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Exhibit 10.7
AMENDED AND RESTATED
RIGHTS AGREEMENT
This Amended and Restated Rights Agreement (the "AGREEMENT") is entered
into as of July 1, 1996, by and among AccelGraphics, Inc., a California
corporation (the "COMPANY"), the holders of the Company's Series A Preferred
Stock (the "SERIES A HOLDERS") as set forth on Exhibit A attached hereto, the
holders of the Company's Series B Preferred Stock (the "SERIES B HOLDERS") as
set forth on Exhibit A attached hereto, the holders of certain warrants to
purchase Common Stock and Series A Preferred Stock, respectively (the "PRIOR
WARRANT HOLDERS") as set forth on Exhibit A attached hereto and the holder of
the warrant to purchase Series B Preferred Stock (the "SERIES B WARRANT HOLDER",
and together with the Prior Warrant Holders, the "WARRANT HOLDERS"). The Series
A Holders, the Series B Holders and the Warrant Holders are collectively
referred to as the "HOLDERS."
RECITALS
A. The Company, the Series A Holders, the Series B Holders and the Prior
Warrant Holders have entered into a Rights Agreement (the "PRIOR RIGHTS
AGREEMENT") dated as of June 20, 1995, as amended December 29, 1995 and March 7,
1996, pursuant to which the Company granted such holders certain rights.
B. The Company is a party to a Master Equipment Lease No. 053-0021 of even
date herewith (the "EQUIPMENT LEASE") with the Series B Warrant Holder, pursuant
to which the Company is issuing to the Series B Warrant Holder a warrant to
purchase shares of the Company's Series B Preferred Stock.
C. The Company, the Series A Holders, the Series B Holders and the Prior
Warrant Holders desire to amend and restate the Prior Rights Agreement to
include the Series B Warrant Holders and make certain other changes.
In consideration of the mutual promises and covenants hereinafter set
forth and for other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties agree as follows:
SECTION 1
TERMINATION OF PRIOR RIGHTS
Effective and contingent upon execution of this Agreement by holders of a
majority of the Registrable Securities (as such term is defined in Section 3.2
of the Prior Rights Agreement) and upon the closing of the transactions
contemplated by the Equipment Lease, the Prior Rights Agreement is hereby
declared null and void and is amended and restated in its entirety to read as
set forth in this Agreement, and the Company and the Holders hereby agree to be
bound by the provisions hereof as the sole agreement of the Company and the
Holders with respect to registration rights of the Company's securities and
certain other rights as set forth herein.
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SECTION 2
LIMITATIONS ON DISPOSITION
2.1 Limitations on Disposition. Each Holder agrees not to make any
disposition of all or any portion of the Stock or the Registrable Securities (as
defined in Section 3.1(b)) unless and until:
(a) There is then in effect a registration statement under the
Securities Act of 1933, as amended (the "SECURITIES ACT") covering such proposed
disposition and such disposition is made in accordance with such registration
statement; or
(b) (i) The Holder shall have notified the Company of the
proposed disposition and shall have furnished the Company with a statement of
the circumstances surrounding the proposed disposition, and (ii) if reasonably
requested by the Company, the Holder shall have furnished the Company with an
opinion of counsel, reasonably satisfactory to the Company, that such
disposition will not require registration under the Securities Act.
(c) Notwithstanding the provisions of paragraphs (a) and (b)
above, no such registration statement or opinion of counsel shall be necessary
for a transfer by the Holder to a constituent shareholder or constituent partner
(including any constituent of a constituent) of the Holder or to any
wholly-owned subsidiary or parent of, or to any corporation or entity that is,
within the meaning of the Securities Act, controlling, controlled by or under
common control with, any such Holder, if the transferee or transferees agree in
writing to be subject to the terms hereof to the same extent as if they were the
Holder hereunder and to reconfirm representations and warranties made by the
Holder in the Series B Purchase Agreement dated as of March 7, 1996 by and among
the Company and the Series B Holders.
SECTION 3
REGISTRATION RIGHTS
3.1 Definitions. As used in this Agreement:
(a) The terms "REGISTER," "REGISTERED," and "REGISTRATION"
refer to a registration effected by preparing and filing a registration
statement in compliance with the Securities Act and the subsequent declaration
or ordering of the effectiveness of such registration statement.
