EXHIBIT 4.02
GRIC COMMUNICATIONS, INC.
FIFTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
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This Agreement is made at Milpitas, California as of November 12, 1999
among GRIC COMMUNICATIONS, INC., a California corporation (the "COMPANY"),
and each of the persons listed on the Signature Page(s) to this Agreement
(the "SECURITYHOLDERS").
RECITALS
A. The Company has previously granted registration rights to certain
Securityholders pursuant to a Fourth Amended Registration Rights
Agreement dated as of April 16, 1999 (the "PREVIOUS AGREEMENT").
B. The Company and the requisite number of Securityholders under the
Previous Agreement make this grant of registration rights in connection
with the issuance of Series E Preferred Stock pursuant to a Series E
Preferred Stock Purchase Agreement dated the date of this Agreement. A
summary of the outstanding Registrable Securities is set forth on
EXHIBIT A to this Agreement. In every case, this Agreement restates, or
does not materially increase, the registration rights granted to each
Securityholder in connection with the original issuance of the
Securityholder's Securities (as defined below).
C. Capitalized terms have the meanings set forth in Article 1 of this
Agreement.
NOW, THEREFORE, the parties agree as follows:
1. AMENDMENT AND DEFINITIONS
1.1. AMENDMENT AND RESTATEMENT.
The Previous Agreement is hereby amended and restated to read in its entirety as
set forth in this Agreement.
1.2. DEFINITIONS.
The capitalized terms listed below have the meanings assigned to them.
Capitalized terms used in this Agreement that are not set forth below have the
meanings ascribed to them elsewhere in this Agreement.
"INITIATING AOL HOLDER" means America Online, Inc. ("AOL"), if the reasonably
anticipated aggregate offering price would exceed $10,000,000 in a Registration
pursuant to Article 2 (REQUESTED REGISTRATION) or $500,000 in a Registration
pursuant to Article 4 (REGISTRATION ON FORM S-3); provided, however, that for
purposes of a Registration pursuant to Article 2 (REQUESTED REGISTRATION), AOL
shall be deemed an Initiating AOL Holder even if the $10,000,000 reasonably
anticipated aggregate offering price threshold is
not met, provided that AOL proposes to sell and sells in the offering at
least 51% of AOL's Registrable Securities; provided, further, that after the
Company's initial public offering, neither the $10,000,000 reasonably
anticipated aggregate offering price threshold nor the requirement of selling
at least 51% of AOL's Registrable Securities shall apply to any REQUESTED
REGISTRATION under Article 2 after consummation of the Company's initial
public offering.
"CLAIM" means any claim, loss, damage, cost, expense, or liability, joint or
several, or any threatened or pending suit, action, arbitration, or other
proceeding in respect thereof.
"CONTROL PERSON" means any officer, director, general partner, person
controlling another person within the meaning of Section 15 of the Securities
Act, or alleged Control Person.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, or any
successor statute, and the rules and regulations of the SEC thereunder, all as
the same are in effect at the time.
"FOUNDERS" means Hong Chen, Ph.D., Xxxx Ya-Xxx Xxx, and XXX Partners 1994-1.
"FOUNDERS' SHARES" means shares of the Company's Common Stock held by the
Founders including without limitation any shares of Common Stock hereafter
acquired by the Founders.
"HOLDER" means any Securityholder holding Registrable Securities or securities
or instruments with respect to which Registrable Securities are ultimately
issuable, and any transferee thereof to whom registration rights have also been
transferred in accordance with this Agreement.
"INDEMNIFIED PARTY" means a person entitled to indemnity under Article 9
(INDEMNIFICATION).
"INDEMNIFYING PARTY" means a person required to provide indemnification pursuant
to Article 9.
"INITIATING HOLDERS" means, with respect to the Company's IPO pursuant to
Article 2 (REQUESTED REGISTRATION), Holder(s) (other than Founders) of at least
thirty percent (30%) of the then outstanding or issuable Registrable Securities
(other than Founder's Shares) or any lesser percentage if the reasonably
anticipated aggregate offering price would exceed $10,000,000. In all other
cases, "INITIATING HOLDERS" means Holder(s) of at least twenty percent (20%) of
the then outstanding or issuable Registrable Securities or any lesser percentage
if the reasonably anticipated aggregate offering price would exceed $10,000,000
in a Registration pursuant to Article 2 (REQUESTED REGISTRATION) or $500,000 in
a Registration pursuant to Article 4 (REGISTRATION ON FORM S-3).
"IPO" means the first Registration by the Company (other than a Registration in
a Rule 145 transaction or with respect to an employee benefit plan) (a) pursuant
to which all of the Company's outstanding preferred stock is automatically
converted into shares of Common Stock pursuant to the terms of the Company's
charter documents, and (b) for an aggregate offering price, net of underwriting
discounts and commissions, of more than $10,000,000.
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"MISSTATEMENT" means (a) any untrue statement of a material fact, (b) any
omission to state a material fact required to be stated or necessary to make
another statement not misleading in light of the circumstances in which such
other statement was made, and (c) any alleged Misstatement.
"PROSPECTUS" means any registration statement, prospectus, offering circular, or
other document, including without limitation any related registration statement,
notification, or the like, incident to any Registration, and any amendment or
supplement thereto.
"REGISTER" and "REGISTRATION" mean the act of registering securities by
preparing and filing a registration statement in compliance with the Securities
Act and pursuing such filing until the SEC declares or orders it effective.
Unless the context otherwise requires, "REGISTER" and "REGISTRATION" also
include the filing of appropriate post-effective amendments, appropriate
qualifications under applicable blue sky and other state securities laws,
compliance with applicable regulations, and such other actions as are reasonable
and customary in connection with a Registered sale of securities to the public.
"REGISTERED" means (a) the past tense of Register, or (b) an adjective used to
describe securities, or the sale thereof, with respect to which a Registration
has been completed.
"REGISTRABLE SECURITIES" means (a) (i) Founders' Shares, (ii) Common Stock
issued or issuable with respect to the Securities (including without limitation
upon any exercise of exercisable securities, conversion of convertible
securities, stock split, stock dividend, recapitalization, or as a distribution
or upon exercise of the Warrants issued in August 1998 to Phoenix Leasing
Incorporated and Xxxxxx X. Xxxxxxxxx or upon exercise of the Warrants issued in
November 1998 to Silicon Valley Bank), and (iii) Common Stock issued or issuable
upon exercise of the Warrants issued to AOL in November 1998; that (b) have not
been sold to the public pursuant to Section 4(l) of the Securities Act or in a
Registration.
"REGISTRATION EXPENSES" means expenses incurred by the Company in complying with
Articles 2 (REQUESTED REGISTRATION), 3 (COMPANY REGISTRATION), and 4
(REGISTRATION ON FORM S-3), including without limitation all Registration fees,
printing expenses, escrow fees, fees and disbursements of counsel and
independent certified public accountants for the Company, reasonable fees and
disbursements of one special counsel for the participating Holders as a group,
and blue sky fees and expenses.
"SEC" means the Securities and Exchange Commission.
"SECURITIES" means the Founders' Shares, the Series A Shares, the Series B
Shares, the Series C Shares, the Series D Shares and the Series E Shares.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any successor
statute, and the rules and regulations of the SEC thereunder, all as the same
are in effect at the time.
"SELLING EXPENSES" means all underwriting discounts, selling commissions, and
stock transfer taxes applicable to the Registrable Securities Registered by the
Company on behalf of the Holders and all fees and disbursements of individual
counsel for the Holders (as opposed to the
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reasonable fees and disbursements of one special counsel for the
participating Holders as a group).
"SERIES A REGISTRABLE SECURITIES" means the Registrable Securities into which
the outstanding Series A Shares are convertible at the time of the calculation.
"SERIES A SHARES" means shares of the Company's Series A Preferred Stock.
"SERIES B REGISTRABLE SECURITIES" means the Registrable Securities into which
the outstanding Series B Shares are convertible at the time of the calculation.
"SERIES B SHARES" means shares of the Company's Series B Preferred Stock.
"SERIES C REGISTRABLE SECURITIES" means the Registrable Securities into which
the outstanding Series C Shares are convertible at the time of the calculation.
"SERIES C SHARES" means shares of the Company's Series C Preferred Stock.
