XXXXX, INCORPORATED
INVESTOR RIGHTS AGREEMENT
This Investor Rights Agreement (this "AGREEMENT") is made and entered into
as of March 29, 2000 by and among XXXXX, Incorporated, a Delaware corporation
(the "COMPANY"), and Intel Corporation, a Delaware corporation (the "Investor").
RECITALS
A. The Investor has agreed to purchase from the Company, and the Company
has agreed to sell to the Investor, shares of the Company's Series A Preferred
Stock (the "SERIES A PREFERRED STOCK") on the terms and conditions set forth in
that certain Series A Preferred Stock Purchase Agreement, dated of even date
herewith by and between the Company and the Investor (the "PURCHASE AGREEMENT").
B. The Purchase Agreement provides that the Investor shall be granted
certain information rights, registration rights and other rights, all as more
fully set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
promises hereinafter set forth, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. INFORMATION RIGHTS.
1.1 INFORMATION AND INSPECTION RIGHTS. The Company covenants and agrees
that, commencing on the date of this Agreement, for so long as the Investor
holds any shares of Series A Preferred Stock issued under this Agreement or the
Purchase Agreement, the Company will deliver to the Investor: (a) audited annual
financial statements within 90 days after the end of each fiscal year, (b)
unaudited quarterly financial statements within 45 days of the end of each
fiscal quarter; and (c) an annual budget for the following fiscal year within 30
days prior to the end of each fiscal year. The Company further covenants and
agrees that, commencing on the date of this Agreement, for so long as the
Investor holds any shares of Series A Preferred Stock issued under this
Agreement or the Purchase Agreement, the Investor shall have standard inspection
rights of a stockholder under the General Corporation Law of the State of
Delaware. The Company shall deliver to the Investor copies of the Company's
10-K's, 10-Q's, 8-K's and Annual Reports to Shareholders promptly after such
documents are filed with the SEC.
1.2 BOARD OBSERVER. So long as the Investor, together with its Majority
Owned Subsidiaries (as defined in Section 6.1(c)), holds at least 40% of the
shares of the Company's Series A Preferred Stock or Common Stock acquired upon
the conversion of Series A Preferred Stock (such number to be proportionately
adjusted for stock splits, stock dividends, and similar events), the Company
will permit a representative of the Investor (the "Observer") to attend all
meetings of the Company's Board of Directors (the "Board") and all committees
thereof (whether in person, telephonic or other) in a non-voting, observer
capacity and shall provide to the Investor, concurrently with the members of the
Board, and in the same manner, notice of such meeting and a copy of all
materials provided to such members.
The Company acknowledges that the Investor will likely have, from time to
time, information that may be of interest to the Company ("Information")
regarding a wide variety of matters including, by way of example only, (1)
Investor's technologies, plans and services, and plans and strategies relating
thereto, (2) current and future investments Investor has made, may make, may
consider or may become aware of with respect to other companies and other
technologies, products and services, including, without limitation,
technologies, products and services that may be competitive with the Company's
and (3) developments with respect to the technologies, products and services,
and plans and strategies relating thereto, of other companies, including,
without limitations, companies that may be competitive with the Company. The
Company recognizes that a portion of such Information may be of interest to the
Company. Such Information may or may not be known by the Observer. The Company,
as a material part of the consideration for this Agreement, agrees that Investor
and its Observer shall have no duty to disclose any Information to the Company
or permit the Company to participate in any projects or investments based on any
Information, or to otherwise take advantage of any opportunity that may be of
interest to the Company if it were aware of such Information, and hereby waives,
to the extent permitted by law, any claim based on the corporate opportunity
doctrine or otherwise that could limit Investor's ability to pursue
opportunities based on such Information or that would require Investor or
Observer to disclose any such Information to the Company or offer any
opportunity relating thereto to the Company.
Exchanges of confidential and proprietary information between the Company
and the Observer shall be governed by the terms of the Corporate Non-Disclosure
Agreement No. 204827, dated February 7, 2000, executed by the Company and Intel,
and any Confidential Information Transmittal Records provided in connection
therewith.
2. REGISTRATION RIGHTS.
2.1 DEFINITIONS. For purposes of this Section 2:
(a) REGISTRATION. The terms "REGISTER," "REGISTERED," and
"REGISTRATION" refer to a registration effected by preparing and filing a
registration statement in compliance with the Securities Act of 1933, as
amended, (the "SECURITIES ACT"), and the declaration or ordering of
effectiveness of such registration statement.
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(b) REGISTRABLE SECURITIES. The term "REGISTRABLE SECURITIES" means:
(1) any Common Stock of the Company issued or to be issued pursuant to
conversion of any shares of Series A Preferred Stock issued (A) under the
Purchase Agreement, and (B) pursuant to the Right of Participation (defined in
Section 3 hereof) and (2) any 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, any shares of Series A Preferred Stock
described in clause (1) of this subsection (b). Notwithstanding the foregoing,
"Registrable Securities" shall exclude any Registrable Securities sold by a
person in a transaction in which rights under this Section 2 are not assigned in
accordance with this Agreement or any Registrable Securities sold in a public
offering or sold pursuant to Rule 144 promulgated under the Securities Act.
(c) REGISTRABLE SECURITIES THEN OUTSTANDING. The number of shares of
"REGISTRABLE SECURITIES THEN OUTSTANDING" shall mean the number of shares of
Common Stock of the Company that are Registrable Securities and are then issued
and outstanding.
(d) HOLDER. For purposes of this Section 2, the term "HOLDER" means
any person owning of record Registrable Securities that have not been sold to
the public or pursuant to Rule 144 promulgated under the Securities Act or any
permitted assignee of record of such Registrable Securities to whom rights under
this Section 2 have been duly assigned in accordance with this Agreement.
