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EXHIBIT 10.2
OPTICAL MICRO-MACHINES, INC.
AMENDED AND RESTATED SHAREHOLDERS RIGHTS AGREEMENT
May 31, 2000, as amended
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TABLE OF CONTENTS
PAGE
Section 1. Certain Definitions...............................................................1
Section 2. Piggyback Rights..................................................................3
2.1 Notice of Registration............................................................3
2.2 Underwriting......................................................................3
2.3 Right to Terminate Registration...................................................4
Section 3. Demand Registration...............................................................4
3.1 Demand Registration...............................................................4
3.2 Underwritten Public Offering......................................................5
3.3 Inclusion of Additional Shares....................................................6
Section 4. Form S-3 Registration.............................................................7
4.1 Registrations on Form S-3.........................................................7
Section 5. Obligations of Company............................................................8
Section 6. Expenses of Registration..........................................................9
Section 7. Indemnification...................................................................9
7.1 The Company.......................................................................9
7.2 Holders..........................................................................10
7.3 Defense of Claims................................................................10
7.4 Contribution.....................................................................11
Section 8. Rule 144 Reporting...............................................................11
Section 9. Standoff and Stand-still Agreements..............................................12
9.1 Market Standoff..................................................................12
9.2 Stand-still Agreement............................................................12
Section 10. Limitations on Subsequent Registration Rights....................................13
Section 11. Information Rights...............................................................13
11.1 Delivery of Financial Statements.................................................13
11.2 Inspection.......................................................................14
11.3 Termination of Information and Inspection Covenants..............................14
11.4 Confidentiality..................................................................14
Section 12. Board of Directors...............................................................15
Section 13. Purchasers' Right of First Offer.................................................16
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 14. Right of First Refusal on Founders' Shares.......................................18
14.1 General..........................................................................18
14.2 Notice of Proposed Transfer......................................................18
14.3 Exercise of Right of First Refusal...............................................18
14.4 Purchase Price...................................................................19
14.5 Payment..........................................................................19
14.6 Selling Founder's Right to Transfer..............................................19
14.7 Termination of Right of First Refusal............................................19
14.8 Superiority of Company Right of First Refusal....................................19
Section 15. Co-Sale Rights...................................................................20
15.1 General..........................................................................20
15.2 Closing..........................................................................20
15.3 Termination......................................................................20
Section 16. Exempt Transfers and Other Limitations...........................................21
Section 17. Legend...........................................................................21
Section 18. Termination of Rights............................................................22
Section 19. Miscellaneous....................................................................22
19.1 Assignment.......................................................................22
19.2 Governing Law....................................................................23
19.3 Counterparts.....................................................................23
19.4 Titles and Subtitles.............................................................23
19.5 Notices..........................................................................23
19.6 Attorney's Fees..................................................................24
19.7 Amendments and Waivers...........................................................24
19.8 Severability.....................................................................24
19.9 Delays or Omissions..............................................................24
19.10 Entire Agreement.................................................................24
19.11 Aggregation of Stock.............................................................24
19.12 Waiver of Right of First Offer...................................................24
19.13 Remedies.........................................................................25
19.14 Prior Agreement..................................................................25
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OPTICAL MICRO-MACHINES, INC.
AMENDED AND RESTATED SHAREHOLDERS RIGHTS AGREEMENT
THIS AMENDED AND RESTATED SHAREHOLDERS RIGHTS AGREEMENT ("Agreement") is
entered into as of May 31, 2000, as amended, by and among Optical Micro-
Machines, Inc., a Delaware corporation (the "Company"), the holders of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Series D
Preferred Stock of the Company (collectively the "Prior Purchasers"), and
Silicon Valley Bank, solely as a holder of shares of Series C Preferred Stock
issuable upon exercise of outstanding warrants to purchase Series C Preferred
Stock and with respect to all Sections of this Agreement other than Sections 14,
15 and 16 (the "Warrant Holder") and the purchasers of Series E Preferred Stock
of the Company (the "New Purchasers," and, collectively with Prior Purchasers
and the Warrant Holder, the "Purchasers" or "Investors"), and ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇, ▇▇ ▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ (collectively, the "Founders" and, individually,
each a "Founder").
RECITALS:
A. Concurrently herewith, the New Purchasers and the Company are
entering into a Series E Preferred Stock Purchase Agreement (the "Series E
Agreement") pursuant to which the New Purchasers will purchase from the Company
shares of Series E Preferred Stock of the Company;
B. The Company, the Founders and the Prior Purchasers have entered into
that certain Amended and Restated Shareholder Agreement dated November 16, 1999
(the "Prior Agreement");
C. Pursuant to Section 20.7 of the Prior Agreement, the Prior Agreement
may be amended as set forth herein with the written consent of the Company (as
authorized by its Board of Directors) and the holders of a majority of the
outstanding Registrable Securities (as defined in the Prior Agreement); and
D. The parties hereto, consisting of the Company, New Purchasers, the
Founders and the requisite majority of the Prior Purchasers, desire to amend and
restate the Prior Agreement as set forth herein to modify certain provisions
thereof, and to accord to the New Purchasers certain rights comparable to those
held by the Prior Purchasers.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
SECTION 1.
CERTAIN DEFINITIONS
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Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
1.1 "SEC" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
1.2 "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder, all as
the same shall be in effect at that time.
1.3 "INITIAL PUBLIC OFFERING" or "IPO" means the Company's sale of
its Common Stock in a bona fide, firm commitment underwriting pursuant to a
registration statement filed with the SEC pursuant to the Securities Act
pursuant to which the Company sells its shares of Common Stock at an aggregate
price to the public of at least $50,000,000.
1.4 The terms "REGISTER", "REGISTERED" and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act (as defined below), and the declaration or
ordering of the effectiveness of such registration statement.
1.5 "REGISTRABLE SECURITIES" means (i) shares of Common Stock of the
Company issuable or issued to the Founders (provided however that such shares of
Common Stock shall not be deemed shares of Registrable Securities for the
purposes of Sections 3, 4 or 19.7), (ii) shares of Common Stock issuable or
issued upon conversion of the Preferred Stock (whether currently issued or
hereafter acquired) of the Company (the Common Stock described in (i) and (ii)
hereinafter collectively referred to as the "SHARES"), and (iii) any other
shares of the Company's Common Stock issued as (or issuable upon conversion or
exercise of any warrant, right or other security which is issued as) a dividend
or other distribution with respect to or exchange for or replacement of the
Shares, excluding in all cases, however, any Registrable Securities sold by a
person in a transaction in which a Holder's rights under this Agreement are not
assigned; provided, however, that Registrable Securities shall only be treated
as Registrable Securities if and so long as, they have not been (1) sold to or
through a broker or dealer or underwriter in a public distribution or a public
securities transaction or (2) sold in a transaction exempt from the registration
and prospectus delivery requirements of the Securities Act under Section 4(1)
thereof so that all transfer restrictions and restrictive legends with respect
thereto are removed upon the consummation of such sale.
1.6 "HOLDER" means either a Founder or Purchaser or assignee thereof
in accordance with Section 20.1.
1.7 "SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the SEC promulgated thereunder, all as
the same shall be in effect at the time.
1.8 An "AFFILIATE" of a Holder means: (i) any partner or member or
retired partner or member of any Holder which is a partnership or limited
liability corporation; (ii) any partnership or limited liability corporation
that is affiliated with a Holder that is also a partnership or limited
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liability corporation; (iii) any family member or trust for the benefit
of any Holder which is an individual; or (iv) any majority-owned
subsidiary of any Holder which is a corporation.
SECTION 2.
PIGGYBACK RIGHTS
2.1 Notice of Registration. If at any time or from time to time, the
Company shall determine to register any of its securities for its own account or
for the account of shareholders other than the Purchasers in a public offering
(other than pursuant to Rule 145 or from the Company's stock option plan), the
Company will:
(i) promptly give to the Purchasers written notice thereof; and
(ii) include in such registration (and any related qualification
under blue sky laws or other compliance), and underwriting (if applicable), all
the Registrable Securities (subject to cutback as set forth in Section 2.2)
specified in a written request or requests made within thirty (30) days after
receipt of such written notice from the Company by any Purchaser.
In connection with any registration pursuant to this Section 2, the
Purchasers participating in such registration shall provide all information to
the Company as may be required in order to permit the Company to comply with all
applicable requirements of the SEC in connection with such registration.