"SERIES D REGISTRABLE SECURITIES" means the Registrable Securities into which
the outstanding Series D Shares are convertible at the time of the calculation.
"SERIES D SHARES" means shares of the Company's Series D Preferred Stock.
"SERIES E REGISTRABLE SECURITIES" means the Registrable Securities into which
the outstanding Series E Shares are convertible at the time of the calculation.
"SERIES E SHARES" means shares of the Company's Series E Preferred Stock.
"SECURITYHOLDERS" means the persons listed on the Signature Page(s) to this
Agreement.
"SHARES" is another term for Registrable Securities.
2. REQUESTED REGISTRATION
2.1. REQUEST FOR REGISTRATION.
2.1.1. WHO MAY MAKE A REQUEST.
Upon receiving a written request from the Initiating Holders or the
Initiating AOL Holder, the Company shall take the actions specified in
this Section 2.1 and Article 8 (REGISTRATION PROCEDURES). The request
shall identify the underwriters who will manage the offering. Each
underwriter shall be subject to the approval of the Company, which the
Company shall not withhold unreasonably. Any Registration pursuant to
this Article 2 shall be a firm commitment underwriting.
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2.1.2. ELIGIBLE PARTICIPANTS.
All Registrable Securities held by persons entitled to be included among
the Initiating Holders and the AOL Initiating Holder shall be eligible to
be included in the Registration. No other Registrable Securities shall
be included in the Registration.
2.1.3. FILINGS.
Subject to Article 5 (LIMITATIONS ON REGISTRATIONS), the Company shall
use diligent reasonable efforts to Register the Shares specified in the
requests of the eligible Holders as quickly as is practicable.
2.2. LIMIT ON REGISTRATIONS.
The Company is not required to complete more than four Registrations pursuant to
this Article 2 exclusive of: (i) any Registrations requested by Founders and
(ii) up to two Registrations pursuant to this Article 2 for AOL.
2.3. FUTURE GRANTS OF RIGHTS.
The Company may grant additional rights to include securities in Registrations
pursuant to this Article 2, if (a) the Holders of at least a majority of the
Registrable Securities entitled to request Registration under this Article 2
consent to such grant in writing (except that in the case of a Registration that
has already been requested, the consent of the Holders of at least a majority of
the Registrable Securities actually included in the Registration shall be
required), or (b) the inclusion of such securities would not reduce the amount
of Registrable Securities to be included in such Registrations.
2.4. LIMIT ON GRANTS OF RIGHTS TO REGISTRATION.
Notwithstanding Section 2.3, the Company shall not, without the prior written
consent of the Holders of a majority of the Series A Registrable Securities, the
prior written consent of the Holders of at least two-thirds of the Series B
Registrable Securities, the prior written consent of the Holders of at least
two-thirds of the Series C Registrable Securities, the prior written consent of
the Holders of at least two-thirds of the Series D Registrable Securities and
the prior written consent of the Holders of at least two-thirds of the Series E
Registrable Securities, enter into any agreement with any holder or prospective
holder of any securities of the Company which would allow such holder or
prospective holder to request a registration which could result in such
registration statement being declared effective before the earlier of either of
the dates set forth in Section 5.3 or within one hundred eighty (180) days of
the effective date of any Registration pursuant to this Article 2.
2.5. PARTICIPATION BY THE COMPANY.
The Company may include securities of the same class as the Registrable
Securities for its own account in a Registration pursuant to this Article 2 in
an amount up to 10% of the total shares to
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be Registered. The Company may include additional shares of such class in
the Registration if (a) the Holders of at least a majority of the Registrable
Securities actually included in the Registration consent to such inclusion or
(b) the inclusion of such securities would not reduce the amount of
Registrable Securities to be included in such Registration.
3. COMPANY REGISTRATION
3.1. RIGHT TO PIGGYBACK.
3.1.1. REQUIRED ACTIONS.
Whenever the Company decides to Register any of its securities for its
own account or the account of others including a Registration pursuant to
Articles 2 or 4 (other than in connection with (a) a registration
relating solely to employee benefit plans, or (b) a registration relating
solely to a Rule 145 transaction) the Company shall take the actions
specified in this Section 3.1 and Article 8.
3.1.2. ELIGIBLE PARTICIPANTS.
All Registrable Securities shall be eligible to be included in the
Registration.
3.1.3. RIGHT TO TERMINATE REGISTRATION.
The Company and any Holders exercising their rights pursuant to
Articles 2 or 4, if applicable, may terminate any Registration of
securities for its or their own account before the SEC declares the
Registration to be effective, regardless of whether any Holder, or any
other shareholder entitled to include its securities in such
Registration, has elected to include Registrable Securities, or its
securities, respectively, in the Registration.
3.1.4. MINIMUM NUMBER OF SHARES TO BE INCLUDED IN COMPANY REGISTRATION.
Notwithstanding any provision of Article 5 or Section 6.5, the Company
shall not limit the Registrable Securities to be included in a
Registration pursuant to this Article 3 (other than the Company's IPO, in
which case there is no restriction on the limitation of Registrable
Securities that may be included pursuant to this Article 3) to less than
thirty percent (30%) of the total value of the securities to be
Registered.
3.2. FUTURE GRANTS OF RIGHTS.
The Company may grant additional rights to include securities in
Registrations pursuant to this Article 3, if (a) the Holders of at least a
majority of the Registrable Securities entitled to participate in a
Registration pursuant to this Article 3 consent to such grant in writing
(except that in the case of a Registration that has already been requested,
the consent of the Holders of at least a majority of the Registrable
Securities actually included in the Registration shall be required), or (b)
the inclusion of such securities would not reduce the amount of Registrable
Securities to be included in such Registrations.
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4. REGISTRATION ON FORM S-3
4.1. RIGHT TO REGISTRATION.
4.1.1. WHO MAY MAKE A REQUEST.
Upon receiving a written request from the Initiating Holders or the
Initiating AOL Holder to Register their Registrable Securities on Form
S-3 (or any successor form to Form S-3), the Company shall take the
actions specified in this Section 4.1 and Article 8 if the Company is
entitled to use such form. If the Company agrees to an underwritten
offering on Form S-3, the request shall identify the underwriters who
will manage the offering and each underwriter shall be subject to the
approval of the Company, which the Company shall not withhold
unreasonably.
4.1.2. ELIGIBLE PARTICIPANTS.
All Registrable Securities shall be eligible to be included in the
Registration.
4.1.3. FILINGS.
Subject to Article 5, the Company shall use diligent reasonable efforts
to Register the Shares specified in the requests of the eligible Holders
as quickly as is practicable.
4.2. LIMIT ON REGISTRATIONS.
There is no limit on the number of Registrations the Holders may request
pursuant to this Article 4 if the right to request Registration has not
terminated.
4.3. FUTURE GRANTS OF RIGHTS.
The Company may grant additional rights to include securities in Registrations
pursuant to this Article 4, if (a) the Holders of at least a majority of the
Registrable Securities entitled to request Registration under this Article 4
consent to such grant in writing (except that in the case of a Registration that
has already been requested, the consent of the Holders of at least a majority of
the Registrable Securities actually included in the Registration shall be
required), or (b) the inclusion of such securities would not reduce the amount
of Registrable Securities to be included in such Registrations.
4.4. PARTICIPATION BY THE COMPANY.
The Company may include securities of the same class as the Registrable
Securities for its own account in a Registration pursuant to this Article 4 in
an amount up to 10% of the total shares to be Registered. The Company may
include additional shares of such class in the Registration if (a) the Holders
of at least a majority of the Registrable Securities actually included in the
Registration consent to such inclusion or (b) the inclusion of such securities
would not reduce the amount of Registrable Securities to be included in such
Registration.
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5. LIMITATIONS ON REGISTRATIONS
5.1. EXCEPTIONS TO OBLIGATION.
Notwithstanding anything in this Agreement to the contrary, the Company is not
required to take any action enumerated in this Article 5.
5.2. NO GENERAL CONSENT TO SERVICE.
The Company is not required to Register Shares in any jurisdiction in which the
Company would be required to execute a general consent to service of process,
unless (a) the Company is already subject to service in such jurisdiction or (b)
such consent is required by the Securities Act.
