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EXHIBIT 4.2
GADZOOX NETWORKS, INC.
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FIRST AMENDED AND RESTATED
REGISTRATION AND INFORMATION RIGHTS AGREEMENT
OCTOBER 12, 1998
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TABLE OF CONTENTS
PAGE
SECTION 1 Definitions..........................................................................2
SECTION 2 Registration Rights..................................................................4
2.1 Requested Registration..............................................................4
2.2 Company Registration................................................................6
2.3 Registration on Form S-3............................................................7
2.4 Limitations on Subsequent Registration Rights.......................................8
2.5 Expenses of Registration............................................................8
2.6 Obligations of the Company..........................................................8
2.7 Indemnification.....................................................................9
2.8 Information by Holder..............................................................11
2.9 Rule 144 Reporting.................................................................11
2.10 Transfer of Registration Rights....................................................12
2.11 Stand-off Agreement................................................................12
2.12 Termination of Registration Rights.................................................12
SECTION 3 Restrictions on Transferability of Securities; Compliance with Securities Act;
Registration Rights.......................................................................13
3.1 Restrictions on Transfer...........................................................13
3.2 Restrictive Legend.................................................................13
3.3 Notice of Proposed Transfers.......................................................13
SECTION 4 Affirmative Covenants of the Company................................................14
4.1 Financial Information..............................................................14
4.2 Additional Information.............................................................14
4.3 Rights of Inspection...............................................................15
4.4 Assignment of Rights to Financial Information......................................15
4.5 Board of Directors.................................................................15
4.6 Market Standoff Agreements.........................................................16
4.7 Termination of Covenants...........................................................16
SECTION 5 Miscellaneous.......................................................................16
5.1 Governing Law......................................................................16
5.2 Successors and Assigns.............................................................16
5.3 Entire Agreement; Amendment........................................................16
5.4 Prior Agreement; Waiver and Termination............................................16
5.5 Notices, etc.......................................................................17
5.6 Counterparts.......................................................................17
5.7 Severability.......................................................................17
5.8 Titles and Subtitles...............................................................17
5.9 Share Numbers......................................................................17
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EXHIBIT
A Schedule of Holders and the shares of Gadzoox Networks, Inc. owned
by each Holder
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GADZOOX NETWORKS, INC.
FIRST AMENDED AND RESTATED
REGISTRATION AND INFORMATION RIGHTS AGREEMENT
This First Amended and Restated Registration and Information Rights
Agreement is made as of October 12, 1998, (the "Agreement") by and among (1)
Gadzoox Networks, Inc., a Delaware corporation having its principal executive
offices at ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company"); (2) the
persons and entities listed on Exhibit A (the "Series A Holders") to that
certain Series A Preferred and Common Stock Purchase Agreement dated May 12,
1992 (the "Series A Agreement"); (3) the persons and entities listed on Exhibit
A (the "Series B Holders") to that certain Series B Preferred Stock Purchase
Agreement dated December 28, 1993 (the "Series B Agreement"); (4) the persons
and entities listed on Exhibit A (the "Series C Holders") to that certain Series
C Preferred Stock Purchase Agreement dated January 9, 1995; (5) the persons and
entities listed on Exhibit A (the "Series D Holders") to that certain Series D
Preferred Stock Purchase Agreement dated January 12, 1996 (the "Series D
Agreement"); (6) the persons and entities listed on Exhibit A (the "Series E
Holders") to that certain Series E Preferred Stock Purchase Agreement dated
September 5, 1996 (the "Series E Agreement"); (7) Seagate Technology, Inc., a
Delaware corporation (the "Series F Holder" and the "Series G Holder" and
collectively with the Series A Holders, the Series B Holders, the Series C
Holders, the Series D Holders and the Series E Holders, the "Prior Holders"),
that is the purchaser of Series F Preferred Stock pursuant to that certain
Series F Preferred Stock Purchase Agreement dated May 21, 1997 (the "Series F
Agreement") and the purchaser of Series G Preferred Stock pursuant to that
certain Series G Preferred Stock Purchase Agreement dated June 16, 1998 (the
"Series G Agreement"), and upon conversion of certain convertible promissory
notes (the "Notes") pursuant to the Note Purchase Agreement dated September 18,
1998 (the "Note Purchase Agreement"); and (8) 3Com Corporation, a Delaware
corporation (the "Series H Holder" and collectively, with the Prior Holders, the
"Preferred Holders"), that is the purchaser of Series H Preferred Stock pursuant
to that certain Series H Preferred Stock Purchase Agreement of even date
herewith (the "Series H Agreement"). This Agreement amends in its entirety and
supersedes in all respects the Registration and Information Rights Agreement
dated September 18, 1998 among the Company, the Prior Holders (the "Prior
Registration Rights Agreement").
WHEREAS, the Company has agreed to grant to the Series H Holder certain
registration rights and certain information rights on a pari passu basis with
the rights granted to the Prior Holders under the Prior Registration Rights
Agreement, which rights are being granted pursuant to this Agreement; and
WHEREAS, in order to induce 3Com Corporation to purchase the shares of
Series H Preferred Stock pursuant to the Series H Agreement, the Prior Holders
desire to amend and replace the Prior Registration Rights Agreement with this
Agreement and to include the Series H Holder hereunder.
NOW THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties agree as follows:
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SECTION 1
Definitions
As used in this Agreement, the following terms shall have the following
respective meanings:
"Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"Conversion Stock" shall mean the Common Stock issued or issuable
pursuant to conversion of the Series A Preferred, Series B Preferred, Series C
Preferred, Series D Preferred, Series E Preferred, Series F Preferred, Series G
Preferred or Series H Preferred.
"Holders" shall mean any investor holding Registrable Securities and any
holder of Registrable Securities to whom the rights granted under Section 2 have
been transferred in accordance with Section 2.10 hereof.
"Initiating Holders" shall mean the Holders or transferees of the
Holders under Section 2.10 hereof who, in the aggregate, are Holders of at least
fifty percent (50%) of the Registrable Securities.
