EXHIBIT 4.02
SIXTH AMENDED AND RESTATED RIGHTS AGREEMENT
THIS SIXTH AMENDED AND RESTATED RIGHTS AGREEMENT (this "AGREEMENT") is
entered into as of the 13th day of July 2001, by and among FormFactor, Inc., a
Delaware corporation (the "COMPANY"), Xxxx Xxxxxxxx (the "FOUNDER"), the
purchasers of the Company's originally designated Series A Preferred Stock
issued under the Purchase Agreement (such purchasers being the "ORIGINAL
INVESTORS"), the holders of the Series B Warrants (such holders being the
"SERIES B WARRANTHOLDERS"), the holders of the Company's Series C Preferred
Stock issued under the Series C Agreement (such holders being the "SERIES C
INVESTORS"), the holders of the Company's Series D Preferred Stock issued under
the Series D Agreement and of the Company's Series D Preferred Stock issued upon
exercise of the Series D Warrant (such holders being the "SERIES D INVESTORS"),
the holders of the Company's Series E Preferred Stock issued under the Series E
Agreement and of the Series E Warrants (such holders being the "SERIES E
INVESTORS"), the holders of the Company's Series F Preferred Stock issued under
the Series F Agreement and of the Series F Warrant (such holders being the
"SERIES F Investors"), the purchasers of the Company's Series G Preferred Stock
issued under the Series G Agreement listed on Exhibit A attached hereto (such
purchasers being the "SERIES G INVESTORS", and collectively with the Series F
Investors, the Series E Investors, the Series D Investors, the Series C
Investors, the Series B Warrantholders and the Original Investors, the
"INVESTORS") and the holder of the Imperial Bank Warrant, with reference to the
following:
WHEREAS, the Company and the Original Investors entered into a Series A
Preferred Stock Purchase Agreement dated April 11, 1995 (the "PURCHASE
AGREEMENT"), pursuant to which the Company sold and the Original Investors
acquired shares of the Company's Series A Preferred Stock (currently,
redesignated as Series B Preferred Stock). The Company has granted the Series B
Warrantholders rights under warrants dated April 12, 1996 (the "SERIES B
WARRANTS") to purchase shares of Series B Preferred Stock of the Company. The
Company and the Series C Investors entered into a Series C Preferred Stock
Purchase Agreement dated May 17, 1996 (the "SERIES C AGREEMENT"), pursuant to
which the Company sold and the Series C Investors acquired shares of the
Company's Series C Preferred Stock. The Company and the Series D Investors
entered into a Series D Preferred Stock Purchase Agreement dated April 11, 1997
(the "SERIES D AGREEMENT"), pursuant to which the Company sold and the Series D
Investors acquired shares of the Company's Series D Preferred Stock. The Company
issued a warrant dated June 30, 1997 to Imperial Bank (as amended, the "IMPERIAL
BANK WARRANT") to purchase a total of 14,212 shares of the Company's Series D
Preferred Stock. The Company issued a warrant to purchase shares of the
Company's Series D Preferred Stock (the "SERIES D Warrant") pursuant to a
Warrant Purchase Agreement dated August 7, 1997, upon exercise of which the
Company issued and one of the Series D Investors acquired 326,545 shares of the
Company's Series D Preferred Stock. The Company and the Series E Investors
entered into a Series E Preferred Stock Purchase Agreement dated July 30, 1999
(the "SERIES E AGREEMENT"), pursuant to which the Company sold and the Series E
Investors acquired shares of the Company's Series E Preferred Stock. The Company
issued warrants dated July 30, 1999 to purchase a total of 133,332 shares of
Series E Preferred Stock to certain Series E Investors which are business
partners or licensees of the Company (the "SERIES E WARRANTS"). The Company and
the Series F Investors entered into a Series F Preferred Stock Purchase
Agreement dated September 22, 2000 (the "SERIES F AGREEMENT"), pursuant to which
the Company sold and the Series F Investors acquired shares of the Company's
Series F Preferred Stock. Additionally, the
Company issued a warrant dated September 22, 2000 to purchase a total of 45,500
shares of Series F Preferred Stock to a certain Series F Investor (the "SERIES F
WARRANT"). The Company and the Series G Investors are entering into a Series G
Preferred Stock Purchase Agreement dated of even date herewith (the "SERIES G
AGREEMENT"), pursuant to which the Company will sell and the Series G Investors
will acquire shares of the Company's Series G Preferred Stock. The shares of
Series G Preferred Stock issued under the Series G Agreement, the shares of
Series F Preferred Stock issued under the Series F Agreement, the shares of
Series F Preferred Stock issuable upon exercise of the Series F Warrant, the
shares of Series E Preferred Stock issued under the Series E Agreement, the
shares of Series E Preferred Stock issuable upon exercise of the Series E
Warrants, the shares of Series D Preferred Stock issued under the Series D
Agreement, the shares of Series D Preferred Stock issuable upon exercise of the
Series D Warrant, the shares of Series D Preferred Stock issuable upon exercise