2.2 Underwriting. In connection with any offering involving an
underwriting of shares of the Company's capital stock, the right of any
Purchaser to registration pursuant to this Section 2 shall be conditioned upon
such Purchaser's participation in such underwriting and the inclusion of
Registrable Securities in the underwriting to the extent provided herein. If any
Purchaser proposes to distribute its securities through such underwriting, such
Purchaser shall (together with the Company and any other holders distributing
their securities through such underwriting) enter into an underwriting agreement
in customary form with the managing underwriter selected for such underwriting
by the Company. Notwithstanding any other provision of this Section 2, if the
managing underwriter advises the Purchasers registering shares of Registrable
Securities in writing that marketing factors require a limitation of the number
of shares to be underwritten, then the Registrable Securities of the Purchasers,
the securities of the Company and the securities held by any other shareholders
distributing their securities through such underwriting shall be excluded from
the underwriting by reason of the underwriter's marketing limitation to the
extent so required by such limitation as follows: (a) first, the securities held
by such other shareholders distributing their securities through such
underwriting shall be excluded, (b) if after all securities held by such other
shareholders have been excluded and any additional shares must be excluded,
Registrable Securities of the Purchasers shall be excluded in a manner such that
the number of any Registrable Securities that may be included by such Purchasers
are allocated in proportion, as nearly as practicable to the amounts of
Registrable Securities held by such Purchasers, and (c) if after all securities
held by the Purchasers and such other shareholders have been excluded and any
additional shares shall be
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excluded, securities of the Company shall be excluded. Notwithstanding the
foregoing, such exclusions shall not apply to any underwriting registered
pursuant to Section 3 or Section 4, below. To facilitate the allocation of
shares in accordance with the above provisions, the Company or the underwriters
may round the number of shares allocated to the Holder or other holders to the
nearest 100 shares. If any Holder or other holders disapprove of the terms of
any such underwriting, he or she may elect to withdraw therefrom by written
notice to the Company and the managing underwriter (not later than twenty (20)
days prior to the effective date of the offering). Any securities excluded or
withdrawn from such underwriting shall not be transferred in a public
distribution during the period commencing on the effective date of the
registration statement relating to such underwritten offering and ending ninety
(90) days after the effective date of the registration statement relating
thereto, but in no event prior to any other lock-up period mutually agreed to
between (i) the Company or the underwriter and (ii) the Holder. For purposes of
the preceding language concerning apportionment, for any selling shareholder
that is a Holder of Registrable Securities and that 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 Holder," and any pro rata reduction with respect to such
"selling Holder" shall be based upon the aggregate amount of Registrable
Securities owned by all such related entities and individuals.
2.3 Right to Terminate Registration. The Company shall have the right
to terminate or withdraw any registration initiated by it under this Section 2
prior to the effectiveness of such registration, whether or not any Holder has
elected to include securities in such registration. The expenses of such
withdrawn registration shall be borne by the Company in accordance with Section
6 hereof.
SECTION 3.
DEMAND REGISTRATION
3.1 Demand Registration. Beginning on the earlier of (i) September 30,
2002 or (ii) twelve (12) months after the Company's IPO, Purchasers shall be
entitled to have the Company effect up to two (2) demand registrations of
Registrable Securities then owned by such Purchasers requesting such
registration; provided, however, that the Company shall not be obligated to
effect a registration during the 180-day period commencing with the closing date
of the Company's Initial Public Offering. A request for such registration (a
"REGISTRATION REQUEST") must be made in writing and must be made (i) in the case
of the first registration under this Section 3, by the holders of at least a
majority of the Common Stock issuable or issued upon conversion of the Preferred
Stock (whether currently issued or hereafter acquired) and held by Purchasers,
or (ii) in the case of the second registration under this Section 3, by the
holders of at least 25% of the Common Stock issuable or issued upon conversion
of the Preferred Stock (whether currently issued or hereafter acquired) and held
by Purchasers, and, in either event, the shares of stock to be sold in each such
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demand registration shall have an aggregate offering value of at least
$7,500,000. Such Registration Request shall (i) specify the number of shares
intended to be offered and sold; (ii) express the present intention of the
requesting Purchasers to offer or cause the offering of such shares for
distribution; (iii) describe the nature or method of the proposed offer and sale
thereof; and (iv) contain the undertaking of the requesting Purchasers to
provide all such information and materials and take all such reasonable and
customary action as may be required to permit the Company to comply with all
applicable requirements of the SEC and to obtain any desired acceleration of the
effective date of such registration statement. Upon receipt of a Registration
Request, the Company will promptly give written notice of the proposed
registration, qualification or compliance to all other Purchasers and as soon as
practicable, use reasonable efforts to effect such registration, qualification
or compliance (including, without limitation, appropriate qualification under
applicable blue sky or other state securities laws and appropriate compliance
with applicable regulations issued under the Securities Act and any other
governmental requirements or regulations) as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion of such
Registrable Securities as are specified in such request, together with all or
such portion of the Registrable Securities of any Purchasers joining in such
request as are specified in a written request received by the Company within 20
days after receipt of such written notice from the Company. Such registration
statement shall contain such required information pursuant to the rules and
regulations promulgated under the Securities Act and such additional information
as deemed necessary by the managing underwriter or if there is no managing
underwriter, as deemed necessary by mutual agreement between the Purchasers
participating in registration and the Company. Notwithstanding the foregoing, if
the Company shall furnish to the requesting Purchasers a certificate signed by a
duly authorized officer 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 for such registration statement to be filed on or before the date
filing would be required, then the Company shall be entitled to postpone filing
of the registration statement for up to one-hundred twenty (120) days; provided,
however, that the Company shall be entitled to issue such a certificate only
once in any given twelve (12) month period. If a registration statement has
become effective but is withdrawn before completion of the offering contemplated
thereby because of adverse business developments at the Company that were not
known to the requesting Purchasers when they requested that the Company initiate
such registration proceedings, such registration shall not count as one of the
two demand registrations referred to in the first sentence of this Section. If a
registration statement is filed on behalf of Purchasers and such registration is
withdrawn at the request of the Purchasers holding at least fifty percent (50%)
of the Registrable Securities requesting registration for any reason other than
adverse business developments at the Company that were not known to the
requesting Purchasers, such registration will count as one of the two
registrations referred to above.
3.2 Underwritten Public Offering. If requested, the Company shall enter
into an underwriting agreement with an investment banking firm or firms,
selected by the Company and reasonably satisfactory to the Purchasers,
containing representations, warranties, indemnities and agreements then
customarily included by an issuer in underwriting agreements with respect to
secondary distributions. The Company shall not cause the registration under the
Securities Act of any other shares of its Common Stock to become effective
(other than registration of an employee
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stock plan, or registration in connection with any Rule 145 or similar
transaction) during the effectiveness of a registration requested hereunder for
an underwritten public offering if, in the judgment of the underwriter or
underwriters, marketing factors would adversely affect the price of the
Registrable Securities subject to such underwritten registration.
3.3 Inclusion of Additional Shares. The Company may include in a
registration pursuant to this Section 3 securities for its own account, and by
other third parties (including officers and employees of the Company) and shares
of Common Stock held by any Founder, in amounts as determined by the Company's
Board of Directors. To the extent the Company includes securities for its own
account, held by other parties in such registration statement or shares of
Common Stock held by any Founder, the Company shall take all actions it deems
necessary or advisable in order to ensure that the Company and security holders
of the Company, whether or not holding contractual registration rights, shall
not have the right to exclude from any registration initiated pursuant to this
Section 3 any Registrable Securities with respect to which any Purchaser has
requested registration. If requested, the Company shall (together with all
officers, directors, Founders and other third parties proposing to distribute
their securities through such underwriting) enter into an underwriting agreement
in customary form with the representative of the underwriter or underwriters
selected for such underwriting by the Company. Notwithstanding any other
provision of this Section 3.3, if the representative advises the shareholders
registering shares of Common Stock in writing that marketing factors require a
limitation on the number of shares to be underwritten, the securities of the
Company, securities held by officers or directors of the Company, shares of
Common Stock held by Founders (excluding such Registrable Securities held by any
Investor subject to such registration) and the securities held by other third
parties shall be excluded from the underwriting before any securities held by a
Purchaser by reason of the underwriter's marketing limitation to the extent so
required by such limitation as follows: (a) first, the securities held by such
other shareholders distributing their securities through such underwriting shall
be excluded, (b) if after all securities held by such other shareholders have
been excluded and any additional shares must be excluded, securities of the
Company shall be excluded, and (c) if after all securities held by the Company
and such other shareholders have been excluded, and any additional shares shall
be excluded, Registrable Securities of the Purchasers shall be excluded in a
manner such that the number of any Registrable Securities that may be included
by such Purchasers are allocated in proportion, as nearly as practicable to the
amounts of Registrable Securities held by such Purchasers. To facilitate the
allocation of shares in accordance with the above provisions, the Company or the
underwriters may round the number of shares allocated to the Holder or other
holders to the nearest 100 shares. No securities excluded from the underwriting
by reason of the underwriter's marketing limitation shall be included in such
registration. If any officer, director or other shareholder (including
Purchasers) who has requested inclusion in such registration as provided above
disapproves of the terms of the underwriting, such person may elect to withdraw
from the underwriting and shall be excluded from registration therefrom by
written notice to the Company, the underwriter and the Purchasers requesting
registration. If any Purchaser has made a Registration Request under Section 3.1
above and less than 65% of such Purchaser's Registrable Securities listed in the
Registration Request are included in the registration by reason of the
underwriter's marketing limitation, such Registration Request shall not be
deemed to be a demand registration under Section 3.1 above.