"Preferred Stock" shall mean the Series A Preferred, the Series B
Preferred, the Series C Preferred, the Series D Preferred, the Series E
Preferred, Series F Preferred, Series G Preferred and Series H Preferred.
"Registrable Securities" means (i) the Conversion Stock, (ii) the Common
Stock issued to the Holders pursuant to the Series A Agreement, and (iii) any
Common Stock of the Company issued or issuable in respect of the Conversion
Stock or other securities issued or issuable pursuant to the conversion of the
Preferred Stock upon any stock split, stock dividend, recapitalization or
similar event, or any Common Stock otherwise issued or issuable with respect to
the Preferred Stock; provided, however, that shares of Common Stock or other
securities shall no longer be treated as Registrable Securities if (A) they have
been sold to or through a broker or dealer or underwriter in a public
distribution or a public securities transaction, (B) they have been sold in a
transaction exempt from the registration and prospectus delivery requirements of
the Securities Act so that all transfer restrictions and restrictive legends
with respect thereto are removed upon consummation of such sale, (C) (1) such
securities are held by a Holder who then holds less than one percent (1%) of the
then outstanding Common Stock of the Company (determined on the basis of assumed
conversion of all securities convertible into Common Stock), (2) the Company has
previously consummated an initial public offering and (3) the shares are
available for sale, in the opinion of counsel to the Company, without compliance
with the registration and prospectus delivery requirements of the Securities Act
so that all transfer restrictions and restrictive legends with respect thereto
may be removed upon the consummation of such sale or (D) (1) such securities are
held by a Holder who then holds two percent (2%) or less of the then outstanding
Common Stock of the Company (determined on the basis of assumed conversion of
all securities convertible into Common Stock), (2) the Company has previously
consummated an
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initial public offering and (3) such Holder may sell such securities under Rule
144(k) of the Securities Act.
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 declaration or ordering of the
effectiveness of such registration statement.
"Registration Expenses" shall mean all expenses incurred by the Company
in complying with Sections 2.1, 2.2 and 2.3 hereof, including, without
limitation, all registration, qualification and filing fees, printing expenses,
escrow fees, fees and disbursements of counsel for the Company, blue sky fees
and expenses, normal audit expenses (but not including the expense of any
special audits incident to or required by any such registration where the
Company is not registering any of its securities, excluding the compensation of
regular employees of the Company which shall be paid in any event by the
Company) and the reasonable fees and disbursements of one counsel for all
Holders.
"Restricted Securities" shall mean the securities of the Company
required to bear the legend set forth in Section 3.2 of this Agreement.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
any similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities registered by
the Holders.
"Series A Preferred" shall mean the Series A Preferred Stock issued
pursuant to the Series A Agreement.
"Series B Preferred" shall mean the Series B Preferred Stock issued
pursuant to the Series B Agreement.
"Series C Preferred" shall mean the Series C Preferred Stock issued
pursuant to the Series C Agreement.
"Series D Preferred" shall mean the Series D Preferred Stock issued
pursuant to the Series D Agreement.
"Series E Preferred" shall mean the Series E Preferred Stock issued
pursuant to the Series E Agreement.
"Series F Preferred" shall mean the Series F Preferred Stock issued
pursuant to the Series F Agreement.
"Series G Preferred" shall mean the Series G Preferred Stock issued
pursuant to the Series G Agreement and issuable upon conversion of the Notes
pursuant to the Note Purchase Agreement.
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"Series H Preferred" shall mean the Series H Preferred Stock issued
pursuant to the Series H Agreement.
SECTION 2
Registration Rights
2.1 REQUESTED REGISTRATION.
(a) Request for Registration. In case the Company shall
receive from Initiating Holders a written request that the Company effect any
registration, qualification or compliance with respect to not less than twenty
percent (20%) of the shares of Registrable Securities then held by such
Initiating Holders (or any lesser percentage if the reasonably anticipated
aggregate price to the public of such shares, net of underwriting discounts and
commissions, would exceed $2,000,000), the Company will:
(i) promptly give written notice of the proposed
registration, qualification or compliance to all other Holders and
(ii) as soon as practicable, use its best efforts to
effect such registration, qualification or compliance (including, without
limitation, appropriate qualification under applicable blue sky or other state
securities laws and appropriate compliance with applicable regulations issued
under the Securities Act and any other governmental requirements or regulations)
as may be so requested and as would permit or facilitate the sale and
distribution of all or such portion of such Registrable Securities as are
specified in such request, together with all or such portion of the Registrable
Securities of any Holder or Holders joining in such request as are specified in
a written request received by the Company within twenty (20) days after receipt
of such written notice from the Company;
Provided, however, that the Company shall not be obligated to
take any action to effect any such registration, qualification or compliance
pursuant to this Section 2.1:
(A) In any particular jurisdiction in which
the Company would be required to execute a general consent to service of process
in effecting such registration, qualification or compliance unless the Company
is already subject to service in such jurisdiction and except as may be required
by the Securities Act;
(B) Prior to July 31, 2000 or within six (6)
months after the effective date of a registration statement relating to an
underwritten public offering of the Company's securities filed under the
Securities Act;
(C) After the Company has effected two such
registrations pursuant to this Section 2.1 (a), and such registrations have been
declared or ordered effective; or
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(D) If the Company shall furnish to such
Holders a certificate signed by the President 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 statement to be filed in
the near future, then the Company's obligation to use its best efforts to
register, qualify or comply under this Section 2.1 shall be deferred for a
period not to exceed one hundred eighty (180) days from the date of receipt of
written request from the Initiating Holders; provided, however, that the Company
shall not exercise such right more than once in any twelve (12) month period.
Subject to the foregoing clauses (A) through (D), the Company
shall file a registration statement covering the Registrable Securities so
requested to be registered as soon as practicable, after receipt of the request
or requests of the Initiating Holders.
