INVESTORS’ RIGHTS AGREEMENT February 9, 2006
FIFTH
AMENDED AND RESTATED
February
9, 2006
FIFTH
AMENDED AND RESTATED
THIS
FIFTH AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT is made as of the
9th
day of
February, 2006, by and among Wintegra, Inc., a Delaware corporation (the
“Company”),
the
investors listed on Schedule A
hereto,
each of which is herein referred to as a “D-Investor”,
the
holders of Series A Preferred Shares listed on Schedule
B
hereto,
each of which is herein referred to as an “A-Investor”,
the
holders of Series B Preferred Shares listed on Schedule
C
hereto,
each of which is herein referred to as an “B-Investor”
and the
holders of Series C Preferred Shares listed on Schedule
D
hereto,
each of which is referred to as a "C-Investor"
(the
D-Investors, C-Investors, B-Investors and the A-Investors shall jointly be
referred to as the “Investors”)
and the
holders of Common Stock listed on Schedule E
hereto,
each of whom is herein referred to as a “Founder.”
RECITALS
WHEREAS,
the Company, the Founders, the C-Investors, the B-Investors and the A-Investors
are parties to the Fourth Amended and Restated Investors’ Rights Agreement dated
January, 2005 (the “Previous
IR Agreement”);
and
WHEREAS,
the parties to the Previous IR Agreement wish to amend and restate the Previous
IR Agreement so that this Agreement shall govern the rights of the Investors
and
the Founders to cause the Company to register shares of Common Stock issued
or
issuable to them and certain other matters as set forth herein and shall replace
the Previous IR Agreement;
NOW,
THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Registration
Rights.
The
Company covenants and agrees as follows:
1.1 Definitions.
Capitalized terms used but not defined herein shall have the meanings assigned
to such terms in the Series D Agreement. For purposes of this
Agreement:
(i) The
term
“Act”
means
the Securities Act of 1933, as amended.
(ii) The
term
“Form S-3”
means
such form under the Act as in effect on the date hereof or any registration
form
under the Act subsequently adopted by the SEC that permits inclusion or
incorporation of substantial information by reference to other documents filed
by the Company with the SEC.
(iii) The
term
“Holder”
means
any person owning or having the right to acquire Registrable Securities or
any
assignee thereof in accordance with Section 1.11 hereof; provided, however,
that the Founders shall not be deemed to be Holders for purposes of
Section 1.2, 1.12 and 1.11.
(iv) The
term
“Major
Holder”
means
a
Holder that holds at least 3% of the Registrable Securities then outstanding;
provided however, that each of TI, CDIB and Grindylow Group Ltd. (“Grindylow”)
shall
each be considered a Major Holder for so long as it holds at least 2% of the
Registrable Securities and further provided that PMC-Sierra, Inc. ("PMC-Sierra")
shall
be considered a Major Holder for so long as it holds more than 1.5% of the
Registrable Securities.
(v) The
term
“Major
Investor”
means
an Investor that holds at least 3% of the Registrable Securities then
outstanding, provided however, that Grindylow shall be considered a “Major
Investor” for so long as it holds at least 2% of the Registrable Securities then
outstanding (on an as-converted basis) and further provided that PMC-Sierra
shall be considered a Major Investor for so long as it holds more than 1.5%
of
the Registrable Securities then outstanding (on an as-converted basis).
(vi) The
term
“Initial
Offering”
means
the Company’s first firm commitment underwritten public offering of its Common
Stock under the Act.
(vii) The
term
“1934
Act”
means
the Securities Exchange Act of 1934, as amended.
(viii) The
term
“Common
Stock”
means
the Company’s Common Stock, par value $0.001 per share.
(ix) The
term
“Preferred
Stock”
means
the Company’s Series A Preferred Stock, par value $0.001 per share, the
Company’s Series B Preferred Stock, par value $0.001 per share, the Company’s
Series C Preferred Stock, par value $0.001 per share and the Company’s Series D
Preferred Stock, par value $0.001 per share (the “Series
D Preferred Stock”)
issued
to the Investors, as defined in the Series D Agreement.
(x) The
term
“register,”
“registered,”
and
“registration”
refer
to a registration effected by preparing and filing a registration statement
or
similar document in compliance with the Act, and the declaration or ordering
of
effectiveness of such registration statement or document.
(xi) The
term
“Preferred
Registrable Securities”
means
(i) the Common Stock issuable or issued upon conversion of the Preferred
Stock, (ii) any Common Stock of the Company issued as (or issuable upon the
conversion or exercise of any warrant, right or other security that is issued
as) a dividend or other distribution with respect to, or in exchange for, or
in
replacement of, the shares referenced in (i) above, excluding in all cases,
however, any Registrable Securities sold by a person in a transaction in which
his rights under this Section 1 are not assigned.
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(xii) The
term
“Founder
Registrable Securities”
means
(i) Common Stock held by the Founders as of the date of the signing of
this Agreement, provided, however, that such shares of Common Stock shall not
be
deemed Registrable Securities for the purposes of Section 1.2, 1.11 and
1.12 and (ii) any Common Stock of the Company issued as (or issuable upon
the conversion or exercise of any warrant, right or other security that is
issued as) a dividend or other distribution with respect to, or in exchange
for,
or in replacement of, the shares referenced in (i) above, excluding in all
cases, however, any Registrable Securities sold by a Founder in a transaction
in
which his rights under this Section 1 are not assigned.
(xiii) The
term
“Registrable
Securities”
means
Preferred Registrable Securities and Founder Registrable
Securities.
(xiv) The
term
“Merger
and Acquisition"
means
(A) the
acquisition of this Company by another entity by means of any transaction or
series of related trans-actions (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 this corporation;
or
(B)
a
sale of all or substantially all of the Company’s assets or shares.
(xv) The
number of shares of "Registrable
Securities then outstanding"
shall
be determined by the number of Common Stock outstanding, calculated on an
as-converted basis, which are Registrable Securities.
(xvi) “Permitted
Transferee”
means
with regards to any shareholder of the Company, any person or entity, directly
or indirectly, that controls or is controlled by or is under common control
with
such shareholder, any corporation wholly owned by such shareholder, the
shareholders of such shareholder, the spouse or member of such shareholder’s
immediate family, or a custodian, trustee (including a trustee of a voting
trust), executor, or other fiduciary for the account of such shareholder’s
spouse or members of such shareholder’s immediate family, or a trust for such
shareholder’s own self, or a charitable remainder trust, or, if the shareholder
is a partnership, any partner of the partnership or any other partnership or
other entity managed by the same manager, and the general or limited partners
or
managing entities of such shareholder, or any affiliate of such shareholder
or
partner under common or related management or control with such shareholder,
and
in the case of either Genesis Partners II LDC or Genesis Partners II (Israel)
L.P., either of Genesis Partners I L.P. or Genesis Partners I (Cayman) L.P.,
provided that each such transferee or assignee, prior to the completion of
the
sale, transfer, or assignment shall have executed documents assuming the
obligations of such shareholder under this Agreement.
Rights
to
transfer shares of the Company to a Permitted Transferee are intended to
facilitate a shareholder's allocation of such shareholder's shares of the
Company among commonly controlled or similarly situated persons or entities
and
are not intended to be used to facilitate a change in control of the
Company.
(xvii) “TI”
means
Texas Instruments Incorporated, a company incorporated under the laws of the
state of Delaware.
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1.2 Request
for Registration.