of the Imperial Bank Warrant, the shares of Series C Preferred Stock issued
under the Series C Agreement, the shares of Series B Preferred Stock issued (as
Series A Preferred Stock) under the Purchase Agreement and the shares of Series
B Preferred Stock issuable upon exercise of the Series B Warrants, shall be
collectively referred to as the "SHARES;"
WHEREAS, the parties desire that the Investors be granted certain
registration and other rights pursuant to the terms and conditions of this
Agreement;
NOW THEREFORE, the parties agree as follows:
l. Termination of Prior Rights. Upon execution of this Agreement by the
Company and the Investors, the Fifth Amended and Restated Rights Agreement dated
as of September 22, 2000 between the Company, the Founder, the Original
Investors, the Series C Investors, the Series B Warrantholders, the Series D
Investors, the Series E Investors and the Series F Investors shall be
terminated, be of no further force and effect and shall, in all respects, be
superseded by the provisions of this Agreement.
2. Restrictions on Transferability. The Shares and the Common Stock of
the Company ("COMMON STOCK") issuable upon conversion of the Shares shall not be
sold, assigned, transferred or pledged except upon conditions specified in the
Series G Agreement, which conditions are intended to ensure compliance with the
provisions of the Securities Act of 1933, as amended (the "SECURITIES ACT").
Each Investor will cause any proposed purchaser, assignee, transferee or pledgee
of the Shares to agree to take and hold such securities subject to the
provisions specified in this Agreement.
3. Registration Rights.
3.1 Definitions. As used in this Agreement:
(a) The terms "REGISTER," "REGISTERED," and "REGISTRATION" refer
to a registration effected by preparing and filing a registration statement in
compliance with the Securities Act and the subsequent declaration or ordering of
the effectiveness of such registration statement.
(b) The term "REGISTRABLE SECURITIES" means (i) the shares of
Common Stock issuable or issued upon conversion of the Shares, and (ii) any
other shares of Common
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Stock issued as (or issuable upon the conversion or exercise of any warrant,
right or other security which is issued as) a dividend or other distribution
with respect to, or in exchange for or in replacement of, the Shares, excluding
in all cases, however, any Registrable Securities sold by a person in a
transaction in which his or her rights under this Agreement are not assigned;
provided, however, that Common Stock or other securities shall only be treated
as Registrable Securities if and so long as they have not been (A) sold to or
through a broker, dealer or underwriter in a public distribution or a public
securities transaction, or (B) sold in a transaction exempt from the
registration and prospectus delivery requirements of Section 4(1) of the
Securities Act so that all transfer restrictions, and restrictive legends with
respect thereto, if any, are removed upon the consummation of such sale.
(c) The number of shares of "REGISTRABLE SECURITIES THEN
OUTSTANDING" shall be determined by the number of shares of Common Stock
outstanding which are, and the number of shares of Common Stock issuable
pursuant to then exercisable or convertible securities which are, Registrable
Securities.
(d) The term "HOLDER" means any holder of outstanding Registrable
Securities who acquired such Registrable Securities in a transaction or series
of transactions not involving any registered public offering.
(e) The term "FORM S-3" means such form under the Securities Act
as in effect on the date hereof or any registration form under the Securities
Act subsequently adopted by the Securities and Exchange Commission (the "SEC")
which permits inclusion or incorporation of substantial information by reference
to other documents filed by the Company with the SEC.
3.2 Requested Registration.
(a) If the Company shall receive at any time after the earlier to
occur of December 31, 2002 and one hundred eighty (180) days after the effective
date of the Company's initial public offering, a written request from the
Holders of forty percent (40%) of the Registrable Securities then outstanding
that the Company file a registration statement under the Securities Act covering
Registrable Securities then outstanding, then the Company shall, within ten (10)
days of the receipt thereof, give written notice of such request to all Holders
and shall, subject to the limitations of this Section 3.2, effect as soon as
practicable, and in any event within ninety (90) days of the receipt of such
request, the registration under the Securities Act of all Registrable Securities
which the Holders requested to be registered within twenty (20) days of the
giving of such notice by the Company in accordance with Section 5.6 hereof;
provided, however, that the Registrable Securities requested by all Holders to
be registered pursuant to such request must have an anticipated aggregate public
offering price (before any underwriting discounts and commissions) of not less
than $10,000,000.