(b) Underwriting. If the Initiating Holders intend to
distribute the Registrable Securities covered by their request by means of an
underwriting, they shall so advise the Company as part of their request made
pursuant to Section 2.1 hereof and the Company shall include such information in
the written notice referred to in Section 2.1(a)(i) above. In such event, the
right of any Holder to registration pursuant to Section 2.1 shall be conditioned
upon such Holder's participation in the underwriting arrangements required by
this Section 2.1, and the inclusion of such Holder's Registrable Securities in
the underwriting to the extent requested shall be limited to the extent provided
herein.
The Company shall (together with all Holders proposing to
distribute their securities through such underwriting) enter into an
underwriting agreement in customary form with the managing underwriter selected
for such underwriting by a majority in interest of the Initiating Holders, but
subject to the Company's reasonable approval. Notwithstanding any other
provision of this Section 2.1, if the managing underwriter advises the
Initiating Holders in writing that marketing factors require a limitation of the
number of shares to be underwritten, the managing underwriter may limit the
Registrable Securities to be included in such offering. The Company shall so
advise all Holders of Registrable Securities and the number of shares of
Registrable Securities that may be included in the registration and underwriting
shall be allocated among all Holders thereof in proportion, as nearly as
practicable, to the respective amounts of Registrable Securities held by such
Holders at the time of filing the registration statement. No Registrable
Securities excluded from the underwriting by reason of the underwriter's
marketing limitation shall be included in such registration. To facilitate the
allocation of shares in accordance with the above provisions, the Company or the
underwriters may round the number of shares allocated to any Holder to the
nearest one hundred (100) shares.
If any Holder of Registrable Securities disapproves of the terms
of the underwriting, such person may elect to withdraw therefrom by written
notice to the Company, the managing underwriter and the Initiating Holders. The
Registrable Securities and/or other securities so withdrawn shall also be
withdrawn from registration.
If the underwriter has not limited the number of Registrable
Securities to be underwritten, the Company may include securities for its own
account or the account of others in such registration if
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the underwriter so agrees and the number of Registrable Securities which would
otherwise have been included in such registration and underwriting will not
thereby be limited.
2.2 COMPANY REGISTRATION.
(a) Notice of Registration. If at any time or from time to
time the Company shall determine to register any of its securities, either for
its own account or the account of a security holder or holders, other than (i) a
registration relating solely to employee benefit plans or (ii) a registration
relating solely to a Commission Rule 145 transaction, the Company will:
(i) promptly give to each Holder written notice
thereof, and
(ii) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any underwriting
involved therein, all the Registrable Securities specified in a written request
or requests, made within twenty (20) days after receipt of such written notice
from the Company by any Holder.
(b) Underwriting. If the registration of which the Company
gives notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 2.2(a)(i). In such event the right of any Holder to
registration pursuant to Section 2.2 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of Registrable Securities
in the underwriting to the extent provided herein.
All Holders proposing to distribute their securities through
such underwriting shall (together with the Company and the other holders
distributing their securities through such underwriting) enter into an
underwriting agreement in customary form with the managing underwriter selected
for such underwriting by the Company. Notwithstanding any other provision of
this Section 2.2, if the managing underwriter determines that marketing factors
require a limitation of the number of shares to be underwritten, the managing
underwriter may limit the Registrable Securities to be included in such
registration. In such event, the managing underwriter shall first limit or
exclude up to all of the securities of holders (other than Holders) proposing to
distribute their securities through such underwriting to be included in such
registration and may thereafter limit the Registrable Securities to be included
in such registration to not less than ten percent (10%) of the total value of
the securities to be distributed through such registration and underwriting,
provided, however, that the managing underwriter may exclude up to all of the
Registrable Securities to be included in the first firm commitment underwritten
public offering of shares of Common Stock of the Company. The Company shall so
advise all Holders and other holders distributing their securities through such
underwriting and the number of shares of Registrable Securities that may be
included in the registration and underwriting shall be allocated first among all
Holders and thereafter to other holders, all such allocations among Holders and
among other holders respectively, being made in proportion, as nearly as
practicable, to the respective amounts of Registrable Securities and Common
Stock held by such Holders and other holders at the time of filing the
registration statement. To facilitate the allocation of shares in accordance
with the above provisions,
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the Company may round the number of shares allocated to any Holder or holder to
the nearest one hundred (100) shares.
If any Holder or holder disapproves of the terms of any such
underwriting, he may elect to withdraw therefrom by written notice to the
Company and the managing underwriter. Any securities excluded or withdrawn from
such underwriting shall be withdrawn from such registration.
(c) Right to Terminate Registration. The Company shall have
the right to terminate or withdraw any registration initiated by it under this
Section 2.2 prior to the effectiveness of such registration whether or not any
Holder has elected to include securities in such registration.
2.3 REGISTRATION ON FORM S-3.
(a) If any Holder or Holders who, in the aggregate, are
Holders of at least twenty- five percent (25%) of the Registrable Securities,
request that the Company file a registration statement on Form S-3 (or any
successor form to Form S-3) for a public offering of shares of the Registrable
Securities, the reasonably anticipated aggregate price to the public of which
would exceed $1,000,000, and the Company is a registrant entitled to use Form
S-3 to register the Registrable Securities for such an offering, the Company
shall use its best efforts to cause such Registrable Securities to be registered
for the offering on such form; provided, however, that the Company shall not be
required to effect more than one registration pursuant to this Section 2.3 in
any 12-month period. The Company will (i) promptly give written notice of the
proposed registration to all other Holders and (ii) as soon as practicable, use
its best efforts to effect such registration (including, without limitation, the
execution of an undertaking to file post-effective amendments, appropriate
qualification under applicable blue sky or other state securities laws and
appropriate compliance with applicable regulations issued under the Securities
Act and any other governmental requirements or regulations) as may be so
requested and as would permit or facilitate the sale and distribution of all or
such portion of such Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any Holder of
Holders joining in such request as are specified in a written request received
by the Company within twenty (20) days after receipt of such written notice from
the Company. The substantive provisions of Section 2.2(b) shall be applicable to
each registration initiated under this Section 2.3.