(i) Subject
to the conditions of this Section 1.2, if the Company shall receive within
the five (5) year period commencing 90 days after the effective date of the
Initial Offering a written request from the Holders of at least 35% of the
Preferred Registrable Securities then outstanding (the “Initiating
Holders”)
that
the Company file a registration statement under the Act covering the
registration of Registrable Securities that requests the registration of shares
in a minimum amount of five million United States dollars ($5,000,000), then
the
Company shall, within twenty (20) days of the receipt thereof, give written
notice of such request to all Holders, and subject to the limitations of this
Section 1.2, use best efforts to effect, as soon as practicable, the
registration under the Act of all Registrable Securities that the Holders
request to be registered in a written request received by the Company within
twenty (20) days of the mailing of the Company’s notice pursuant to this
Section 1.2(i).
(ii) If
the
Initiating Holders intend to distribute the Registrable Securities covered
by
their request by means of an underwriting, they shall so advise the Company
as a
part of their request made pursuant to this Section 1.2 and the Company
shall include such information in the written notice referred to in
Section 1.2(i). In such event the right of any Holder to include its
Registrable Securities in such registration shall be conditioned upon such
Holder’s participation in such underwriting and the inclusion of such Holder’s
Registrable Securities in the underwriting (unless otherwise mutually agreed
by
a majority in interest of the Initiating Holders and such Holder) to the extent
provided herein. All Holders proposing to distribute their securities through
such underwriting shall enter into an underwriting agreement in customary form
with the underwriter or underwriters selected for such underwriting by a
majority in interest of the Initiating Holders which underwriter or underwriters
shall be reasonably acceptable to a majority in interest of the Initiating
Holders.
(iii) If
the
underwriter advises the Company that marketing factors require a limitation
of
the number of securities underwritten (including Registrable Securities), then
the Company shall so advise all Holders of Registrable Securities that would
otherwise be underwritten pursuant hereto, and the number of shares that may
be
included in the underwriting shall be allocated to the Holders of such
Registrable Securities on a pro rata basis based on the number of Registrable
Securities held by all such Holders (including the Initiating Holders). Any
Registrable Securities excluded or withdrawn from such underwriting shall be
withdrawn from the registration.
(iv) The
Company shall not be required to effect a registration pursuant to this
Section 1.2:
(a)
in
any particular jurisdiction in which the Company would be required to execute
a
general consent to service of process in effecting such registration, unless
the
Company is already subject to service in such jurisdiction and except as may
be
required under the Act; or
(b)
after
the Company has effected two (2) registrations pursuant to this
Section 1.2, and such registrations have been declared or ordered
effective; or
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(c)
during the period starting with the date sixty (60) days prior to the
Company’s good faith estimate of the date of the filing of, and ending on a date
one hundred eighty (180) days following the effective date of, or, if
earlier, upon completion of the distribution contemplated by, a
Company-initiated registration subject to Section 1.3 below, provided that
the Company is actively employing in good faith all reasonable efforts to cause
such registration statement to become effective; or
(d)
if
the Initiating Holders propose to dispose of Registrable Securities that may
be
registered on Form S-3 pursuant to Section 1.4 hereof; or
(e)
if
the Company shall furnish to Holders requesting a registration statement
pursuant to this Section 1.2, a certificate signed by the Chairman of the
Board stating that in the good faith judgment of the Board of Directors of
the
Company, it would be seriously detrimental to the Company and its shareholders
for such registration statement to be effected at such time, in which event
the
Company shall have the right to defer such filing for a period of not more
than
ninety (90) days after receipt of the request of the Initiating Holders,
provided that such right to delay a request shall be exercised by the Company
not more than once in any twelve (12)-month period.
1.3 Company
Registration.
If (but
without any obligation to do so) the Company proposes to register (including
for
this purpose a registration effected by the Company for shareholders other
than
the Holders) any of its stock or other securities under the Act in connection
with the public offering of such securities (other than: (a) a registration
relating solely to the sale of securities to participants in a Company stock
plan, (b) a registration relating to a corporate reorganization, merger,
acquisition or other transaction under Rule 145 of the Act, (c) a
registration on any form that does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of the Registrable Securities which, for the sake of
clarification, shall not be deemed to include a registration on Form S-3 or
any
equivalent form), or (d) a registration in which the only Common Stock being
registered is Common Stock issuable upon conversion of debt securities that
are
also being registered), the Company shall, at such time, promptly give each
Holder written notice of such registration. Upon the written request of each
Holder given within twenty (20) days after mailing of such notice by the Company
in accordance with Section 3.5, the Company shall, subject to the
provisions of Section 1.3(ii), use all reasonable efforts to cause to be
registered under the Act all of the Registrable Securities that each such Holder
has requested to be registered.
(i) Right
to Terminate Registration.
The
Company shall have the right to terminate or withdraw any registration initiated
by it under this Section 1.3 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 1.7 hereof.
(ii) Underwriting
Requirements.
In
connection with any offering involving an underwriting of shares of the
Company’s capital stock, the Company shall not be required under this
Section 1.3 to include any of the Holders’ securities in such underwriting
unless they accept the terms of the underwriting, in customary form, as agreed
upon between the Company and the underwriters selected by it (or by other
persons entitled to select the underwriters) and enter into an underwriting
agreement in customary form with an underwriter or underwriters selected by
the
Company and approved by majority in interest of holders of Preferred Registrable
Securities, and then only in such quantity as the underwriters determine in
their sole discretion will not materially and adversely jeopardize the success
of the offering by the Company. If the total amount of securities, including
Registrable Securities, requested by Holders to be included in such offering
exceeds the amount of securities sold other than by the Company that the
underwriters determine in their sole discretion could materially and adversely
jeopardize the success of the offering, then the Company shall be required
to
include in the offering only that number of such securities, including
Registrable Securities, that the underwriters determine in their sole discretion
will not materially and adversely jeopardize the success of the offering, the
securities so included to be apportioned among the holders of Registrable
Securities requested to be included in such offering and among the holders
of
the Founder Registrable Securities requested to be included in such offering
as
follows: 75% of the shares to be sold by shareholders shall be allocated among
the holders of Preferred Registrable Securities and 25% shall be allocated
between the holders of the Founder Registrable Securities, with the internal
allocation among such groups being on a pro rata basis based on the number
of
Registrable Securities held by all the holders requested to be included in
such
offering, provided however, that in no event shall the number of Founder
Registrable Securities sold by any Founder (as a percentage of all shares sold
in the offering by shareholders) exceed the Founder’s percentage holding in the
Company.
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(iii) For
purposes of the preceding parenthetical concerning apportionment, for any
Stockholder that is a Holder of Registrable Securities that is a partnership
or
corporation, the partners, retired partners and stockholders of such Holder,
or
the estates and family members of any such partners and retired partners and
any
trusts for the benefit of any of the foregoing persons (“Related Party”) shall
be deemed to be a single “Holder,” as applicable and any pro rata reduction with
respect to such “Holder” shall be based upon the aggregate amount of Registrable
Securities owned by all such related entities and individuals.
1.4 Form
S-3 Registration.
In case
the Company shall receive from the (i) Initiating Holders (as such term is
defined in section 1.2 above) or (ii) the Holders of the majority in interest
of
the Founder Registrable Securities ("Initiating
Founders"),
a
written request or requests that the Company effect a registration on
Form S-3 and any related qualification or compliance with respect to all or
a part of the Registrable Securities owned by such Holder or Holders, the
Company shall:
(i) promptly
give written notice of the proposed registration, and any related qualification
or compliance, to all other Holders; and
(ii) use
best
efforts to effect, as soon as practicable, such registration and all such
qualifications and compliances as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such Holders’
Registrable Securities as are specified in such request, together with all
or
such portion of the Registrable Securities of any other Holders joining in
such
request as are specified in a written request given within fifteen (15) days
after receipt of such written notice from the Company, provided, however, that
the Company shall not be obligated to effect any such registration,
qualification or compliance, pursuant to this section 1.4:
6
(a)
if
Form S-3 is not available for such offering by the Holders;
(b)
if
the Company shall furnish to the Holders a certificate signed by the Chairman
of
the Board of the Company stating that in the good faith judgment of the Board
of
Directors of the Company, it would be seriously detrimental to the Company
and
its shareholders for such Form S-3 Registration to be effected at such
time, in which event the Company shall have the right to defer the filing of
the
Form S-3 registration statement for a period of not more than ninety (90)
days after receipt of the request of the Holder or Holders under this
Section 1.4; provided, however, that the Company shall not utilize this
right more than once in any twelve month period;
(c)
in
any particular jurisdiction in which the Company would be required to qualify
to
do business or to execute a general consent to service of process in effecting
such registration, qualification or compliance.