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SECTION 4.
FORM S-3 REGISTRATION
4.1 Registrations on Form S-3. Purchasers shall be entitled to request
six (6) registrations of Registrable Securities then owned by such requesting
Purchasers on a Form S-3 registration statement under the Securities Act (an
"S-3 REGISTRATION"); provided, however, that no more than one (1) such
registration shall be effected in any six (6) month period (an "S-3 REGISTRATION
REQUEST"). The S-3 Registration Request must be made in writing and the S-3
Registration Request shall (i) specify the number of shares intended to be
offered and sold; (ii) express the present intention of the requesting Holders
to offer or cause the offering of such shares for distribution; (iii) describe
the nature or method of the proposed offer and sale thereof and (iv) contain the
undertaking of the requesting Purchasers to provide all such information and
materials and take all such action as may reasonably and customarily be required
to permit the Company to comply with all applicable requirements of the SEC and
to obtain any desired acceleration of the effective date of such registration
statement. Upon receipt of any S-3 Registration Request, the Company will (i)
promptly give written notice of the proposed registration to all other
Purchasers and Founders and (ii) as soon as practicable, use reasonable efforts
to effect such registration (including, without limitation, the execution of an
undertaking to file post-effective amendments, appropriate qualification under
applicable blue sky or other state securities laws and appropriate compliance
with applicable regulations issued under the Securities Act and any other
governmental requirements or regulations) as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion of such
Registrable Securities as are specified in such request, together with all or
such portion of the Registrable Securities of any Purchaser, Purchasers or
Founders joining in such request as are specified in a written request received
by the Company within 20 days after receipt of such written notice from the
Company. The Company shall, as soon as practicable, file an S-3 Registration and
proceed to obtain all such qualifications and compliance as may be so requested
and as would permit or facilitate the sale and distribution of all or such
portion of the participating Purchaser's or Founder's Registrable Securities as
are specified in the S-3 Registration Request, as soon as practicable, and in
any event within sixty (60) days after receipt of such written notice by the
Company; provided, however, that the Company shall not be obligated to effect
any such registration, qualification or compliance, pursuant to this Section 4
if (i) Form S-3 is not available for such offering by the participating
Purchasers and Founders; (ii) the participating Purchasers and Founders propose
to sell Registrable Securities at an aggregate gross price to the public of less
than $500,000; (iii) the Company shall furnish to Purchasers and Founders 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 S-3 Registration to be
effected at such time, in which event the Company shall have the right to defer
the filing of the Form S-3 registration statement for a period of not more than
ninety (90) days after receipt of the request of any Purchaser under this
Section 4, provided, however, that the Company shall be entitled to issue such a
certificate only one time in any given twelve (12) month period; or (iv) the
Company has, within the six (6) month period preceding the date of such request,
already effected a registration on Form S-3 for any Purchasers and Founders
pursuant to this Section 4. If
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requested, the Company shall (together with all Purchasers and Founders) enter
into an underwriting agreement in customary form with the representative of the
underwriter or underwriters selected for such underwriting by the Company.
Notwithstanding any other provision of this Section 4.1, if the representative
advises the shareholders registering shares of Common Stock in writing that
marketing factors require a limitation on the number of shares to be
underwritten, the shares held by the Founders shall be excluded from the
underwriting before any shares held by the Purchasers by reason of the
underwriter's marketing limitation to the extent so required by such limitation
as follows: (a) first, the securities held by such other shareholders
distributing their securities through such underwriting shall be excluded, (b)
if after all securities held by such other shareholders have been excluded and
any additional shares must be excluded, securities of the Company shall be
excluded, and (c) if after all securities held by the Company and such other
shareholders have been excluded, and any additional shares shall be excluded,
Registrable Securities of the Purchasers shall be excluded in a manner such that
the number of any Registrable Securities that may be included by such Purchasers
are allocated in proportion, as nearly as practicable to the amounts of
Registrable Securities held by such Purchasers. To facilitate the allocation of
shares in accordance with the above provisions, the Company or the underwriters
may round the number of shares allocated to the Holder or other holders to the
nearest 100 shares.
SECTION 5.
OBLIGATIONS OF COMPANY
Whenever the Company is required by the provisions of this Agreement to
use its reasonable efforts, with all due diligence, to effect the registration
of the Registrable Securities, the Company shall as soon as possible (i) prepare
and, as soon as possible, file with the SEC a registration statement with
respect to the Registrable Securities, and use its reasonable efforts to cause
such registration statement to become effective and to remain effective until
the earlier of the sale of all of the Registrable Securities so registered or
one hundred and twenty (120) days subsequent to the effective date of such
registration; (ii) prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection therewith
as may be necessary to make and to keep such registration statement effective
and to comply with the provisions of the Securities Act with respect to the sale
or other disposition of all securities proposed to be registered in such
registration statement until the earlier of the sale of all of such Registrable
Securities so registered or one hundred and twenty (120) days subsequent to the
effective date of such registration statement, (iii) furnish to any Holder such
number of copies of any prospectus (including any preliminary prospectus and any
amended or supplemented prospectus), in conformity with the requirements of the
Securities Act, as such Holder may reasonably request in order to effect the
offering and sale of the Registrable Securities to be offered and sold, but only
while the Company shall be required under the provisions hereof to cause the
registration statement to remain current; (iv) use reasonable efforts to
register or qualify the Registrable Securities covered by such registration
statement under the securities or blue sky laws of such states as Holder shall
reasonably request, maintain any such registration or qualification current
until the earlier of the sale of all of such Registrable Securities so
registered or one hundred and twenty (120) days subsequent to the effective date
of the registration statement, and take any and all other actions either
necessary or
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advisable to enable Holders to consummate the public sale or other disposition
of the Registrable Securities in jurisdictions where such Holders desire to
effect such sales or other disposition; and (v) take all such other actions
either necessary or appropriate to permit the Registrable Securities held by a
Holder to be registered and disposed of in accordance with the method of
disposition described herein.
SECTION 6.
EXPENSES OF REGISTRATION
The Company shall pay all of the out-of-pocket expenses incurred in
connection with any registration statements that are initiated pursuant to
Sections 2, 3 and 4 of this Agreement, including, without limitation, all SEC
and blue sky registration and filing fees, printing expenses, transfer agent and
registrar fees, the fees and disbursements of the Company's outside counsel and
independent accountants and the fees and disbursements of one special counsel to
the Holders. Any underwriting discounts, selling commissions and stock transfer
taxes applicable to the Registrable Securities registered on behalf of Holders
shall be borne pro rata by the Holders of the Registrable Securities included in
such registration.
SECTION 7.
INDEMNIFICATION
7.1 The Company. The Company will indemnify Holders, the partners,
members, officers, directors and shareholders of each Holder, its legal counsel
and each person controlling Holders within the meaning of Section 15 of the
Securities Act or the Exchange Act, and each underwriter if any, of the
Company's securities, with respect to any registration, qualification or
compliance which has been effected pursuant to this Agreement, against all
expenses, claims, losses, damages or liabilities (or actions in respect thereof,
joint or several), including but not limited to any of the foregoing incurred in
settlement of any litigation, commenced or threatened, arising out of or based
on any untrue statement (or alleged untrue statement) of a material fact
contained in any registration statement, prospectus, offering circular or other
document, or any amendment or supplement thereto, incident to any such
registration, qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading, or any violation (or alleged violation) by the
Company of any rule or regulation promulgated under the Securities Act, the
Exchange Act or any state securities laws applicable to the Company in
connection with any such registration, qualification or compliance, and the
Company will reimburse Holders, the partners, members, officers, directors, and
shareholders of each Holder, its legal counsel and each person controlling
Holders, and each underwriter, if any, for any legal and any other expenses
reasonably incurred in connection with investigating, preparing or defending any
such claim, loss, damage, liability or action, provided that the Company will
not be liable in any such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based
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on any untrue statement or omission or alleged untrue statement or omission,
made in reliance upon and in conformity with written information furnished to
the Company expressly for use in connection with such registration by such
Holder or controlling person or underwriter seeking indemnification; provided,
however, that the foregoing indemnity agreement is subject to the condition
that, insofar as it relates to any such untrue statement, alleged untrue
statement, omission or alleged omission made in a preliminary prospectus on file
with the SEC at the time the registration statement becomes effective or the
amended prospectus filed with the SEC pursuant to Rule 424(b) (the "FINAL
PROSPECTUS"), such indemnity agreement shall not inure to the benefit of any
underwriter or any Holder, if there is no underwriter, if a copy of the
corrected Final Prospectus was not furnished to the person asserting the loss,
liability, claim or damage at or prior to the time such action is required by
the Securities Act if the prospectus as so amended and supplemented would have
cured the defect giving rise to such loss, claim, damage or liability, provided
that the indemnity agreement contained in this Section 7.1 shall not apply to
amounts paid in settlement of any such expense, claim, loss, damage or liability
if such settlement is affected without the consent of the Indemnifying Holder,
which consent shall not be unreasonably withheld.