(b) Notwithstanding the foregoing, the Company shall not be
obligated to take any action pursuant to this Section 2.3, (i) in any particular
jurisdiction in which the Company would be required to execute a general consent
to service of process in effecting such registration, qualification or
compliance unless the Company is already subject to service in such jurisdiction
and except as may be required by the Securities Act; (ii) if the Company, within
ten days of the receipt of the request of the Initiating Holders, gives notice
of its bona fide intention to effect the filing of a registration statement with
the Commission within ninety (90) days of receipt of such request (other than
with respect to a registration statement relating to a Rule 145 transaction or
to an employee benefit plan); (iii) within six (6) months after the effective
date of a registration statement relating to an underwritten public offering of
the Company's securities filed under the Securities Act or (iv) if the Company
shall furnish to such Holder a certificate signed by the President 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
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registration statements to be filed in the near future, then the Company's
obligation to use its best efforts to file a registration statement shall be
deferred for a period not to exceed one hundred eighty (180) days from the
receipt of the request to file such registration by such Holder; provided,
however, that the Company will not exercise such right more than once in any
twelve (12) month period.
2.4 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and after
the Closing Date, the Company shall not enter into any agreement granting any
holder or prospective holder of any securities of the Company registration
rights with respect to such securities unless (i) such new holder or prospective
holder receives such rights by becoming a party to this Agreement and this
Agreement is amended in accordance with Section 6.3 to make such holder or
prospective holder a party hereto; or (ii) such new registration rights,
including standoff obligations, are subordinate to the registration rights
granted to each Holder hereunder.
2.5 EXPENSES OF REGISTRATION.
(a) All Registration Expenses, including the reasonable fees
and expenses of one counsel to the Holders of securities being registered,
incurred in connection with (i) the two registrations pursuant to Section 2.1,
(ii) all registrations pursuant to Section 2.2 and (iii) two registrations
pursuant to Section 2.3, shall be borne by the Company. Unless otherwise stated,
all Selling Expenses relating to securities registered on behalf of the Holders
and all other Registration Expenses shall be borne by the Holders of such
securities and the Company, if it registers securities on its behalf as part of
such registration, pro rata on the basis of the number of shares so registered.
(b) All Registration Expenses and Selling Expenses incurred
in connection with the third and subsequent registrations pursuant to Section
2.3 shall be borne pro rata by the Holder or Holders requesting the registration
on Form S-3, according to the number of Registerable Securities included in such
registration.
(c) The Company shall not be required to pay for expenses of
any registration proceeding begun pursuant to Sections 2.1 or 2.3, the request
for which is subsequently withdrawn by the Initiating Holders for reasons other
than a material adverse change in the business or financial condition of the
Company occurring prior to the effectiveness of such registration statement, in
which case, such expenses shall be borne by the Holders of Registrable
Securities requesting such withdrawal, pro rata on the basis of the number of
shares of Registrable Securities so included in the registration request unless
the Holders of a majority of Registrable Securities agree (i) to forfeit their
right to one requested registration pursuant to Section 2.1 in which event such
right shall be forfeited by all Holders or (ii) if such rights under Section 2.1
have been exhausted, to forfeit their right to have the Company pay the
registration expenses of one registration under Section 2.3.
2.6 OBLIGATIONS OF THE COMPANY. Whenever required under this Section
2 to effect the registration of any Registrable Securities, the Company shall,
as expeditiously as reasonably possible:
(a) Prepare and file with the Commission a registration
statement with respect to such Registrable Securities and use its diligent best
efforts to cause such registration statement to become
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effective, and, upon the request of the Holders of a majority of the Registrable
Securities registered thereunder, keep such registration statement effective for
up to ninety (90) days.
(b) Prepare and file with the Commission such amendments and
supplements to 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.
(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.
2.7 INDEMNIFICATION.
(a) To the extent permitted by law, the Company will
indemnify each Holder, each of its officers and directors and partners, each
person controlling such Holder, within the meaning of Section 15 of the
Securities Act, with respect to which registration, qualification or compliance
has been effected pursuant to this Agreement, each underwriter, if any, and each
person who controls any underwriter within the meaning of Section 15 of the
Securities Act, against all expenses, claims, losses, damages or liabilities (or
actions in respect thereof), including any of the foregoing incurred in
settlement of any litigation, commenced or threatened, arising out of or based
on any untrue statement (or alleged untrue statement) of a material fact
contained in any registration statement, prospectus, offering circular or other
document, or any amendment or supplement thereto, incident to any such
registration, qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading, or any violation by the Company of any federal,
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state or common law rule or regulation applicable to the Company in connection
with any such registration, qualification or compliance, provided that the
Company will not be liable in any such case to the extent that any such claim,
loss, damage, liability or expense arises out of or is based on any untrue
statement or omission or alleged untrue statement or omission, made in reliance
upon and in conformity with written information furnished to the Company by an
instrument duly executed by such Holder, controlling person or underwriter and
stated to be specifically for use therein. Further, to the extent permitted by
law, the Company will reimburse each such Holder, each of its officers and
directors, and each person controlling such Holder, each such underwriter and
each person who controls any such underwriter, for any legal and any other
expenses reasonably incurred in connection with investigating, preparing or
defending any such claim, loss, damage, liability or action, provided that the
Company will not be liable in any such case to the extent that any such claim,
loss, damage, liability or expense arises out of or is based on any untrue
statement or omission or alleged untrue statement or omission, made in reliance
upon and in conformity with written information furnished to the Company by an
instrument duly executed by such Holder, controlling person or underwriter and
stated to be specifically for use therein.