(iii) Subject
to the foregoing, the Company shall file a registration statement covering
the
Registrable Securities and other securities so requested to be registered as
soon as practicable after receipt of the request or requests of the Holders.
Registrations effected pursuant to this Section 1.4 shall not be counted as
requests for registration effected pursuant to Sections 1.2.
1.5 Obligations
of the Company.
Whenever required under this Section 1 to effect the registration of any
Registrable Securities, the Company shall, as expeditiously as reasonably
possible:
(i) prepare
and file with the SEC a registration statement with respect to such Registrable
Securities and use best efforts to cause such registration statement to become
effective, and, upon the request of the Holders of a majority of the Registrable
Securities registered thereunder, keep such registration statement effective
for
a period of up to one hundred eighty (180) days or, if earlier, until the
distribution contemplated in the Registration Statement has been
completed;
(ii) prepare
and file with the SEC such amendments and supplements to such registration
statement and the prospectus used in connection with such registration statement
as may be necessary to comply with the provisions of the Act with respect to
the
disposition of all securities covered by such registration
statement;
(iii) furnish
to the Holders such numbers of copies of a prospectus, including a preliminary
prospectus, in conformity with the requirements of the Act, and such other
documents as they may reasonably request in order to facilitate the disposition
of Registrable Securities owned by them;
7
(iv) use
best
efforts to register and qualify the securities covered by such registration
statement under such other securities or Blue Sky laws of such jurisdictions
as
shall be reasonably requested by the Holders, provided that the Company shall
not be required in connection therewith or as a condition thereto to qualify
to
do business or to file a general consent to service of process in any such
states or jurisdictions;
(v) in
the
event of any underwritten public offering, enter into and perform its
obligations under an underwriting agreement, in usual and customary form, with
the managing underwriter of such offering;
(vi) notify
each Holder of Registrable Securities covered by such registration statement
at
any time when a prospectus relating thereto is required to be delivered under
the Act or the happening of any event as a result of which the prospectus
included in such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact required to
be
stated therein or necessary to make the statements therein not misleading in
the
light of the circumstances then existing;
(vii) notify
each Holder of Registrable Securities covered by such registration statement,
promptly after the Company shall receive notice thereof, of the time when such
registration statement becomes effective or when any amendment or supplement
or
any prospectus forming a part of such registration has been filed.
(viii) notify
each Holder of Registrable Securities covered by such registration statement,
promptly of any request by the SEC for the amending of supplementing of such
registration statement or prospectus for additional information.
(ix) advise
each Holder whose Registrable Shares are included in such registration statement
promptly after the Company shall receive notice or otherwise obtain knowledge
of
the issuance of any order by the SEC suspending the effectiveness of such
registration statement or amendment thereto or of the initiation or threatening
of any proceeding for that purpose; and promptly use its best efforts to prevent
the issuance of any stop order or to obtain its withdrawal promptly if a stop
order should be issued.
(x) use
its
best efforts to furnish, at the request of any Holder requesting registration
of
Registrable Securities pursuant to this agreement on the date that such
Registrable Securities are delivered to the underwriters for sale in connection
with a registration pursuant to this agreement, if such securities are being
sold through underwriters, on the date that the registration statement with
respect to such securities becomes effective, (i) an opinion, dated such date,
of the counsel representing the Company for the purposes of such registration,
in form and substance as is customarily given to underwriters in an underwritten
public offering, addressed to the underwriters, if any, and (ii) a letter dated
such date, from the independent certified public accountants of the Company,
in
form and substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering, addressed to
the
underwriters, if any.
8
(xi) cause
all
such Registrable Securities registered pursuant hereunder to be listed on each
securities exchange on which similar securities issued by the Company are then
listed; and
(xii) provide
a
transfer agent and registrar for all Registrable Securities registered pursuant
hereunder and a CUSIP number for all such Registrable Securities, in each case
not later than the effective date of such registration.
1.6 Information
from Holder.
It
shall be a condition precedent to the obligations of the Company to take any
action pursuant to this Section 1 with respect to the Registrable
Securities of any selling Holder that such Holder shall furnish to the Company
such information regarding itself, the Registrable Securities held by it, and
the intended method of disposition of such securities as shall be required
under
the Act to effect the registration of such Holder’s Registrable
Securities.
1.7 Expenses
of Registration.
All
expenses other than underwriting discounts and commissions incurred in
connection with registrations, filings or qualifications pursuant to
Sections 1.2, 1.3 and 1.4 including (without limitation) all registration,
filing and qualification fees, printers’ and accounting fees, fees and
disbursements of counsel for the Company and the reasonable fees and
disbursements of one counsel for the selling Holders shall be borne by the
Company. Notwithstanding the foregoing, the Company shall not be required to
pay
for any expenses of any registration proceeding begun pursuant to
Section 1.2 or Section 1.4 if the registration request is subsequently
withdrawn at the request of the Holders of a majority of the Registrable
Securities to be registered (in which case all participating Holders shall
bear
such expenses pro rata based upon the number of Registrable Securities that
were
to be requested in the withdrawn registration), unless, in the case of a
registration requested under Section 1.2, the Holders of a majority of the
Registrable Securities agree to forfeit their right to one demand registration
pursuant to Section 1.2, provided, however, that if at the time of such
withdrawal, the Holders have learned of a material adverse change in the
condition, business, or prospects of the Company that is different from that
known to the Holders at the time of their request and have withdrawn the request
with reasonable promptness following disclosure by the Company of such material
adverse change, then the Holders shall not be required to pay any of such
expenses and shall retain their rights pursuant to Section 1.2 or 1.4.
1.8 Delay
of Registration.
No
Holder shall have any right to obtain or seek an injunction restraining or
otherwise delaying any such registration as the result of any controversy that
might arise with respect to the interpretation or implementation of this
Section 1.
1.9 Indemnification.
In the
event any Registrable Securities are included in a registration statement under
this Section 1:
9
(i) To
the
extent permitted by law, the Company will indemnify and hold harmless each
Holder, the partners or officers, directors and shareholders of each Holder,
legal counsel and accountants for each Holder, any underwriter (as defined
in
the Act) for such Holder and each person, if any, who controls such Holder
or
underwriter within the meaning of the Act or the 1934 Act, against any losses,
claims, damages or liabilities (joint or several) to which they may become
subject under the Act, the 1934 Act or any state securities laws, insofar as
such losses, claims, damages, or liabilities (or actions in respect thereof)
arise out of or are based upon any of the following statements, omissions or
violations (collectively a “Violation”): (i) any untrue statement or
alleged untrue statement of a material fact contained in such registration
statement, including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto, (ii) the omission or
alleged omission to state therein a material fact required to be stated therein,
or necessary to make the statements therein not misleading, or (iii) any
violation or alleged violation by the Company of the Act, the 1934 Act, any
state securities laws or any rule or regulation promulgated under the Act,
the
1934 Act or any state securities laws; and the Company will reimburse each
such
Holder, underwriter or controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
indemnity agreement contained in this subsection l.9(i) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld), nor shall the Company be liable in any
such
case for any such loss, claim, damage, liability or action to the extent that
it
arises out of or is based upon a Violation that occurs in reliance upon and
in
conformity with written information furnished expressly for use in connection
with such registration by any such Holder, underwriter or controlling person;
provided further, however, that the foregoing indemnity agreement with respect
to any preliminary prospectus shall not inure to the benefit of any Holder
or
underwriter, or any person controlling such Holder or underwriter, from whom
the
person asserting any such losses, claims, damages or liabilities purchased
shares in the offering, if a copy of the prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Holder or underwriter
to
such person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the shares to such person, and if the
prospectus (as so amended or supplemented) would have cured the defect giving
rise to such loss, claim, damage or liability.