7.2 Holders. Each Holder will, if Registrable Securities held by such
Holder are included in the securities as to which such registration,
qualification or compliance is being effected (the "INDEMNIFYING HOLDER"),
indemnify the Company, each of its directors and officers, its legal counsel and
each underwriter, if any, of the Company's securities covered by such
registration statement and each person who controls the Company within the
meaning of Section 15 of the Securities Act, against all expenses, claims,
losses, damages and liabilities (or actions in respect thereof), including any
of the foregoing incurred in settlement approved by the Indemnifying Holder of
any litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any such
registration statement, prospectus, offering circular or other document, or any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances under which they were made, and will reimburse the
Company, such directors, officers or control persons, underwriters or legal
counsel for any legal or any other expenses reasonably incurred in connection
with investigating or defending any such claim, loss, damage, liability or
action, in each case to the extent, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) is
made in such registration statement, prospectus, offering circular or other
document in reliance upon and in conformity with written information furnished
to the Company by such Indemnifying Holder expressly for use in connection with
such registration; provided that the indemnity agreement contained in this
Section 7.2 shall not apply to amounts paid in settlement of any such expense,
claim, loss, damage or liability if such settlement is affected without the
consent of the Indemnifying Holder; provided further that in no event shall any
indemnity under this Section 7.2 exceed the net proceeds of the offering
received by such Indemnifying Holder.
7.3 Defense of Claims. Each party entitled to indemnification under
this Section 7 (the "INDEMNIFIED PARTY") shall give notice to the party required
to provide indemnification (the "INDEMNIFYING PARTY") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of
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any such claim or any litigation resulting therefrom, provided that counsel for
the Indemnifying Party, who shall conduct the defense of such claim or
litigation, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense; provided, however, that the Indemnifying Party
shall pay such expense if representation of the Indemnified Party by counsel
retained by the Indemnifying Party would be inappropriate due to actual or
potential differing interests (which cannot be resolved by appropriate waiver
agreed to by the Indemnified Party) between the Indemnified Party and any other
party represented by such counsel in such proceeding, and provided further that
the failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this Section 7 unless
the failure to give such notice is materially prejudicial to an Indemnifying
Party's ability to defend such action, but the omission to deliver such written
notice to the Indemnifying Party will not relieve it of any liability that it
may have had to Indemnified Party otherwise than under this Section 7. No
Indemnifying Party, in the defense of any such claim or litigation shall, except
with the consent of each Indemnified Party (not to be unreasonably withheld),
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such Indemnified Party of a release from all liability in respect to such
claim or litigation. No Indemnifying Party shall be required to indemnify any
Indemnified Party with respect to any settlement entered into without such
Indemnifying Party's prior written consent.
7.4 Contribution. If the indemnification provided for in this Section 7
is held by a court of competent jurisdiction to be unavailable to an Indemnified
Party with respect to any losses, claims, damages or liabilities referred to
herein, the Indemnifying Party, in lieu of indemnifying such Indemnified Party
thereunder, shall to the extent permitted by applicable law contribute to the
amount paid or payable by such Indemnified Party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party on the one hand and of the Indemnified
Party on the other in connection with the violation(s) that resulted in such
loss, claim, damage or liability, as well as any other relevant equitable
considerations. The relative fault of the Indemnifying Party and of the
Indemnified Party shall be determined by a court of law by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission to state a material fact relates to information supplied by the
Indemnifying Party or by the Indemnified Party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission; provided, that in no event shall any contribution by an
Investor hereunder exceed the net proceeds from the offering received by such
Investor.
SECTION 8.
RULE 144 REPORTING
With a view to making available the benefits of certain rules and
regulations of the SEC which may at any time permit the sale of the Registrable
Securities to the public without registration or pursuant to Form S-3, the
Company agrees to use reasonable efforts to:
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(a) Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all times from
and after the effective date of the IPO;
(b) 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
at any time after it has become subject to such reporting requirements; and
(c) So long as a Holder owns any Registrable Securities, furnish to
such Holder forthwith upon written request a written statement by the Company as
to its compliance with the reporting requirements of said Rule 144 (at any time
from and after ninety (90) days following the effective date of the first
registration statement filed by the Company for an offering of its securities to
the general public), and of the Securities Act and the Exchange Act (at any time
after it has become subject to such reporting requirements), or that it
qualifies as a registrant where securities may be resold pursuant to Form S-3
(at any time after it so qualifies), a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents of the
Company or other information, and such other reports and documents so filed or
other information as a Holder may reasonably request in availing itself of any
rule or regulation of the SEC allowing such Holder to sell any such securities
without registration or pursuant to such form.
SECTION 9.
STANDOFF AND STAND-STILL AGREEMENTS
9.1 Market Standoff. In connection with the Company's Initial Public
Offering, if requested by the Company and the managing underwriter, each Holder
agrees not to sell, make any short sale of, loan, grant any option for the
purchase of, or otherwise dispose of any Registrable Securities (other than
those included in the Initial Public Offering, if any) without the prior written
consent of the Company or such managing underwriter for such period of time (not
to exceed the period beginning seven (7) days prior to the effective date of the
registration statement for the Initial Public Offering and ending 180 days after
the date of the Final Prospectus relating to such IPO) (the "Standoff Period"),
as may be requested by the Company and the managing underwriter and shall enter
into the form of agreement requested by such underwriter ("Standoff Agreement"),
provided that all officers, directors, Founders and holders of at least 5% of
the outstanding shares (calculated on an as-converted-to Common Stock basis) of
the Company enter into similar agreements, provided, however, that a Holder may
transfer any Registrable Securities held by Holder to a member, partner or
affiliate of Holder during the Standoff Period provided that transferee assumes,
in writing, the obligations of Holder under the Standoff Agreement.
9.2 Stand-still Agreement
Without a duly authorized and adopted resolution of the Company's Board
of Directors, for a period which shall expire upon the earlier of (i) May 31,
2003 or (ii) such time as a tender offer is made for not less than 50% of the
outstanding shares as evidenced by a filing with the Securities and Exchange
Commission of Schedule 14D-1 and the actual dissemination of tender offer
materials to
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stockholders, by an entity or person unaffiliated with Alcatel, Siemens,
Sycamore or ▇▇▇▇▇▇▇▇▇ (the "Strategic Investors"), no Strategic Investor and no
partnership, syndicate or group of which a Strategic Investor is a member or any
entity affiliated with a Strategic Investor or with which a Strategic Investor
is acting in concert will acquire beneficial ownership of any Company shares
either individually or as part of a group acting together for the purpose of
acquiring, holding or disposing of Company shares, if after such acquisition,
such Strategic Investor would beneficially own more than 10% of the outstanding
voting stock of the Company.
SECTION 10.
LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS
From and after the date of this Agreement, the Company shall not,
without the prior written consent of Purchasers holding at least a majority of
the shares of Common Stock issuable or issued upon conversion of the Preferred
Stock, enter into any agreement with any holder or prospective holder of any
securities of the Company giving such holder or prospective holder any
registration rights the terms of which are more favorable than or on parity with
the registration rights granted to Purchasers hereunder or to require the
Company to effect a registration earlier than the date on which Purchasers can
first require a registration under Section 3.1.
SECTION 11.
INFORMATION RIGHTS
11.1 Delivery of Financial Statements.
(a) The Company shall deliver to each Investor holding at least
500,000 shares (as adjusted for stock splits, stock dividends, combinations,
recapitalizations, and the like) of Preferred Stock (and/or Common Stock issued
upon conversion thereof);
(i) as soon as practicable, but in any event within
one-hundred and twenty (120) days after the end of each fiscal year of the
Company, an income statement for such fiscal year, a balance sheet of the
Company 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, and audited and
certified by independent public accountants of nationally recognized standing
selected by the Company;
(ii) as soon as practical, but in any event within 30
days after the end of each month and after the end of each quarter, an unaudited
income statement and statement of cash flows and balance sheet and comparison to
budget for and as of the end of such month or quarter, as the case may be, in
reasonable detail;
(iii) within thirty (30) days of the approval by the
Company's Board of Directors, the budget and business plan for each fiscal year,
prepared on a monthly basis, including
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balance sheets and statement of cash flows for such months and, as soon as
prepared, any other budgets or revised budgets prepared by the Company;
(iv) with respect to the financial statements called
for in subsection (ii) of this Section 11.1, an instrument executed by the Chief
Financial Officer or President of the Company certifying that such financials
were prepared in accordance with general accepted accounting principles ("GAAP")
consistently applied with prior practice for earlier periods (with the exception
of footnotes that may be required by GAAP) and fairly present the financial
condition of the Company and its results of operation for the period specified,
subject to year-end audit adjustment; and
(v) such other information reasonably related to an
Investor's investment in the Company relating to the financial condition,
business, prospects or corporate affairs of the Company as each Investor; or any
assignee of such Investor may from time to time request; provided, however, that
the Company shall not be obligated to provide information which it deems in good
faith to be a trade secret or other confidential or proprietary information.
