first offer in this paragraph 2.3 shall
not be applicable (i) to the issuance or sale of Common Stock (or options
therefor) to employees, consultants and directors, pursuant to plans or
agreements approved by the Board of Directors for the primary purpose of
soliciting or retaining their services, (ii) to or after consummation of a
Qualified IPO, (iii) to the issuance of securities pursuant to the conversion
or exercise of convertible or exercisable securities (provided that the right
of first offer applied to the original issuance of such convertible or
exercisable securities), (iv) to the issuance of securities in connection
with a bona fide business acquisition of or by the Company, whether by
merger, consolidation, sale of assets, sale or exchange of stock or
otherwise, (v) to the issuance of securities to financial institutions or
lessors in connection with commercial credit arrangements, equipment
financings, or similar transactions, or (vi) to the issuance or sale of the
Company's Series D Preferred Stock.
(e) The right of first offer may be assigned to a
transferee acquiring, on an as-converted basis, at least 500,000 shares of
the Investor's shares of the Company's Common Stock, or all of such
Investor's shares, if less.
2.4 BOARD OBSERVER RIGHTS. Each Investor holding not less than
500,000 shares of Series C Preferred Stock or Series D Preferred Stock of the
Company shall be entitled to appoint one person who is reasonably acceptable
to the Board of Directors to attend in a nonvoting capacity meetings of the
Company's Board of Directors from time to time, subject to exclusion in the
event that the Board of Directors determines, in its discretion, that such
attendance would involve a conflict of interest or would involve the
disclosure of confidential and proprietary information in a manner harmful to
the Company.
2.5 TERMINATION OF COVENANTS.
(a) The covenants set forth in Sections 2.1 through Section
2.4 shall terminate as to each Investor and be of no further force or effect
(i) immediately prior to the consummation of a Qualified IPO, or (ii) when
the Company shall sell, convey, or otherwise
14.
dispose of or encumber all or substantially all of its property or business
or merge into or consolidate with any other corporation (other than a
wholly-owned subsidiary corporation) or effect any other transaction or
series of related transactions in which more than fifty percent (50%) of the
voting power of the Company is disposed of, provided that this subsection
(ii) shall not apply to a merger effected exclusively for the purpose of
changing the domicile of the Corporation.
(b) The covenants set forth in Sections 2.1 and 2.2 shall
terminate as to each Holder and be of no further force or effect when the
Company first becomes subject to the periodic reporting requirements of
Sections 13 or 15(d) of the Exchange Act, if this occurs earlier than the
events described in Section 2.5(a) above.
3. MISCELLANEOUS.
3.1 SUCCESSORS AND ASSIGNS. Except as otherwise provided in
this Agreement, the terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective permitted successors and
assigns of the parties (including transferees of any of the Preferred Stock
or any Common Stock issued upon conversion thereof). Nothing in this
Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and assigns any
rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
3.2 AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders
of a majority of the Registrable Securities. Any amendment or waiver effected
in accordance with this paragraph shall be binding upon each holder of any of
such securities (including the securities into which such securities are
convertible or exercisable) then outstanding, each future holder of all such
Registrable Securities, and the Company.
3.3 NOTICES. Unless otherwise provided, any notice required or
permitted by this Agreement shall be in writing and shall be deemed
sufficient upon delivery, when delivered personally or by overnight courier
or sent by telegram or fax, or forty-eight (48) hours after being deposited
in the U.S. mail, as certified or registered mail, with postage prepaid, and
addressed to the party to be notified at such party's address or fax number
as set forth below or on EXHIBIT A hereto or as subsequently modified by
written notice.
3.4 SEVERABILITY. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, the parties agree to
renegotiate such provision in good faith. In the event that the parties
cannot reach a mutually agreeable and enforceable replacement for such
provision, then (a) such provision shall be excluded from this Agreement, (b)
the balance of the Agreement shall be interpreted as if such provision were
so excluded and (c) the balance of the Agreement shall be enforceable in
accordance with its terms.