(ii) To
the
extent permitted by law, each selling Holder will indemnify and hold harmless
the Company, each of its directors, each of its officers who has signed the
registration statement, each person, if any, who controls the Company within
the
meaning of the Act, legal counsel and accountants for the Company, any
underwriter, any other Holder selling securities in such registration statement
and any controlling person of any such underwriter or other Holder, against
any
losses, claims, damages or liabilities (joint or several) to which any of the
foregoing persons may become subject, under the Act, the 1934 Act or any state
securities laws, insofar as such losses, claims, damages or liabilities (or
actions in respect thereto) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs
in
reliance upon and in conformity with written information furnished by such
Holder expressly for use in connection with such registration; and each such
Holder will reimburse any person intended to be indemnified pursuant to this
subsection l.9(ii), for any legal or other expenses reasonably incurred by
such
person in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the indemnity agreement
contained in this subsection l.9(ii) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder (which consent shall
not be unreasonably withheld), provided that in no event shall any indemnity
under this subsection l.9(ii) exceed the gross proceeds from the offering
received by such Holder.
10
(iii) Promptly
after receipt by an indemnified party under this Section 1.9 of notice of
the commencement of any action (including any governmental action), such
indemnified party will, if a claim in respect thereof is to be made against
any
indemnifying party under this Section 1.9, deliver to the indemnifying
party a written notice of the commencement thereof and the indemnifying party
shall have the right to participate in, and, to the extent the indemnifying
party so desires, jointly with any other indemnifying party similarly noticed,
to assume the defense thereof with counsel selected by the indemnifying party;
provided, however, that an indemnified party (together with all other
indemnified parties that may be represented without conflict by one counsel)
shall have the right to retain one separate counsel, with the fees and expenses
to be paid by the indemnifying party, if representation of such indemnified
party by the counsel retained by the indemnifying party would be inappropriate
due to actual or potential differing interests between such indemnified party
and any other party represented by such counsel in such proceeding. The failure
to deliver written notice to the indemnifying party within a reasonable time
of
the commencement of any such action, if prejudicial to its ability to defend
such action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 1.9, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this
Section 1.9.
(iv) If
the
indemnification provided for in this Section 1.9 is held by a court of
competent jurisdiction to be unavailable to an indemnified party with respect
to
any loss, liability, claim, damage or expense referred to herein, then the
indemnifying party, in lieu of indemnifying such indemnified party hereunder,
shall contribute to the amount paid or payable by such indemnified party as
a
result of such loss, liability, claim, damage or expense in such proportion
as
is appropriate to reflect the relative fault of the indemnifying party on the
one hand and of the indemnified party on the other in connection with the
statements or omissions that resulted in such loss, liability, claim, damage
or
expense, as well as any other relevant equitable considerations. The relative
fault of the indemnifying party and of the indemnified party shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates
to
information supplied by the indemnifying party or by the indemnified party
and
the parties’ relative intent, knowledge, access to information, and opportunity
to correct or prevent such statement or omission.
(v) Notwithstanding
the foregoing, to the extent that the provisions on indemnification and
contribution contained in the underwriting agreement entered into in connection
with the underwritten public offering are in conflict with the foregoing
provisions, the provisions in the underwriting agreement shall
control.
(vi) The
obligations of the Company and Holders under this Section 1.9 shall survive
the completion of any offering of Registrable Securities in a registration
statement under this Section 1, and otherwise.
11
1.10 Reports
Under Securities Exchange Act of 1934.
With a
view to making available to the Holders the benefits of Rule 144
promulgated under the Act and any other rule or regulation of the SEC that
may
at any time permit a Holder to sell securities of the Company to the public
without registration or pursuant to a registration on Form S-3, the Company
agrees to:
(i) make
and
keep public information available, as those terms are understood and defined
in
SEC Rule 144, at all times after the effective date of the Initial
Offering;
(ii) file
with
the SEC in a timely manner all reports and other documents required of the
Company under the Act and the 1934 Act; and
(iii) furnish
to any Holder, so long as the Holder owns any Registrable Securities, forthwith
upon request (i) a written statement by the Company that it has complied
with the reporting requirements of SEC Rule 144 (at any time after ninety
(90) days after the effective date of the first registration statement filed
by
the Company), the Act and the 1934 Act (at any time after it has become subject
to such reporting requirements), or that it qualifies as a registrant whose
securities may be resold pursuant to Form S-3 (at any time after it so
qualifies), (ii) a copy of the most recent annual or quarterly report of
the Company and such other reports and documents so filed by the Company, and
(iii) such other information as may be reasonably requested in availing any
Holder of any rule or regulation of the SEC that permits the selling of any
such
securities without registration or pursuant to such form.
1.11 Assignment
of Registration Rights.
The
rights to cause the Company to register Registrable Securities pursuant to
this
Agreement may be assigned or transferred (but only with all related obligations)
by a Holder. In the event that a Holder transfers such right to any person
or
entity other than a Permitted Transferee and such transferee is entitled to
sell
all of his Preferred Registrable Securities under Rule 144 during any one
quarter, then such transferee shall not have the rights under and shall not
be
bound by Section 1 herein.
1.12 Limitations
on Subsequent Registration Rights.
From
and after the date of this Agreement, the Company shall not, without the prior
written consent of the Holders of sixty percent (60%) of the Preferred
Registrable Securities, enter into any agreement with any holder or prospective
holder of any securities of the Company that would allow such holder or
prospective holder (a) to include such securities in any registration filed
under Section 1.3 and 1.4 hereof, unless under the terms of such agreement,
such holder or prospective holder may include such securities in any such
registration only to the extent that the inclusion of such securities will
not
reduce the amount of the Registrable Securities of the Holders that are included
or (b) to demand registration of their securities.
1.13 “Market
Stand-Off” Agreement.
Each
Holder hereby agrees that it will not, without the prior written consent of
the
managing underwriter, during the period commencing on the date of the final
prospectus relating to the Company’s initial public offering and ending on the
date specified by the Company and the managing underwriter (such period not
to
exceed one hundred eighty (l80) days) (i) lend, offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock (whether such shares or any such securities are then owned by
the
Holder or are thereafter acquired), or (ii) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Common Stock, whether any such transaction
described in clause (i) or (ii) above is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise. The foregoing
provisions of this Section 1.13 shall apply only to the Company’s initial
public offering of equity securities, shall not apply to the sale of any shares
to an underwriter pursuant to an underwriting agreement, and shall only be
applicable to the Holders if all officers and directors and greater than five
percent (5%) shareholders of the Company enter into similar agreements. The
underwriters in connection with the Company’s initial public offering are
intended third party beneficiaries of this Section 1.13 and shall have the
right, power and authority to enforce the provisions hereof as though they
were
a party hereto. In order to enforce the foregoing covenant, the Company may
impose stop-transfer instructions with respect to the Registrable Securities
of
each Holder (and the shares or securities of every other person subject to
the
foregoing restriction) until the end of such period.