5.3. INITIAL MORATORIUM ON REQUESTS.
The Company is not required to Register Shares pursuant to Article 2 before the
earlier of (a) December 31, 1999 or (b) six months after the effective date of
the first Registration by the Company (other than a Registration in a Rule 145
transaction or with respect to an employee benefit plan). Notwithstanding any
other provision of this Agreement, Holders of Series E Shares or Series E
Registrable Securities may not initiate or participate as a seller in any
Registration requested in connection with the Company's IPO.
5.4. LAST DATE FOR REQUESTS.
The Company is not required to Register any Shares pursuant to Articles 2, 3 or
4 after the tenth anniversary following the earlier of the dates referred to in
Section 5.3.
5.5. CONFLICTS WITH OTHER OFFERINGS.
The Company is not required to Register Shares pursuant to Articles 2 or 4 if
the Company receives the request for Registration during the period beginning on
the date the Company files a Registration of its own shares (other than a
Registration in a Rule 145 transaction or with respect to an employee benefit
plan), and ending on the earlier of (a) one hundred eighty (180) days
immediately after the effective date of the Registration, or (b) immediately at
such time as the Company is no longer using all reasonable good faith efforts to
cause the Registration to become effective.
5.6. RIGHT TO DELAY REQUESTED REGISTRATION.
The Company may delay a Registration pursuant to Article 2 or 4 for up to 120
days (the "DELAY PERIOD") if, at any time before the Registration becomes
effective, the Company delivers to the eligible Holders a certificate signed by
the President or Chief Executive Officer of the Company stating that, in the
good faith judgment of the Board of Directors, it would be seriously detrimental
to the Company or its shareholders for a Registration to be filed or become
effective within the time otherwise required by this Agreement. The Holders
shall not have the right to request an additional Registration pursuant to
Article 2 or 4 during the Delay Period. Once the Company has invoked its rights
pursuant to this Section 5.6, it may not do so again until after it
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has completed a Registration pursuant to Article 2 or 4, unless the Holders
have withdrawn the request with respect to which the Delay Period was invoked.
5.7. PACING OF REQUESTS.
The Company may decline to comply with a request to Register Shares made within
six months after a Registration pursuant to Article 2 or 4 has been completed.
5.8. TERMINATION OF REQUESTED REGISTRATIONS.
The Company may, and at the election of Holders of a majority of the eligible
Registrable Securities shall, terminate a Registration pursuant to Article 2 or
4 if the number of Registrable Securities to be included in the Registration is
reduced to fewer that 80% of the minimum number of Registrable Securities
required to be included in the Registration.
6. UNDERWRITTEN REGISTRATIONS
6.1. APPLICATION.
The provisions of this Article 6 apply to each underwritten Registration covered
by this Agreement.
6.2. PERFORM UNDERWRITING AGREEMENT.
In each underwritten Registration, the Company shall enter into and perform, or
be ready, willing, and able to enter into and perform, its obligations under an
underwriting agreement in usual and customary form with the managing
underwriter.
6.3. PARTICIPATION REQUIRED.
Each Holder participating in a Registration shall enter into an underwriting
agreement in customary form with the managing underwriters, if any. No
Registrable Securities shall be included in or sold pursuant to the Registration
except in accordance with the applicable underwriting agreement.
6.4. CHANGES IN UNDERWRITERS.
The Holders of a majority of the Registrable Securities to be included in the
Registration pursuant to Articles 2 or 4 may replace an underwriter named in the
request for Registration or add one or more additional underwriters. Each
underwriter shall be subject to the approval of the Company, which the Company
shall not withhold unreasonably.
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6.5. DECREASES IN OFFERINGS.
Notwithstanding any other provision of this Agreement but subject to subsection
3.1.4, if the Company or the managing underwriters in a Registration advise the
participating Holders in writing that market factors require a limit on the
number of Registrable Securities to be underwritten, then the number of
Registrable Securities that may be included in the Registration shall be
allocated first among all participating Holders (other than the Founders) in
proportion, as nearly as practicable, to the number of Registrable Securities
(other than Founders' Shares) such Holders have requested to include in the
Registration, and thereafter among the Founders in proportion, as nearly as
practicable, to the number of Founders Shares such Holders have requested to
include in the Registration. The Company shall not reduce the number of
Registrable Securities to be included in the Registration if the Registration
will include securities to be sold for the account of persons other than Holders
or the Company.
6.6. INCREASES IN OFFERINGS.
If the managing underwriter(s) in a Registration advise the participating
Holders that the underwriter(s) desire to increase the number of Registrable
Securities to be underwritten, whether because of market factors or withdrawal
of other Shares, the increase shall be allocated among the eligible Holders in
proportion to the Holders' eligible Registrable Securities, including those
already included in the Registration.
6.7. WITHDRAWAL OF SHARES.
Any Holder who disapproves of the terms of an underwriting may withdraw from the
Registration by delivering written notice to the Company, the managing
underwriters, and the other participating Holders.
7. EXPENSES OF REGISTRATION
7.1. OBLIGATION OF THE COMPANY.
Except as otherwise provided in this Agreement, the Company shall pay all
Registration Expenses incurred in connection with any Registration. Unless
otherwise stated, all Selling Expenses relating to Registrable Securities
Registered on behalf of the Holders shall be borne by the Holders pro rata on
the basis of the net proceeds from the sale of their Shares so Registered,
except that attorney fees of individual Holders shall be borne by the individual
Holders. The Company shall pay all of the compensation of its regular
employees, even though they may engage in activities included within the scope
of Registration Expenses. The Company shall pay the expense of any special
audits incident to or required by any Registration except as provided in
Section 7.2.
7.2. EXPENSES OF TERMINATED REQUESTED REGISTRATIONS.
The Registration Expenses of any Registration pursuant to Article 2 or 4 that is
terminated because of a reduction of the Shares to be included below the minimum
required under Article 2
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or 4, respectively, shall be paid by (a) the Holders who have withdrawn their
Shares after requesting them to be included, in proportion to the number of
Shares they have withdrawn, if the termination is due to withdrawal of
Shares, or (b) all Holders who initially requested to have their Registrable
Securities included in the Registration, in proportion to the number of
Shares they requested to have included, in all other cases (such as
underwriter action). For the purpose of this Section 7.2, Registration
Expenses includes the expense of any special audit incident to or required by
the Registration. If such Registration Expenses are not paid promptly, the
terminated Registration shall be deemed to be completed for the purpose of
Section 7.3. The Holders shall not be required to pay the Registration
Expenses, however, if, at the time of termination, 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.
7.3. WHAT COUNTS AS A COMPLETED REGISTRATION.
A Registration is deemed completed when the Registration has become effective
and the Registered Securities have been sold. Any Registration that is
terminated by the Holders pursuant to this Agreement shall be deemed to have
been completed for the purpose of this Section 7.3 unless (a) at the time of the
termination, 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, or (b) the Holders pay the Registration Expenses
associated with such Registration pursuant to Section 7.2.
8. REGISTRATION PROCEDURES
8.1. DUTY TO GIVE MEANINGFUL NOTICE.
The Company shall advise each Holder in writing as to the initiation and
completion of each Registration in which the Holder is entitled to participate.
Whenever the Company gives a notice that requires a response, the Company shall
notify the Holder as promptly as possible and give a reasonable time, but in no
event less than fifteen (15) days, within which to respond.
8.2. CONTENTS OF NOTICE.
The notice shall give a brief summary of the intended terms of the underwriting,
including the states in which the Company then intends to Register any Shares.
The notice shall advise all eligible Holders that the number of Registrable
Securities they may include in the Registration shall be allocated among all
Holders in proportion, as nearly as practicable, to the respective amounts of
Registrable Securities held by them at the time the notice is given.
8.3. RESPONSE TO NOTICE BY HOLDERS.
Each eligible Holder shall notify the Company in writing of the number of Shares
the Holder wishes to include in the Registration. If the Holder so notifies the
Company within the time specified in the Company's notice, but in no event less
than fifteen (15) days, the Company shall include such Shares in the
Registration, subject to Article 5.
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8.4. DURATION OF REGISTRATION.