11.2 Inspection. The Company shall permit each Investor holding at least
500,000 shares (as adjusted for stock splits, stock dividends, combinations,
recapitalizations and the like) of Preferred Stock (and/or Common Stock issued
upon conversion thereof), at such Investor's expense, to visit and inspect the
Company's properties during normal working hours, 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 such
Investor and all such queries to be reasonably related to the Investor's
investment in the Company; provided, however, that the Company shall not be
obligated pursuant to this Section 11.2 to provide access to any information
which it reasonably considers to be a trade secret or other confidential or
proprietary information.
11.3 Termination of Information and Inspection Covenants. The covenants
set forth in Sections 11.1 and 11.2 shall terminate as to each Investor and be
of no further force or effect immediately upon the consummation of the Initial
Public Offering.
11.4 Confidentiality. Each of the Purchasers agrees to keep confidential
and not to disclose to persons other than its employees, professional
consultants, investors, limited partners and advisors any information concerning
the Company which is confidential or proprietary ("CONFIDENTIAL INFORMATION"),
except as otherwise required by law or as deemed necessary by an Investor to be
disclosed to its own partners. No Confidential Information shall be used or
disclosed by an Investor for any purpose except in connection with the
transactions contemplated by the Purchase Agreement and the agreements executed
and delivered in connection with the Purchase Agreement and in the enforcement
of its rights thereunder. Each Investor shall use the same level of care with
the Confidential Information as it uses with its own confidential information.
Notwithstanding the foregoing, the restrictions set forth in this Section 11.4
shall not be applicable to any information that is publicly available, any
information independently developed by an Investor or its professional
consultants, any information known to an Investor or its professional
consultants before the disclosure thereof by the Company, or any information
disclosed to an Investor by a person without any confidentiality duty to the
Company.
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SECTION 12.
BOARD OF DIRECTORS
12.1 With respect to the one (1) member of the Company's Board of
Directors that the Amended and Restated Certificate of Incorporation provides is
to be elected by the holders of Series D Preferred Stock, voting separately as a
single class (the "Series D Board Member"), the Prior Purchasers who are holders
of Series D Preferred Stock (the "Series D Holders") hereby agree to vote all of
their shares of Series D Preferred Stock now owned or hereafter acquired in
favor of the election of the designee of Atlas Venture ("Atlas").
12.2 With respect to those two (2) members of the Company's Board of
Directors that the Amended and Restated Certificate of Incorporation provides
are to be elected by the holders of Series C Preferred Stock, voting separately
as a single class (the "Series C Board Members"), the Prior Purchasers who are
holders of Series C Preferred Stock (the "Series C Holders") hereby agree to
vote all of their shares of Series C Preferred Stock now owned or hereafter
acquired in favor of the election of one designee of each of (i) ▇▇▇▇▇ ▇▇▇▇▇
Fund VI LP. ("▇▇▇▇▇ ▇▇▇▇▇") and (ii) Bessemer Venture Partners IV L.P.
12.3 With respect to the members of the Company's Board of Directors
that the Amended and Restated Certificate of Incorporation provides are to be
elected by the holders of Preferred Stock and Common Stock (the "COMBINED BOARD
MEMBERS"), the Founders and the Purchasers hereby agree to vote all of their
shares of Preferred Stock and Common Stock now owned or hereafter acquired in
favor of the election of (1) the Chief Executive Officer of the Company (or, if
there is no Chief Executive Officer of the Company, the President) with respect
to the first of the Combined Board Members to be elected, and (2) such other
designees as shall be acceptable by the holders of at least a majority of the
Preferred Stock (voting together as a single class and not as separate series
and on an as-converted basis) and the holders of at least a majority of the
Common Stock of the Company (voting as a separate class).
12.4 With respect to the one (1) member of the Company's Board of
Directors that the Amended and Restated Certificate of Incorporation provides is
to be elected by the holders of Series A Preferred Stock and Series B Preferred
Stock (the "Series A and Series B Board Member"), the holders of Series A
Preferred Stock and the holders of Series B Preferred Stock hereby agree to vote
all of their shares of Series A Preferred Stock and Series B Preferred Stock now
owned or hereafter acquired in favor of the election of the designee of the
Series A Preferred Stock and Series B Preferred Stock voting together as a class
and not separate series, and on an as converted basis.
12.5 Should the provisions of this Section 12 be construed to
constitute the granting of proxies, such proxies shall be deemed coupled with an
interest and are irrevocable for the term of this Agreement It is agreed and
understood that monetary damages would not adequately compensate an injured
party for the breach of this Section 12 by any party, that this Section 12 shall
be specifically enforceable, and that any breach or threatened breach of this
Section 12 shall be the proper subject of a temporary or permanent injunction or
restraining order. Further, each party
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hereto waives any claim or defense that there is an adequate remedy at law for
such breach or threatened breach.
12.6 The provisions of this Section 12 shall terminate upon the
closing the Company's Initial Public Offering, upon a merger or consolidation of
the Company with or into any other corporation in which more than 50% of the
voting power is transferred to such corporation or upon the sale of all or
substantially all of the Company's assets
SECTION 13.
PURCHASERS' RIGHT OF FIRST OFFER
13.1 If, at any time prior to the termination of this right of first
offer pursuant to subsection 13.5, the Company should issue in a transaction not
registered under the Securities Act in reliance upon an exemption thereunder,
any Equity Securities (as defined in subsection 13.6 below), each Investor shall
have the right to purchase such Investor's Pro Rata Share (or any part thereof)
of all of such offered Equity Securities on the same terms as the Company is
willing to sell such Equity Securities to any other person. Each Investor's "PRO
RATA SHARE" of the Equity Securities for the purposes of this Section 13 shall
be equal to that percentage of the then outstanding Common Stock of the Company
held by such Investor. For purposes of this subsection (a), the outstanding
Common Stock of the Company shall include shares of Common Stock issuable upon
conversion, exercise and/or exchange of any outstanding convertible, exercisable
or exchangeable securities. For purposes of this Section 13, Investor includes
any general partners and affiliates of an Investor. An Investor shall be
entitled to apportion the right of first offer hereby granted it among itself
and its partners and affiliates in such proportions as it deems appropriate.
13.2 Prior to any sale or issuance by the Company of any Equity
Securities, the Company shall notify each Investor in writing of its intention
to sell and issue such securities, setting forth the terms (including price and
number of shares) under which it proposes to make such sale. Within twenty (20)
days after receipt of such notice, each Investor shall notify the Company in
writing whether such Investor desires to exercise the option to purchase such
Investor's Pro Rata Share (or any part thereof) of the Equity Securities so
offered. If an Investor elects to purchase such Investor's Pro Rata Share, then
such Investor shall have a right of over-allotment such that if any other
Investor fails to purchase such Investor's Pro Rata Share of the Equity
Securities, such Investor(s) who have elected to purchase their Pro Rata Shares
may purchase, on a pro rata basis, that portion of the Equity Securities which
such other Purchasers elected not to purchase. The Company shall notify such
electing Investor in writing of the number of over-allotment shares available to
such Investor within five (5) days of the expiration of the twenty-day period
referred to above. Within ten (10) days of receipt of such notice of
over-allotment shares, such Investor shall notify the Company in writing whether
such Investor desires to exercise the option to purchase the over allotment
shares indicated in the notice.
13.3 After termination of the twenty (20) day period and any
over-allotment period specified above, the Company may, during a period of
ninety (90) days following the end of such
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twenty (20) day period and over-allotment period, sell and issue such Equity
Securities as to which (i) the Purchasers have no right under this Section 13 to
purchase, and (ii) the Purchasers do not indicate a desire to purchase, to
another person upon the same terms and conditions as those set forth in the
notice to the Purchasers. In the event the Company has not sold the Equity
Securities, or has not entered into an agreement (which agreement shall be
consummated within sixty (60) days of such date) to sell the Equity Securities,
within said ninety (90) day period, the Company shall not thereafter issue or
sell any Equity Securities without first offering such securities to the
Purchasers in the manner provided above.