(b) The term "REGISTRABLE SECURITIES" means:
(i) the shares of Common Stock issuable or issued upon
conversion of the Series A Preferred Stock of the Company issued pursuant to the
Series A Preferred Purchase Agreement dated June 20, 1995 (the "SERIES A
PURCHASE AGREEMENT" and together with the Series B Purchase Agreement, the
"PURCHASE AGREEMENT");
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(ii) the shares of Common Stock issuable or issued
upon conversion of the Series A-1 Preferred Stock of the Company issuable or
issued upon conversion of the Series A Preferred Stock of the Company;
(iii) the shares of Common Stock issuable or issued
upon conversion of the Series B Preferred Stock purchased under the Series B
Purchase Agreement (such shares together with the shares of Common Stock
issuable or issued upon conversion of the Series A Preferred Stock of the
Company are referred to hereafter as the "STOCK");
(iv) the shares of Common Stock issuable or issued upon
conversion of the Series B-1 Preferred Stock of the Company issuable or issued
upon conversion of the Series B Preferred Stock of the Company;
(v) the shares of Common Stock issuable or issued upon
exercise of certain warrants issued to Intel Corporation pursuant to the Warrant
Purchase Agreement dated December 29, 1995;
(vi) the shares of Common Stock issuable or issued upon
conversion of the Series A Preferred Stock of the Company issuable or issued
upon exercise of certain warrants issued to Silicon Valley Bank in connection
with a line of credit pursuant to a Business Loan Agreement dated October 11,
1995;
(vii) the shares of Common Stock issuable or issued upon
conversion of the Series B Preferred Stock of the Company issuable or issued
upon exercise of certain warrants issued to Phoenix Leasing Incorporated
pursuant to a Master Equipment Lease No. 053-0021 dated July 1, 1996; and
(viii) any other shares of Common Stock of the Company
issued as (or issuable upon the conversion or exercise of any warrant, right or
other security which is issued as) a dividend or other distribution with respect
to, or in exchange for or in replacement of, the Stock, excluding in all cases,
however, any Registrable Securities sold by a person in a transaction in which
his or her rights under this Agreement are not assigned;
provided, however, that Common Stock or other securities shall only be treated
as Registrable Securities if and so long as they have not been (A) sold to or
through a broker or dealer or underwriter in a public distribution or a public
securities transaction, or (B) 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, if any, are removed upon the consummation of such sale.
(c) The number of shares of "REGISTRABLE SECURITIES THEN
OUTSTANDING" shall be determined by the number of shares of Common Stock
outstanding which are, and the number of shares of Common Stock issuable
pursuant to then exercisable or convertible securities which are, Registrable
Securities.
(d) The term "HOLDER" means any holder of outstanding
Registrable Securities who, subject to the limitations set forth in Section 3.13
below, acquired such
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Registrable Securities in a transaction or series of transactions not involving
any registered public offering.
(e) The term "FORM S-3" means such form under Securities Act
as in effect on the date hereof or any registration form under the Securities
Act subsequently adopted by the Securities and Exchange Commission ("SEC") which
permits inclusion or incorporation of substantial information by reference to
other documents filed by the Company with the SEC.
3.2 Demand Registration.
(a) If the Company shall receive at any time after the earlier
of (i) July 1, 1999, or (ii) six (6) months after the effective date of the
first registration statement for a public offering of securities of the Company
(other than a registration statement relating either to the sale of securities
to employees of the Company pursuant to a stock option, stock purchase or
similar plan or an SEC Rule 145 transaction), a written request from the Holders
of at least a forty percent (40%) majority of the Registrable Securities then
outstanding that the Company file a registration statement under the Securities
Act having an aggregate offering price, before deduction of underwriters
discounts and commissions, of at least $7,500,000, then the Company shall,
within ten (10) days of the receipt thereof, give written notice of such request
to all Holders and shall, subject to the limitations of subsection 3.2(b),
effect as soon as practicable, and in any event within ninety (90) days of the
receipt of such request, the registration under the Securities Act of all
Registrable Securities which the Holders request to be registered within thirty
(30) days of the effective date of such notice delivered by the Company in
accordance with Section 5.5.
(b) If the Holders initiating the registration request
hereunder ("INITIATING HOLDERS") intend to distribute the Registrable Securities
covered by their request by means of an underwriting, they shall so advise the
Company as a part of their request made pursuant to this Section 3.2 and the
Company shall include such information in the written notice referred to in
subsection 3.2(a). In such event, the right of any Holder to include his
Registrable Securities in such registration shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting (unless otherwise mutually agreed by
a majority in interest of the Initiating Holders and such Holder) to the extent
provided herein. All Holders proposing to distribute their securities through
such underwriting shall (together with the Company as provided in subsection
3.4(e)) 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. Notwithstanding any other provision of this
Section 3.2, if the underwriter advises the Initiating Holders in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then the Company shall so advise all Holders of Registrable
Securities which would otherwise be underwritten pursuant hereto, and the number
of shares of Registrable Securities that may be included in the underwriting
shall be allocated among all Holders thereof, including the Initiating Holders,
in proportion (as nearly as practicable) to the amount of Registrable Securities
of the Company owned by each Holder; provided, however, that the number of
shares of Registrable Securities to
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be included in such underwriting shall not be reduced unless all other
securities are first entirely excluded from such underwriting.
(c) The Company is obligated to effect only two (2) such
registrations pursuant to this Section 3.2.
(d) Notwithstanding the foregoing, if the Company shall
furnish to Holders requesting a registration statement pursuant to this Section
3.2, a certificate signed by the President of the Company stating that in the
good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its shareholders for such registration
statement to be filed and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer such filing
for a period of not more than ninety (90) days after receipt of the request of
the Initiating Holders.
3.3 Piggyback 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
Common Stock or other securities under the Securities Act in connection with the
public offering of such securities solely for cash (other than a registration
relating either to the sale of securities to participants in a Company stock
option, stock purchase or similar plan or to an SEC Rule 145 transaction, or a
registration on any form which does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of the Registrable Securities), the Company shall, at such
time, promptly give each Holder written notice of such registration. Upon the
written request of each Holder given within twenty (20) days after mailing of
such notice by the Company in accordance with Section 5.5, the Company shall,
subject to the provisions of Section 3.8, cause to be registered under the
Securities Act all of the Registrable Securities that each such Holder has
requested to be registered.