With respect to each Registration of Registrable Securities, the Company shall
prepare and file a registration statement with the SEC with respect to the
Shares and use diligent reasonable efforts to cause the Registration to become
and remain effective for at least 120 days or until the Shares covered by the
Registration have been sold; provided, however, that (i) the 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 is
intended to be offered on a continuous or delayed basis, the 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 provided further that applicable rules under the Securities
Act governing the obligation to file a post-effective amendment permit, in lieu
of filing a post-effective amendment which (I) includes any prospectus required
by Section 10(a)(3) of the Securities Act or (II) 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 (I) and (II) above to be contained in periodic
reports filed pursuant to Section 13 or 15(d) of the Exchange Act in the
registration statement.
8.5. PROSPECTUS DELIVERY.
With respect to each Registration of Registrable Securities, the Company shall
furnish the participating Holders and the underwriters such number of copies of
the registration statement and amendments and supplements thereto, preliminary
and final prospectus and amendments and supplements thereto, and such other
documents as the Holders and underwriters may reasonably request.
8.6. BLUE SKY COMPLIANCE.
Subject to Article 5, with respect to each Registration of Registrable
Securities, the Company shall use diligent reasonable efforts to Register the
securities under the securities or blue sky laws of such jurisdictions as
participating Holders of a majority of the Shares to be included in the
Registration may reasonably request. The Holders must make such request within
ten days before the estimated filing of the Registration with the SEC.
8.7. AMENDMENTS AND SUPPLEMENTS.
With respect to each Registration of Registrable Securities, the Company shall
prepare and file with the SEC, promptly upon the request of any participating
Holders, any amendments or supplements to the Registration which, on the
reasonable advice of the special counsel for the participating Holders, is
required under the Securities Act.
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8.8. INFORMATION TO BE SUPPLIED BY HOLDER.
As a condition precedent to the obligations of the Company to Register a
Holder's Registrable Securities, the Holder shall furnish the Company with
such information regarding the Holder, the Holder's Registrable Securities,
and the distribution proposed by the Holder (if the Registration is pursuant
to Article 2 or 4) as the Company may reasonably request in writing or as may
be required to Register the Holder's Registrable Securities.
8.9. NOTIFICATION OF MISSTATEMENTS IN PROSPECTUS.
The Company shall promptly notify each Holder of Registrable Securities
included in a registration statement, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of any event
that causes the prospectus included in such registration statement, as then
in effect, to include a Misstatement.
8.10. CORRECTION OF MISSTATEMENTS.
With respect to each Registration of Registrable Securities, the Company
shall prepare and promptly file with the SEC, and promptly notify the
participating Holders or their attorneys in fact of the filing of, such
amendments or supplements to the Registration as may be necessary to correct
any statements or omissions if, at the time when a prospectus relating to
such securities was required to be delivered under the Securities Act, an
event has occurred that causes the Registration to make an untrue statement
of a material fact or omit to state a material fact necessary to make the
statements made therein not misleading, in the light of the circumstances in
which they were made.
8.11. UPDATES.
With respect to each Registration of Registrable Securities, the Company
shall promptly prepare any amendments to the Registration needed to permit
the participating Holders and their underwriters to comply with the
requirements of the Securities Act.
8.12. LISTING ON EXCHANGES.
The Company shall cause all Registrable Securities included in a Registration
to be listed on each securities exchange or over the counter market on which
the Company's securities of same class and series are then listed.
8.13. PROVIDE TRANSFER AGENT AND REGISTRAR AND CUSIP NUMBER.
The Company shall provide a transfer agent and registrar and a CUSIP number
for all Registrable Securities included in a Registration, in each case not
later than the effective date of the Registration.
13
8.14. OPINION OF COUNSEL AND COLD COMFORT LETTER.
The Company shall furnish, at the request of any Holder requesting
registration of Registrable Securities pursuant to Article 2, 3, or 4 on the
date that the Holder delivers the Registrable Securities to the underwriters
for sale in connection with a Registration pursuant to Article 2, 3 or 4 if
the Registrable Securities are being sold through underwriters, or, if the
Registrable Securities are not being sold through underwriters, on the date
that the registration statement with respect to the Registrable Securities
becomes effective, (a) an opinion, dated such date, of the counsel
representing the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Holders
requesting registration of Registrable Securities, and (b) a letter dated
such date, from the independent certified public accountants of the Company,
in form and substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering, addressed to
the underwriters, if any, and to the Holders requesting registration of
Registrable Securities.
9. INDEMNIFICATION
9.1. BY THE COMPANY.
9.1.1. OBLIGATION TO INDEMNIFY.
The Company shall indemnify and hold harmless (a) each Holder (and each
Control Person of the Holder) and (b) each underwriter, if any (and each
Control Person of the underwriter) of the Holder's Shares against all
Claims arising out of or based on any Misstatement contained in any
preliminary or final Prospectus, or any violation or alleged violation by
the Company of the Securities Act, the Exchange Act, or any state
securities law or of any rule or regulation promulgated under the
Securities Act, the Exchange Act, or any state securities law.
9.1.2. OBLIGATION TO REIMBURSE.
The Company shall reimburse each Holder (and its Control Persons) and
each underwriter (and its Control Persons) for any legal and any other
expenses reasonably incurred by them in connection with investigating or
defending any Claims referred to in subsection 9.1.1.
9.1.3. COMPANY NOT RESPONSIBLE FOR INFORMATION FURNISHED BY HOLDER OR
UNDERWRITER.
The Company shall not be liable under this Section 9.1 to the extent that
any Claim arises out of or is based upon a Misstatement in any
preliminary or final prospectus made in reliance upon and in conformity
with written information furnished to the Company by an instrument duly
executed by a Holder (or its Control Person) or underwriter (or its
Control Person) expressly for use in the Prospectus in which the
information is used.
14
9.1.4. CORRECTED MISSTATEMENTS.
If a Claim relates to a Misstatement in a preliminary prospectus that did
not appear in the final prospectus, the Company shall not be liable for
such Claim under this Section 9.1 to (a) the seller (or its Control
Person) if the seller delivered a copy of the preliminary prospectus to
the person alleging the Claim and failed to deliver a copy of the
corrected final prospectus to such person, or (b) any underwriter (or its
Control Person) if the underwriter delivered a copy of the preliminary
prospectus to the person alleging the Claim and failed to deliver a copy
of a corrected final prospectus to such person.
9.2. BY THE HOLDERS.
9.2.1. OBLIGATION TO INDEMNIFY.
If Shares of a Holder are included in a Registration, the Holder shall,
along with all other Holders participating in the Registration, severally
indemnify (a) the Company (and its Control Persons); (b) each underwriter
(and its Control Persons); and (c) each other Holder (and its Control
Persons), if any, against all Claims arising out of or based on any
Misstatement contained in any preliminary or final Prospectus. Each
Holder shall severally indemnify (a) the Company (and its Control
Persons); (b) each underwriter (and its Control Persons); and (c) each
other Holder (and its Control Persons), if any, against all Claims
arising out of or based on any violation or alleged violation by the
Holder of the Securities Act, the Exchange Act, or any state securities
law or of any rule or regulation promulgated under the Securities Act,
the Exchange Act, or any state securities law.
9.2.2. OBLIGATION TO REIMBURSE.
Each Holder shall reimburse (a) the Company (and its Control Persons);
(b) each underwriter (and its Control Persons); and (c) each other Holder
(and its Control Persons), if any, for any legal or any other expenses
reasonably incurred in connection with investigating or defending any
Claim referred to in subsection 9.2.1.
9.2.3. LIMIT ON LIABILITY.
A Holder shall be liable under this Section 9.2 only to the extent that a
Misstatement is made in a Prospectus in reliance upon and in conformity
with written information furnished to the Company by an instrument duly
executed by the Holder expressly for use therein. In addition, a Holder
shall not be liable under this Section 9.2 for more than the net amount
of proceeds received from the sale of the Holder's Shares pursuant to the
Registration with respect to which the Claim is made.
9.2.4. CORRECTED MISSTATEMENTS.
If a Claim relates to a Misstatement in a preliminary prospectus that did
not appear in the final prospectus, the Holder shall not be liable for
such Claim under this Section 9.2 to (a)
15
the seller (or its Control Person) if the seller delivered a copy of
the preliminary prospectus to the person alleging the Claim and failed
to deliver a copy of the corrected final prospectus to such person, or
(b) any underwriter (or its Control Person) if the underwriter
delivered a copy of the preliminary prospectus to the person alleging
the Claim and failed to deliver a copy of the corrected final
prospectus to such person.