(b) To the extent permitted by law, each Holder will, if
Registrable Securities held by such Holder are included in the securities as to
which such registration, qualification or compliance is being effected,
indemnify the Company, each of its directors and officers, each underwriter, if
any, of the Company's securities covered by such a registration statement, each
person who controls the Company or such underwriter within the meaning of
Section 15 of the Securities Act, and each other such Holder, each of its
officers and directors and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, against all claims, losses, damages
and liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any such registration statement, prospectus, offering circular or other
document, or any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading. To the extent permitted by law, each Holder will, if Registrable
Securities held by such Holder are included in the securities as to which such
registration, qualification or compliance is being effected, reimburse the
Company, such Holders, such directors, officers, persons, underwriters or
control persons for any legal or any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability or action, in each case to the extent, but only to the extent, that
such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Company by an instrument duly executed by such Holder and
stated to be specifically for use therein. Notwithstanding the foregoing, the
liability of each Holder under this subsection (b) shall be limited in an amount
equal to the public offering price of the shares sold by such Holder.
(c) Each party entitled to indemnification under this
Section 2.7 (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall
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14
not unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 2 unless the failure to
give such notice is materially prejudicial to an Indemnifying Party's ability to
defend such action and provided further, that the Indemnifying Party shall not
assume the defense for matters as to which there is a conflict of interest or
separate and different defenses. No Indemnifying Party, in the defense of any
such claim or litigation, shall, except with the consent of each Indemnified
Party, consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
to such claim or litigation. No Indemnified Party shall consent to entry of any
judgment or enter into any settlement without the consent of each Indemnifying
Party, which consent shall not be unreasonably withheld.
(d) Each Holder agrees that in the event the Company enters
into an underwriting agreement in connection with a registration under Section
2.1, 2.2 or 2.3, which contains indemnification provisions, such indemnification
provisions shall supersede in all respects the provisions of Sections 2.7(a),
2.7(b) and 2.7(c) hereof.
2.8 INFORMATION BY HOLDER. The Holder or Holders of Registrable
Securities included in any registration shall furnish to the Company such
information regarding such Holder or Holders, the Registrable Securities held by
them and the distribution proposed by such Holder or Holders as the Company may
reasonably request in writing and as shall be reasonably required in connection
with any registration, qualification or compliance referred to in this Section
2.
2.9 RULE 144 REPORTING. With a view to making available the benefits
of certain rules and regulations of the Commission which may at any time permit
the sale of the Restricted Securities to the public without registration, after
such time as a public market exists for the Common Stock of the Company, the
Company agrees to use its best efforts to:
(a) Make and keep public information available, as those
terms are understood and defined in Rule 144 under the Securities Act, at all
times after the effective date that the Company becomes subject to the reporting
requirements of the Securities Act or the Securities Exchange Act of 1934, as
amended.
(b) File with the Commission in a timely manner all reports
and other documents required of the Company under the Securities Act and the
Securities Exchange Act of 1934, as amended (at any time after it has become
subject to such reporting requirements).
(c) So long as a Holder owns any Restricted Securities, to
furnish to the Holder forthwith upon request a written statement by the Company
as to its compliance with the reporting requirements of said Rule 144 (at any
time after ninety (90) days after the effective date of the first registration
statement filed by the Company for an offering of its securities to the general
public), and of the Securities Act and the Securities Exchange Act of 1934 (at
any time after it has become subject to such reporting requirements), a copy of
the most recent annual or quarterly report of the Company,
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15
and 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 in availing itself of any rule or regulation of the Commission allowing
a Holder to sell any such securities without registration.
2.10 TRANSFER OF REGISTRATION RIGHTS. The rights to cause the Company
to register securities granted Holders under Sections 2.1, 2.2 and 2.3 may be
assigned to a transferee or assignee, reasonably acceptable to the Company, in
connection with any transfer or assignment of Registrable Securities by a Holder
provided that: (i) such transfer may otherwise be effected in accordance with
applicable securities laws and (ii) such assignee or transferee acquires the
lesser of 200,000 shares of Registrable Securities (appropriately adjusted for
stock splits, combinations, recapitalizations and the like) or all of the shares
of Registrable Securities held by a Holder . Notwithstanding the foregoing, the
rights to cause the Company to register securities may be assigned to any
constituent partner, or retired partner, or to the estate of any of its partners
or retired partners of a Holder, without compliance with item (ii) above,
provided written notice thereof is promptly given to the Company.
2.11 STAND-OFF AGREEMENT. Each Holder agrees, in connection with the
initial public offering of the Company's securities and upon request of the
Company or the underwriters managing any underwritten offering of the Company's
securities, to 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) or other securities of the Company without
the prior written consent of the Company or such underwriters, as the case may
be, for such period of time (not to exceed one hundred eighty (180) days) from
the effective date of such registration as may be reasonably requested by the
underwriters and to enter into an agreement with the underwriter, which
agreement shall be in form and substance satisfactory to such underwriter, not
to sell, make any short sale of, loan, grant any option for the purchase of, or
otherwise dispose of any Registrable Securities (other than those included in
the registration) or other securities of the Company without the prior written
consent of the Company or such underwriters, as the case may be, for such period
of time (not to exceed one hundred eighty (180) days) from the effective date of
such registration as may be reasonably requested by the underwriters; provided,
however, that all other holders of one percent (1%) or more of the Company's
outstanding securities and the officers and directors of the Company who own
securities of the Company also agree to substantially the same such
restrictions. The shares held by all constituent partners of any entity holding
registration rights hereunder shall be aggregated in determining whether such
one percent (1%) threshold is met, and all such constituent partners shall be
bound by this stand-off agreement.
2.12 TERMINATION OF REGISTRATION RIGHTS. The Registration Rights
granted in this Section 2 shall terminate five (5) years from the date the
Company consummates an initial public offering.
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SECTION 3
Restrictions on Transferability of Securities;
Compliance with Securities Act; Registration Rights
3.1 RESTRICTIONS ON TRANSFER. The Preferred Stock will be subject to
the restrictions on transfers set forth in Section 3 hereof. Holders will cause
any proposed transferee of the Shares held by such Holder to agree to take and
hold such securities subject to the provisions and upon the conditions specified
in this Section 3.