(e) FORM S-3. The term "FORM S-3" means such form under the Securities
Act as is 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.
(f) SEC. The term "SEC" or "COMMISSION" means the U.S. Securities and
Exchange Commission.
2.2 DEMAND REGISTRATION.
(a) REQUEST BY HOLDERS. If the Company shall at any time after the
first anniversary of the date hereof receive a written request from the Holders
of at least thirty percent (30%) of the Registrable Securities then outstanding
that the Company file a registration statement under the Securities Act covering
the registration of Registrable Securities pursuant to this Section 2.2, then
the Company shall, within ten (10) business days of the receipt of such written
request, give written notice of such request ("REQUEST NOTICE") to all Holders,
and use its best efforts to effect, as soon as practicable, the registration
under the Securities Act of all Registrable Securities that Holders request to
be registered and included in such registration by written notice given by such
Holders to the Company within twenty (20) days after receipt of the Request
Notice, subject only to the limitations of this Section 2.2. If at the time of
receipt of the Request Notice shares of the Company's Common Stock are traded on
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a national securities exchange or the NASDAQ National Market or the NASDAQ Small
Cap Market, the Company shall have the option, instead of registering such
Registrable Securities as are requested herein, to purchase such Registrable
Securities at the Market Price (as defined herein). The parties shall negotiate
in good faith towards the execution of a purchase agreement within 15 business
days of the receipt by the Company of the Request Notice. "Market Price" as used
herein shall be the higher of (i) the closing price of the Company's Common
Stock as quoted on the NASDAQ National Market the day before the closing of the
purchase by the Company of such Registrable Securities and (ii) the average of
the closing prices as quoted on the NASDAQ National Market of the Company's
Common Stock for the 30 trading days previous to the day on which such purchase
closes.
(b) UNDERWRITING. If the Holders initiating the registration request
under this Section 2.2 ("INITIATING HOLDERS") intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
then they shall so advise the Company as a part of their request made pursuant
to this Section 2.2 and the Company shall include such information in the
written notice referred to in subsection 2.2(a). In such event, the right of any
Holder to include his Registrable Securities in such registration shall be
conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Securities in the underwriting (unless
otherwise mutually agreed by a majority in interest of the initiating Holders
and such Holder) to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting shall enter into an
underwriting agreement in customary form with the managing underwriter or
underwriters selected for such underwriting by the Holders of a majority of the
Registrable Securities being registered and reasonably acceptable to the Company
(including, in the case of a primary underwritten public offering, a market
standoff agreement of up to 180 days if required by such underwriter or
underwriters). Notwithstanding any other provision of this Section 2.2, if the
underwriter(s) advise(s) the Company in writing that marketing factors require a
limitation of the number of securities to be underwritten then the Company shall
so advise all Holders of Registrable Securities which would otherwise be
registered and underwritten pursuant hereto, and the number of Registrable
Securities that may be included in the underwriting shall be reduced as required
by the underwriter(s) and allocated among the Holders of Registrable Securities
on a pro rata basis according to the number of Registrable Securities then
outstanding held by each Holder requesting registration (including the
initiating Holders); PROVIDED, HOWEVER, that the number of shares of Registrable
Securities to be included in such underwriting and registration shall not be
reduced unless all other securities of the Company are first entirely excluded
from the underwriting and registration. Any Registrable Securities excluded and
withdrawn from such underwriting shall be withdrawn from the registration.
(c) MAXIMUM NUMBER OF DEMAND REGISTRATIONS. The Company shall be
obligated to effect only two (2) such registrations pursuant to this Section
2.2.
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(d) DEFERRAL. Notwithstanding the foregoing, if the Company shall
furnish to Holders requesting the filing of a registration statement pursuant to
this Section 2.2, a certificate signed by the President or Chief Executive
Officer of the Company stating that in the good faith judgment of the Board, it
would be materially detrimental to the Company and its stockholders for such
registration statement to be filed, then the Company shall have the right to
defer such filing for a period of not more than ninety (90) days after receipt
of the request of the initiating Holders; PROVIDED, HOWEVER, that the Company
may not utilize this right more than once in any twelve (12) month period. In
addition, the Company may defer its obligation to effect any such registration
until after ninety days immediately following the effective date of any
registration statement on Form X-0, X-0 or S-3 registering the Company's
securities; provided, however, that the Company may avail itself of this
deferral no more than once in any twelve month period.
(e) EXPENSES. All expenses incurred in connection with any
registration pursuant to this Section 2.2, including without limitation all
federal and "blue sky" registration, filing and qualification fees, printer's
and accounting fees, and fees and disbursements of counsel for the Company (but
excluding underwriters' discounts and commissions relating to shares sold by the
Holders and legal fees of counsel for the Holders), shall be borne by the
Company. Each Holder participating in a registration pursuant to this Section
2.2 shall bear such Holder's proportionate share (based on the total number of
shares sold in such registration other than for the account of the Company) of
all discounts, commissions or other amounts payable to underwriter(s) or
brokers, and the Holders' legal fees, in connection with such offering by the
Holders. Notwithstanding the foregoing, the Company shall not be required to pay
for any expenses of any registration proceeding begun pursuant to this Section
2.2 if the registration request is subsequently withdrawn at the request of the
Holders of a majority of the Registrable Securities to be registered, unless the
Holders of a majority of the Registrable Securities then outstanding agree that
such registration constitutes the use by the Holders of one (1) demand
registration pursuant to this Section 2.2 (in which case such registration shall
also constitute the use by all Holders of Registrable Securities of one (1) such
demand registration); PROVIDED, HOWEVER, that if at the time of such withdrawal,
the Holders have learned of a material adverse change in the condition,
business, or prospects of the Company not known to the Holders at the time of
their request for such registration and have withdrawn their request for
registration with reasonable promptness after learning of such material adverse
change, then the Holders shall not be required to pay any of such expenses and
such registration shall not constitute the use of a demand registration pursuant
to this Section 2.2.