(b) If the Holders initiating the registration request hereunder
(the "INITIATING Holders") intend to distribute the Registrable Securities
covered by their request by means of an underwriting they shall so advise the
Company as a part of their request made pursuant to this Section 3.2 and the
Company shall include such information in the written notice referred to in
Subsection 3.2(a) hereof. In such event, the right of any Holder to include its
Registrable Securities in such registration shall be conditioned upon such
Holder's participation
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in such underwriting and the inclusion of such Holder's Registrable Securities
in the underwriting (unless otherwise mutually agreed by a majority in interest
of the Initiating Holders and such Holder) to the extent provided herein. All
Holders proposing to distribute their securities through such underwriting shall
(together with the Company as provided in Subsection 3.4(e) hereof) enter into
an underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by a majority in interest of the Initiating
Holders. Notwithstanding any other provision of this Section 3.2, if the
underwriter advises the Initiating Holders in writing that it requires a
limitation of the number of shares to be underwritten, then the Initiating
Holders shall so advise all Holders of Registrable Securities which would
otherwise be underwritten pursuant hereto, and the number of shares of
Registrable Securities that may be included in the underwriting shall be
allocated among all Holders thereof, including the Initiating Holders, in
proportion (as nearly as practicable) to the amount of Registrable Securities of
the Company owned by each Holder.
(c) The Company is obligated to effect only two (2) such
registrations pursuant to this Section 3.2.
(d) Notwithstanding the foregoing, if the Company shall furnish
to Holders requesting a registration pursuant to this Section 3.2, a certificate
signed by the president of the Company stating that in the good faith judgment
of the board of directors of the Company (the "BOARD OF DIRECTORS"), it would be
materially detrimental to the Company and its stockholders for such registration
statement to be filed and it is therefore reasonable to defer the filing of such
registration statement, the Company shall have the right to defer such filing
for a period of not more than one hundred twenty (120) days after receipt of the
request of the Initiating Holders; provided, however, that the Company may not
utilize this right more than once in any twelve (12) month period.
(e) If at the time of the request to register Registrable
Securities the Company gives notice within thirty (30) days of such request that
it intends to initiate a firm underwritten registered initial public offering
within forty-five (45) days of the time of the request, in which offering the
Holders may include Registrable Securities pursuant to Sections 3.2 or 3.3
hereof, then the Company shall have the right to defer such filing provided that
it makes such filing within such forty-five (45) day period.
3.3 Company Registration. If (but without any obligation to do so)
the Company proposes to register (including for this purpose a registration
effected by the Company for stockholders other than the Holders) any of its
Common Stock or other securities under the Securities Act in connection with the
public offering of such securities solely for cash (other than a registration
relating either to the sale of securities to participants in a Company stock
option, stock purchase or similar plan or to a SEC Rule 145 transaction), the
Company shall, at such time, promptly give each Holder written notice of such
registration. Upon the written request of each Holder given within twenty (20)
days after giving of such notice by the Company in accordance with Section 5.6
hereof, the Company shall, subject to the provisions of Section 3.8 hereof,
cause to be registered under the Securities Act all of the Registrable
Securities that each such Holder has requested to be registered.
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3.4 Obligations of the Company. Whenever required under this Section
3 to effect the registration of any Registrable Securities, the Company shall,
as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective and, upon the request of the Holders
of a majority of the Registrable Securities registered thereunder, keep such
registration statement effective for up to one hundred twenty (120) days.
(b) Prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or blue sky
laws of such jurisdictions as shall be reasonably requested by the Holders,
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
(g) Furnish, at the request of any Holder requesting registration
of Registrable Securities pursuant to this Section 3, on the date that such
Registrable Securities are delivered to the underwriters for sale in connection
with a registration pursuant to this Section 3, if such securities are being
sold through underwriters, or if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective: (i) an opinion, dated such date, of the counsel
representing the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities and (ii) a letter dated such date, from
the independent certified public accountants of the Company, in form and
substance as is
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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.
3.5 Furnish Information. The Holder or Holders of Registrable
Securities included in any registration shall furnish to the Company such
information regarding itself, the Registrable Securities held by it, and the
intended method of disposition of such securities as shall be required to effect
the registration of such Holder's Registrable Securities.