13.4 If an Investor gives the Company written notice that such Investor
desires to purchase any of the Equity Securities offered by the Company, payment
for the Equity Securities shall be by check, or wire transfer, against delivery
of the Equity Securities at the executive offices of the Company within ten (10)
days after giving the Company such notice, or, if later, the closing date for
the sale of such Equity Securities. The Company shall take all such actions as
may be required by any regulatory authority in connection with the exercise by
an Investor of the right to purchase Equity Securities as set forth in this
Section 13.
13.5 The right of first offer contained in this Section 13 shall
terminate upon, and shall not apply to, the earlier to occur of (i) the closing
of the Initial Public Offering or (ii) the closing of (A) the acquisition of the
Company by another entity by means of any transaction or series of related
transactions (including, without limitation, any reorganization, merger or
consolidation) that results in the transfer of fifty percent (50%) or more of
the outstanding voting power of the Company; or (B) a sale of all or
substantially all of the assets of the Company.
13.6 "EQUITY SECURITIES" shall mean (i) shares of Common Stock or other
equity securities of the Company and (ii) any security convertible into or
exchangeable or exercisable for shares of Common Stock or other equity
securities of the Company; provided, however, that Equity Securities shall not
include (A) the shares of Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock and Series E Preferred Stock
(B) up to such number of shares of Common Stock reserved for issuance to
employees, consultants, directors or officers of the Company pursuant to stock
grant, stock purchase and/or stock option plans or any other stock incentive
program, agreement or arrangement approved by the Board of Directors, or (C) any
securities (1) issued in connection with the Initial Public Offering, (2) issued
upon conversion of Series A, Series B, Series C , Series D or Series E Preferred
Stock or other convertible securities or securities exercisable for Equity
Securities and outstanding on the date hereof, (3) issued in connection with any
stock split, stock dividend, recapitalization or similar event, (4) issued
pursuant to equipment financing or leasing or banking arrangements or in
connection with strategic partnering transactions approved by the Board of
Directors (including the approval of at least one Series C Board Member), or (5)
issued as part of an acquisition by the Company of all or substantially all of
the assets or shares of another company or entity whether through a merger,
exchange, reorganization or the like.
13.7 An Investor's right to purchase any Equity Securities pursuant to
this Section 13 may be assigned by an Investor to any Affiliate of such
Investor.
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SECTION 14.
RIGHT OF FIRST REFUSAL ON FOUNDERS' SHARES
14.1 General. Before any Common Stock or Common Stock equivalents
("FOUNDER SHARES") of the Company held by a Founder or any transferee (either
being sometimes referred to herein as the "SELLING FOUNDER") may be sold or
otherwise transferred, the Company or its assignee(s) and the Investors shall
have rights of first refusal to purchase the Founder Shares on the terms and
conditions set forth in this Section 14 (the "RIGHT OF FIRST REFUSAL").
14.2 Notice of Proposed Transfer. The Selling Founder of the Offered
Shares (as defined below) shall deliver to the Company and the Investors a
written notice (the "NOTICE") stating: (i) the Selling Founder's bona fide
intention to sell or otherwise transfer such Founder Shares (the "OFFERED
SHARES"); (ii) the name of each proposed purchaser or other transferee
("PROPOSED TRANSFEREE"); (iii) the number of Offered Shares to be transferred to
each Proposed Transferee; and (iv) the bona fide cash price or other
consideration for which the Selling Founder proposes to transfer the Offered
Shares (the "OFFERED PRICE"), and the Selling Founder shall offer the Offered
Shares at the Offered Price to the Company or its assignee(s) and the Investors,
pursuant to the terms set forth herein.
14.3 Exercise of Right of First Refusal.
(a) At any time within ten (10) days after receipt of the
Notice, the Company may, by giving written notice to the Selling Founder, elect
to purchase all or any part of the Offered Shares at the purchase price
determined in accordance with subsection 14.4 below.
(b) If the Company fails to elect to purchase all of the
Offered Shares pursuant to subsection (a) above, at any time within ten (10)
days after the expiration of the Company's ten (10) day period referred to
above, the Investors may, by giving written notice to the Selling Founder, elect
to purchase all or any part of the Offered Shares not so purchased by the
Company at the purchase price determined in accordance with subsection 14.4
below. Each such Investor shall be defined as a "PURCHASING INVESTOR."
(c) If the total number of shares the Investors offer to
purchase exceeds the number of Offered Shares, each Investor shall be entitled
to purchase such Investor's Pro Rata Share (as defined below) of the Offered
Shares. For purposes of these Rights of First Refusal, an Investor's "PRO RATA
SHARE" is the ratio that the number of shares of Common Stock (assuming
conversion of any securities convertible into Common Stock, but not including
options or warrants to acquire Common Stock) held by such Investor bears to the
total number of shares of Common Stock (assuming conversion of any securities
convertible into Common Stock, but not including options or warrants to acquire
Common Stock) held by all Investors. The Selling Founder shall promptly inform
such Purchasing Investor of any Investor's failure to purchase such Investor's
Pro Rata Share of the Offered Shares. During the five (5) day period commencing
after such notification is given, any Purchasing Investor may, by giving written
notice to the Selling Founder, elect to purchase all or
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any part of the Offered Shares not so purchased by the other Investors, in which
case Selling Founder shall allocate such Offered Shares at his sole discretion
if there is more than one Investor.
14.4 Purchase Price. The purchase price ("PURCHASE PRICE") for the
Offered Shares purchased by the Company or the Investors under this Section 14
shall be the Offered Price. If the Offered Price includes consideration other
than cash, the cash equivalent value of the non-cash consideration shall be
determined by the Board of Directors of the Company in good faith.
14.5 Payment. Payment of the Purchase Price shall be made in cash, by
check or by wire transfer within forty (40) days after receipt of the Notice or
in the manner and at the times set forth in the Notice. The sale shall
constitute a representation and warranty by the Selling Founder that the Offered
Shares being sold are free and clear of all liens, claims and encumbrances.
14.6 Selling Founder's Right to Transfer. Any of the Offered Shares
proposed in the Notice to be transferred to a given Proposed Transferee that are
not purchased by the Company or the Investors may be sold or otherwise
transferred by the Selling Founder to that Proposed Transferee at the Offered
Price or at a higher price, provided that such sale or other transfer (i)
complies with the provisions of Section 15 of this Agreement with respect to
co-sale rights, (ii) is consummated within ninety (90) days after the date of
the Notice, (iii) is in accordance with all the terms of this Agreement and all
other agreements between the Selling Founders and the Company and (iv) is
effected in accordance with any applicable securities laws and the Proposed
Transferee agrees in writing that the provisions of this Agreement shall
continue to apply to the Offered Shares in the hands of such Proposed
Transferee. If the Offered Shares described in the Notice are not transferred to
the Proposed Transferee within such period, a new Notice shall be given to the
Company and the Investors, and the Company and the Investors shall again be
offered the Rights of First Refusal before any Offered Shares held by the
Selling Founder may be sold or otherwise transferred.
14.7 Termination of Right of First Refusal. The Right of First Refusal
under this Section 14 shall terminate (A) immediately after the closing of the
Company's Initial Public Offering, and (B) as to any Investor, at any such time
as that Investor (together with any Affiliates) holds less than one hundred
thousand (100,000) shares of Preferred Stock (as adjusted for stock splits,
reverse splits, recapitalizations and the like).
14.8 Superiority of Company Right of First Refusal. Notwithstanding
any provision herein to the contrary, the Company's Right of First Refusal and
all of the rights attendant thereto set forth in this Section 14 are senior to
any rights of first refusal granted to any of the Company's shareholders.
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SECTION 15.
CO-SALE RIGHTS
15.1 General. To the extent the Investors fail to exercise their
Rights of First Refusal under Section 14, a Selling Founder shall send a written
notice (the "SECOND NOTICE") to all Investors containing the terms and
conditions (including the Offered Price) of the proposed transfer and the number
of Offered Shares, within sixty (60) days of sending the original Notice
pursuant to Section 14. Within fifteen (15) days of the date of the Second
Notice, each of the Investors shall notify the Selling Founder if such Investor
elects to participate in such transfer. Each participating Investor shall then
have the right to sell, at the same price and on the same terms as the Selling
Founder, an amount of shares equal to the number of shares to be sold or
transferred multiplied by a fraction, the numerator of which shall be the number
of shares of Common Stock (assuming conversion of any securities convertible
into Common Stock, but not including options or warrants to acquire Common
Stock) held by the participating Investor and the denominator of which shall be
the sum of the number of shares of Common Stock (assuming conversion of any
securities convertible into Common Stock, but not including options or warrants
to acquire Common Stock) held by the Selling Founder and all participating
Investors.