2.3 PIGGYBACK REGISTRATIONS. The Company shall notify all Holders of
Registrable Securities in writing at least thirty (30) days prior to filing any
registration statement under the Securities Act for purposes of effecting 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 any registration
under Section 2.2 or Section 2.4 of this Agreement or to any employee benefit
plan or a corporate reorganization) and will afford each such Holder an
opportunity to include in such registration statement all or any part of the
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Registrable Securities then held by such Holder. Each Holder desiring to include
in any such registration statement all or any part of the Registrable Securities
held by such Holder shall within twenty (20) days after receipt of the
above-described notice from the Company, so notify the Company in writing, and
in such notice shall inform the Company of the number of Registrable Securities
such Holder wishes to include in such registration statement. 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 a registration statement under which the Company
gives notice under this Section 2.3 is for an underwritten offering, then the
Company shall so advise the Holders of Registrable Securities. In such event,
the right of any such Holder's Registrable Securities 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 managing underwriter or underwriters selected for such underwriting
(including, in the case of a primary public offering, a market stand-off
agreement of up to 180 days if required by such underwriter or underwriters).
Notwithstanding any other provision of this Agreement, if the managing
underwriter(s) determine(s) in good faith that marketing factors require a
limitation of the number of shares to be underwritten, then the managing
underwriter(s) may exclude shares from the registration and the underwriting,
and the number of shares that may be included in the registration and the
underwriting shall be allocated, FIRST to the Company, and SECOND, to each of
the Holders requesting inclusion of their Registrable Securities in such
registration statement on a pro rata basis based on the total number of
Registrable Securities then held by each such Holder; PROVIDED, HOWEVER, that
the right of the underwriter(s) to exclude shares (including Registrable
Securities) from the registration and underwriting as described above shall be
restricted so that (i) the number of Registrable Securities included in any such
registration is not reduced below thirty-three percent (33%) of the aggregate
number of shares to be offered; and (ii) all shares that are not Registrable
Securities and are held by any other person, including, without limitation, any
person who is an employee, officer or director of the Company (or any subsidiary
of the Company) shall first be excluded from such registration and underwriting
before any Registrable Securities are so excluded. If any Holder disapproves of
the terms of any such underwriting, such Holder may elect to withdraw therefrom
by written notice to the Company and the underwriter(s), delivered at least ten
(10) business days prior to the effective date of the registration statement.
Any Registrable Securities excluded or withdrawn from such underwriting shall be
excluded and withdrawn from the registration. For any Holder that is a
partnership, the Holder and the partners and retired partners 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, and for any Holder that
is a corporation, the Holder and all corporations that are affiliates of such
Holder, shall be deemed to be a single "Holder," and any pro rata reduction with
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respect to such "Holder" shall be based upon the aggregate amount of shares
carrying registration rights owned by all entities and individuals included in
such "Holder," as defined in this sentence.
(b) EXPENSES. All expenses incurred in connection with a registration
pursuant to this Section 2.3 (excluding underwriters' and brokers' discounts and
commissions relating to shares sold by the Holders and legal fees of counsel for
the Holders), including, without limitation all federal and "blue sky"
registration, filing and qualification fees, printers' and accounting fees, and
fees and disbursements of counsel for the Company, shall be borne by the
Company.
(c) NOT DEMAND REGISTRATION. Registration pursuant to this Section 2.3
shall not be deemed to be a demand registration as described in Section 2.2
above. Except as otherwise provided herein, there shall be no limit on the
number of times the Holders may request registration of Registrable Securities
under this Section 2.3.
2.4 FORM S-3 REGISTRATION. In case the Company shall at any time after the
first anniversary of the date hereof receive from any Holder or Holders of a
majority of all 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, then the Company will:
(a) NOTICE. Promptly give written notice of the proposed registration
and the Holder's or Holders' request therefor, and any related qualification or
compliance, to all other Holders of Registrable Securities; and
(b) REGISTRATION. 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 such portion of such
Holders or Holders' Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any other
Holder or Holders joining in such request as are specified in a written request
given within twenty (20) days after the Company provides the notice contemplated
by Section 2.4(a); PROVIDED, HOWEVER, that the Company shall not be obligated to
effect any such registration, qualification or compliance pursuant to this
Section 2.4:
(1) if Form S-3 is not available for such offering by the
Holders:
(2) if the Holders, together with the holders of any other
securities of the Company entitled to inclusion in such registration, propose to
sell Registrable Securities and such other securities (if any) at an aggregate
price to the public of less than $500,000;
(3) if the Company shall furnish to the Holders a certificate
signed by the President or Chief Executive Officer of the Company stating that
in the good faith judgment of the Board of Directors of the Company, it would be
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materially 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 no more
than once during any twelve month period 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;
(4) if the Company has, within the six (6) month period preceding
the date of such request, already effected a registration under the Securities
Act on Form 8-3 other than a registration from which the Registrable Securities
of Holders have been excluded (with respect to all or any portion of the
Registrable Securities the Holders requested be included in such registration)
pursuant to the provisions of Section 2.3(a); or
(5) 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) EXPENSES. The Company shall pay all expenses incurred in
connection with each registration requested pursuant to this Section 2.4,
(excluding underwriters' or brokers' discounts and commissions relating to
shares sold by the Holders and legal fees of counsel for the Holders), including
without limitation federal and "blue sky" registration, filing and qualification
fees, printers' and accounting fees, and fees and disbursements of counsel for
the Company.