3.5 TERMINATION OF THE PRIOR AGREEMENTS. The Company and the
parties hereto hereby agree that any provisions in any prior agreements
pertaining to the subject matter hereof are hereby terminated and superseded
in their entirety by the provisions hereof. The
15.
rights and covenants provided herein set forth the sole and entire agreement
between the Company and the Investors with respect to the subject matter
hereof, and to the extent there is a conflict between this Agreement and any
prior agreement, this Agreement shall control.
3.6 WAIVER OF RIGHT OF FIRST OFFER. With respect to the
issuance of up to 4,700,000 shares of Series D Preferred Stock and 237,500
shares of Common Stock pursuant to the Series D Agreements, as the same may
be amended from time to time according to their respective terms, each
Investor by its execution hereof hereby waives (for itself and on behalf of
all Investors) any rights it may have pursuant to Section 2.3 and any prior
agreement to purchase a greater number of shares of Series D Preferred Stock
and/or Common Stock than the number, if any, such Investor is purchasing
under the Series D Agreements. Each Investor further consents to the addition
as an Investor hereunder (and the listing on Exhibit A hereto) of any
purchaser under the Series D Agreements and Venture Lending and Leasing II,
Inc.
3.7 GOVERNING LAW. This Agreement and all acts and transactions
pursuant hereto shall be governed, construed and interpreted in accordance
with the laws of the State of California, without giving effect to principles
of conflicts of laws.
3.8 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
3.9 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
3.10 AGGREGATION OF STOCK. All shares of the Preferred Stock and
Common Stock held or acquired by affiliated entities or persons shall be
aggregated together for the purpose of determining the availability of any
rights under this Agreement.
16.
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first above written.
COMPANY:
QUANTUM EFFECT DESIGN:
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
--------------------------------
(Print)
Title: President and CEO
--------------------------------
Address:
--------------------------------
----------------------------------------
----------------------------------------
INVESTORS:
By:
--------------------------------
Name:
--------------------------------
(Print)
Title:
--------------------------------
Address:
--------------------------------
----------------------------------------
----------------------------------------
SIGNATURE PAGE TO AMENDED AND
RESTATED INVESTOR RIGHTS AGREEMENT
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first above written.
COMPANY:
QUANTUM EFFECT DESIGN:
By:
---------------------------------
Name:
---------------------------------
(Print)
Title:
--------------------------------
Address:
------------------------------
--------------------------------------
--------------------------------------
INVESTORS:
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
---------------------------------
(Print)
Title:
--------------------------------
Address: 0000X Xxxx Xxxxxx
------------------------------
Xxxxxxxxxxxx, XX 00000
------------------------------
SIGNATURE PAGE TO AMENDED AND
RESTATED INVESTOR RIGHTS AGREEMENT
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first above written.
COMPANY:
QUANTUM EFFECT DESIGN:
By:
---------------------------------
Name:
---------------------------------
(Print)
Title:
--------------------------------
Address:
------------------------------
--------------------------------------
--------------------------------------
INVESTORS:
By: /s/ Xxxxxx Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
---------------------------------
(Print)
Title:
--------------------------------
Address: 000 Xxxxx Xxxxx Xxxxxx
-----------------------------
Xxx Xxxxxxxxx, XX 00000
-----------------------------
SIGNATURE PAGE TO AMENDED AND
RESTATED INVESTOR RIGHTS AGREEMENT
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first above written.
COMPANY:
QUANTUM EFFECT DESIGN:
By:
---------------------------------
Name:
---------------------------------
(Print)
Title:
--------------------------------
Address:
------------------------------
--------------------------------------
--------------------------------------
INVESTORS:
By: /s/ X. X. Xxxxxxx
---------------------------------
Name: X. X. Xxxxxxx
---------------------------------
(Print)
Title: Managing Director
--------------------------------
Address: 000 Xxxxx Xxxxx
------------------------------
Xxx Xxxxx, XX 00000
------------------------------
SIGNATURE PAGE TO AMENDED AND
RESTATED INVESTOR RIGHTS AGREEMENT
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first above written.