3.4 Form S-3 Registration. In case the Company shall receive from
any Holder or Holders a written request or requests that the Company effect a
registration on Form S-3 and any related qualification or compliance with
respect to all or a part of the Registrable Securities owned by such Holder or
Holders, the Company will:
(a) promptly give written notice of the proposed registration,
and any related qualification or compliance, to all other Holders; and
(b) as soon as practicable, effect such registration and all
such qualifications and compliances as may be so requested and as would permit
or facilitate the sale and distribution of all or such portion of such Holder's
or Holders' Registrable Securities as are specified in such request, together
with all or such portion of the Registrable Securities of any other Holder or
Holders joining in such request as are specified in a written request given
within 15 days after receipt of such written notice from the Company; provided,
however, that the Company shall not be obligated to effect any such
registration, qualification or compliance, pursuant to this Section 3.4, (i) if
Form S-3 is not available for such offering by the Holders; (ii) if the Holders,
together with the holders of any other securities of the Company entitled to
inclusion in such registration, propose to sell Registrable Securities and such
other securities (if any) at an
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aggregate price to the public (net of any underwriters' discounts or
commissions) of less than $500,000; (iii) if the Company shall furnish to the
Holders a certificate signed by the president of the Company stating that in the
good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its shareholders for such Form S-3
Registration to be effected at such time, in which event the Company shall have
the right to defer the filing of the Form S-3 registration statement for a
period of not more than ninety (90) days after receipt of the request of the
Holder or Holders under this Section 4.12; (iv) if the Company has, within the
twelve (12)-month period preceding the date of such request, already effected
one (1) registration on Form S-3 for the Holders pursuant to this Section 3.4;
(v) if the Company has, within the one hundred eighty (180)-day period preceding
the date of such request, effected any registration of its securities pursuant
to the Securities Act; or (vi) in any particular jurisdiction in which the
Company would be required to qualify to do business or to execute a general
consent to service of process in effecting such registration, qualification or
compliance.
(c) Subject to the foregoing, the Company shall file a
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.
3.5 Obligations of the Company. Whenever required under this Section
3 to effect the registration of any Registrable Securities, the Company shall,
as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its best efforts to cause
such registration statement to become effective, and, upon the request of the
Holders of a majority of the Registrable Securities registered thereunder, keep
such registration statement effective for the earlier of one hundred twenty
(120) days or until the distribution contemplated in the registration statement
has been completed; provided, however, that (i) such one hundred twenty
(120)-day period shall be extended for a period of time equal to the period the
Holder refrains from selling any securities included in such registration at the
request of an underwriter of Common Stock (or other securities) of the Company;
and (ii) in the case of any registration of Registrable Securities on Form S-3
which are intended to be offered on a continuous or delayed basis, such one
hundred twenty (120)-day period shall be extended, if necessary, to keep the
registration statement effective until all such Registrable Securities are sold,
provided that Rule 415, or any successor rule under the Securities Act, permits
an offering on a continuous or delayed basis, and the obligation to file a
post-effective amendment permit, in lieu of filing a post-effective amendment
which (A) includes any prospectus required by Section 10(a)(3) of the Securities
Act or (B) reflects facts or events representing a material or fundamental
change in the information set forth in the registration statement, the
incorporation by reference of information required to be included in (A) and (B)
above to be contained in periodic reports filed pursuant to Sections 13 or 15(d)
of the Securities Exchange Act of 1934, as amended (the "1934 ACT"), in the
registration statement.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement.
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(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by
such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
(g) Cause all such Registrable Securities registered pursuant
to this Section 3 to be listed on each securities exchange on which similar
securities issued by the Company are then listed.
(h) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant to this Section 3 and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
(i) Furnish, at the request of any Holder requesting
registration of Registrable Securities pursuant to this Section 3, on the date
that such Registrable Securities are delivered to the underwriters for sale in
connection with a registration pursuant to this Section 3, if such securities
are being sold through underwriters, or, if such securities are not being sold
through underwriters, on the date that the registration statement with respect
to such securities becomes effective, an opinion, dated such date, of the
counsel representing the Company for the purposes of such registration, in form
and substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities
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3.6 Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 3 with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be required to effect the registration of such Holder's Registrable
Securities.
3.7 Expenses of Registrations. All expenses other than underwriting
discounts and commissions and the fees and disbursements of one special counsel
for the selling Holders, if any, incurred in connection with registrations,
filings or qualifications pursuant to this Section 3, including (without
limitation), all registration, filing and qualification fees, printers and
accounting fees, fees and disbursements of counsel for the Company shall be
borne by the Company; provided, however, that the Company shall not be required
to pay for any expenses of any registration proceeding begun pursuant to Section
3.2 if the registration request is subsequently withdrawn at the request of the
Holders of a majority of the Registrable Securities to be registered (in which
case all Participating Holders shall bear such expenses); provided further,
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
from that known to the Holders at the time of their request, then the Holders
shall not be required to pay any of such expenses and shall retain their rights
pursuant to Section 3.2.