9.3. PROCEDURE.
9.3.1. NOTICE.
Each Indemnified Party shall give written notice to each Indemnifying
Party promptly after the Indemnified Party has actual knowledge of any
Claim as to which indemnity may be sought. The failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Parties of their obligations under this Article 9 unless and
to the extent that the Indemnifying Parties are prejudiced thereby.
9.3.2. CONDUCT OF DEFENSE.
In case any action shall be brought against any Indemnified Party and it
shall notify an Indemnifying Party of the commencement thereof, such
Indemnifying Party shall be entitled to participate therein, and to the
extent that it shall wish, jointly with any other Indemnifying Party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such Indemnified Party (who shall not, except with the
consent of the Indemnified Party, be counsel to the Indemnifying Party),
and, after notice from the Indemnifying Party to such Indemnified Party
of its election so to assume the defense thereof, such Indemnifying Party
shall not be xxxxxx to such Indemnified Party under Section 9.2 for any
legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such Indemnified Party, in connection with the
defense thereof other than reasonable costs of investigation.
9.3.3. SETTLEMENTS.
No Indemnifying Party, in the defense of any Claim, shall, except with
the consent of each Indemnified Party, consent to entry of any judgment
or enter into any settlement or compromise that does not include as an
unconditional term thereof the giving to such Indemnified Party by the
claimant or plaintiff a release from all liability in respect to such
Claim.
9.3.4. CONSENT AS CONDITION TO OBLIGATION TO INDEMNIFY.
The indemnity obligations contained in this Article 9 shall not apply to
amounts paid in settlement of any such Claim without the consent of the
Indemnifying Party, which the Indemnifying Party shall not withhold
unreasonably.
16
9.4. CONTRIBUTION.
If the indemnification obligations provided for in this Article 9 are held by
a court of competent jurisdiction to be unavailable to an Indemnified Party
with respect to any Claim, the Indemnifying Party, in lieu of indemnifying
such Indemnified Party under this Article 9, shall contribute to the amount
paid or payable by such Indemnified Party as a result of such Claim 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 Misstatements that resulted in the Claim as well as
any other relevant equitable considerations. The relative fault of the
Indemnifying Party and of the Indemnified Party shall be determined by
referring to, among other things, whether the Misstatement relates to
information supplied by the Indemnifying Party or by the Indemnified Party,
the parties' relative intent, knowledge, access to information, and
opportunity to correct or prevent such Misstatement, and the evidence
indicating whether the Misstatement was in fact false or misleading.
9.5. CONFLICT WITH UNDERWRITING AGREEMENT.
Notwithstanding anything in this Article 9, to the extent that the provisions
on indemnification and contribution contained in an underwriting agreement
entered into in connection with a Registration conflict with this Article 9,
the underwriting agreement shall control.
9.6. SURVIVAL.
The obligations of the Company and the Holders under this Article 9 shall
survive the closing of any Registration under this Agreement, and otherwise.
10. TRANSFER OF REGISTRATION RIGHTS
10.1. TRANSFERS PERMITTED.
By giving written notice to the Company, a Holder may assign the right to
require the Company to Register Registrable Securities under this Agreement to
any transferee in connection with a transfer of Securities or Registrable
Securities by the Holder upon complying with all of the provisions of this
Article 10, unless the Company waives such compliance in its discretion.
10.2. MINIMUM TRANSFER.
Unless the transferee is an equity owner of the Holder or another
Securityholder, the transferee shall acquire at least the lesser of (a)
twenty percent (20%) of the Registrable Securities held by the original
Holder, or (b) twenty thousand (20,000) shares of Registrable Securities
(adjusted for recapitalizations, stock splits, reverse stock splits, stock
dividends, conversions and similar events).
10.3. COMPLIANCE WITH LAWS AND AGREEMENTS.
Each such transfer shall comply with all applicable securities laws and any
agreements between the Company and the transferor.
17
10.4. TRANSFER INSTRUMENTS.
The transferee shall execute and deliver to the Company an agreement in form
and substance satisfactory to the Company by which the transferee agrees to
be bound by all terms and provisions of this agreement as a Holder of the
transferred rights.
10.5. RIGHTS WITH RESPECT TO REMAINING SHARES.
The Company shall continue to have the same obligation to register the
balance of a Holder's Registrable Securities following a transfer of less
than all of the Holder's Registrable Securities, unless the obligation has
otherwise terminated.
11. STANDOFF AGREEMENT
11.1. RESTRICTION ON TRANSFER.
Upon delivery of a written request by the Company, or the underwriters
managing a Registered offering of the Company's securities, the Holders shall
not sell, make any short sale of, loan, grant any option for the purchase of,
or otherwise dispose of any Registrable Securities (other than those included
in the Registration) to the public without the prior written consent of the
Company or the underwriter(s) for such time (not to exceed 180 days in the
case of the Company's IPO, and 90 days in all other cases) following the
effective date of the Registration as the Company or the underwriters may
request. As a condition precedent to the obligations of the Holders under
this Article, all officers and directors of the Company who own stock in the
Company, owners of more than 1% of the outstanding shares of Common Stock of
the Company, and holders of registration rights other than pursuant to this
Agreement, shall also abide by such restrictions. This Section 11.1 does not
apply to a registration relating solely to employee benefit plans on Form S-1
or Form S-8 or similar forms which may be promulgated in the future, or a
registration relating solely to a Commission Rule 145 transaction on Form
S-14 or Form S-15 or similar forms which may be promulgated in the future.
11.2. LEGEND.
The Company shall cause each stock certificate representing the Holders'
Securities and any Registrable Securities issued with respect to the Securities
to bear a conspicuous legend in substantially the following form:
SALE, TRANSFER, OR HYPOTHECATION OF THE SHARES REPRESENTED BY THIS
CERTIFICATE IS PROHIBITED FOR UP TO 180 DAYS FOLLOWING A PUBLIC
OFFERING OF THE STOCK OF THE CORPORATION PURSUANT TO A
REGISTRATION RIGHTS AGREEMENT BETWEEN THE ORIGINAL PURCHASER OF
THE SHARES AND THE CORPORATION.
18
12. TERMINATION OF RIGHTS
The rights of any particular Holder to cause the Company to Register
Registrable Securities under this Agreement shall terminate with respect to
such Holder following a bona fide, firmly underwritten public offering of
shares of Common Stock Registered under the Securities Act for so long after
the Company's IPO as the Holder holds Registrable Securities constituting
less than one percent (1%) of the combined voting power of all classes of
stock of the Company and is able to dispose of all of the Holder's
Registrable Securities in one transaction pursuant to SEC Rule 144.
13. RULE 144 REPORTING
13.1. DURATION OF UNDERTAKINGS.
The Company shall use its best efforts, including the actions described in
this Article 13, to make available to the Holders all of the benefits of any
SEC rules or regulations that may permit the Holders to sell their
Registrable Securities to the public without Registration for so long as the
Holders hold Registrable Securities.
13.2. RULE 144 PUBLIC INFORMATION REQUIREMENTS.
The Company shall make and keep public information available, in the manner
contemplated by SEC Rule 144, at all times after the Company becomes subject
to the reporting requirements of the Securities Act or the Exchange Act
regardless of whether the Company subsequently ceases to be subject to such
requirements.
13.3. REPORTING OBLIGATIONS.
The Company shall file with the SEC, in a timely manner, all reports and
other documents required under the Securities Act and the Security Exchange
Act of 1934, as amended, at all times after the Company becomes subject to
the reporting requirements of such Acts.
13.4. COMPLIANCE CERTIFICATE AND OTHER DOCUMENTATION.
The Company shall furnish to each Holder, forthwith upon request, (a) a
written statement by the Company as to its compliance with the reporting
requirements of SEC Rule 144 (at any time after 90 days after the effective
date of the first Registration by the Company (other than a Registration in a
Rule 145 transaction or with respect to an employee benefit plan)) and of the
Securities Act and the Securities Exchange Act of 1934, as amended (at any
time after the Company has become subject to such reporting requirements),
(b) a copy of the most recent annual or quarterly report of the Company, and
(c) such other reports and documents of the Company and other information in
the possession of or reasonably obtainable by the Company as a Holder may
reasonably request; provided, however, that the Company's obligations under
subsections (b) and (c) of this Section 13.4 shall terminate upon the
Company's IPO.