COMPANY:
QUANTUM EFFECT DESIGN:
By:
-------------------------------
Name:
-------------------------------
(Print)
Title:
------------------------------
Address:
----------------------------
------------------------------------
------------------------------------
INVESTORS:
By: /s/ Xxxxx X. Xxxx
-------------------------------
Name: Xxxxx X. Xxxx
-------------------------------
(Print)
Title: Managing Director
------------------------------
Address:
----------------------------
----------------------------
SIGNATURE PAGE TO AMENDED AND
RESTATED INVESTOR RIGHTS AGREEMENT
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first above written.
COMPANY:
QUANTUM EFFECT DESIGN:
By:
------------------------------
Name:
------------------------------
(Print)
Title:
-----------------------------
Address:
---------------------------
-----------------------------------
-----------------------------------
INVESTORS:
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
------------------------------
(Print)
Title: Managing Director
-----------------------------
Address: 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
-----------------------------------
Xxx Xxxxxxxxx, XX 00000
-----------------------------------
SIGNATURE PAGE TO AMENDED AND
RESTATED INVESTOR RIGHTS AGREEMENT
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first above written.
COMPANY:
QUANTUM EFFECT DESIGN:
By:
------------------------------
Name:
------------------------------
(Print)
Title:
-----------------------------
Address:
---------------------------
-----------------------------------
-----------------------------------
INVESTORS:
By: /s/ J. Xxxxxxx Xxxxxxx
------------------------------
Name: J. Xxxxxxx Xxxxxxx
------------------------------
(Print)
Title:
-----------------------------
Address: X/x Xxxxx Xxxxxxx Xxxxxxxx
---------------------------
000 Xxxxxxxxxx, Xxxxx 0000
---------------------------
Xxx Xxxxxxxxx, XX 00000
---------------------------
SIGNATURE PAGE TO AMENDED AND
RESTATED INVESTOR RIGHTS AGREEMENT
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first above written.
COMPANY:
QUANTUM EFFECT DESIGN:
By:
------------------------------
Name:
------------------------------
(Print)
Title:
-----------------------------
Address:
---------------------------
-----------------------------------
-----------------------------------
INVESTORS:
By: /s/ Xxxxxx X. Xxxx
------------------------------
Name: Xxxxxx X. Xxxx
------------------------------
(Print)
Title: Managing Director
-----------------------------
Address: 00 Xxxxxxxxx Xxxxx
---------------------------
Xxxxxxxx, XX 00000
---------------------------
SIGNATURE PAGE TO AMENDED AND
RESTATED INVESTOR RIGHTS AGREEMENT
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first above written.
COMPANY:
QUANTUM EFFECT DESIGN:
By:
------------------------------
Name:
------------------------------
(Print)
Title:
-----------------------------
Address:
---------------------------
-----------------------------------
-----------------------------------
INVESTORS:
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
------------------------------
(Print)
Title: Senior Associate
-----------------------------
Address: 0000 Xxxxx Xxxxx #0
---------------------------
Xxx Xxxxxxxxx, XX 00000
---------------------------
SIGNATURE PAGE TO AMENDED AND
RESTATED INVESTOR RIGHTS AGREEMENT
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first above written.
COMPANY:
QUANTUM EFFECT DESIGN:
By:
------------------------------
Name:
------------------------------
(Print)
Title:
-----------------------------
Address:
---------------------------
-----------------------------------
-----------------------------------
INVESTORS:
By: /s/ Xxxxxxx X. Xxxxx, XX
------------------------------
Name: Xxxxxxx X. Xxxxx, XX
------------------------------
(Print)
Title: Associate
-----------------------------
Address: BancBoston Xxxxxxxxx Xxxxxxxx
-----------------------------------
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
-----------------------------------
Xxx Xxxxxxxxx, XX 00000
-----------------------------------
SIGNATURE PAGE TO AMENDED AND
RESTATED INVESTOR RIGHTS AGREEMENT
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first above written.