3.8 Underwriting Requirements. In connection with any offering
involving an underwriting of shares being issued by the Company, the Company
shall not be required under Section 3.3 to include any of the Holders'
securities in such underwriting unless they accept the terms of the underwriting
as agreed upon between the Company and the underwriters selected by it, and then
only in such quantity as will not, in the opinion of the underwriters,
jeopardize the success of the offering by the Company. If the total amount of
securities, including Registrable Securities, requested by shareholders to be
included in such offering exceeds the amount of securities sold other than by
the Company that the underwriters reasonably believe compatible with the success
of the offering, then the Company shall be required to include in the offering
only that number of such securities which the underwriters believe will not
jeopardize the success of the offering (the "SELLING SHAREHOLDER SECURITIES"),
provided, however, that the Selling Shareholder Securities shall first be
allocated among the requesting Holders pro rata according to the total amounts
of Registrable Securities entitled to be included in such offering by such
requesting Holders and then among all other holders of securities requesting and
legally entitled to include securities in such offering pro rata based on the
total amount of such securities entitled to be included in such offering by such
holders and provided, further, that (i) in no event shall the amount of
Registrable Securities of the selling Holders included in the offering be
reduced below thirty percent (30%) of the total amount of securities included in
such offering, unless such offering is the initial public offering of the
Company's securities, in which case all of the Registrable Securities may be
excluded if, in either case, the underwriters make the determination described
above and no other shareholder's securities are included, or (ii)
notwithstanding (i) above, any shares being sold by a shareholder exercising a
demand registration right similar to that granted in Section 3.2 be excluded
from such offering. For purposes of the preceding parenthetical concerning
apportionment, for any selling shareholder which is a holder of Registrable
Securities and which is a partnership or corporation, the partners, retired
partners and
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shareholders of such holder, or the estates and family members of any such
partners and retired partners and any trusts for the benefit of any of the
foregoing persons shall be deemed to be a single "selling shareholder," and any
pro rata reduction with respect to such selling shareholder shall be based upon
the aggregate amount of shares carrying registration rights owned by all
entities and individuals included in such selling shareholders.
3.9 Delay of Registration. No Holder shall have any right to obtain
or seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 3.
3.10 Indemnification. In the event any Registrable Securities are
included in a registration statement under this Section 3:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Holder, any underwriter (as defined in the Securities
Act) for such Holder and each person, if any, who controls such Holder or
underwriter within the meaning of the Securities Act or the 1934 Act, against
any losses, claims, damages, or liabilities (joint or several) to which they may
become subject under the Securities Act, the 1934 Act or other federal or state
law, insofar as such losses, claims, damages, or liabilities (or actions in
respect thereof) arise out of or are based upon any of the following statements,
omissions or violations (collectively a "VIOLATION"): (i) any untrue statement
or alleged untrue statement of a material fact contained in such registration
statement, including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto, (ii) the omission or alleged
omission to state therein a material fact required to be stated therein, or
necessary to make the statements therein not misleading, or (iii) any violation
or alleged violation by the Company of the Securities Act, the 1934 Act, any
state securities law or any rule or regulation promulgated under the Securities
Act, the 1934 Act or any state securities law; and the Company will pay as
incurred to each such Holder, underwriter or controlling person, 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 3.10(a) shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability,
or action if such settlement is effected without the consent of the Company
(which consent shall not be unreasonably withheld), nor shall the Company be
liable in any such case for any such loss, claim, damage, liability, or action
to the extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by any such Holder, underwriter or
controlling person.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the Securities Act, any underwriter,
any other Holder selling securities in such registration statement and any
controlling person of any such underwriter or other Holder, against any losses,
claims, damages, or liabilities (joint or several) to which any of the foregoing
persons may become subject, under the Securities Act, the 1934 Act or other
federal or state law, insofar as such losses, claims, damages, or liabilities
(or actions in respect thereto) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs in
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reliance upon and in conformity with written information furnished by such
Holder expressly for use in connection with such registration; and each such
Holder will pay, as incurred, any legal or other expenses reasonably incurred by
any person intended to be indemnified pursuant to this subsection 3.10(b), in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement contained
in this subsection 3.10(b) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is effected
without the consent of the Holder, which consent shall not be unreasonably
withheld, provided, further, that in no event shall any indemnity under this
Section 3.10(b) exceed the gross proceeds from the offering received by such
Holder.
(c) Promptly after receipt by an indemnified party under this
Section 3.10 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 3.10, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 3.10, 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
3.10.
(d) If the indemnification provided for in this Section 3.10
is held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage, or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, will 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 will 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.
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(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement will control.
(f) The obligations of the Company and Holders under this
Section 3.10 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 3, and otherwise.
3.11 Reports Under Securities Exchange Act of 1934. With a view to
making available to the Holders the benefits of Rule 144 promulgated under the
Securities Act and any other rule or regulation of the SEC that may at any time
permit a Holder to sell securities of the Company to the public without
registration or pursuant to a registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in SEC Rule 144, at all times after ninety (90) days
after the effective date of the first registration statement filed by the
Company for the offering of its securities to the general public;
(b) take such action, including the voluntary registration of
its Common Stock under Section 12 of the 1934 Act, as is necessary to enable the
Holders to utilize Form S-3 for the sale of their Registrable Securities, such
action to be taken as soon as practicable after the end of the fiscal year in
which the first registration statement filed by the Company for the offering of
its securities to the general public is declared effective;
(c) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the 1934 Act; and
(d) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of SEC Rule 144 (at
any time after ninety (90) days after the effective date of the first
registration statement filed by the Company), the Securities Act and the 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 which
permits the selling of any such securities without registration or pursuant to
such form.