12
1.14 Limitation
on Amendment.
The
Company shall not adversely amend the registration rights of the Founders
without the prior written consent of at least one of the Founders.
2. Covenants
of the Company.
2.1 Accounting
and Delivery of Financial Statements.
The
Company shall maintain a standard system of accounting established and
administered in accordance with generally accepted accounting principles and
until the Initial Offering shall deliver to each Major Investor:
(i) as
soon
as practicable, but in any event within sixty (60) days after the end of each
fiscal year of the Company, a consolidated income statement for such fiscal
year, a consolidated balance sheet of the Company and statement of shareholder’s
equity as of the end of such year, and a consolidated statement of cash flows
for such year, such year-end financial reports to be in reasonable detail,
prepared in accordance with generally accepted accounting principles (“GAAP”),
and audited and certified by one of the “Big Four” independent public accountant
firms, selected by the Company.
(ii) as
soon
as practicable, but in any event within thirty (30) days after the end of each
of the first three (3) quarters of each fiscal year of the Company, an unaudited
and reviewed income statement, statement of cash flows for such fiscal quarter
and an unaudited and reviewed balance sheet as of the end of such fiscal
quarter, in a form acceptable to the majority of the directors nominated by
the
holders of Preferred Registrable Securities. The aforesaid reports shall be
in
reasonable detail, prepared in accordance with GAAP consistently applied with
prior practice for earlier periods, unless 75% of the Directors appointed by
the
Investors approve otherwise.
13
(iii) within
fifteen (15) days of the end of each month, a short form report as determined
by
the Board of Directors of the Company for and as of the end of such month,
in
reasonable detail;
(iv) as
soon
as practicable, but in any event at least fifteen (15) days prior to the end
of
each fiscal year, a budget and business plan for the next fiscal year, prepared
on a monthly basis, including operating budget, balance sheets, income
statements and statements of cash flows for such months and, as soon as
prepared, any other budgets or revised budgets prepared by the
Company;
(v) with
respect to the financial statements called for in subsection(ii) of this
Section 2.1, an instrument executed by the Chief Financial Officer or
President of the Company certifying that such financials were prepared in
accordance with the terms of section 2.1(ii) above 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
(vi) such
other information relating to the financial condition, business, prospects
or
corporate affairs of the Company as the Major Investor or any assignee of the
Investor may from time to time reasonably request; and
(vii) prompt
notice of any litigation or material adverse claims or disputes.
(viii) Each
of
the Founders shall be entitled to receive (i) all the information under this
Section 2.1 as long as such Founder is employed by the Company and serves as
a
director on the Company’s Board of Directors; (ii) the annual report under
Section 2.1(i) as long as such Founder qualifies as a Major Holder.
2.2 Inspection.
The
Company shall permit each Major Investor, at such Major Investor’s expense, to
visit and inspect the Company’s properties, to examine its books of account and
records and to discuss the Company’s affairs, finances and accounts with its
officers, all at such reasonable times as may be requested by the Investor;
provided, however, that the Company shall not be obligated pursuant to this
Section 2.2 to provide access to any information that it reasonably
considers to be a trade secret or similar confidential information of such
nature that ought not properly be disclosed to such Investor. Notwithstanding
anything stated herein, inspection and observer rights of PMC-Sierra shall
be as
stated in the Board Observation Rights Letter that appears as Exhibit
F
to the
Series D Agreement, unless and until PMC-Sierra and the Company mutually agree
otherwise.
2.3 Assignment
of Rights.
Unless
specifically provided otherwise, the rights and obligations pursuant to
subsections 2.1 and 2.2 may be assigned or otherwise conveyed by a Major Holder
or subsequent transferee only to a holder which holds immediately after such
transfer more than 5% of the Preferred Registrable Securities, as long as such
assignment is together with all or any of the Preferred Shares referred to
in
such subsection and is not to a party which may compete with the
Company.
The
aforesaid limitation shall not apply to such transfer of rights and obligations
pursuant to subsections 2.1 and 2.2 to any Permitted Transferee.
14
3. Pre-emptive
Rights.
3.1 Subject
to the terms and conditions specified in this Section 3, the Company hereby
grants to each Major Investor until the Initial Offering a pre-emptive right
with respect to future sales by the Company of its Shares. For purposes of
this
Section 3, Major Investor includes any general partners and affiliates if a
Major Investor is a partnership. A Major 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, provided that such
Major
Investor is a partnership.
3.2 Each
time
the Company proposes to offer any shares of, or securities convertible into
or
exchangeable or exercisable for any shares of, any class of its capital stock
(“Shares”), the Company shall first make an offering of such Shares to each
Major Investor in accordance with the following provisions.
(i) The
Company shall deliver a notice in accordance with Section 3.5
(“Notice”)
to the
Major Investor stating (i) its bona fide intention to offer such Shares,
(ii) the number of such Shares to be offered, and (iii) the price and
terms upon which it proposes to offer such Shares.
(ii) By
written notification received by the Company, within twenty (20) calendar days
after receipt of the Notice, the Major Investor may elect to purchase or obtain,
at the price and on the terms specified in the Notice, up to two times the
Major
Investor’s Pro Rata Portion of the Shares. For purposes of this Section 3,
“Pro
Rata Portion”
shall
equal a fraction, the numerator of which is the number of shares of Common
Stock
issued or issuable upon conversion of other securities then held by a Major
Investor, and the denominator of which is the total number of shares of Common
Stock of the Company then issued and outstanding (assuming full conversion
of
all convertible securities; for avoidance of doubt employee options shall not
be
viewed as convertible securities) provided however that the right of all the
Major Investors together under this Section 3.2(ii) shall be in any event
limited to two thirds (2/3) of the Shares the Company proposes to
offer.
(iii) If
a
Major Investor does not exercise in full its right under this Section 3.2,
or if
such right is limited in accordance with Section 3.2(vii) herein below, the
other Major Investors shall have the right to purchase that number of Shares
that were not purchased by such Major Investor by giving written notice of
their
intention within three (3) business days after receiving a notice from the
Company setting forth the amount of unsubscribed shares. Shares subscribed
for
under this clause (iii) shall be allocated among the Major Investors based
on
each such Major Investor’s Pro-Rata Portion. To the extent that any of the
Shares that Major Investors are entitled to obtain are not elected to be
obtained as provided in subsection 3.2 hereof, the Company may, during the
ninety (90) day period following the expiration of the period provided in
subsections 3.2(ii) and (iii) hereof, offer the remaining unsubscribed
portion of such Shares to any person or persons at a price not less than, and
upon terms no more favorable to the offeree than those specified in the Notice.
If the Company does not enter into an agreement for the sale of the Shares
within such period, or if such agreement is not consummated within ninety (90)
days of the execution thereof, the right provided hereunder shall be deemed
to
be revived and such Shares shall not be offered unless first reoffered to the
Major Investors in accordance herewith.
15
(iv) “Shares”
shall
not include: (i) the issuance or sale of shares of stock (or options
therefor) to employees, directors and consultants under stock plans approved
by
the Company’s Board of Directors; (ii) the issuance of securities pursuant
to the conversion or exercise of convertible or exercisable securities; (iii)
any dividend payable in shares of Common Stock or any shares issued upon a
subdivision or combination of such shares; (iv) the issuance of securities
in
connection with acquisitions of assets, businesses or companies, made by the
Company or settlements of claims involving the Company (v) the issuance of
securities constituting up to 10% of the outstanding share capital of the
Company immediately prior to such issuance, to a Strategic Investor, (herein
defined as an entity that has entered into a material agreement with the Company
such as an OEM agreement, agreement for purchase and/or sale of goods, or a
joint project), which Strategic Investor has been designated as a Strategic
Investor by a majority of the Board of Directors with the affirmative vote
of at
least two of the Board members appointed by the holders of Preferred Stock;
and
(vi) issuance of securities or warrants to a lending institution in connection
with a Hybrid Financing, as defined in and subject to subsection 3.2 (v )
below.