COMPANY:
QUANTUM EFFECT DESIGN:
By:
------------------------------
Name:
------------------------------
(Print)
Title:
-----------------------------
Address:
---------------------------
-----------------------------------
-----------------------------------
INVESTORS:
By: Xxxxxxxxx & Xxxxx California
------------------------------
Name: /s/ Xxxxxx X. Xxxxxx
------------------------------
(Print)
Title: Xxxxxx X. Xxxxxx
-------------------------------------
Tax Director, Attorney-in-Fact
-------------------------------------
Address: Xxx Xxxx Xxxxxx
-----------------------------------
Xxx Xxxxxxxxx, XX 00000
-----------------------------------
SIGNATURE PAGE TO AMENDED AND
RESTATED INVESTOR RIGHTS AGREEMENT
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first above written.
COMPANY:
QUANTUM EFFECT DESIGN:
By:
------------------------------
Name:
------------------------------
(Print)
Title:
-----------------------------
Address:
---------------------------
-----------------------------------
-----------------------------------
INVESTORS:
By: Xxxxxxxxx & Xxxxx Employee Venture
---------------------------------------
Name: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
(Print)
Title: Xxxxxx X. Xxxxxx
--------------------------------------
Tax Director, Attorney-in-Fact
--------------------------------------
Address: Xxx Xxxx Xxxxxx
------------------------------------
Xxx Xxxxxxxxx, XX 00000
------------------------------------
SIGNATURE PAGE TO AMENDED AND
RESTATED INVESTOR RIGHTS AGREEMENT
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first above written.
COMPANY:
QUANTUM EFFECT DESIGN:
By:
------------------------------
Name:
------------------------------
(Print)
Title:
-----------------------------
Address:
---------------------------
-----------------------------------
-----------------------------------
INVESTORS:
By: /s/ Xxxxxxx Xxx
--------------------------------------
Name: Xxxxxxx Xxx
--------------------------------------
(Print)
Title:
-------------------------------------
Address: Xxx Xxxx Xxxxxx
-----------------------------------
Xxx Xxxxxxxxx, XX 00000
-----------------------------------
SIGNATURE PAGE TO AMENDED AND
RESTATED INVESTOR RIGHTS AGREEMENT
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first above written.
COMPANY:
QUANTUM EFFECT DESIGN:
By:
------------------------------
Name:
------------------------------
(Print)
Title:
-----------------------------
Address:
---------------------------
-----------------------------------
-----------------------------------
INVESTORS:
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxx
--------------------------------------
(Print)
Title:
-------------------------------------
Address: c/o Silver Lake Partners
-----------------------------------
0000 Xxxx Xxxx Xxxx #00
-----------------------------------
Xxxxx Xxxx , XX 00000
-----------------------------------
SIGNATURE PAGE TO AMENDED AND
RESTATED INVESTOR RIGHTS AGREEMENT
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first above written.
COMPANY:
QUANTUM EFFECT DESIGN:
By:
------------------------------
Name:
------------------------------
(Print)
Title:
-----------------------------
Address:
---------------------------
-----------------------------------
-----------------------------------
INVESTORS:
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
--------------------------------------
(Print)
Title: Analyst
-------------------------------------
Address: 0000 00xx Xxxxxx
-----------------------------------
Xxx Xxxxxxxxx, XX 00000
-----------------------------------
SIGNATURE PAGE TO AMENDED AND
RESTATED INVESTOR RIGHTS AGREEMENT
SERIES A SERIES B SERIES C SERIES D
NAME/ADDRESS/FAX NO. COMMON PREFERRED PREFERRED PREFERRED PREFERRED
---------------------------------------- -------------- ------------ ------------ ---------- ------------
Integrated Device Technology, Inc. 2,200,000 1,440,000
0000 Xxxxxxx Xxx, X/X X0-00
Xxxxx Xxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxx Xxxxxx
Xxxx and Xxxx Enterprises 360,000
0000-X Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention:
Xxxxxx Xxxxxxx 1,000,000
C/o Quantum Effect Design, Inc.