(d) DEFERRAL. The Company may defer its obligation to effect any such
registration until after ninety days immediately following the effective date of
any registration statement on Form X-0, X-0 or S-3 registering the Company's
securities; provided, however, that the Company may avail itself of this
deferral no more than once in any twelve month period.
(e) NOT DEMAND REGISTRATION. Form 8-3 registrations shall not be
deemed to be demand registrations as described in Section 2.2 above. Except as
otherwise provided herein, there shall be no limit on the number of times the
Holders may request registration of Registrable Securities under this Section
2.4.
2.5 OBLIGATIONS OF THE COMPANY. Whenever required to effect the
registration of any Registrable Securities under this Agreement the Company
shall, as expeditiously as reasonably possible: (a) REGISTRATION STATEMENT.
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, PROVIDED, HOWEVER, that the Company shall not be
required to keep any such registration statement effective for more than ninety
(90) days.
(b) AMENDMENTS AND SUPPLEMENTS. 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
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comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such registration statement.
(c) PROSPECTUSES. 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 the Registrable
Securities owned by them that are included in such registration.
(d) BLUE SKY. 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) UNDERWRITING. 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) NOTIFICATION. 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
known to the Company as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing.
(g) OPINION AND COMFORT LETTER. Furnish, at the request of any Holder
requesting registration of Registrable Securities, on the date that such
Registrable Securities are delivered to the underwriter(s) 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 "comfort" 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 to
the Holders requesting registration of Registrable Securities.
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2.6 FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to Sections 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 required to timely effect
the Registration of their Registrable Securities.
2.7 INDEMNIFICATION. In the event any Registrable Securities are included
in a registration statement under Sections 2.2, 2.3 or 2.4:
(a) BY THE COMPANY. To the extent permitted by law, the Company will
indemnify and hold harmless each Holder, the partners, officers and directors of
each Holder, any underwriter (as determined 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 "1934 ACT"), against any losses, claims, damages, or liabilities
(joint or several) to which they may become subject under the Securities Act,
the 1934 Act or Other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations
(collectively a "VIOLATION"):
(i) any untrue statement or alleged untrue statement of a
material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto;
(ii) the omission or alleged omission to state therein a material
fact required to be stated therein, or necessary to make the
statements therein not misleading, or
(iii) any violation or alleged violation by the Company of the
Securities Act, the 1934 Act, any federal or state securities law or
any rule or regulation promulgated under the Securities Act, the 1934
Act or any federal or 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,
underwriter or controlling person for any legal or other expenses reasonably
incurred by them, as incurred, in connection with investigating or defending any
such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the
indemnity agreement contained in this subsection 2.7(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 shalt 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
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use in connection with such registration by such Holder, partner, officer,
director, underwriter or controlling person of such Holder.
(b) BY SELLING HOLDERS. 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 have signed the registration statement, each
person, if any, who controls the Company within the 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 within the meaning of the
Securities Act or the 1934 Act, against any losses, claims, damages or
liabilities (joint or several) to which the Company or any such director,
officer, controlling person, underwriter or other such Holder, partner or
director, officer or controlling person of such other Holder may become subject
under the Securities Act, the 1934 Act or other federal or state law, insofar as
such losses, claims, damages or liabilities (or actions in respect thereto)
arise out of or are based upon any Violation, in each case to the extent (and
only to the extent) that such Violation occurs in reliance upon and in
conformity with written information furnished by such Holder expressly 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, controlling person, underwriter or other Holder, partner, officer,
director or controlling person of such other Holder in connection with
investigating or defending any such loss, claim, damage, liability or action:
PROVIDED, HOWEVER, that the indemnity agreement contained in this subsection
2.7(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; and PROVIDED,
FURTHER, that the total amounts payable in indemnity by a Holder under this
Section 2.7(b) in respect of any Violation shall not exceed the net proceeds
received by such Holder in the registered offering out of which such Violation
arises.
(c) NOTICE. Promptly after receipt by an indemnified party under
this Section 2.7 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 2.7, 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 conflict of 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 shall relieve such indemnifying party of
liability to the indemnified party under this Section 2.7 to the extent the
indemnifying party is prejudiced as a result thereof, but the omission to so
deliver written notice to the indemnifying party will not relieve it of any
11
liability that it may have to any indemnified party otherwise than under this
Section 2.7.
(d) DEFECT ELIMINATED IN FINAL PROSPECTUS. The foregoing
indemnity agreements of the Company and Holders are subject to the condition
that, insofar as they relate to any Violation made in a preliminary prospectus
but eliminated or remedied in the amended prospectus on file with the SEC at the
time the registration statement in question becomes effective or the amended
prospectus filed with the SEC pursuant to SEC Rule 424(b) (the "FINAL
PROSPECTUS"), such indemnity agreement shall not inure to the benefit of any
person if a copy of the Final Prospectus was timely furnished to the indemnified
party and was not furnished to the person asserting the loss, liability, claim
or damage at or prior to the time such action as required by the Securities Act.