(v) In
the
event the Company desires to obtain any loan or credit facility under a loan
arrangement from a lending institution stipulating the issuance of a warrant
or
an obligation of the Company to issue any securities of the Company to the
lending institution (a “Hybrid
Financing”),
then
the Major Investors will have the right to provide the Company with such Hybrid
Financing on the same terms and conditions that were offered to the Company
by
such lending institution in the same manner as outlined in Sections 3.2(i)-(iv),
provided that the Major Investors, in the aggregate, take up the full amount
of
the Hybrid Financing.
(vi) As
long
as a Founder is (i) either employed by the Company or serves as a director
on
the Company’s Board of Directors; and (ii) holds more than 5% of the Company’s
outstanding share capital, such Founder shall have a pre-emptive right with
respect to the Shares that are not required to be offered to the Major Investors
under Section 3.2(ii), up to the proportion between the number of shares of
Common Stock issued and held by such Founder to the total number of shares
outstanding (on an as converted basis). For the sake of clarity, said Founder
shall not be entitled to purchase any shares that were not purchased by the
Major Investors and/or the other Founder under this Section 3. The pre-emptive
right of the Founders under this Section 3.2(vi) shall lapse with respect to
any
issuance of securities by the Company, if the Major Investors have waived fifty
percent (50%) or more of their pre-emptive right with respect to such round
of
share issuances. The pre-emptive right of the Founders shall be exercised
according to the procedure set forth in Sections 3.2(i)-(iv) and as a part
thereof.
(vii) Notwithstanding
anything to the contrary in this Section 3, Marvell Semiconductor Israel Ltd.’s
right to pre-emption shall be limited so that its holdings in the Company,
directly or indirectly, shall not exceed 16.66% of the share capital of the
Company, on an as-converted, fully-diluted basis.
16
4. The
Board of Directors
4.1 Size
of Board of Directors.
The
Board
of Directors shall consist of up to seven (7) members. Four directors shall
be
elected by the holders of a majority of the outstanding shares of Preferred
Stock (on an as-converted basis), and the outstanding shares of Common Stock,
voting as a single class and three directors shall be elected by a majority
of
the outstanding shares of Common Stock, voting as a single class.
Notwithstanding the foregoing, each of the stockholders of the Company shall
vote all of its shares in favor of, and take all action necessary to elect,
those directors selected in accordance with the provisions of Section 4.2.
4.2 Composition
of the Board of Directors.
(i) Each
of
the four directors to be elected by the holders of Preferred Stock and Common
Stock, voting as a single class shall be an individual nominated by a majority
of the members of the serving Board of Directors.
(ii) Each
of
the three directors to be elected by the holders of Common Stock (“Common Stock
Designees") shall be individuals who are nominated by the Holders of at least
fifty percent (50%) of the voting power of the total number of then outstanding
Common Stock of the Company (the “Majority
of Common”),
considered for the purposes of this Section 4.2(ii) as one group.
(iii) Any
director may be removed by an affirmative vote of the stockholders who appointed
such director, providing that the respective stockholders, voting separately
as
a class, shall vote for the removal of any such director, only upon the written
request of the entities or individuals that appointed such
director.
(iv)
If any
vacancy occurs on the Board of Directors because of death, retirement, removal
or resignation of a director, the person or entity that appointed such director
shall designate a successor, and the respective stockholders, voting separately
as a class, shall vote their securities of the Company in favor of the election
of such successor to the Board of Directors, subject to the provisions of this
Section 4.2.
(v) The
Company shall execute an indemnity letter agreement with each director serving
on the Board of Directors, in the form to be approved by counsel for the
Investors.
(vi) Within
thirty (30) days of the Closing, the Company shall obtain and maintain Directors
and Officers Insurance, in an amount to be determined by the Board of Directors
and approved by the Lead Investor.
4.3 Board
Observer.
As long
as each of TI and CDIB are Major Holders, each of TI and CDIB will be entitled
to designate an observer to the Company’s Board of Directors and any appointed
committees thereof who will be entitled to observe all Board and Committee
discussions, both business and technical, other than private discussions
relating to the relationship between the Company and TI or discussions of
matters which the Board determines in good faith are of a highly confidential
or
proprietary nature and the disclosure of which could reasonably be expected
to
be detrimental to the Company.
17
4.4 Termination.
The
provisions of this Section 4 shall terminate upon the Initial
Offering.
5. Miscellaneous.
5.1 Successors
and Assigns.
Except
as otherwise provided herein, the terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective successors and
assigns of the parties (including transferees of any shares of Registrable
Securities). Nothing in this Agreement, express or implied, is intended to
confer upon any party other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations, or liabilities under
or by reason of this Agreement, except as expressly provided in this
Agreement.
5.2 Effect
of Change in Company’s Capital Structure.
If,
from time to time, there is any stock dividend, stock split or other change
in
the character or amount of any of the outstanding stock of the Company, then
in
such event any and all new, substituted or additional securities to which a
shareholder is entitled by reason of the shareholder’s ownership of the stock
shall be immediately subject to the rights and obligations set forth in this
Agreement, the Series D Agreement and any documents and agreement referred
to
thereto, with the same force and effect as the stock subject to such rights
immediately before such event.
5.3 Governing
Law.
Since
certain of the Investors are based in Israel, this Agreement shall be governed
by and construed under the laws of the State of Israel as applied to agreements
among Israel residents entered into and to be performed entirely within Israel.
However, corporate law matters will be governed by and construed under the
laws
of the State of Delaware.
5.4 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.
5.5 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.
5.6 Notices.
Any
notice required or permitted to be given to a party pursuant to the provisions
of this Agreement will be in writing and will be effective and deemed given
to
such party under this Agreement on the earliest of the following: (a) the date
of personal delivery; (b) one (1) business day after transmission by facsimile,
electronic mail or telecopier, addressed to the other party at its facsimile
number, electronic mail address or telecopier address, with confirmation of
transmission; (c) one (1) business day after deposit with a return receipt
express courier for United States deliveries, or three (3) business days after
such deposit for deliveries outside of the United States; or (d) three (3)
business days after deposit in the United States mail by registered or certified
mail (return receipt requested) for United States deliveries. All notices not
delivered personally, by electronic mail or by facsimile will be sent with
postage and/or other charges prepaid and properly addressed to the party to
be
notified at the address set forth below such party's signature on this Agreement
or on Schedule A hereto, or at such other address as such other party may
designate by ten (10) days advance written notice to the other parties hereto.
All notices for delivery outside the United States will be sent by facsimile
or
by express courier. Any notice given hereunder to more than one person will
be
deemed to have been given, for purposes of counting time periods hereunder,
on
the date effectively given to the last party required to be given such notice.
Notices to the Company will be marked "Attention: President" with a copy to
Company counsel.
18
5.7 Expenses.
If any
action at law or in equity is necessary to enforce or interpret the terms of
this Agreement, the prevailing party shall be entitled to reasonable attorneys’
fees, costs and necessary disbursements in addition to any other relief to
which
such party may be entitled.
5.8 Entire
Agreement: Amendments and Waivers.
This
Agreement (including the Exhibits hereto, if any) constitutes the full and
entire understanding and agreement among the parties with regard to the subjects
hereof and thereof supersedes all other agreements between or among any of
the
parties with respect to the subject matter hereof including the Previous IR
Agreement. 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, the holders of the Majority of the Preferred Registrable
Securities and, only if such amendment shall adversely affect the rights of
the
Founders, at least one Founder. Any amendment or waiver effected in accordance
with this paragraph shall be binding upon each holder of any Registrable
Securities each future holder of all such Registrable Securities, and the
Company.