0000-0 Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxx 1,000,000
C/o Quantum Effect Design, Inc.
0000-0 Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
Xxxx Xxxxxxx 800,000
00000 Xxxxxxx Xxxxx
Xxx Xxxxx Xxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxxx
BESSEMER VENTURE INVESTORS L.P. 140,000 59,160
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxx/Xxx Xxxxxxxx
BESSEMER VENTURE PARTNERS IV L.P. 721,350 328,978
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxx/Xxx Xxxxxxxx
BESSEC VENTURES IV L.P. 538,650 203,471
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxx/Xxx Xxxxxxxx
NORWEST VENTURE PARTNERS VI, L.P. 1,200,000 507,096
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Fax: (000)000-0000
Attention: Xxxxx Xxxx
SERIES A SERIES B SERIES C SERIES D
NAME/ADDRESS/FAX NO. COMMON PREFERRED PREFERRED PREFERRED PREFERRED
---------------------------------------- -------------- ------------ ------------ ---------- ------------
WPG ENTERPRISE FUND II, L.L.C. 1,365,000 414,960 249,256
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxx
XXXXX, XXXX & XXXXX VENTURE 1,135,000 345,040 307,257
ASSOCIATES III, L.L.C.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxx
WPG ENTERPRISE FUND III, L.P. 463,104 296,629
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxx
XXXXX, XXXX & XXXXX VENTURE 529,524 42,387
ASSOCIATES IV, L.P.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxx
WPG INFORMATION SCIENCES 20,520 13,011
ENTREPRENEUR FUND, L.P.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxx
XXXXX, XXXX & XXXXX VENTURE 66,852 335,743
ASSOCIATES IV CAYMAN, L.P.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000X
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxx
Comdisco, Inc. 93,750* 16,123
C/o Comdisco Ventures
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention:
Xxxxxxx Xxxxx 8,000
000 Xx Xxxxxx
Xxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxx
Xxxx X. Xxxxx 4,000
0000 Xxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxx
SERIES A SERIES B SERIES C SERIES D
NAME/ADDRESS/FAX NO. COMMON PREFERRED PREFERRED PREFERRED PREFERRED
---------------------------------------- -------------- ------------ ------------ ---------- ------------
Xxxxx Xxxxx 16,000
0000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Fax: (919)
Xxxxxxxxx Xxxxxxxxx 14,000
000 Xxxxxxxxx Xxxx Xxxxx
Xxxx, XX 00000
Fax: (770)
Xxxxx X. Xxxxxxx 10,000
0000 Xxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Xxxxxxx X. Xxxxx 6,000 34,722
c/x Xxxxxxxxx Xxxxxxxx Funds
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Timark L.P. 20,000
00000 Xxx Xxxxx Xxx
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxxxx
Xxxxxxxxx & Xxxxx LLC 80,000
0 Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxxx 5,500
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Xxxxxxx X. Xxx 5,500 17,361
0000 Xxxxx Xxxxx Xxxxxx, # 0000
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Xxxxxxx X. Xxxxxxxxx 4,000
0000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Xxxxxx X. Xxxxxxxxxx 5,000
0000 Xxxxxx Xxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Xxxxxxx Xxxxxxx 10,000
0000 Xxxxxx Xxxx
Xxx Xxxxx, XX 00000
Xxxxx Xxxxxx 16,000
00000 Xxxxx Xxxx
Xxx Xxxxx Xxxxx, XX 00000
SERIES A SERIES B SERIES C SERIES D
NAME/ADDRESS/FAX NO. COMMON PREFERRED PREFERRED PREFERRED PREFERRED
---------------------------------------- -------------- ------------ ------------ ---------- ------------
Xxxxxx Xxxxx 10,000
0000 Xxxxxxx Xxx. #0
Xxx Xxxxxxxxx, XX 00000
Xxxxx Xxxxxxx 28,000
0000 Xxxxxx Xxxxx
Xxxx Xxxx, XX 00000
Xxxxx Family Partners L.P. 12,000
000 Xxxxxxxxxx Xxxxxx, Xxxxx 00000
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Xxx Xxxxx 28,000
000 Xxxxxxxxxx Xxxxxx, Xxxxx 00000
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Xxx-Xx Hsiang Su 16,000
c/o Xxxxx Xxxx
0000 Xxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxxx Xxxx-Xxxxxxx 40,000
Galileo Technology
0000 Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Xxxxxxxx Xxxxxxxx 4,800