15.2 Closing. Each participating Investor shall effect its
participation in the sale by promptly delivering to the Selling Founder for
transfer to the prospective purchaser one or more certificates, properly
endorsed for transfer, which represent: the type and number of shares of equity
securities which are at such time convertible into the number of shares of
Common Stock which such participating Investor elects to sell or that number of
shares of equities securities which are at such time convertible into the number
of shares of Common Stock which such participating Investor elects to sell;
provided however, that if the prospective third-party purchaser objects to the
delivery of equity securities in lieu of Common Stock, such participating
Investor shall convert such equity securities into Common Stock and deliver
Common Stock as provided in this Section 15.2. The Company agrees to make any
such conversion concurrent with the actual transfer of such shares to the
purchaser and contingent on such transfer. The participating Investors agree to
enter into an agreement with the purchaser on terms and conditions identical, to
the extent feasible, with the agreement entered into by the Selling Founder
providing representations and warranties and other terms and conditions agreed
to by the Selling Founder.
15.3 Termination. The co-sale right under this Section 15 shall
terminate (A) immediately after the closing of the Company's Initial Public
Offering, and (B) as to any Investor, at any such time as that Investor
(together with any affiliates) holds less than one hundred thousand (100,000)
shares of Preferred Stock (as adjusted for stock splits, reverse splits,
recapitalizations and the like).
-20-
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SECTION 16.
EXEMPT TRANSFERS AND OTHER LIMITATIONS
(a) Notwithstanding the foregoing, (A) the provisions of Sections 14
and 15 shall not apply to (i) any pledge of Founder Shares made pursuant to a
bona fide loan transaction that creates a mere security interest, (ii) any
transfer to the ancestors, descendants or spouse or to trusts for the benefit of
such persons or a Founder or (iii) any bona fide gift, and (B) the provisions of
Section 15 shall not apply to (i) any transfer by a Founder of not more than
five percent (5%) of the Founder Shares then held by such Founder in any twelve
(12) month period; provided that, in the case (A) or (B) above, (1) the
transferring Founder shall inform the Investors of such pledge, transfer or gift
in accordance with Section 14 and Section 15 above and (2) the pledgee,
transferee or donee shall furnish the Company with a written agreement to be
bound by and comply with all provisions of Sections 14 and 15. Such transferred
Founder Shares shall remain "Founder Shares" hereunder, and such pledgee,
transferee or donee shall be treated as a "Founder" for purposes of Sections 14,
15 and 16 this Agreement.
(b) Notwithstanding the foregoing, (A) the provisions of Section 14
shall not apply to the sale of any Founder Shares (i) to the public pursuant to
a registration statement filed with, and declared effective by, the SEC or (ii)
to the Company, and (B) the provisions of Section 15 shall not apply to the sale
of any Founder Shares (i) to the public pursuant to a registration statement
filed with, and declared effective by, the SEC or (ii) to the Company.
(c) This Agreement shall in no manner limit the right of the Company
to repurchase securities from a Founder or the assignee of a Founder at cost
pursuant to a Stock Purchase Agreement between the Company and such Founder.
(d) Notwithstanding the foregoing, the right of first refusal
provided for in Section 14 and the right of co-sale provided for in Section 15
shall be mutually exclusive and any Investor that elects to exercise its rights
with respect to any proposed sale under either of such Sections shall not be
entitled to exercise its rights under the other such Section with respect to
such proposed sale. Notwithstanding any other provision of this Agreement, the
right of first refusal provided for in Section 14 shall apply to sales by a
Founder to an Investor, pursuant to the exercise of such Investor's right of
first refusal and right of co-sale under Sections 14 and 15.
SECTION 17.
LEGEND
(a) Each certificate representing Founder Shares shall be stamped or
otherwise imprinted with a legend in the following form (in addition to any
legend required under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RIGHTS
OF FIRST REFUSAL AND CO-SALE PURSUANT TO AN
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AGREEMENT BETWEEN THE ISSUER, THE REGISTERED HOLDER AND CERTAIN
OTHER PARTIES. COPIES OF THE AGREEMENT RESTRICTING THEIR TRANSFER
MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER
OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE CORPORATION
AT THE PRINCIPAL EXECUTIVE OFFICES OF THE CORPORATION.
(b) Each certificate representing Founder Shares and Registrable
Securities shall be stamped or otherwise imprinted with legends in the following
form (in addition to any legend required under applicable state securities
laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A
MARKET STAND-OFF AGREEMENT PURSUANT TO AN AGREEMENT BETWEEN THE
ISSUER, THE REGISTERED HOLDER AND CERTAIN OTHER PARTIES. COPIES
OF THE AGREEMENT RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT NO
COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS
CERTIFICATE TO THE SECRETARY OF THE CORPORATION AT THE PRINCIPAL
EXECUTIVE OFFICES OF THE CORPORATION.
SECTION 18.
TERMINATION OF RIGHTS
The rights of any Holder pursuant to the terms of Sections 2, 3 and 4
shall terminate at such time as (i) such Holder could sell all of the
Registrable Securities held by such Holder (and any affiliate of Holder with
whom such Holder must aggregate its sales under Rule 144) in any one three-month
period pursuant to Rule 144, as amended, promulgated under the Securities Act
("Rule 144") or (ii) such Holder ceases to hold any Registrable Securities.
Unless otherwise specified herein, the rights and provisions of this Agreement
shall terminate on the fifth (5th) anniversary of the date of the Company's
Initial Public Offering. Notwithstanding the foregoing, the obligation of the
Company and the Holders under Section 7 shall survive the completion of any
offering of Registrable Securities in a registration statement under this
Agreement and otherwise.
SECTION 19.
MISCELLANEOUS
19.1 Assignment. The rights to cause the Company to register Registrable
Securities granted to the Holders by the Company under this Agreement may be
transferred or assigned (but only with all related obligations) by the Holders
to any Affiliate of such Holder or any transferee or assignee who acquires at
least 500,000 shares (as adjusted for stock splits, stock dividends,
-22-
26
combinations, recapitalizations and the like) of Registrable Securities;
provided (i) that the Company is given written notice at the time of or within a
reasonable time after said transfer or assignment, stating the name and address
of the transferee or assignee and identifying the securities with respect to
which such registration rights are being transferred or assigned, (ii) such
transfer or assignment may otherwise be effected in accordance with applicable
securities laws and any other agreement to which a Holder is a party or such
Holder is bound, and (iii) provided further, that the transferee or assignee of
such rights assumes in writing the obligations of such Holder under this
Agreement. Subject to the preceding sentence, this Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns. Any transferee or assignee shall thereafter be treated
as a Holder, subject to the limitations herein. Until the Company receives
actual notice of any transfer or assignment, it shall be entitled to rely on the
then existing list of Holders and the failure to notify the Company of any
transfer or assignment shall not affect the validity of a notice properly given
by the Company to the Holders pursuant to lists maintained by the Company.
19.2 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of California as applied to agreements entered into
solely between residents of, and to be performed entirely within, such state.
19.3 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
19.4 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
19.5 Notices.
(a) All notices, requests, demands and other communications under
this Agreement or in connection herewith shall be given to or made upon (i) an
Investor at the address set forth in the Company's records with a copy to
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, Two Embarcadero Place, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, telecopy: (▇▇▇) ▇▇▇-▇▇▇▇, attention: ▇▇▇▇ ▇▇▇▇▇ and
(ii) the Company at Optical Micro-Machines, Inc., c/o Hus Tigli, ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, telecopy: (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to
Wilson, Sonsini, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, telecopy: (▇▇▇) ▇▇▇-▇▇▇▇, attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇.
(b) All notices, requests, demands and other communications
given or made in accordance with the provisions of this Agreement shall be in
writing, and shall be sent by airmail, return receipt requested, or by facsimile
with confirmation of receipt, and shall be deemed to be given or made when
receipt is so confirmed.
(c) Any party may, by written notice to the other, alter its
address or respondent, and such notice shall be considered to have been given
three (3) days after the airmailing or faxing thereof.
-23-
27
19.6 Attorney's Fees. If any action at law or in equity (including
arbitration) is necessary to enforce or interpret the terms of this Agreement,
the prevailing party shall be entitled to reasonable attorney's fees costs and
necessary disbursements in addition to any other relief to which such party may
be entitled.
19.7 Amendments and Waivers. Any term of this Agreement may be amended
and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), only
with the written consent of the Company and the Holders of at least greater than
fifty percent (50%) of the Registrable Securities; provided, however, that in
the event such amendment or waiver adversely affects the rights and/or
obligations of the Founders under Section 2 of this Agreement in a different
manner than the other Holders, such amendment or waiver shall also require the
written consent of holders of at least a majority of the Common Stock (assuming
the conversion of all outstanding shares of Preferred Stock) then held by the
Founders then employed by the Company. In the event of a subsequent closing with
an investor as provided for in Section 2.3 of the Series E Agreement, such
investor shall become a party to this Agreement as an "Investor" upon receipt
from such investor of a fully executed signature page hereto.