3.6 Expenses of Demand Registration. All expenses other than
underwriting discounts, commissions incurred in connection with registrations,
filings or qualifications pursuant to Section 3.2 hereof, including (without
limitation) all registration, filing and qualification fees, printers and
accounting fees, the fees and disbursements of counsel for the Company and the
reasonable fees and expenses of one special counsel of the selling stockholders
(provided, however that the maximum expense of such special counsel which the
Company shall be obligated to pay shall be $25,000) shall be borne by the
Company; provided, however, that the Company shall not be required to pay for
any expenses of any registration proceeding begun pursuant to Section 3.2 hereof
if the registration request is subsequently withdrawn at the request of the
Holders of a majority of the Registrable Securities to be registered (in which
case all participating Holders shall bear such expenses), unless the Holders of
a majority of the Registrable Securities agree to forfeit their right to one
demand registration pursuant to Section 3.2 hereof; provided further, however,
that if at the time of such withdrawal, the Holders have learned of a material
adverse change in the condition, business, or prospects of the Company from that
known to the Holders at the time of their request, then the Holders shall not be
required to pay any such expenses and shall retain their rights pursuant to
Section 3.2 hereof.
3.7 Expenses of Company Registration. The Company shall bear and pay
all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
pursuant to Section 3.3 hereof for each Holder (which right may be assigned as
provided in Section 3.13 hereof), including (without limitation) all
registration, filing, and qualification fees, printers, accounting fees relating
or apportionable thereto and the reasonable fees and expenses of one special
counsel of the selling stockholders (provided, however, that the maximum expense
of such special counsel which the Company shall be obligated to pay shall be
$25,000), but excluding underwriting discounts and commissions relating to the
Registrable Securities.
3.8 Underwriting Requirements. In connection with any offering
involving an underwriting of shares being issued by the Company, the Company
shall not be required under Section 3.3 hereof to include any of the Holders of
securities in such underwriting unless they accept the terms of the underwriting
as agreed upon between the Company and the underwriters selected by it, and then
only in such quantity as will not, in the opinion of the underwriters,
jeopardize the success of the offering by the Company. If the total amount of
securities, including Registrable Securities, requested by stockholders to be
included in such offering exceeds the amount of securities that the underwriters
reasonably believe is compatible with the success of the offering, then the
Company shall be required to include in the offering only that number of such
securities, including Registrable Securities, which the underwriters believe
will not jeopardize the success of the offering (the securities so included to
be apportioned pro rata
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among the selling stockholders according to the total amount of securities
entitled to be included therein owned by each selling stockholder or in such
other proportions as shall mutually be agreed to by such selling stockholders);
but in no event shall the amount of securities of all of the selling
stockholders including Holders included in the offering be reduced below
twenty-five percent (25%) of the total amount of securities included in such
offering, unless such offering is the initial public offering of the Company's
securities in which case the selling stockholders may be excluded if the
underwriters make the determination described above and no other stockholder's
securities are included. For purposes of the preceding parenthetical concerning
apportionment, for any selling stockholder which is a Holder of Registrable
Securities and which is a partnership or corporation, the partners, retired
partners and stockholders of such Holder, or the estates and family members of
any such partners and retired partners and any trusts for the benefit of any of
the foregoing persons shall be deemed to be a single "selling stockholder," and
any pro rata reduction with respect to such "selling stockholder" shall be based
upon the aggregate amount of shares carrying registration rights owned by all
entities and individuals included in such "selling stockholder," as defined in
this sentence.
3.9 Delay of Registration. No Holder shall have any right to obtain
or seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 3.
3.10 Indemnification. In the event any Registrable Securities are
included in a registration statement under this Section 3:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Holder, any underwriter (as defined in the Securities
Act) for such Holder and each person, if any, who controls such Holder or
underwriter within the meaning of the Securities Act or the Securities Exchange
Act of 1934, as amended (the "1934 ACT"), against any losses, claims, damages,
or liabilities (joint or several) to which they may become subject under the
Securities Act, the 1934 Act or other federal or state law, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereof) arise
out of or are based upon any of the following statements, omissions or
violations (each a "Violation"): (i) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Securities Act, the 1934 Act, any state
securities law or any rule or regulation promulgated under the Securities Act,
the 1934 Act or any state securities law; and the Company will pay as incurred
to each such Holder, underwriter or controlling person, any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided, however,
that the indemnity agreement contained in this Subsection 3.10(a) shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability,
or action if such settlement is effected without the consent of the Company
(which consent shall not be unreasonably withheld), nor shall the Company be
liable in any such case for any such loss, claim, damage, liability, or action
to the extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by any such Holder, underwriter or
controlling person.