3.12 Assignment of Registration Rights. The rights to cause the
Company to register Registrable Securities pursuant to this Section 3 may be
assigned by a Holder only to a (i) transferee or assignee acquiring not less
than 150,000 shares of Registrable Securities (as presently constituted and
subject to subsequent adjustments for stock splits, stock dividends, reverse
stock splits and the like) or (ii) any wholly-owned subsidiary or parent of, or
to any
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corporation or entity that is, within the meaning of the Securities Act,
controlling, controlled by or under common control with, any such Holder,
provided the Company is, within a reasonable time after such transfer, furnished
with written notice of the name and address of such transferee or assignee and
the securities with respect to which such registration rights are being
assigned; and provided, further, that such assignment shall be effective only if
(a) the transferee or assignee agrees to be bound by the obligations of a Holder
under this Agreement and (b) immediately following such transfer the further
disposition of such securities by the transferee or assignee is restricted under
the Securities Act.
3.13 "Market Stand-Off" Agreement. The Holder hereby agrees that
during the 180-day period following the effective date of the registration
statement filed by the Company with respect to its initial public offering under
the Securities Act, it shall not, to the extent requested by the Company and
such underwriter, sell or otherwise transfer or dispose of (other than to donees
who agree to be similarly bound) any Common Stock of the Company held by it at
any time during such period except Common Stock included in such registration;
provided, however, that the obligations under this Section 3.13 are conditioned
upon the officers and the directors of the Company entering into similar
agreements.
To enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Registrable Securities of the
Purchaser (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period.
3.14 Termination of Registration Rights. No Holder shall be entitled
to exercise any right provided for in this Section 3 (a) after ten (10) years
following the consummation of the Company's initial sale of its Common Stock in
a bona fide, firm commitment underwriting pursuant to a registration statement
on Form S-1 under the Securities Act (other than a registration statement
relating either to the sale of securities to employees of the Company pursuant
to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction)
or (b) at such time following the Company's initial public offering and for so
long as such Holder may sell all of such Holder's Registrable Securities (i)
under Rule 144(k) or (ii) in any one (1) three-month period pursuant to Rule 144
(or such successor rule as may be adopted).
SECTION 4
ADDITIONAL RIGHTS
4.1 Right of First Offer. Subject to the terms and conditions
specified in this Section 4.1, the Company hereby grants to each Holder, so long
as such Holder holds not less than 150,000 shares of Registrable Securities held
thereby (the "RIGHTHOLDER"), a right of first offer with respect to future sales
by the Company of its New Securities (as hereinafter defined). For purposes of
this Section 4.1, the term Rightholder includes any partners, shareholders or
affiliates of the Rightholder. The Rightholder shall be entitled to apportion
the right of first offer hereby granted among itself and its partners,
shareholders and affiliates in such proportions as it deems appropriate.
(a) In the event the Company proposes to issue New Securities,
it shall give the Rightholder written notice (the "NOTICE") of its intention
stating (i) a description of the
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New Securities it proposes to issue, (ii) the number of shares of New Securities
it proposes to offer, (iii) the price per share at which, and other terms on
which, it proposes to offer such New Securities and (iv) the number of shares
that the Rightholder has the right to purchase under this Section 4.1, based on
the Rightholder's Percentage (as defined in Subsection 4.1(d)(ii)).
(b) Within forty-five (45) days after the Notice is given (in
accordance with Section 5.5), the Rightholder may elect to purchase, at the
price specified in the Notice, up to the number of shares of the New Securities
proposed to be issued that the Rightholder has the right to purchase as
specified in the Notice. An election to purchase shall be made in writing and
must be given to the Company within such forty-five (45)-day period (in
accordance with Section 5.5). The closing of the sale of New Securities by the
Company to the participating Rightholder upon exercise of its rights under this
Section 4.1 shall take place simultaneously with the closing of the sale of New
Securities to third parties.
(c) The Company shall have ninety (90) days after the last
date on which the Rightholder's right of first offer lapsed to enter into an
agreement (pursuant to which the sale of New Securities covered thereby shall be
closed, if at all, within forty-five days from the execution thereof) to sell
the New Securities which the Rightholder did not elect to purchase under this
Section 4.1, at or above the price and upon terms not materially more favorable
to the purchasers of such securities than the terms specified in the initial
Notice given in connection with such sale. In the event the Company has not
entered into an agreement to sell the New Securities within such ninety day
period (or sold and issued New Securities in accordance with the foregoing
within forty-five days from the date of said agreement), the Company shall not
thereafter issue or sell any New Securities without first offering such New
Securities to the Rightholder in the manner provided in this Section 4.1.
(d) (i) "NEW SECURITIES" shall mean any shares of, or
securities convertible into or exercisable for any shares of, any class of the
Company's capital stock; provided that "New Securities" does not include: (A)
securities issued pursuant to the acquisition of another business entity by the
Company by merger, purchase of substantially all of the assets of such entity,
or other reorganization whereby the Company owns not less than a majority of the
voting power of such entity; (B) shares, or options to purchase shares, of the
Company's Common Stock and the shares of Common Stock issuable upon exercise of
such options, issued pursuant to any arrangement approved by the Board of
Directors to employees, officers and directors of, or consultants, advisors or
other persons performing services for, the Company, (C) shares of the Company's
Common Stock or Preferred Stock of any series issued in connection with any
stock split, stock dividend or recapitalization of the Company; (D) Common Stock
issued upon exercise of warrants, options or convertible securities if the
issuance of such warrants, options or convertible securities was a result of the
exercise of the right of first offer granted under this Section 4.1 or was
subject to the right of first offer granted under this Section 4.1; (E) capital
stock or warrants or options for the purchase of shares of capital stock issued
by the Company to a lender in connection with any loan or lease financing or
technology acquisition transaction approved by the Board of Directors of the
Company; and (F) securities sold to the public in an offering pursuant to a
registration statement filed with the Securities and Exchange Commission under
the Securities Act.