19
13.5. S-3 REGISTRATION.
The Company shall take such action, including the voluntary registration of
its Common Stock under Section 12 of the Exchange Act, as is necessary to
enable the Holders to use Form S-3 to sell their Registrable Securities as
soon as practicable after the end of the fiscal year in which the Company's
IPO is declared effective.
14. MISCELLANEOUS
14.1. ADDITIONAL ACTIONS AND DOCUMENTS.
The parties shall execute and deliver such further documents and instruments
and shall take such other further actions as may be required or appropriate
to carry out the intent and purposes of this Agreement.
14.2. SUCCESSORS AND ASSIGNS.
Subject to Article 10, this Agreement shall bind and inure to the benefit of
the parties hereto and their respective successors and assigns.
14.3. AMENDMENTS, WAIVERS, AND CONSENTS.
This Agreement shall not be amended except in a writing signed by the
Company, the Holders of a majority of the Founders Registrable Securities,
the Holders of a majority of the outstanding Series A Registrable Securities,
the Holders of two-thirds (2/3) of the outstanding Series B Registrable
Securities, the Holders of a majority of the outstanding Series C Registrable
Securities, the Holders of a majority of the outstanding Series D Registrable
Securities and the Holders of a majority of the outstanding Series E
Registrable Securities; and provided, further, that no provision of this
Agreement pertaining solely to AOL or the Registrable Securities issued or
issuable to AOL or its successors or transferees may be amended except in a
writing signed by the Company and AOL. No waiver or consent shall be binding
except in a writing signed by the party making the waiver or giving the
consent, except that the Holders of a majority of the Founders' Shares may
grant a waiver or consent on behalf of all of the Holders of Founder's Shares
in their capacity as such, the Holders of a majority of the Series A
Registrable Securities may grant a waiver or consent on behalf of all of the
Holders of Series A Registrable Securities in their capacity as such, the
Holders of two thirds (2/3) of the Series B Registrable Securities may grant
a waiver or consent on behalf of all of the Holders of Series B Registrable
Securities in their capacity as such, the Holders of a majority of the Series
C Registrable Securities may grant a waiver or consent on behalf of all of
the Holders of Series C Registrable Securities in their capacity as such, the
Holders of a majority of the Series D Registrable Securities may grant a
waiver or consent on behalf of all of the Holders of Series D Registrable
Securities in their capacity as such, and the Holders of a majority of the
Series E Registrable Securities may grant a waiver or consent on behalf of
all of the Holders of Series E Registrable Securities in their capacity as
such. No waiver of any provision or consent to any action shall constitute a
waiver of any other provision or consent to any other action, whether or not
similar. No waiver or consent shall constitute a continuing waiver or
consent except to the extent specifically set forth
20
in writing. For the protection of all parties, amendments, waivers, and
consents that are not in writing and executed by the party to be bound may be
enforced only if they are detrimentally relied upon and proved by clear and
convincing evidence. Such evidence may not include the alleged reliance.
14.4. NOTICE.
Any notice, instruction, or communication required or permitted to be given
under this Agreement to any party shall be in writing (which may include
telex, telegram, telecopier, or other similar form of reproduction followed
by a mailed hard copy) and shall be deemed given when actually received or,
if earlier, five (5) days after deposit in the United States Mail by
certified or express mail, return receipt requested, postage prepaid (or for
foreign addresses by Federal Express, DHL or other comparable delivery
service), addressed to the principal office of such party or to such other
address as such party may request by written notice. Each party shall make
an ordinary, good faith effort to ensure that the person to be given notice
actually receives such notice promptly. Each party shall ensure that the
other parties to this Agreement have a current address, fax number, and
telephone number for the purpose of giving notice. Addresses for each of the
Securityholders are set forth on the Signature Page(s) of this Agreement.
For ease of reference, a current business address for the Company is as
follows:
To Company: GRIC Communications, Inc.
0000 XxXxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attn.: General Counsel
Tel: (000) 000-0000
Fax: (000) 000-0000
A copy of any notice to the Company shall be given to:
Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn.: Xxxxx X. Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Any party may change its address for the purpose of this Section 14.4 by giving
the other parties written notice of its new address as provided above.
14.5. ATTORNEY'S FEES.
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.
21
14.6. AGGREGATION OF STOCK.
All shares of Registrable Securities held or acquired by affiliated entities
or persons shall be aggregated together for the purpose of determining the
availability of any rights under this Agreement.
14.7. GOVERNING LAW.
The rights and obligations of the parties shall be governed by, and this
Agreement shall be construed and enforced in accordance with, the laws of the
United States and the State of California, excluding California's conflicts
of laws rules to the extent such rules would apply the law of another
jurisdiction.
14.8. JURISDICTION AND VENUE.
The parties hereto consent to the personal jurisdiction of all federal and
state courts in California, and agree that venue shall lie exclusively in
Santa Xxxxx County, California.
14.9. ENTIRE AGREEMENT.
This Agreement and the documents and agreements contemplated herein
constitute the entire agreement between the parties with regard to the
subject matter hereof and thereof. This Agreement supersedes all prior
written and oral agreements and understandings between the parties hereto
with respect to the subject matter hereof including, without limitation, the
Previous Agreement. There are now no agreements, representations, or
warranties between or among the parties other than those set forth in this
Agreement or the documents and agreements contemplated in this Agreement.
14.10. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of which
may be executed by less than all of the parties hereto, each of which shall
be enforceable only against the parties actually executing such counterparts,
and all of which together shall constitute one instrument.
14.11. PARTIES IN INTEREST.
Except as expressly provided in this Agreement, nothing in this Agreement
shall (a) confer any rights or remedies on any persons other than the
parties, their respective successors and assigns, and any Indemnified
Parties, (b) relieve or discharge the obligation of any third person to any
party, or (c) shall give any third person any right of subrogation or (except
for the Indemnified Parties) action against any party.
14.12. SEVERABILITY.
If any provision of this Agreement, or the application of such provision to any
person or circumstances, is held invalid or unenforceable, the remainder of this
Agreement, or the
22
application of such provision to persons or circumstances other than those as
to which it is held invalid or unenforceable, shall continue in full force
without being impaired or invalidated.
14.13. TITLES, CAPTIONS, AND RECITALS.
Article, Section, and subsection titles and captions contained in this
Agreement are inserted as a matter of convenience and for reference and in no
way define, limit, extend, or describe the scope of this Agreement or the
intent of any of its provisions. If there is any conflict between the
Recitals at the beginning of this Agreement and the substantive provisions of
this Agreement, the substantive provisions shall control.
14.14. SECTION REFERENCES.
Unless otherwise stated, any reference contained in this Agreement to an
Article, Section, or subsection refers to the provisions of this Agreement.
An Article includes all of the Sections within that Article, and a Section
includes all of the subsections within that Section.
14.15. VARIATIONS OF PRONOUNS.
All pronouns and all variations thereof shall be deemed to refer to the
masculine, feminine, or neuter, singular or plural, as the context in which
they are used may require.
14.16. ADJUSTMENT FOR STOCK SPLITS.
All stock numbers and per share dollar numbers in this Agreement shall
automatically be deemed appropriately adjusted for any recapitalization,
stock split, reverse stock split, stock dividends, conversions or similar
event.
23
SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Fifth Amended and Restated
Registration Rights Agreement of GRIC COMMUNICATIONS, INC. as of the date
first set forth above.
"COMPANY"
GRIC COMMUNICATIONS, INC.,
a California corporation
By: _________________________
"SECURITYHOLDERS"
_____________________________
Hong Chen, Ph.D.
c/o GRIC Communications, Inc.
0000 XxXxxxxx Xxxx.
Xxxxxxxx, XX 00000
Tel: (000) 000-0000
_____________________________
Xxxx Ya-Xxx Xxx
c/o GRIC Communications, Inc.
0000 XxXxxxxx Xxxx.
Xxxxxxxx, XX 00000
Tel: (000) 000-0000
GRIC COMMUNICATIONS, INC.
FIFTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE (CONTINUED)
_____________________________
Xxxx Xxx
00000 Xxxxxxxxxx Xx.
Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
_____________________________
Swan Chen
0000 Xxxxxxx Xxxxxx, #000
Xxx Xxxxx, XX 00000
Tel: 000-000-0000
_____________________________
Xxxx Xxx
x/x Xxxx Xxxxxxx Xxxxxxxxxx Xx.