5.9 Severability.
If one
or more provisions of this Agreement are held to be unenforceable under
applicable law, such provision shall be excluded 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
5.10 Aggregation
of Stock.
All
shares of Registrable Securities held or acquired by affiliated entities or
persons which qualify as Permitted Transferees shall be aggregated together
for
the purpose of determining the availability of any rights under this Agreement.
For the avoidance of doubt, all shares of Registrable Securities held or
acquired by Concord II Venture Fund (Cayman) L.P. and by Concord II Venture
Fund
(Israel) L.P. and by any other partnership managed by the same manager as such
partnerships shall be aggregated together for all means and purposes, including
for determination of the availability of any rights and for the calculation
of
any of such entities' pro rata shares. For the avoidance of doubt, all shares
of
Registrable Securities held or acquired by Magnum Communications Fund, L.P
and
by any other partnership managed by the same manager as such partnerships shall
be aggregated together for all means and purposes, including for determination
of the availability of any rights and for the calculation of any of such
entities' pro rata shares. For the avoidance of doubt, all shares of Registrable
Securities held or acquired by Genesis Partners II LDC and by Genesis Partners
II (Israel) L.P. and by any other partnership managed by the same manager as
such partnerships and by Genesis Partners I L.P. and Genesis Partners I (Cayman)
L.P. shall be aggregated together for all means and purposes, including for
determination of the availability of any rights and for the calculation of
any
of such entities' pro rata shares
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
20
Signature
page -
Fifth
Amended and Restated Investors' Rights Agreement - Company
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
|
|
||
| COMPANY: | WINTEGRA, INC. | |
| |
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| By: | /s/ ▇▇▇▇▇ ▇▇▇-▇▇▇ | |
|
▇▇▇▇▇ ▇▇▇-▇▇▇, President and Chief Executive Officer |
||
21
Signature
page -
Fifth
Amended and Restated Investors' Rights Agreements
|
Magnum
Communication Fund L.P.
|
|||
|
By:
Magnum Communications Management Ltd., its general
partner
|
|||
| |
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|
|
| By: | /s/ Yahal ▇▇▇▇▇ | ||
| Title: | |||
| Name: | |||
|
Magnum
Communication Fund (Israel) L.P.
|
|||
|
By:
Magnum Communications Management Ltd., its general
partner
|
|||
| |
|
|
|
| By: | /s/ Yahal ▇▇▇▇▇ | ||
| Title: | |||
| Name: | |||
|
Magnum
Communication Entrepreneurs Fund L.P.
|
|||
|
By:
Magnum Communications Management Ltd., its general
partner
|
|||
| |
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|
|
| By: | /s/ Yahal ▇▇▇▇▇ | ||
| Title: | |||
| Name: | |||
22
Signature
page -
Fifth
Amended and Restated Investors' Rights Agreements
|
Concord
Ventures II (Israel), L.P.
|
|||
|
By:
Concord II Investment Partners Ltd., its general
partner
|
|||
| |
|
|
|
| By: | /s/ ▇. ▇▇▇▇ | ||
| Title: | |||
| Name: | |||
|
Concord
Ventures II (Cayman), L.P.
|
|||
|
By:
Concord II Investment Partners Ltd., its general
partner
|
|||
| |
|
|
|
| By: | /s/ ▇. ▇▇▇▇ | ||
| Title: | |||
| Name: | |||
23
Signature
page -
Fifth
Amended and Restated Investors' Rights Agreements
| Texas Instruments Incorporated. | |||
| |
|
|
|
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | ||
| Title: | Vice President, Manager Corporate Development | ||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | ||
| Marvell Semiconductor Israel Ltd. | |||
| |
|
|
|
| By: | /s/ ▇▇▇▇ ▇▇▇▇ | ||
| Title: | VP & Treasurer | ||
| Name: | ▇▇▇▇ ▇▇▇▇ | ||
24
Signature
page -
Fifth
Amended and Restated Investors' Rights Agreements
| Genesis Partners II LDC | |||
| |
|
|
|
| By: | /s/ [illegible] | ||
| Title: | |||
| Name: | |||
| Genesis Partners II (Israel) L.P. | |||
| |
|
|
|
| By: | /s/ [illegible] | ||
| Title: | |||
| Name: | |||
| Marinon Development Inc. (for itself and as proxy) | |||
| |
|
|
|
| By: | /s/ [illegible] | ||
| Title: | Director | ||
| Name: | Member | ||
25
Signature
page -
Fifth
Amended and Restated Investors' Rights Agreements
| PMC-Sierra, Inc. | |||
| |
|
|
|
| By: | |||
| Title: | |||
| Name: | |||
26
Signature
page -
Fifth
Amended and Restated Investors' Rights Agreement - Founders
| FOUNDERS: | ▇▇▇▇▇ ▇▇▇-▇▇▇ | ||
| /s/ ▇▇▇▇▇ ▇▇▇-▇▇▇ | |||
| ▇▇▇▇▇▇ O’Dell | |||
| /s/ ▇▇▇▇▇▇ O’Dell | |||
27
Signature
page - Fifth
Amended and Restated Investors' Rights Agreements
| Grindylow Group Ltd. | |||
| |
|
|
|
| By: | /s/ [illegible] | ||
| Title: | Director | ||
| Name: | 08-02-2006 | ||
| China Development Industrial Bank Inc. | |||
| |
|
|
|
| By: | |||
| Title: | |||
| Name: | |||
28
Signature
page -
Fifth
Amended and Restated Investors' Rights Agreements
| ▇▇▇▇▇ ▇▇▇-▇▇▇, as proxy-holder | |||
| /s/ ▇▇▇▇▇ ▇▇▇-▇▇▇ | |||
29
Signature
page -
Fifth
Amended
and Restated Investors' Rights Agreements
| YZMS Advisory Services Ltd. | |||
| |
|
|
|
| By: | /s/ Yahal ▇▇▇▇▇ | ||
| Title: | |||
| Name: | |||
30
Signature
page -
Fifth
Amended and Restated Investors' Rights Agreements
| ▇▇▇▇▇▇▇ Family Trust | |||
| |
|
|
|
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||
| Title: | Trustee | ||
| Name: | ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||
31
Signature
page -
Fifth
Amended and Restated Investors' Rights Agreements
| Murato Inc, as Trustee of the Elefes Trust | |||
| |
|
|
|
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ | ||
| Title: | Director | ||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇ | ||
| Zebulon International Ltd. | |||
| |
|
|
|
| By: | |||
| Title: | |||
| Name: | |||
| Address: | |||
32
Signature
page - Fifth
Amended and Restated Investors' Rights Agreements
| Murato Inc, as Trustee of the Elefes Trust | |||
| |
|
|
|
| By: | |||
| Title: | |||
| Name: | |||
| Zebulon International Ltd. | |||
| |
|
|
|
| By: | /s/ [illegible] | ||
| Title: | |||
| Name: | [illegible] | ||
| Address: | ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | ||
33
Signature
page -
Fifth
Amended and Restated Investors' Rights Agreements
| ▇▇▇ ▇▇▇▇▇▇ | |||
|
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇
|
|||
| /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | |||
34
Signature
page -
Fifth
Amended and Restated Investors' Rights Agreements
| GCWF Investment Partners II | |||
| By: | |||
| BDA Investment Partners | |||
| By: | /s/ [illegible] | ||
|
Tally
A. ▇▇▇▇▇ - ▇▇▇▇ Pearl & Co. Trustees Ltd.
|
|||
| By: | |||
35
Schedule
A
List
of D-Investors
|
Name
and Address
|
Number
of Shares
|
Purchase
Price
|
|||||
|
PMC
Sierra, Inc.
|
853,024
|
$
|
2,000,000
|
||||
36
Schedule
D
List
of C-Investors
|
Name
of Investor
|
Address
for notices
|
Number
of
Purchased
Shares
|
|
Magnum
Communications Fund LP
|
P.O.