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(ii) The applicable "PERCENTAGE" for the Rightholder
shall be the number of shares of New Securities calculated by dividing (A) the
total number of shares of Common Stock owned by the Rightholder (assuming
conversion of all outstanding shares of Preferred Stock) by (B) the total number
of shares of Common Stock outstanding at the time the Notice is given (assuming
conversion of all outstanding shares of Preferred Stock).
(e) The right of first offer granted under this Section 4.1
shall not apply to and shall expire upon the consummation of the Company's sale
of its Common Stock in a bona fide, firm commitment underwriting pursuant to a
registration statement on Form S-1 under the Securities Act (other than a
registration statement relating either to the sale of securities to employees of
the Company pursuant to a stock option, stock purchase or similar plan or a SEC
Rule 145 transaction).
(f) The right of first offer granted under this section may be
assigned by the Rightholder to a transferee or assignee of the Rightholder's
shares of the Company's stock acquiring at least 150,000 of the Rightholder's
shares of the Company's Common Stock (treating all shares of Preferred Stock for
this purpose as though converted into Common Stock) (equitably adjusted for any
stock splits, subdivision stock dividends, changes, combinations or the like).
In the event that the Rightholder shall assign its right of first offer pursuant
to this Section 4.1 in connection with the transfer of less than all of its
shares of the Company's stock, the Rightholder shall also retain its right of
first offer to the extent then applicable under this Section 4.1.
4.2 Information Rights; Observer Rights.
(a) So long as Holder holds at least 375,000 shares of
Registrable Securities, the Company shall deliver to each Holder:
(i) as soon as practicable, but in any event within
ninety (90) days after the end of each fiscal year of the Company, an income
statement for such fiscal year, a balance sheet of the Company as of the end of
such year, and a schedule as to the sources and applications of funds 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 independent public accountants of nationally recognized
standing selected by the Company;
(ii) within twenty (20) days of the end of each month,
an unaudited income statement and schedule as to the sources and application of
funds and balance sheet and comparison to budget for and as of the end of such
month, in reasonable detail;
(iii) as soon as practicable, but in any event thirty
(30) days after the end of each fiscal quarter, a report on financial and
operational highlights; and
(iv) such other information relating to the financial
condition, business, prospects or corporate affairs of the Company as the
Purchaser or any assignee of the Purchaser may from time to time request,
provided, however, that the Company shall not be
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obligated to provide information which the Board of Directors deems in good
faith to be proprietary.
(b) The Company shall permit each Holder holding not less than
375,000 shares of Registrable Securities, at such Holder's expense, to visit and
inspect the Company's properties, to examine its books of account and records
and to discuss the Company's affairs, finances and accounts with its officers,
all at such reasonable times as may be requested by such Holder; provided,
however, that the Company shall not be obligated pursuant to this subsection
4.2(c) to provide access to any information which it reasonably considers to be
a trade secret or similar confidential information.
(c) The covenants set forth in this Section 4.2 shall
terminate as to all Holders and be of no further force or effect immediately
upon the consummation of the Company's initial sale of its Common Stock in a
bona fide, firm commitment underwriting pursuant to a registration statement on
Form S-1 under the Securities Act (other than a registration statement relating
either to the sale of securities to employees of the Company pursuant to a stock
option, stock purchase or similar plan or a SEC Rule 145 transaction).
(d) So long as Woodside Fund III, L.P. or its affiliated
entity holds 375,000 shares of Registrable Securities, it shall have the right
to have a single representative attend all meetings of the Company's Board of
Directors in a non-voting capacity and, in this respect, the Company shall give
such representative copies of all notices, minutes, consents and other materials
that it provides to its directors; provided, however, (i) that such
representative shall agree to hold in confidence and trust and to act in the
best interest of the Company with respect to all information so provided; (ii)
that the Company reserves the right to withhold any information and to exclude
such representative from any meeting, or portion thereof, if the Board of
Directors determines in good faith that access to such information or attendance
at such meeting could adversely affect the Company; and (iii) that in no event
shall the failure to provide the notice described above invalidate in any way
any action taken at a meeting of the Company's Board of Directors.
4.3 Employee and Other Stock Arrangements. Each acquisition of any
shares of capital stock of the Company or any option or right to acquire any
shares of capital stock of the Company by an employee, consultant, officer or
director of the Company will be conditioned upon the execution and delivery by
the Company and such employee, consultant, officer or director of an agreement
substantially in the form approved by the Board of Directors of the Company
providing, among other things, that such shares, when granted to an employee,
consultant, officer or director, shall be subject to vesting at the rate of
1/8th of the shares granted after six (6) months from the date of grant and
1/48th of the shares granted monthly thereafter, unless otherwise approved by
the Board of Directors.