0X Xx. 000-00
Xxxx Xxx X. Xx.
Xxxxxx, Xxxxxx, X.X.X.
Tel: (000) 000-0-000-0000
_____________________________
Wen-Xxxx Xxxx
0000 Xxxxxxxxxx Xxxxx Xxxx
Xxx Xxxx, XX 00000-0000
Tel: (000) 000-0000
_____________________________
Xxxxx Xxx
000 Xxxxxx Xxx, #00
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
GRIC COMMUNICATIONS, INC.
FIFTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE (CONTINUED)
_____________________________
Xxxxx X. X. Xxx
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Tel: (000) 000-0000
_____________________________
Jingsha He
0000 Xxxx Xxxxxx Xxxxx
Xxxxx, XX 00000
Tel: (000) 000-0000
ELG PARTNERS 1994-1,
a California general partnership
By: _________________________
Xxxxxxx X. Xxxxx, Managing Partner
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000-0000
Tel: (000) 000-0000
GRIC COMMUNICATIONS, INC.
FIFTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE (CONTINUED)
Vertex Investments (II) Ltd.
By: _________________________
(sign name)
_________________________
(print name)
_________________________
(title)
00 Xxxxxxx Xxxx Xxxxx
#00-00 Xxxxxxx XXX
Xxxxxxxxx Xxxxxxx Xxxx
Xxxxxxxxx 000000
Tel: 00-000-0000
Fax: 00-000-0000
Vertex Technology Fund Ltd.
By: _________________________
(sign name)
_________________________
(print name)
_________________________
(title)
00 Xxxxxxx Xxxx Xxxxx
#00-00 Xxxxxxx XXX
Xxxxxxxxx Xxxxxxx Xxxx
Xxxxxxxxx 000000
Tel: 00-000-0000
Fax: 00-000-0000
GRIC COMMUNICATIONS, INC.
FIFTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE (CONTINUED)
Technology Associates Corporation
By: _________________________
(sign name)
_________________________
(print name)
_________________________
(title)
9F, Xx. 000, Xxx. 0, Xxx Xxxx Xxxx Xxxx
Xxxxxx 000, Xxxxxx, ROC
Tel: 000-0-0000-0000
Fax: 000-0-0000-0000
Tech Alliance Corporation
By: _________________________
(sign name)
_________________________
(print name)
_________________________
(title)
x/x Xxxxxxxxxx Xxxxxxxxxx Xxxxxxxxxxx
0X, Xx. 000, Sec. 5, Xxx Xxxx East Road
Taipei 105, Taiwan, ROC
Tel: 000-0-0000-0000
Fax: 000-0-0000-0000
GRIC COMMUNICATIONS, INC.
FIFTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE (CONTINUED)
AII Holding Corporation
By: _________________________
(sign name)
_________________________
(print name)
_________________________
(title)
c/o Acer Advanced Labs
0000-X Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
Attn: Xx. Xxx Xx
Netis Technology, Inc.
By: _________________________
(sign name)
_________________________
(print name)
_________________________
(title)
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Tel: 000-000-0000
GRIC COMMUNICATIONS, INC.
FIFTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE (CONTINUED)
Tekkang Management Consulting, Inc.
By: _________________________
(sign name)
_________________________
(print name)
_________________________
(title)
00X, 000 Xxxxx Xxx X. Xxxx, Xxx. 0
Xxxxxx, Xxxxxx, ROC
Tel: 000-0-000-0000
Fax: 000-0-000-0000
_____________________________
Yen-Son Xxxxx
00000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Tel: (000) 000-0000
_____________________________
Xxxx-Xxxx Xxxx, Trustee of the Chao Family Trust U/A dated 2/12/90
00000 Xxxxxxxx Xxxxx
Xxx Xxxxx Xxxxx, XX 00000
Tel: 000-000-0000
_____________________________
Hung Xxxx Xxxx
9F, Xx. 000, Xxx 0 Xxxxxxx Xxxx Xxxx
Xxxxxx000, Xxxxxx, XXX
Tel: 000-0-0000-0000
Fax: 000-0-0000-0000
GRIC COMMUNICATIONS, INC.
FIFTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE (CONTINUED)
---------------------------------------
Xxxxxxx Xxx
00X, 00, Xxx. 0, Xx-Xxxxx X. Xx.
Xxxxxx, Xxxxxx, ROC
Tel: 000-000-0-0000-0000
---------------------------------------
Xxxxxx X.X. Xxxx
Products Development Division
Institute for Information Industry
0X, #00 000 Xxxx
Xxxxxx Xxxx Xxxx, Xxx. 0
Xxxxxx, Xxxxxx, R.O.C.
Tel: 000-0-0-000-0000
---------------------------------------
Xxxxx Xxxxx
Fushin Rd, Sec. 0, Xxxxx 00, Xx. 00
Xxxxxxxx, Xxxxxx
Tel: 000-00-000-0000
---------------------------------------
Xxxx X. Xxxx
000 Xxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
Tel: 000-000-0000
---------------------------------------
Xxxx Xxxxx
00000 XxxxXxx Xxxxx
Xxxxxxxx, XX 00000
Tel: (000) 000-0000
GRIC COMMUNICATIONS, INC.
FIFTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE (CONTINUED)
---------------------------------------
Masaharu Shinya
0-0 Xxxxxxxx 0-Xxxxx
Xxxx-Xx
Xxxxx, 000 Xxxxx
Tel: 00-0-0000-0000
---------------------------------------
Xxxx X. Xxxx
000 Xxxxxx Xx.
Xxxxxxx Xxxx,XX 00000
Tel: 000-000-0000
---------------------------------------
Fu Lin
c/o Netis Technology, Inc.
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Tel: 000-000-0000
---------------------------------------
Xxxxx Xxxxx and Xxxxxx Xxxxx Revocable Trust
c/o Netis Technology, Inc.
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Tel: 000-000-0000
---------------------------------------
Xxxxx Xxx
0 Xxxxxx Xxxxxx, #00-000
Xxxxxxxxx 000000
Tel: 00-000-0000
GRIC COMMUNICATIONS, INC.
FIFTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE (CONTINUED)
---------------------------------------
Xxxxxxxx Xx Yoke Lay
41A Lorong Marzuki
Singapore 1441
Tel: 00-000-0000
Gau Tech Enterprises, Inc.
By: -------------------------
(sign name)
-------------------------
(print name)
-------------------------
(title)
0000 Xxxxxxxxx
Xxxxx Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxx
Tel: 000-000-0000
ST Telecommunications Pte. Ltd.
By: -------------------------
(sign name)
-------------------------
(print name)
-------------------------
(title)
00 Xxxxxxx Xx. #00 - 11/17
The Cuppage
Xxxxxxxxx 000000
Tel: 00-000-0000
Attn: Xxxxxxxx Xxxx
GRIC COMMUNICATIONS, INC.
FIFTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE (CONTINUED)
Essex Investment (Singapore) Pte Ltd.
By: -------------------------
(sign name)
-------------------------
(print name)
-------------------------
(title)
00 Xxx Xxxx Xxxxx
XXX Xxxxxxxx
Xxxxxxxxx 0000
Tel: 00-000-0000
Fax: 00-000-0000
Attn: Xxxxxxx Xxxxx
GRIC COMMUNICATIONS, INC.
FIFTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE (CONTINUED)
Asia Pacific Growth Fund II
By: -------------------------
(sign name)
-------------------------
(print name)
-------------------------
(title)
c/o H&Q Taiwan Co., Ltd.
Suite 3201, 32F,
International Trade Building
Xx. 000, Xxxxxxx Xxxx, Xxx. 0
Xxxxxx 00000, Xxxxxx, ROC
Tel: 000-0-000-0000
Attn: Jedi Chan
GRIC COMMUNICATIONS, INC.
FIFTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE (CONTINUED)
HanTech International Venture Capital Corporation
By: -------------------------
(sign name)
-------------------------
(print name)
-------------------------
(title)
c/o H&Q Taiwan Co., Ltd.