(e) CONTRIBUTION. In order to provide for just and equitable
contribution to joint liability under the Securities Act in any case in which
either (i) any Holder exercising rights under this Agreement, or any controlling
person of any such Holder, makes a claim for indemnification pursuant to this
Section 2.7 but it is judicially determined (by the entry of a final judgment or
decree by a court of competent jurisdiction and the expiration of time to appeal
or the denial of the last right of appeal) that such indemnification may. not be
enforced in such case notwithstanding the fact that this Section 2.7 provides
for indemnification in such case, or (ii) contribution under the Securities Act
may be required on the part of any such selling Holder or any such controlling
person in circumstances for which indemnification is provided under this Section
2.7; then, and in each such case, the Company and such Holder will contribute to
the aggregate losses, claims, damages or liabilities to which they may be
subject (after contribution from others) in such proportion so that such Holder
is responsible for the portion represented by the percentage that the public
offering price of its Registrable Securities offered by and sold under the
registration statement bears to the public offering price of all securities
offered by and sold under such registration statement, and the Company and other
selling Holders are responsible for the remaining portion; PROVIDED, HOWEVER,
that, in any such case: (A) no such Holder will be required to contribute any
amount in excess of the public offering price of all such Registrable Securities
offered and sold by such Holder pursuant to such registration statement; and (B)
no person or entity guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) will be entitled to contribution from
any person or entity who was not guilty of such fraudulent misrepresentation.
(f) SURVIVAL. The obligations of the Company and Holders under
this Section 2.7 shall survive until the fifth anniversary of the completion of
any offering of Registrable Securities in a registration statement, regardless
of the expiration of any statutes of limitation or extensions of such statutes.
2.8 TERMINATION OF THE COMPANY'S OBLIGATIONS. The Company shall have no
obligations pursuant to Sections 2.2 through 2.4 with respect to any Registrable
Securities proposed to be sold by a Holder in a registration. pursuant to
Section 2.2, 2.3 or 2.4 more than five (5) years after the date of this
12
Agreement, or, with respect to any Holder, if, in the opinion of counsel to the
Company, all such Registrable Securities held by such Holder may then be sold
without registration in any three-month period pursuant to Rule 144 promulgated
under the Securities Act.
2.9 NO REGISTRATION RIGHTS TO THIRD PARTIES. Without the prior written
consent of the holders of at least 66-2/3% of the Company's outstanding Series A
Preferred Stock then outstanding, the Company covenants and agrees that it shall
not grant, or cause or permit to be created, for the benefit of any person or
entity any registration rights of any kind (whether similar to the demand,
"piggyback" or Form 8-3 registration rights described in this Article 2, or
otherwise) relating to shares of the Company's Series A Preferred Stock or any
other voting securities of the Company, other than rights that are on a parity
with or subordinate in right to the rights of the Holders.
3. RIGHT OF PARTICIPATION.
3.1 GENERAL. The Investor and any assignee to which rights under this
Section 3 have been duly assigned in accordance with Section 5 (the Investor and
each such assignee being hereinafter referred to .as a "PARTICIPATION RIGHTS
HOLDER") shall have the right of first refusal to purchase such Participation
Rights Holder's Pro Rata Share (as defined in Section 3.2), of all (or any part)
of any New Securities (as defined in Section 3.3) that the Company may from time
to time issue after the date of this Agreement (the "RIGHT OF PARTICIPATION").
3.2 PRO RATA SHARE. A Participation Rights Holder's "PRO RATA SHARE" for
purposes of the Right of Participation is the ratio of (a) the number of
Registrable Securities held by such Participation Rights Holder to (b) the total
number of shares of Series A Preferred Stock of the Company (and other voting
securities of the Company, if any) then outstanding (immediately prior to the
issuance of New Securities giving rise to the Right of Participation).
3.3 NEW SECURITIES. "NEW SECURITIES" shall mean any Series A Preferred
Stock, Preferred Stock or other voting capital stock of the Company, whether now
authorized or not, and rights, options or warrants to purchase such Series A
Preferred Stock or Preferred Stock, and securities of any type whatsoever that
are, or may become, convertible or exchangeable into such Series A Preferred
Stock, Preferred Stock or other capital stock, PROVIDED, HOWEVER, that the term
"New Securities" shall not include:
(a) up to 2,500,000 shares of the Company's Common Stock (and/or options
or warrants therefor) issued to employees, officers, directors,
contractors, advisors or consultants of the Company pursuant to the
XXXXX, Incorporated 1999 Stock Incentive Plan (the "Plan") and 250,000
shares of the Company's Common Stock issued to directors of the
Company pursuant to stock options issued outside the Plan;
13
(b) any shares of Series A Preferred Stock issued under the Purchase
Agreement, as such agreement may be amended;
(c) any securities issued in connection with any stock split stock,
dividend or other similar event in which all Participation Rights
Holders are entitled to participate on a pro rata basis;
(d) any securities issued upon the exercise, conversion or exchange of any
outstanding security if such outstanding security constituted a New
Security;
(e) warrants to financing sources and any securities issued upon the
exercise thereof;
(f) any securities issued pursuant to the acquisition of another
corporation or entity by the Company by consolidation, merger,
purchase of assets, or other reorganization in which the Company
acquires, in a single transaction or series of related transactions,
assets of such other corporation or entity or fifty percent (50%) or
more of the voting power of such other corporation or entity or fifty
percent (50%) or more of the equity ownership of such other entity; or
(g) any securities issued in connection with an underwritten public
offering pursuant to a registration statement filed with the U.S.
Securities and Exchange Commission, after which shares of the
Company's Common Stock trade on a national securities exchange or the
NASDAQ National Market or the. NASDAQ Small Cap Market and with a
price per share of at least the price per share listed as of the close
of trading on the national securities exchange or the NASDAQ National
Market, the NASDAQ Small Cap Market or the OTC Bulletin Board the day
before issuance or, if shares of the Company's Common Stock are not
listed on a national securities exchange or the NASDAQ National Market
or the NASDAQ Small Cap Market after the offering, a price per share
of at least $20.