3.2 RESTRICTIVE LEGEND. Each certificate representing (i) the Shares
purchased, (ii) shares of Conversion Stock and (iii) any other securities issued
in respect of the Preferred Stock or the Conversion Stock upon any Stock split,
Stock dividend, recapitalization, merger, consolidation or similar event, shall
be (unless otherwise permitted by the provisions of Section 3.3 below) stamped
or otherwise imprinted with a legend in substantially the following form (in
addition to any legend required under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT. COPIES OF THE
AGREEMENT RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT NO COST BY
WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE
SECRETARY OF THE CORPORATION AT THE PRINCIPAL OFFICE OF THE CORPORATION.
3.3 NOTICE OF PROPOSED TRANSFERS. The holder of each certificate
representing Preferred Stock or Conversion Stock by acceptance thereof agrees to
comply in all respects with the provisions of this Section 3.3. Prior to any
proposed transfer of any Preferred Stock or Conversion Stock unless there is in
effect a registration statement under the Securities Act covering the proposed
transfer, the holder thereof shall give written notice to the Company of such
holder's intention to effect such transfer. Each such notice shall describe the
manner and circumstances of the proposed transfer in sufficient detail, and
shall be accompanied (except in transactions in compliance with Rule 144) by
either (i) an unqualified written opinion of legal counsel who shall be
reasonably satisfactory to the Company addressed to the Company and reasonably
satisfactory in form and substance to the Company's counsel, to the effect that
the proposed transfer of the Preferred Stock may be effected without
registration under the Securities Act, or (ii) a "no action" letter from the
Securities and Exchange Commission (the "Commission") to the effect that the
distribution of such securities without registration will not result in a
recommendation by the staff of the Commission that action be taken with respect
thereto, whereupon the holder of such Preferred Stock or Conversion Shares shall
be entitled to transfer such Preferred Stock in accordance with the terms of the
notice delivered by the holder to the Company. Each certificate evidencing the
Preferred Stock or Conversion Stock transferred as above provided shall bear the
appropriate restrictive legend set forth in Section 3.2 above, except that such
certificate shall not bear such restrictive legend if in the opinion of counsel
for the Company such legend is not required in order
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17
to establish compliance with any provisions of the Securities Act.
Notwithstanding the foregoing, any Preferred Stock or Conversion Stock may be
transferred to any constituent partner, or retired partner, or to the estate of
any of its partners or retired partners of a Holder, without compliance with
this Section 3.3, provided however, that each certificate evidencing the
Preferred Stock or Conversion Stock transferred as above provided shall bear the
appropriate restrictive legend set forth in Section 3.2 above, except that such
certificate shall not bear such restrictive legend if in the opinion of counsel
for the Company such legend is not required in order to establish compliance
with any provisions of the Securities Act.
SECTION 4
Affirmative Covenants of the Company
The Company hereby covenants and agrees as follows:
4.1 FINANCIAL INFORMATION. As long as a Holder is a holder of at
least 1,000,000 shares of the Preferred Stock or the Conversion Stock or a
combination thereof (as appropriately adjusted for all stock splits, dividends,
subdivisions, combinations, recapitalizations and the like), the Company will
mail to each such Holder:
(a) As soon as practicable after the end of each fiscal
year, and in any event within ninety (90) days thereafter, consolidated balance
sheets of the Company and its subsidiaries, if any, as of the end of such fiscal
year, and consolidated statements of income and consolidated statements of
changes in financial position of the Company and its subsidiaries, if any, for
such year, prepared in accordance with generally accepted accounting principles
and setting forth in each case in comparative form the figures for the previous
fiscal year (or, at the election of the Company, setting forth in comparative
form the budgeted figures for the current fiscal year), all in reasonable detail
and audited by independent public accountants of national standing selected by
the Company and approved by the Board of Directors.
(b) As soon as practicable after the end of the first,
second and third quarterly accounting periods in each fiscal year of the Company
and in any event within forty-five (45) days thereafter, a consolidated balance
sheet of the Company and its subsidiaries, if any, as of the end of each such
quarterly period, and consolidated statements of income and consolidated
statements of changes in financial condition of the Company and its subsidiaries
for such period and for the current fiscal year to date, prepared in accordance
with generally accepted accounting principles (other than for accompanying
notes), subject to changes resulting from year-end audit adjustments, all in
reasonable detail and signed by the principal financial or accounting officer of
the Company.
4.2 ADDITIONAL INFORMATION. As long as a Holder holds not less than
1,000,000 shares of Preferred Stock or Conversion Stock or a combination thereof
(as appropriately adjusted for all stock splits, dividends, subdivisions,
combinations, recapitalizations and the like), the Company will deliver or
provide to such Holder (i) as soon as practicable after the end of each month
and in any event within
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twenty (20) business days thereafter, an unaudited consolidated balance sheet
and statement of income of the Company and its subsidiaries, showing comparative
data against the Company's annual financial business plan, (ii) an annual
financial and business plan for the Company as soon as it is available and in
any event within ninety (90) days after the commencement of each fiscal year,
(iii) written notice of any transaction or other event which, in the opinion of
the officers of the Company, may have a material effect on the financial or
business condition of the Company and (iv) with reasonable promptness, such
other information and data, including access to books and records of the Company
and its subsidiaries, as any such holder may from time to time reasonably
request; provided, however, that the Company shall not be obligated to provide
any information that it considers in good faith to be a trade secret or to
contain confidential information, or any information that is classified by any
government agency. For the purposes of meeting the minimum number of shares
required by this Section 4.2, shares held by any constituent partner or
affiliated person or entity of a Holder shall be deemed to be held by such
Holder; provided, however, that the Company can satisfy its obligations pursuant
to this Section 4.2 (or pursuant to Section 4.3 below), to any such Holder who
would not meet the required minimum number of shares absent the aggregation of
share holdings permitted by this sentence, by providing the information required
by this Section 4.2 (or the rights of inspection established by Section 4.3) to
a representative of each set of constituent partners and affiliated persons and
entities who so aggregate share holdings.