Suite 3201, 32F,
International Trade Building
Xx. 000, Xxxxxxx Xxxx, Xxx. 0
Xxxxxx 00000, Xxxxxx, ROC
Tel: 000-0-000-0000
Attn: Jedi Chan
------------------------------
Ko Suzuki
c/o SRI Consulting
000 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Tel: (000) 000-0000
GRIC COMMUNICATIONS, INC.
FIFTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE (CONTINUED)
SingTel Ventures (Cayman) Pte Ltd
By: -------------------------
(sign name)
-------------------------
(print name)
-------------------------
(title)
c/o Singapore Telecommunications, Inc.
00 Xxxxxx Xxxx, Xxxxxxxxx
Xxxxxxxxx 000000
Tel: 00-000-0000
Fax: 00-000-0000
Attn: Xxxxxx Xxxx
GRIC COMMUNICATIONS, INC.
FIFTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE (CONTINUED)
Technology Fund Pte Ltd.
By: -------------------------
(sign name)
-------------------------
(print name)
-------------------------
(title)
00 Xxxxxxx Xxxx Xxxx
#02-01 The Aquarius
Xxxxxxxxx Xxxxxxx Xxxx XX
Xxxxxxxxx 000000
Tel: 00-000-0000
Fax: 00-000-0000
Attn.: Mrs. Tahn Xxx Xxxx
Technology Fund II Pte Ltd.
By: -------------------------
(sign name)
-------------------------
(print name)
-------------------------
(title)
00 Xxxxxxx Xxxx Xxxx
#02-01 The Aquarius
Xxxxxxxxx Xxxxxxx Xxxx XX
Xxxxxxxxx 000000
Tel: 00-000-0000
Fax: 00-000-0000
Attn.: Mrs. Tahn Xxx Xxxx
GRIC COMMUNICATIONS, INC.
FIFTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE (CONTINUED)
Trustees of General Electric Pension Trust
By: -------------------------
(sign name)
-------------------------
(print name)
-------------------------
(title)
With a copy to:
--------------
0000 Xxxxxx Xxxxxx
P.O. Box 7900 Xxxxx Xxxxxxxxxx, LLP
Attn: Xxxxxxx X. Xxxxxxx, Esq. 0000 Xxxxxx xx xxx Xxxxxxxx
Xxxxxxxx, XX 00000-0000 Xxx Xxxx, XX 00000
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
-and- Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Attn: Xxxxx X. Xxxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
GRIC COMMUNICATIONS, INC.
FIFTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE (CONTINUED)
Talisman Capital Opportunity Inc.
By: -------------------------
(sign name)
-------------------------
(print name)
-------------------------
(title)
00000 XxXxxxxx Xxxxx
Xxxxx 000
Xxxxxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxxxx Xxxxxx
Talisman Capital Opportunity Fund Ltd.
By: -------------------------
(sign name)
-------------------------
(print name)
-------------------------
(title)
00000 XxXxxxxx Xxxxx
Xxxxx 000
Xxxxxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxxxx Xxxxxx
GRIC COMMUNICATIONS, INC.
FIFTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE (CONTINUED)
InnoMedia Pte Ltd
By: -------------------------
(sign name)
-------------------------
(print name)
-------------------------
(title)
00 Xxxxxxx Xxxx Xxxx #03-04/05
The Alpha, Xxxxxxxxx Xxxxxxx Xxxx XX
Xxxxxxxxx 000000
Tel: x00-0000-000
Fax: x00-0000-000
Attn: Ng Kai Wa
L&H Investment Company N.V.
By: -------------------------
(sign name)
-------------------------
(print name)
-------------------------
(title)
Xxxx Xxxxxxxxxxxxxx 0
X-0000 Xxxxx
Xxxxxxx
Tel: x00-00-00-00-00
Fax: x00-00-00-00-00
Attn: Xxxxxxx Xxxxxxxx
GRIC COMMUNICATIONS, INC.
FIFTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE (CONTINUED)
Flanders Language Valley Fund C.V.A.
By: -------------------------
(sign name)
-------------------------
(print name)
-------------------------
(title)
Xxxxxxxxxxxxx 00
00 X-0000 Xxxxx
Xxxxxxx
Tel: x00-00-00-00-00
Fax: x00-00-00-00-00
Attn: Xxxxx Xxxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxx
c/o Oasis Capital, LLC
Three Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
---------------------------------
Xxxxxx X. Xxxxxxx
c/o Oasis Capital, LLC
Xxxxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
GRIC COMMUNICATIONS, INC.
FIFTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE (CONTINUED)
Richmond Holdings Global Limited
By: -------------------------
(sign name)
-------------------------
(print name)
-------------------------
(title)
00X, 00 Xxx Xxx Xxxxx Xxxx, Xxx. 0
Xxxxxx, Xxxxxx, R.O.C.
Tel: 000-0-000-0000
Fax: 000-0-000-0000
Attn.: Xxxxxx Xxxx
-----------------------------------
Xxxxxx Xxxxxxx
Xx Xxxxx
0000 Xxxxx-Xxxxxx
Xxxxxxxxxxx
Tel: 00-00-000-00-00
Fax: 00-00-000-00-00
GRIC COMMUNICATIONS, INC.
FIFTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE (CONTINUED)
----------------------------------
X.X. Xxxxx
Xx. 0, Xxxxx 00, Xxxx 000,
Xx Xxxx Road, Xx Xx Village
TaiChung County, Taiwan, R.O.C.
Tel: 000-0-000-0000
---------------------------------
Xxxx X. and Xxxxxxxx X. Xxxxxxxx, Tenants by the Entirety
0000 Xxxxxxxx Xxxxx
XxXxxx, XX 00000
Tel: 000-000-0000
---------------------------------
Xxxxx Xx
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
T: 000-000-0000
F: 000-000-0000
GRIC COMMUNICATIONS, INC.
FIFTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE (CONTINUED)
NORTH AMERICA VENTURE FUND, L.P.,
a Cayman Islands Limited Partnership
By: CDC North America Venture
Management, L.D.C., a Cayman Islands Limited
Duration Company
General Partner
By: -------------------------
Xxxxx Xxxx
Title: Member
By: -------------------------
Xxxxxxx Xxx
Title: Member
Xxxxxx & Calder, Xxxxxx House
P.O. Box 309
Xxxxxx Town, Grand Cayman
Cayman Islands, British West Indies
GRIC COMMUNICATIONS, INC.
FIFTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE (CONTINUED)
Xxxxxxxxx Investments Pte Ltd
By: -------------------------
(sign name)
-------------------------
(print name)
-------------------------
(title)
0 Xxxxxxx Xxx 000-00
Xxxxxxx Xxxxx
Xxxxxxxxx 000000
Tel.: x00-000-0000
Fax: x00-000-0000
GRIC COMMUNICATIONS, INC.
FIFTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE (CONTINUED)
F&W Investments 1999
By: -------------------------
(sign name)
-------------------------
(print name)
-------------------------
(title)
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Tel.: 000-000-0000
Fax: 000-000-0000
Attn.: Xxxxx X. Xxxxx
GRIC COMMUNICATIONS, INC.
FIFTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE (CONTINUED)
Creative Technology Ltd
By: -------------------------
(sign name)
-------------------------
(print name)
-------------------------
(title)
________________________
________________________
Tel.: __________________
Fax: _________________
Attn.: Sim Xxxx Hoo
GRIC COMMUNICATIONS, INC.
FIFTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE (CONTINUED)
Nokia Holding Inc.
By: -------------------------
(sign name)
-------------------------
(print name)
-------------------------
(title)
________________________
________________________
Tel.: __________________
Fax: ___________________
Attn.:
EXHIBIT A
SUMMARY OF REGISTRABLE SECURITIES
NUMBER OF REGISTRABLE
SECURITIES INTO WHICH
PRESENTLY (1)
SECURITY NUMBER OF SHARES CONVERTIBLE
-------- ---------------- ---------------------
Founders' Shares 5,000,000 5,000,000
AOL Registrable
Securities 287,558 287,558
Series A Shares 3,400,000 3,400,000
Series B Shares 6,470,000 6,470,000
Series C Shares 4,726,752 4,726,752
Series D Shares Up to 17,500,000 Up to 17,500,000
Series E Shares 1,680,672 1,680,672
TOTAL UP TO 39,064,982 UP TO 39,064,982
------------------------------
(1) For the purpose of this table, Preferred Stock are deemed convertible
into Common Stock.