3.4 PROCEDURES. In the event that the Company proposes to undertake an
issuance of New Securities (in a single transaction or a series of related
transactions), it shall give to each Participation Rights Holder written notice
of its intention to issue New Securities (the "PARTICIPATION NOTICE"),
describing the amount and the type of New Securities and the price and the
general terms upon which the Company proposes to issue such New Securities. Each
Participation Rights Holder shall have ten (10) business days from the date of
receipt of any such Participation Notice to agree in writing to purchase such
Participation Rights Holder's Pro Rata Share (and any reallotments as provided
below) of such New Securities for the price and upon the terms and conditions
specified in the Participation Notice by giving written notice to the Company
and stating therein the quantity of New Securities to be purchased (and any
reallotments). If any Participation Rights Holder fails to so agree in writing
within such ten (10) business day period to purchase such Participation Rights
Holder's full Pro Rata Share of an offering of New Securities, then such
Participation Rights Holder shall forfeit the right hereunder to purchase that
14
part of its Pro Rata Share of such New Securities that it did not so agree to
purchase. Such Participation Rights Holder shall purchase the portion elected by
such Participation Rights Holder concurrently with the closing of the
transaction triggering the Right of Participation. Each Participation Rights
Holder shall have a right of reallotment such that, if any other Participation
Rights Holder fails to exercise the right to purchase its full Pro Rata Share of
the New Securities, the other participating Participation Rights Holders may
exercise an additional right to purchase, on a pro rata basis, the New
Securities not previously purchased.
3.5 FAILURE TO EXERCISE. Upon the expiration of such ten (10) day period,
the Company shall have 120 days thereafter to sell the New Securities described
in the Participation Notice (with respect to which the Participation Rights
Holders' rights of first refusal hereunder were not exercised) at the same or
higher price and upon non-price terms not materially more favorable to the
purchasers thereof than specified in the Participation Notice. In the event that
the Company has not issued and sold such New Securities within such 120 day
period, then the Company shall not thereafter issue or sell any New Securities
without again first offering such New Securities to the Participation Rights
Holders pursuant to this Section 3.
3.6 TERMINATION. The Right of Participation for the Investor and each other
Participation Rights Holder shall terminate upon the earlier of (i) the
completion by the Company of an underwritten secondary public offering of the
Company's Common Stock, which results in gross proceeds to the Company of at
least $5,000,000 or (ii) three (3) years from the date of Closing.
4. RIGHTS IN CORPORATE EVENTS.
4.1 CORPORATE EVENT. A "CORPORATE EVENT" shall mean any of the following,
whether accomplished through one or a series of related transactions (a) the
acquisition by a third party or parties (the "Acquirer") of all or substantially
all the assets of the Company or (b) any other transaction or series of related
transactions that would result in a greater than fifty percent (50%) change in
the ownership of the total outstanding shares of Series A Preferred Stock of the
Company or any other class of voting securities of the Company. The Company
agrees that it will provide the Investor with detailed written notice of any
offer to the Company from a third party for a proposed Corporate Event within
five (5) business days of the date the Company first becomes aware of such offer
or proposed Corporate Event. In addition, the Company agrees that it will
provide the Investor, within five (5) business days of the Company's becoming
aware thereof, with detailed written notice of any bona fide offer from a third
party to acquire ten percent (10%) or more of the Company's outstanding voting
securities.
4.2 INVESTOR CONSENT. The Company shall not consummate a Corporate Event
without the prior written consent of the Investor. The Investor shall consent to
such Corporate Event if it reasonably determines that the Acquirer will (i)
become or cause the Company to remain a party to the Materials Collaboration
Agreement executed and delivered by the Company pursuant to the Purchase
Agreement without any material modification thereto or (ii) agree or cause the
15
Company to supply the Investor with all products or technology that are the
subject of such Materials Collaboration Agreement, in compliance with all
quality, performance, delivery and pricing standards and practices of the
Investor's preferred suppliers, as such standards and practices are reasonably
determined by the Investor.
4.3 TERMINATION OF RIGHTS. The rights of the Investor under Sections 4.2
shall remain in full force until the termination of the Materials Collaboration
Agreement, by its terms.
5. ASSIGNMENT AND AMENDMENT.
5.1 ASSIGNMENT. Notwithstanding anything herein to the contrary:
(a) INFORMATION RIGHTS. The rights of the Investor under Section 1.1
are transferable to any Holder; PROVIDED, HOWEVER, that no party may be assigned
any of the foregoing rights unless the Company is given written notice by the
assigning party at the time of such assignment stating the name and address of
the assignee and identifying the securities of the Company as to which the
rights in question are being assigned; and PROVIDED FURTHER that any such
assignee shall receive such assigned rights subject to all the terms and
conditions of this Agreement, including without limitation the provisions of
this Section 5. The rights of the Investor under Section 1.2 may not be
assigned.
(b) REGISTRATION RIGHTS. The registration rights of the Investor under
Section 2 hereof may be assigned to any Holder; PROVIDED, HOWEVER, that no party
may be assigned any of the foregoing rights unless the Company is given written
notice by the assigning party at the time of such assignment stating the name
and address of the assignee and identifying the securities of the Company as to
which the rights in question are being assigned; and PROVIDED FURTHER that any
such assignee shall receive such assigned rights subject to all the terms and
conditions of this Agreement, including without limitation the provisions of
this Section 5.
(c) RIGHT OF PARTICIPATION. The rights of the Investor under Sections
3 hereof are fully assignable; PROVIDED, HOWEVER that no party may be assigned
any of the foregoing rights unless the Company is given written notice by the
Investor or its successor at the time of such assignment stating the name and
address of the assignee and identifying the securities of the Company as to
which the rights in question are being assigned; and PROVIDED FURTHER that any
such assignee shall receive such assigned rights subject to all the terms and
conditions of this Agreement.