4.3 RIGHTS OF INSPECTION. For so long as a Holder is eligible to
receive reports under Section 4.2, it shall also have the right, at its expense,
to visit and inspect any of the properties of the Company or any of its
subsidiaries and to discuss their affairs, finances and accounts with their
officers, all at such reasonable times and as often as may be reasonably
requested; provided that the Company or any subsidiary shall not be required at
any time to disclose any manufacturing or trade secret or secret process or
other data the disclosure of which the Company reasonably believes may adversely
affect its business, and provided, further, that the Company or any subsidiary
shall not be required at any time to disclose any customer data to any Holder
engaged in a business reasonably similar to the business in which the Company or
any of its subsidiaries is engaged at such time, and provided, further, that the
Company or any subsidiary shall not be required at any time to disclose any
information or data that is classified by any governmental agency.
4.4 ASSIGNMENT OF RIGHTS TO FINANCIAL INFORMATION. The rights
granted pursuant to Sections 4.1, 4.2 and 4.3 may not be assigned or otherwise
conveyed by any Holder or by any subsequent transferee of any such rights
without the prior written consent of the Company; provided, however, that any
Holder may assign such rights, after giving notice to the Company, to any
transferee, who acquires at least 1,000,000 shares of Preferred Stock,
Conversion Stock or a combination thereof (as appropriately adjusted for all
stock splits, dividends, subdivisions, combinations, recapitalizations and the
like) provided such transferee is not (1) a competitor of the Company or (2) a
company engaged in a reasonably similar business.
4.5 BOARD OF DIRECTORS.
(a) For so long as Dynamics Technology, Inc. holds not less
than 250,000 shares, of the Company's Series C Preferred or Conversion Stock or
a combination thereof (adjusted for stock splits, dividends, subdivisions,
combinations, recapitalizations and the like), the Company shall use its
15
19
best efforts to cause the representative designated by the Series C Holders to
be nominated for election to the Company's Board of Directors at each meeting of
shareholders at which directors are elected.
(b) The Holders (other than the Holders of the Series E
Preferred Stock) and the Company shall use their best efforts to cause the Chief
Executive Officer of the Company to be elected to serve as a member of the
Company's Board of Directors at each meeting of shareholders at which directors
are elected.
4.6 MARKET STANDOFF AGREEMENTS. The Company will require that all
current and future purchasers of the Company Common Stock or Preferred Stock
will execute a market standoff agreement with terms substantially similar to the
provisions of Section 2.11 hereof.
4.7 TERMINATION OF COVENANTS. The covenants set forth in Sections
4.1, 4.2, 4.3, 4.4, 4.5 and 4.6 shall terminate and be of no further force or
effect at such time as the Company becomes subject to the reporting requirements
of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended.
SECTION 5
Miscellaneous
5.1 GOVERNING LAW. This Agreement shall be governed in all respects
by the internal laws of the State of California.
5.2 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
5.3 ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the full
and entire understanding and agreement between the parties with regard to the
subjects hereof and thereof, and no party shall be liable or bound to any other
party in any manner by any warranties, representations or covenants except as
specifically set forth herein or therein. Except as expressly provided herein,
neither this Agreement nor any term hereof may be amended, waived, discharged or
terminated other than by a written instrument signed by the party against whom
enforcement of any such amendment, waiver, discharge or termination is sought;
provided, however, that holders of a majority of the Registrable Securities may,
with the Company's prior written consent, waive, modify, amend or terminate on
behalf of all holders, this Agreement or any terms or provisions hereof.
5.4 PRIOR AGREEMENT; WAIVER AND TERMINATION. This Agreement
supersedes and replaces the Prior Registration Rights Agreement in its entirety,
and such Prior Registration Rights Agreement shall be of no further force or
effect upon execution of this Agreement by the Company and the Holders, subject
to limitations on termination for each Prior Holder set forth in Section 5.3 of
the Prior Registration Rights Agreement.
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5.5 NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, or otherwise delivered by hand or by messenger,
addressed (a) if to any other holder of any Registrable Securities, at such
address as such holder shall have furnished the Company in writing, or, until
any such holder so furnishes an address to the Company, then to and at the
address of the last Holder of such shares who has so furnished an address to the
Company or (b) if to the Company, one copy should be sent to its address set
forth above and addressed to the attention of the Corporate Secretary, or at
such other address as the Company shall have furnished to the holders of
Registrable Securities.
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective or having been given (a) when delivered if
delivered personally or by messenger, or, (b) if sent by mail, at the earlier of
its receipt or seventy-two (72) hours after the same has been deposited in a
regularly maintained receptacle for the deposit of the United States mail,
addressed and mailed as aforesaid.
5.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which may be executed by less than all parties to this
Agreement, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
5.7 SEVERABILITY. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision.
5.8 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not considered in construing or
interpreting this Agreement.
5.9 SHARE NUMBERS. All share numbers stated herein reflect the
two-for-one stock split effected by the Company in May 1997.
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The foregoing agreement is hereby executed as of the date first above
written.
"COMPANY"
GADZOOX NETWORKS, INC.
a Delaware corporation
By:__________________________________________
Title:_______________________________________
"HOLDERS"
PREFERRED STOCKHOLDERS:
The ▇▇▇▇▇ ▇▇▇-▇▇▇ ▇▇▇▇▇ Trust
By:__________________________________________
Its:_________________________________________
The ▇▇▇▇▇▇▇ Minhall ▇▇▇▇▇ Trust
By:__________________________________________
Title:_______________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ TTEES FBO ▇▇▇▇▇▇
Revocable Trust U/A dtd 2/9/90
By:__________________________________________
Its:_________________________________________
▇▇▇▇ ▇▇▇ & Lily ▇▇▇ ▇▇▇, TTEES
▇▇▇▇ & ▇▇▇▇ ▇▇▇ Family Trust
U/A/D 11/8/89
By:__________________________________________
Its:_________________________________________
[Signature page - Registration and Information Rights Agreement]
22
TransCorp Pension Service
Incorporated ▇▇▇ Cust FBO
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ A/C #IRZ-6132-OT
By:__________________________________________
Its:_________________________________________
_____________________________________________
▇▇▇ ▇▇▇ and Yeelean ▇▇▇
Dynamics Technology, Inc.