Box 309
▇▇▇▇▇▇
House
South
Church Street
▇▇▇▇▇▇
Town, Grand Cayman
|
798,522
|
|
Magnum
Communications Fund (Israel) LP
|
93,977
|
|
|
Magnum
Communications Entrepreneurs Fund LP
|
P.O.
Box 309
▇▇▇▇▇▇
House
South
Church Street
▇▇▇▇▇▇
Town, Grand Cayman
|
16,566
|
|
Concord
Ventures II (Israel),
L.P.
|
▇▇
▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇
|
351,808
|
|
Concord
Ventures II (Cayman), L.P.
|
▇▇
▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇
|
1,400,141
|
|
Concord
Venture Advisors II (Cayman), L.P.
|
▇▇
▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇
|
43,635
|
|
Concord
Venture Advisors II-A (Israel), L.P.
|
▇▇
▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇
|
22,545
|
|
Texas
Instruments Incorporated
|
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇
▇/▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
|
969,669
|
|
Texas
Instruments* Incorporated
|
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇
▇/▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
|
1,454,503
|
|
China
Development Industrial Bank
Inc.
|
303,021
|
|
37
|
Sonostar
Ventures LLC
|
c/o
Trustco Services Ltd.
▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇
▇.▇
▇▇▇ ▇▇▇▇
▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ 6304
|
45,453
|
|
MRVM
Advisory Services Ltd.
|
c/o
Trustco Services Ltd.
▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇
▇.▇
▇▇▇ ▇▇▇▇
▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ 6304
|
18,181
|
|
▇▇▇▇▇▇▇
▇. Shopcorn
|
c/o
Trustco Services Ltd.
▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇
▇.▇
▇▇▇ ▇▇▇▇
▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ 6304
|
30,302
|
|
Grindylow
Group Ltd.
|
Pasea
Estate
Roadtown
Tortolla
BVI
|
1,530,259
|
|
▇▇▇▇▇▇▇
Family Trust
|
c/o
Trustco Services Ltd.
▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇
▇.▇
▇▇▇ ▇▇▇▇
▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ 6304
|
136,360
|
|
Yankee
Investments Holding Ltd.
|
3076
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Hwy.
Roadtown,
Tortolla,
BVI
|
60,604
|
|
Zebulon
International Ltd.
|
60,604
|
|
|
▇▇▇
▇▇▇▇▇▇
|
▇/▇
▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
|
121,209
|
|
YZMS
Advisory Services Ltd.
|
|
7,576
|
|
▇▇▇▇
▇▇▇▇▇
|
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇,
▇▇▇▇▇▇
▇▇▇
▇▇▇
|
60,604
|
38
|
Shardan
B Management Services Ltd.
|
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
|
60,604
|
|
Back
Nine LLC.
|
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
48,483
|
|
FTZ
AG
|
▇.▇.▇▇▇
▇▇▇▇,
▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
|
121,209
|
|
TOTAL**
|
7,755,835
|
*
Shares
to be issued to TI at Additional Closings as defined in the Series C Preferred
Stock Purchase Agreement.
**
The
number of shares includes shares to be issued to TI at Additional
Closings.
39
Schedule
B
List
of A-Investors
|
Number
of
|
||||
|
Name
and Address
|
Shares
|
|||
|
Magnum
Communications Fund LP
|
1,464,201
|
|||
|
Magnum
Communications Fund (Israel) LP
|
172,319
|
|||
|
Magnum
Communications Entrepreneurs Fund LP
|
30,147
|
|||
|
Concord
Ventures II (Israel), L.P.
|
322,167
|
|||
|
Concord
Ventures II (Cayman), L.P.
|
1,282,167
|
|||
|
Concord
Ventures Advisors II (Cayman) L.P.
|
40,833
|
|||
|
Concord
Ventures Advisors II-A (Israel), L.P.
|
21,500
|
|||
|
Marvell
Semiconductor Israel Ltd.
|
1,666,667
|
|||
|
GCWF
Investment Partners II
|
22,499
|
|||
|
BDA
Investment Partners
|
2,500
|
|||
|
Tally
A. ▇▇▇▇▇ - ▇▇▇▇ Pearl & Co. Trustees Ltd.
|
25,000
|
|||
|
TOTAL
|
5,050,000
|
|||
40
Schedule
C
List
of B-Investors
|
Name
of Investor
|
Address
for notices
|
Number
of Shares
|
||
|
Magnum
Communications Fund LP
|
P.O.
Box 309
▇▇▇▇▇▇
House
South
Church Street
▇▇▇▇▇▇
Town, Grand Cayman
|
1,300,304
|
||
|
Magnum
Communications Fund (Israel) LP
|
153,031
|
|||
|
Magnum
Communications Entrepreneurs Fund LP
|
P.O.
Box 309
▇▇▇▇▇▇
House
South
Church Street
▇▇▇▇▇▇
Town, Grand Cayman
|
26,773
|
||
|
Concord
Ventures II (Israel), L.P.
|
▇▇
▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇
▇▇▇▇▇,▇▇▇▇▇▇
|
286,105
|
||
|
Concord
Ventures II (Cayman), L.P.
|
▇▇
▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇
|
1,138,647
|
||
|
Concord
Venture Advisors II (Cayman), L.P.
|
▇▇
▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇
|
36,263
|
||
|
Concord
Venture Advisors II-A (Israel), L.P.
|
▇▇
▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇
|
19,093
|
||
|
Marvell
Semiconductor Israel Ltd.
|
Moshav
▇▇▇▇▇
▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
|
241,847
|
||
|
Texas
Instruments Incorporated
|
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇
▇/▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
|
725,542
|
||
41
|
Genesis
Partners II LDC
|
Top
Tower, ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
|
2,117,128
|
||
|
China
Development Industrial Bank Inc.
|
544,156
|
|||
|
Genesis
Partners II (Israel) L.P.
|
▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇
▇▇▇▇ ▇▇▇▇▇, Israel
|
313,438
|
||
|
Marinon
Development Inc.
|
c/o
Trustco Services Ltd.
▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇
▇.▇
▇▇▇ ▇▇▇▇
▇▇▇,▇▇▇▇▇▇▇▇▇▇▇
6304
|
598,572
|
||
|
MRVM
Advisory Services Ltd.
|
c/o
Trustco Services Ltd.
▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇
▇.▇
▇▇▇ ▇▇▇▇
▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ 6304
|
18,139
|
||
|
Sonostar
Ventures LLC
|
c/o
Trustco Services Ltd.
▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇
▇.▇
▇▇▇ ▇▇▇▇
▇▇▇,▇▇▇▇▇▇▇▇▇▇▇
6304
|
108,831
|
||
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
|
c/o
Trustco Services Ltd.
▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇
▇.▇
▇▇▇ ▇▇▇▇
▇▇▇,▇▇▇▇▇▇▇▇▇▇▇
6304
|
72,554
|
||
|
TOTAL
|
7,700,423
|
42
Schedule
E
Founders
|
Founder
|
Class/Series
of Stock
|
Number
of Shares
|
||
|
▇▇▇▇▇
▇▇▇-▇▇▇.
|
Common
Stock
|
4,294,500
|
||
|
▇▇▇▇▇▇
O’Dell
|
Common
Stock
|
2,705,500
|
||
43