(d) RIGHTS ON CORPORATE EVENTS. The rights of the Investor under
Section 4 hereof may be assigned only in whole, and not in part, and only to a
subsidiary of which the Investor beneficially owns, either directly or
indirectly, at least 50% of the voting securities (a "Majority Owned
Subsidiary"); PROVIDED, HOWEVER that no party may be assigned any of the
foregoing rights unless the Company is given written notice by the Investor at
the time of such assignment stating the name and address of the assignee; and
16
PROVIDED FURTHER that any such assignee shall receive such assigned rights
subject to all the terms and conditions of this Agreement.
(e) TRANSFER RESTRICTION. Neither the Investor nor any transferee
shall transfer any right or interest in the Company to any of the not more than
five entities set forth on Schedule A attached hereto; upon 30 days' notice to
the Investor, the Company may, subject to the written consent of the Investor
which consent shall not be unreasonably withheld, amend Schedule A from time to
time.
5.2 AMENDMENT OF RIGHTS. Any provision of this Agreement 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 the Company and Investor (or, in the case of an amendment or waiver
of any provision of Section 2 hereof, only with the written consent of the
Company and the Holders of a majority of the Registrable Securities then
outstanding and entitled to the registration rights set forth in Section 2
hereof. Any amendment or waiver effected in accordance with this Section 5.2
shall be binding upon the Investor, each Holder, each permitted successor or
assignee of such Investor or Holder and the Company.
6. CONFIDENTIALITY AND NON-DISCLOSURE.
6.1 DISCLOSURE OF TERMS. Except to the extent required by law or judicial
order or regulation of any securities exchange on which the Company's securities
are listed for trading or except as provided herein, neither party shalt
disclose this Agreement, the Purchase Agreement, the Right of First Refusal,
Co-sale and Subordination Agreement of even date herewith by and between the
Company and the Investor and any and all amendments thereto (collectively, the
"Financing Terms"), their existence or any of their terms without the other's
prior written approval. Either party may disclose the Financing Terms to the
extent required by law or judicial order, provided that if such disclosure is
pursuant to judicial order or proceedings, the disclosing party will notify the
other party promptly before such disclosure and will cooperate with the other
party to seek confidential treatment with respect to the disclosure if requested
by the other party and provided further that if such disclosure is required
pursuant to the rules and regulations of any federal, state or local
organization, the parties will cooperate to seek confidential treatment of the
Financing Terms to the maximum extent possible under law. Notwithstanding the
foregoing provisions or any other provision to the contrary, the Company agrees
that, except to the extent required by judicial or administrative order, which
the Company shall resist to the maximum extent possible under law, and except as
required by the Securities Act to be disclosed in a registration statement or
other offering document pursuant to which Investor is selling shares of Common
Stock or other securities of the Company or as required by the Company's filings
under the 1934 Act, the Company will not disclose the identity of the Investor
hereunder or describe the Investor other than as a "corporate investor" in any
public filing, advertisement, news release or professional or trade publication
or in any other manner without the Investor's prior written consent (which
consent generally will not be granted) and will not file the Financing Terms or
any other agreement in existence on the date hereof between the Company and
17
Investor (the "Exhibit Filing") with any governmental or self-regulatory agency
in which the identity of the Investor is disclosed; provided, however, that, in
connection with any offering of securities by the Company for which registration
is sought under the Securities Act, the Company may describe the Investor other
than as a "corporate investor" or disclose the identity of the Investor in the
prospectus filed with the SEC with respect to such offering or in any document
incorporated by reference into such prospectus and/or make the Exhibit Filing if
and only if (i) the Company is instructed to include such disclosure in such
prospectus or incorporated documents and/or to make the Exhibit Filing by the
SEC in written comments provided to the Company as a part of its review of the
offering, (ii) the Company provides the Investor with a copy of such comment
promptly following receipt, (iii) the Company uses its best efforts to persuade
the SEC to withdraw its comment or to allow disclosure that does not identify
the Investor other than as a "corporate investor," (iv) the Company provides the
Investor the opportunity to comment on the Company's written response to the SEC
with respect to such comment, (v) the Company provides the Investor with the
opportunity to meet with the Company in person or by phone with the staff of the
SEC to assist the Company in responding to such comment, AND (vi) the Company
engages in a conference with the SEC Branch Chief responsible for the offering,
in which a representative of the Investor participates and is given an
opportunity to be heard, and after such conference the Branch Chief persists in
his or her requirement that such disclosure and/or Exhibit Filing be made by the
Company. The Company agrees that it will provide the Investor with drafts of any
documents, press releases or other filings in which the Financing Terms or the
transactions contemplated thereby are disclosed at least three (3) business days
prior to the filing or disclosure thereof, and that it will not disclose or file
any such documents, press releases or other filings to which Investor has
reasonably objected.
6.2 PRESS RELEASES, ETC. The Company and the Investor agree that there
shall be no press release or other public statement issued by either party
relating to the Financing Terms or the transactions contemplated thereby,
without the prior written consent of each party.
6.3 PERMITTED DISCLOSURES. 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; and (ii) the Investor 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 regarding the Financing
Terms disclosed in a press release or other public announcement by the Investor.
6.4 THIRD PARTY INFORMATION. Neither Party will be required to disclose to
the other any confidential information of any third party without having first
obtained such third party's prior written consent.
18
6.5 SURVIVAL. The provisions of this Section 6 shall survive for a period
of three (3) years from the date which the Purchaser ceases to have any rights
under this Agreement.