By:__________________________________________
Its:_________________________________________
▇▇▇▇ ▇▇▇▇▇▇, TTEE of the Avalon
Capital Corporation Defined Benefit
Pension Plan
By:__________________________________________
Its:_________________________________________
▇▇▇▇ ▇▇▇▇▇▇, TTEE of the ▇▇▇▇ ▇. and ▇▇▇▇▇ ▇.
▇▇▇▇▇▇ Family Trust, U/T/D dtd 2/12/87
By:__________________________________________
Its:_________________________________________
_____________________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
_____________________________________________
▇▇▇▇▇▇ ▇▇▇▇▇
[Signature page - Registration and Information Rights Agreement]
23
▇▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇ and ▇▇▇▇▇▇
▇▇▇▇▇ ▇'▇▇▇▇▇, TTEES of the O'Brien
Family Trust, U/D/T 7/1/92
By:__________________________________________
Its:_________________________________________
WS Investment Co. 95B
By:__________________________________________
Its:_________________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, TTEE of the ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ Trust, U/D/T dtd 8/15/95
By:__________________________________________
Its:_________________________________________
_____________________________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇, TTEE, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ & Associates PSMPP U/A
dtd 7/07/71
By:__________________________________________
Its:_________________________________________
_____________________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
[Signature page - Registration and Information Rights Agreement]
24
New Enterprise Associates VI,
Limited Partnership
By: NEA Partners VI, General Partner
Its General Partner
_____________________________________________
NEA Presidents Fund, L.P.
By: NEA Partners VI, General Partner
Its General Partner
_____________________________________________
NEA Ventures 1996, L.P.
By:__________________________________________
Its: Vice President
-----------------------------------------
ONSET Enterprise Associates II, L.P.
By:__________________________________________
Its:_________________________________________
▇▇▇▇▇ ▇. ▇▇▇ & ▇▇▇▇▇▇▇ ▇. ▇▇▇,
TTEES for their Trust dtd 10/4/83
By:__________________________________________
Its:_________________________________________
_____________________________________________
Yunni Pao
[Signature page - Registration and Information Rights Agreement]
25
SEAGATE TECHNOLOGY, INC.
By:__________________________________________
Its:_________________________________________
3COM CORPORATION
By:__________________________________________
Its:_________________________________________
[Signature page - Registration and Information Rights Agreement]
26
GADZOOK NETWORKS, INC.
SHARES SUBJECT TO REGISTRATION RIGHTS
COMMON SERIES A SERIES B SERIES C SERIES D
STOCK
------ -------- -------- -------- --------
3 Com Corporation
The Savage/Black Living Trust 1,482,964
▇▇▇▇▇ ▇▇▇-▇▇▇ ▇▇▇▇▇ Trust 180,000 220,000 111,000 89,000
▇▇▇▇▇▇ ▇▇▇▇▇ 946,388
▇▇▇▇▇▇▇ Minhall ▇▇▇▇▇ Trust 180,000 220,000 111,000 89,000
▇▇▇▇▇ ▇▇▇ 223,400
Dynamics Technology, Inc. 909,090 670,116
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Trust 28,506
▇▇▇▇ & ▇▇▇▇ ▇▇▇ Family Trust 100,000 132,000 45,454 90,676
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Associates 10,000
Kensey Family Trust 91,818 202,702
▇▇▇▇ ▇▇▇▇▇▇, Avalon Capital
▇▇▇ ▇▇▇ and Yeelean ▇▇▇ 90,910 137,090
▇▇▇▇▇▇ Revocable Trust 17,416
NEA Presidents Fund
New Enterprise Associates
NEA Ventures 1996, L.P.
O'Brien Family Trust 7,538
Onset Enterprise Associates
▇▇▇▇▇ ▇. ▇▇▇
Yunni Pao
Seagate Technology 184,600 90,000 252,784
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ Silvfast 45,454 33,784
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 960,000
Transcorp Pension 174,000 123,800
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 154,090
WS Investment Co. 18,244
Total 3,026,364 742,016 528,000 1,450,726 2,675,718
SERIES E SERIES F SERIES G SERIES H TOTAL
-------- -------- -------- -------- -----
3 Com Corporation 784,314 784,314
The Savage/Black Living Trust 1,482,964
▇▇▇▇▇ ▇▇▇-▇▇▇ ▇▇▇▇▇ Trust 600,000
▇▇▇▇▇▇ ▇▇▇▇▇ 277,778 1,224,166
▇▇▇▇▇▇▇ Minhall ▇▇▇▇▇ Trust 600,000
▇▇▇▇▇ ▇▇▇ 223,400
Dynamics Technology, Inc. 1,579,206
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Trust 28,506
▇▇▇▇ & ▇▇▇▇ ▇▇▇ Family Trust 55,556 423,686
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Associates 11,112 21,112
Kensey Family Trust 45,000 339,520
▇▇▇▇ ▇▇▇▇▇▇, Avalon Capital 15,000 15,000
▇▇▇ ▇▇▇ and Yeelean ▇▇▇ 228,000
▇▇▇▇▇▇ Revocable Trust 121,000 136,416
NEA Presidents Fund 41,666 41,666
New Enterprise Associates 1,944,446 1,944,446
NEA Ventures 1996, L.P. 2,778 2,778
O'Brien Family Trust 5,556 13,094
Onset Enterprise Associates 1,388,888 1,388,888
▇▇▇▇▇ ▇. ▇▇▇ 138,890 138,890
Yunni Pao 33,890 33,890
Seagate Technology 333,106 2,092,234 895,263 3,847,987
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 15,238 15,238
▇▇▇▇▇ Silvfast 79,238
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 960,000
Transcorp Pension 297,800
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 2,000 156,090
WS Investment Co. 18,244
Total 4,431,904 2,092,234 895,263 784,314 16,626,539