4.4 Key Person Life Insurance. The Company shall have in full force
and effect term life insurance, payable to the Company, on the lives of ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇,
respectively, in the amount of $250,000 on each such person's life, unless
otherwise determined by the Board of Directors.
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4.5 Debt. The Company shall be required to obtain the consent of a
majority of the Board of Directors before issuing any debt security, including,
without limitation, borrowings from any bank or financial institution.
4.6 Qualified Small Business. The Company will use reasonable
efforts to comply with the reporting and recordkeeping requirements of Section
1202 of the Internal Revenue Code of 1986, as amended and any regulations
promulgated thereunder, and agrees not to repurchase any stock of the Company if
such repurchase would cause such Stock not to so qualify as "Qualified Small
Business Stock."
4.7 Real Property Holding Corporation. The Company covenants that it
will operate in a manner such that it will not become a "United States real
property holding corporation" as that term is defined in Section 897(c)(2) of
the Internal Revenue Code of 1986, as amended, and the regulations thereunder
("FIRPTA"). The Company agrees to make determinations as to its status as a
USRPHC, and will file statements concerning those determinations with the
Internal Revenue Service, in the manner and at the times required under Reg.
Section 1.897-2(h), or any supplementary or successor provision thereto. Within
30 days of a request from an Investor or any of its partners, the Company will
inform the requesting party, in the manner set forth in Reg.
Section 1.897-2(h)(1)(iv) or any supplementary or successor provision thereto,
whether that party's interest in the Company constitutes a United States real
property interest (within the meaning of Internal Revenue Code Section 897(c)(1)
and the regulations thereunder) and whether the Company has provided to the
Internal Revenue Service all required notices as to its USRPHC status.
4.8 Exon-▇▇▇▇▇▇. The Company shall cooperate with Kubota Corporation
with respect to matters pertaining to Exon-▇▇▇▇▇▇.
4.9 Termination. The covenants set forth in Sections 4.1 through 4.8
shall terminate as to all Holders and be of no further force or effect
immediately upon the consummation of the Company's initial sale of its Common
Stock in a bona fide, firm commitment underwriting pursuant to a registration
statement on Form S-1 under the Securities Act (other than a registration
statement relating either to the sale of securities to employees of the Company
pursuant to a stock option, stock purchase or similar plan or an SEC Rule 145
transaction).
SECTION 5
MISCELLANEOUS
5.1 Assignment. Subject to the transfer restrictions set forth
above, 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.
Nothing in this Agreement, express or implied, is intended to confer upon any
party, other than the parties hereto, and 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.
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5.2 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.
5.3 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.
5.4 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.
5.5 Notices.
(a) All notices, requests, demands and other communications
under this Agreement or in connection herewith shall be given to or made upon
the Holders to their respective addresses as set forth under their name on
Exhibit A attached hereto, with copies to Cooley, Godward, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ &
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ & ▇▇▇▇▇, 5 Palo Alto Square, Suite
1000, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
and, if to the Company, to AccelGraphics, Inc., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: President, with copies to Venture Law Group,
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, 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 telex or
telecopy (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
five (5) days after the airmailing, telexing or telecopying thereof.
5.6 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.
5.7 Amendment and Waiver. Any provision of this Agreement may be
amended with the written consent of the Company and the Holders of at least a
majority of the outstanding shares of the Registrable Securities. Any amendment
or waiver effected in accordance with this paragraph shall be binding upon each
Holder of Registrable Securities, and the Company. In addition, the Company may
waive performance of any obligation owing to it, as to some or all of the
Holders of Registrable Securities, or agree to accept alternatives to such
performance, without obtaining the consent of any Holder of Registrable
Securities. In the event that an underwriting agreement is entered into between
the Company and any Holder, and such
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underwriting agreement contains terms differing from this Agreement, as to any
such Holder the terms of such underwriting agreement shall govern.
5.8 Effect of Amendment or Waiver. Each Holder and its successors
and assigns acknowledge that by the operation of Sections 2 and 5.7 hereof the
holders of a majority of the outstanding Registrable Securities, acting in
conjunction with the Company, will have the right and power to diminish or
eliminate all rights pursuant to this Agreement.
5.9 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 this Agreement shall be interpreted as
if such provision were so excluded and shall be enforceable in accordance with
its terms.
5.10 Rights of Holders. Each holder of Registrable Securities shall
have the absolute right to exercise or refrain from exercising any right or
rights that such holder may have by reason of this Agreement, including, without
limitation, the right to consent to the waiver or modification of any obligation
under this Agreement, and such holder shall not incur any liability to any other
holder of any securities of the Company as a result of exercising or refraining
from exercising any such right or rights.
5.11 Delays or Omissions. No delay or omission to exercise any
right, power or remedy accruing to any holder of any of the Stock, upon any
breach or default of the Company under this Agreement, shall impair any such
right, power or remedy of such Holder nor shall it be construed to be a waiver
of any such breach or default, or an acquiescence therein, or of or in 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 holder of any breach or
default under this Agreement, or any waiver on the part of any holder 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.
5.12 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 all other written or oral agreements existing
between the parties hereto are expressly cancelled.
[Signature Page Follows]
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IN WITNESS WHEREOF, this Rights Agreement is hereby executed as of the
date first written above.
COMPANY:
ACCELGRAPHICS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, President
HOLDERS:
ADVANCED TECHNOLOGY VENTURES IV, L.P.