Trumpeldor 63/9
Petah Tikva
Israel
Xxxxx Xxxx 4,800
00 Xxxxxx Xx.
Xxxxx
Xxxxxx 00000
Xxxx Xxxxxxx 4,800
00 Xxxxxx Xx.
Xxxxx
Xxxxxx 00000
Xxxxx Schemla 4,800
Xxxxxx Xxxxx
X. X. Xxxxxx
00000
Xxxxxx
Xxxxxxxx X. Xxxx 4,800
0000 Xxxxxxxxx Xxx.
Xxx Xxxx, XX 00000
Xxxx X. Mein 4,000
Moshav Xxxxx
X. X. Misgav
20184
Israel
SERIES A SERIES B SERIES C SERIES D
NAME/ADDRESS/FAX NO. COMMON PREFERRED PREFERRED PREFERRED PREFERRED
---------------------------------------- -------------- ------------ ------------ ---------- ------------
Venture Lending and Leasing 11, Inc. 80,000*
20 00 Xxxxx Xxxxx Xxxxxx, Xxxxx 0 00
Xxx Xxxx, XX 00000
THE XXXXXXX XXXXX GROUP L.L.C. 1,157,408
00 Xxxxx Xxxxxx
Xxx Xxxx, XX
Attn: Xxx XxXxxxxx
CISCO SYSTEMS, INC. 237,500 1,047,454
000 Xxxx Xxxxxx Xxxxx, Xxxx. X
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxx
Xxxxxx Xxxxxxx 5,787
Bank Boston Xxxxxxxxx Xxxxxxxx Inc.
000 Xxxxxxx Xxxxxx, I I th Xxxxx
Xxxxxx, XX 00000
Xxxxxxx Xxxxx 6,944
Omega Venture Partners
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxxx Xxxxx 6,944
Omega Venture Partners
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx 6,944
Omega Venture Partners
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxx Xxxx 5,787
Omega Venture Partners
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxxxx Xxxxxxx 4,629
Omega Venture Partners
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxxxx Xxxxxxx 694
Omega Venture Partners
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxxx Xxxx 925
Omega Venture Partners
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxxx Xxxxxx 1,157
Omega Venture Partners
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
SERIES A SERIES B SERIES C SERIES D
NAME/ADDRESS/FAX NO. COMMON PREFERRED PREFERRED PREFERRED PREFERRED
---------------------------------------- -------------- ------------ ------------ ---------- ------------
Xxxxxxx Xxxxx 694
Omega Venture Partners
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxxxxxx & Xxxxx California 6,945
0 Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxxxxxx & Xxxxx Employee Fund, L.P. 11 6,945
X Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxxxx Xxx 1,157
Xxxxxxxxx & Xxxxx California
X Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxx Xxxxxxxx 1,157
0 Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxx Xxxxxx 1,157
0 Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
*Represents shares issuable upon exercise of the Warrant Agreements.
Such shares are deemed to be Registrable Securities only upon and to the extent
of such exercise.