19.8 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, portions of such provisions, or
such provisions in their entirety, to the extent necessary, shall be severed
from this Agreement, and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
19.9 Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to any party to this Agreement, upon any breach or
default of the other party, shall impair any such right, power or remedy of such
non-breaching party nor shall it be construed to be a waiver of any such breach
or default, or an acquiescence therein, or of any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or character on
the part of any party of any breach or default under this Agreement, or any
waiver on the part of any party of any provisions or conditions of this
Agreement, must be made in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement, or by law or otherwise afforded to any Holder, shall be cumulative
and not alternative.
19.10 Entire Agreement. This Agreement and the documents referred to
herein constitute the entire agreement between the parties hereto pertaining to
the subject matter hereof and any other written or oral agreements between the
parties hereto are expressly canceled.
19.11 Aggregation of Stock. All shares of Registrable Securities held
or acquired by affiliated entities or persons shall be aggregated together for
the purpose of determining the availability of any rights under this Agreement.
19.12 Waiver of Right of First Offer
-24-
28
Each Investor holding a right of first offer to purchase new
securities of the Company pursuant to Section 13 of the Amended and Restated
Shareholders Rights Agreement dated November 16, 1999, by and between the
Company and each Investor, by its execution of this Agreement, hereby waives any
rights it may have pursuant to such section, including without limitation any
right to purchase shares of Series E Preferred Stock and the right to receive
(20) days notice prior to the sale or issuance of shares of Series E Preferred
Stock by the Company.
19.13 Remedies. Any Holder having rights under any provision of this
Agreement will be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction for specific
performance and for other injunctive relief in order to enforce or prevent
violation of the provisions of this Agreement. By seeking or obtaining any such
relief, the aggrieved party shall not be precluded from seeking or obtaining any
other relief to which such party may be entitled.
19.14 Prior Agreement. The Prior Agreement is hereby superseded in its
entirety and shall be of no further force or effect.
-25-
29
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
COMPANY:
OPTICAL MICRO-MACHINES, INC.
By: /s/Hus Tigli
--------------------------------------
Hus Tigli
President and Chief Executive Officer
Signature Page to Amended and Restated Shareholders Rights Agreement
30
FOUNDERS
/s/▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇
/s/▇▇▇▇ ▇▇
-------------------------------------------
▇▇▇▇ ▇▇
/s/▇▇ ▇▇▇
-------------------------------------------
▇▇ ▇▇▇
/s/▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
PRIOR PURCHASERS:
/s/▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇
Signature Page to Amended and Restated Shareholders Rights Agreement
31
SERIES E INVESTORS:
ALCATEL USA SOURCING L.P.
By: Alcatel USA GP, Inc., its general partner
By: /s/▇▇▇▇▇▇ de Pesquidout
----------------------------------------
Name: ▇▇▇▇▇▇ de Pesquidout
Title: Chief Financial Officer
Signature Page to Amended and Restated Shareholders Rights Agreement
32
SERIES E INVESTORS:
SYCAMORE NETWORKS, INC.
By:
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and CEO
Signature Page to Amended and Restated Shareholders Rights Agreement
33
▇▇▇▇▇▇▇▇▇ SEMICONDUCTOR CORPORATION
By: /s/ Signature Illegible
----------------------------------------
Name:
Title:
Signature Page to Amended and Restated Shareholders Rights Agreement
34
SERIES E INVESTORS:
WESTON PRESIDIO CAPITAL III, L.P.
By:
By: /s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: General Partner
WPC ENTREPENEURS FUND, L.P.
By:
By: /s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: General Partner
Signature Page to Amended and Restated Shareholders Rights Agreement
35
SERIES E INVESTORS:
ATLAS VENTURE FUND IV, L.P.
By: Atlas Venture Associates IV, L.P.
its general partner
By: Atlas Venture Associates, IV, Inc.
its general partner
/s/Signature illegible
-------------------------------------------
Vice President
ATLAS VENTURE PARALLEL FUND IV-A, C.V.
By: Atlas Venture Associates IV, L.P.
its general partner
By: Atlas Venture Associates, IV, Inc.
its general partner
/s/Signature illegible
-------------------------------------------
Vice President
ATLAS VENTURE PARALLEL FUND IV-B, C.V.
By: Atlas Venture Associates IV, L.P.
its general partner
By: Atlas Venture Associates, IV, Inc.
its general partner
/s/Signature illegible
-------------------------------------------
Vice President
ATLAS VENTURE ENTREPRENEURS' FUND IV, L.P.
By: Atlas Venture Associates IV, L.P.
its general partner
By: Atlas Venture Associates, IV, Inc.
its general partner
/s/Signature illegible
-------------------------------------------
Vice President
Signature Page to Amended and Restated Shareholders Rights Agreement
36
SERIES E INVESTORS:
▇▇▇▇▇ ▇▇▇▇▇ FUND VI L.P.
By: SRB Associates VI L.P., its General
Partner
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Partner
▇▇▇▇▇ ▇▇▇▇▇ VI AFFILIATES FUND L.P.
By: SRB Associates VI L.P., its General
Partner
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Partner
Signature Page to Amended and Restated Shareholders Rights Agreement
37
SERIES E INVESTORS:
BESSEMER VENTURE PARTNERS IV L.P.
By: Deer IV & Co. LLC, General Partner
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager
BESSEC VENTURES IV L.P.
By: Deer IV & Co. LLC, General Partner
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager
Signature Page to Amended and Restated Shareholders Rights Agreement
38
SERIES E INVESTORS:
RHO MANAGEMENT TRUST I
By: RHO MANAGEMENT COMPANY, INC.
as Investment Adivser
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Chairman and CEO
Signature Page to Amended
and Restated Shareholders
Rights Agreement
39
SERIES E INVESTORS:
SIEMENS SERVICES, INC.
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
By: /s/▇▇▇▇▇▇▇▇▇ Krzyzarowski
----------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ Krzyzarowski
Title: Vice President
SIEMENS VENTURE CAPITAL
By: /s/▇▇▇▇▇▇▇▇▇
By: /s/Signature illegible
----------------------------------------
Name:
Title: President and CEO
Signature Page to Amended and Restated Shareholders Rights Agreement
40
WARRANT HOLDERS:
SILICON VALLEY BANK
By: /s/▇▇▇▇ ▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Senior Vice President
Signature Page to Amended and Restated Shareholders Rights Agreement
41
PRIOR PURCHASERS:
▇▇▇▇▇ ▇▇▇▇▇ FUND VI L.P.
By: SRB Associates VI L.P., its General
Partner
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Partner
▇▇▇▇▇ ▇▇▇▇▇ VI AFFILIATES FUND L.P.
By: SRB Associates VI L.P., its General
Partner
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Partner
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ MANAGEMENT COMPANY
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President
Signature Page to Amended and Restated Shareholders Rights Agreement
42
SERIES D INVESTORS:
▇▇▇▇▇ ▇▇▇▇▇ FUND VI L.P.
By: SRB Associates VI L.P., its General
Partner
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Partner
▇▇▇▇▇ ▇▇▇▇▇ VI AFFILIATES FUND L.P.
By: SRB Associates VI L.P., its General
Partner
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Partner
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ MANAGEMENT COMPANY
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President
Signature Page to Amended and Restated Shareholders Rights Agreement
43
SERIES D INVESTORS:
ATLAS VENTURE FUND IV, L.P.
By: Atlas Venture Associates IV, L.P.
its general partner
By: Atlas Venture Associates, IV, Inc.
its general partner
/s/Signature illegible
-------------------------------------------
Vice President
ATLAS VENTURE PARALLEL FUND IV-A, C.V.
By: Atlas Venture Associates IV, L.P.
its general partner
By: Atlas Venture Associates, IV, Inc.
its general partner
/s/Signature illegible
-------------------------------------------
Vice President
ATLAS VENTURE PARALLEL FUND IV-B, C.V.
By: Atlas Venture Associates IV, L.P.
its general partner
By: Atlas Venture Associates, IV, Inc.
its general partner
/s/Signature illegible
-------------------------------------------
Vice President
ATLAS VENTURE ENTREPRENEURS' FUND IV, L.P.
By: Atlas Venture Associates IV, L.P.
its general partner
By: Atlas Venture Associates, IV, Inc.
its general partner
/s/Signature illegible
-------------------------------------------
Vice President
Signature Page to Amended and Restated Shareholders Rights Agreement
44
SERIES D INVESTORS:
RHO MANAGEMENT TRUST I
By: RHO MANAGEMENT COMPANY, INC.
as Investment Adivser
By: /s/▇▇▇▇▇▇ ▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Chairman and CEO
Signature Page to Amended and Restated Shareholders Rights Agreement