6.6 OTHER INFORMATION. The provisions of this Section 6 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 the Investor (including without
limitation, any exchanges of information with any Investor board observer) shall
be governed by the terms of the Corporate Non-Disclosure Agreement No. 204827,
executed by the Company and the Investor, and any Confidential Information
Transmittal Records ("CITR") provided in connection therewith.
7. GENERAL PROVISIONS.
7.1. NOTICES. Except as may be otherwise provided herein, all notices,
requests, waivers and other communications made pursuant to this Agreement shall
be in writing and shall be conclusively deemed to have been duly given (a) when
hand delivered to the other party; (b) when received when sent by facsimile at
the address and number set forth below; (c) three business days after deposit in
the U.S. mail with first class or certified mail receipt requested postage
prepaid and addressed to the other party as set forth below; or (d) the next
business day after deposit with a national overnight delivery service, postage
prepaid, addressed to the parties as set forth below with next-business-day
delivery guaranteed, provided that the sending party receives a confirmation of
delivery from the delivery service provider.
To Investor: To the Company:
Intel Corporation XXXXX, Incorporated
0000 Xxxxxxx Xxxxxxx Xxxx. 0000 Xxxx 0xx Xxxxxx
Xxxxx Xxxxx, XX 00000 Xxxxx, XX 00000
Attn: Portfolio Manager SC4-210 Attn: Xxx Xxxxxxx
Fax Number: (000) 000-0000 Fax Number: (000) 000-0000
With copies to:
Intel Corporation Xxxxxxx & Xxxxx LLP
0000 Xxxxxxx Xxxxxxx Xxxx. Xxx Xxxx Xxxxxxxxx Xxxx, Xxx. 000
Xxxxx Xxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: General Counsel Attn: P. Xxxxxx Xxxx, Esq.
Fax Number: (000) 000-0000 Fax Number: (000) 000-0000
Each person making a communication hereunder by facsimile shall promptly
confirm by telephone to the person to whom such communication was addressed each
communication made by it by facsimile pursuant hereto but the absence of such
confirmation shall not affect the validity of any such communication. A party
19
may change or supplement the addresses given above, or designate additional
addresses, for purposes of this Section 8.1 by giving the other party written
notice of the new address in the manner set forth above.
7.2 ENTIRE AGREEMENT. This Agreement constitutes and contains the entire
agreement and understanding of the parties with respect to the subject matter
hereof and supersedes any and all prior negotiations, correspondence,
agreements, understandings, duties or obligations between the parties respecting
the subject matter hereof.
7.3 GOVERNING LAW. This Agreement shall be governed by and construed
exclusively in accordance with the internal laws of the State of Delaware as
applied to agreements among Delaware residents entered into and to be performed
entirely within Delaware, excluding that body of law relating to conflict of
laws and choice of Law.
7.4 SEVERABILITY. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, then such provision(s) shall be excluded
from this Agreement and the balance of this Agreement shall be interpreted as if
such provision(s) were so excluded and shall be enforceable in accordance with
its terms.
7.5 THIRD PARTIES. Nothing in this Agreement, express or implied, is
intended to confer upon any person, other than the parties hereto and their
permitted successors and assigns, any rights or remedies under or by reason of
this Agreement.
7.6 SUCCESSORS AND ASSIGNS. Subject to the provisions of Section 5.1, the
provisions of this Agreement shall inure to the benefit of, and shall be binding
upon, the successors and permitted assigns of the parties hereto.
7.7 CAPTIONS. The captions to sections of this Agreement have been inserted
for identification and reference purposes only and shall not be used to construe
or interpret this Agreement.
7.8 COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
7.9 ADJUSTMENTS FOR STOCK SPLITS, ETC. Wherever in this Agreement there is
a reference to a specific number of shares of Series A Preferred Stock of the
Company, then, upon the occurrence of any subdivision, combination or stock
dividend of Series A Preferred Stock, the specific number of shares so
referenced in this Agreement shall automatically be proportionally adjusted to
reflect the affect on the outstanding shares of such class or series of stock by
such subdivision, combination or stock dividend.
20
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
XXXXX, INCORPORATED INTEL CORPORATION
By: By:
--------------------------------- ----------------------------------
Name: Name:
------------------------------- --------------------------------
Title: Title:
----------------------------- -------------------------------
SIGNATURE PAGE TO XXXXX INVESTOR RIGHTS AGREEMENT
21
INTEL CORPORATION
0000 Xxxxxxx Xxxxxxx Xxxx.
X.X. Xxx 00000
Xxxxx Xxxxx, XX 00000-0000
(000) 000-0000
XXX.XXXXX.XXX
[INTEL LOGO]
3/22/00
To whom it may concern:
I hereby designate Xxxx Xxxx to act on my behalf during my absence from the
office 3/23/00 through 3/27/00 as authorized by the Intel Corporation Board of
Directors; Resolutions dated July 16, 1997 (general treasury), September 17,
1997 (banking), and July 21, 1999 (corporate business development) (and the
corresponding Board of Directors' Resolutions of Intel Corporation's direct and
indirect subsidiaries), and the Intel Corporation Board of Directors'
Resolutions dated May 20, 1997 (temporary delegations of authority).
Below is the true and authentic signature of Xxxx and, for internal accounting
purposes, his initials.
/s/ Xxxx Xxxx /s/ NSL
------------------------------ ------------------
Xxxx Xxxx Initials
Assistant Treasurer,
Cash Management and Systems
Sincerely,
/s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx
Vice President and Treasurer
INTEL CORPORATION
/pe
22
Schedule A
Applied Materials, Inc.
Novellus Systems, Inc.
Tokyo Electron Limited
Ebarra Technologies
Silicon Valley Group, Inc.