By: ATV Associates IV, L.P.
Name: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
(print)
Title: General Partner
--------------------------------------
ASSET MANAGEMENT ASSOCIATES
1996, L.P.
By: AMC Partners 96, L.P.,
its General Partner
Name: /s/ W ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
(print)
Title:
-------------------------------------
ASSOCIATED VENTURE INVESTORS III, L.P.
By: AVI Management Partners III, L.P.
Name: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
(print)
Title: General Partner
--------------------------------------
-▇▇-
▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇.▇.
By: AVI Capital Management, L.P.,
its General Partner
Name: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
(print)
Title: General Partner
--------------------------------------
AVI PARTNERS GROWTH FUND II, L.P.
By: AVI Management Partners III, L.P.,
its General Partner
Name: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
(print)
Title: General Partner
--------------------------------------
AVI SILICON VALLEY PARTNERS, L.P.
By: AVI Management Partners III, L.P.
Name: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
(print)
Title: General Partner
--------------------------------------
INTEL CORPORATION
By:
-----------------------------------------
Name:
---------------------------------------
(print)
Title:
--------------------------------------
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KUBOTA CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
(print)
Title: General Manager
--------------------------------------
PIDWELL FAMILY LIVING TRUST
DATED 6/25/87
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
(print)
Title: Trustee
--------------------------------------
PHOENIX LEASING INCORPORATED
By: /s/ N.H. ▇▇▇▇▇▇
-----------------------------------------
Name: N.H. ▇▇▇▇▇▇
---------------------------------------
(print)
Title: Vice President
--------------------------------------
▇▇▇▇ / SOURCE VENTURES, LIMITED
PARTNERSHIP #9
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
(print)
Title: Vice President
--------------------------------------
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, TRUSTEE FOR THE ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ LIVING TRUST, DATED DECEMBER
28, 1990
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
(print)
Title: Trustee to the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Living Trust
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SILICON VALLEY BANK
By:
-----------------------------------------
Name:
---------------------------------------
(print)
Title:
--------------------------------------
STF II, L.P.
c/o IndoSuez Ventures
By: /s/ ▇▇▇▇▇ ▇. Gold
-----------------------------------------
Name: ▇▇▇▇▇ ▇. Gold
---------------------------------------
(print)
Title: Investment Manager
--------------------------------------
VLG INVESTMENTS 1995
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
(print)
Title: Partner
--------------------------------------
VLG INVESTMENTS 1996
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
(print)
Title: Partner
--------------------------------------
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VLG RETIREMENT SAVINGS
PLAN TRUST ACCOUNT FBO ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
(print)
Title: Trustee
--------------------------------------
WOODSIDE FUND III, L.P.
By: Woodside Partners III, L.P.,
its General Partner
Name: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
(print)
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
--------------------------------------------
▇▇▇▇▇▇▇ Au
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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/s/ Kalevi Puonti
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Kalevi Puonti
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25
EXHIBIT A
HOLDERS
SERIES A HOLDERS:
Advanced Technology Ventures IV Associated Venture Investors III, L.P.
c/o ATV Associates IV, L.P. c/o AVI Management Partners III, L.P.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Partner
AVI Capital, L.P. AVI Partners Growth Fund
c/o AVI Management Partners c/o AVI Management Partners III, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇ FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Partner Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Partner
AVI Silicon Valley Partners, L.P. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Trust
c/o AVI Management Partners III, L.P. ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ FAX: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Partner
Kubota Corporation ▇▇▇▇/Source Ventures, Limited
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ #▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
STF II, L.P. VLG Investments 1995
c/o Indosuez Ventures ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ FAX: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. Gold
26
VLG Retirement Savings Plan Trust Woodside Fund III, L.P.
Account FBO ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ c/o Woodside Partners III, L.P.
Venture Law Group ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ FAX: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
SERIES B HOLDERS
Advanced Technology Ventures IV Asset Management Associates 1996, L.P.
c/o ATV Assocites IV, L.P. c/o Asset Management Company
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Associated Venture Investors III, L.P. AVI Capital, L.P.
c/o AVI Management Partners III, L.P. ▇/▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇ FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Partner Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Partner
AVI Partners Growth Fund AVI Silicon Valley Partners, L.P.
c/o AVI Management Partners III, L.P. c/o AVI Management Partners III, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇ FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Partner Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Partner
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Trust Kubota Corporation
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇ FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇/Source Ventures, Limited STF II, L.P.
Partnership #9 c/o Indosuez Ventures
▇▇▇▇ ▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. Gold
27
VLG Retirement Savings Plan Trust Woodside Fund III, L.P.
Account FBO ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ c/o Woodside Partners III, L.P.
Venture Law Group ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ FAX: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Au ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ Capital ▇▇ ▇▇▇▇▇ ▇▇▇▇
1251 Avenue of the Americas ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ c/▇ ▇▇▇▇▇▇▇ Strategic Consulting
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Pidwell Family Living Trust dated Kalevi Puonti
6/25/87 ▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇
▇/▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ Neuchatel
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇/▇ ▇▇▇▇▇▇▇ Law Group c/o Venture Law Group
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇ FAX: (▇▇▇)▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
WARRANT HOLDERS:
Intel Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
Mail Stop SC4-210
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Treasurer
Silicon Valley Bank
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Phoenix Leasing Incorporated
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