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(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the Securities Act, any underwriter,
any other Holder selling securities in such registration statement and any
controlling person of any such underwriter or other Holder, against any losses,
claims, damages, or liabilities (joint or several) to which any of the foregoing
persons may become subject, under the Securities Act, the 1934 Act or other
federal or state law, insofar as such losses, claims, damages, or liabilities
(or actions in respect thereto) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by such
Holder expressly for use in connection with such registration; and each such
Holder will pay, as incurred, any legal or other expenses reasonably incurred by
any person intended to be indemnified pursuant to this Subsection 3.10(b) in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement contained
in this Subsection 3.10(b) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is effected
without the consent of the Holder, which consent shall not be unreasonably
withheld; provided that in no event shall any indemnity under this Subsection
3.10(b) exceed the proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 3.10 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 3.10, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 3.10, but the omission to deliver written
notice to the indemnifying party will not relieve it of any liability that it
may have to any indemnified party otherwise than under this Section 3.10.
(d) The foregoing indemnity agreements of the Company and
Holders are subject to the condition that, insofar as they relate to any
Violation made in a preliminary prospectus but eliminated or remedied in the
amended prospectus on file with the SEC at the time the registration statement
in question becomes effective or the amended prospectus filed with the SEC
pursuant to SEC Rule 424(b) (the "FINAL PROSPECTUS"), such indemnity agreement
shall not inure to the benefit of any person if a copy of the Final Prospectus
was furnished to the indemnified party and was not furnished to the person
asserting the loss, liability, claim or damage at or prior to the time such
action is required by the Securities Act.
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(e) In order to provide for just and equitable contribution to
joint liability under the Securities Act in any case in which either (i) any
Holder exercising rights under this Agreement, or any controlling person of any
such Holder, makes a claim for indemnification pursuant to this Section 3.10 but
it is judicially determined (by the entry of a final judgment or decree by a
court of competent jurisdiction and the expiration of time to appeal or the
denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this Section 3.10 provides
for indemnification in such case, or (ii) contribution under the Securities Act
may be required on the part of any such selling Holder or any such controlling
person in circumstances for which indemnification is provided under this Section
3.10; then, and in each such case, the Company and such Holder will contribute
to the aggregate losses, claims, damages or liabilities to which they may be
subject (after contribution from others) in such proportion so that such Holder
is responsible for the portion represented by the percentage that the public
offering price of its Registrable Securities offered by and sold under the
registration statement bears to the public offering price of all securities
offered by and sold under such registration statement, and the Company and other
selling Holders are responsible for the remaining portion; provided, however,
that, in any such case, (A) no such Holder will be required to contribute any
amount in excess of the public offering price of all such Registrable Securities
offered and sold by such Holder pursuant to such registration statement; and (B)
no person or entity guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) will be entitled to contribution from
any person or entity who was not guilty of such fraudulent misrepresentation.
(f) The obligations of the Company and the Holders under this
Section 3.10 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 3.
3.11 Reports Under 1934 Act. With a view to making available to the
Holders the benefits of SEC Rule 144 promulgated under the Securities Act and
any other rule or regulation of the SEC that may at any time permit a Holder to
sell securities of the Company to the public without registration or pursuant to
a registration on Form S-3, the Company agrees to use its best efforts to:
(a) make and keep public information available, as those terms
are understood and defined in SEC Rule 144, at all times after ninety (90) days
after the effective date of the first registration statement filed by the
Company for the offering of its securities to the general public;
(b) take such action, including the voluntary registration of
its Common Stock under Section 12 of the 1934 Act, as is necessary to enable the
Holders to utilize Form S-3 for the sale of their Registrable Securities, such
action to be taken as soon as practicable after the end of the fiscal year in
which the first registration statement filed by the Company for the offering of
its securities to the general public is declared effective;
(c) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the 1934 Act; and
(d) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied
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with the reporting requirements of SEC Rule 144 (at any time after ninety (90)
days after the effective date of the first registration statement filed by the
Company), the Securities Act and the 1934 Act (at any time after it has become
subject to such reporting requirements), or that it qualifies as a registrant
whose securities may be resold pursuant to Form S--3 (at any time after it so
qualifies), (ii) a copy of the most recent annual or quarterly report of the
Company and such other reports and documents so filed by the Company, and (iii)
such other information as may be reasonably requested in availing any Holder of
any rule or regulation of the SEC which permits the selling of any such
securities without registration or pursuant to such form.
3.12 Form S-3 Registration. In case the Company shall receive from a
Holder or Holders of Registrable Securities collectively representing not less
than one percent (1%) of the then-outstanding stock of the Company on an
as-converted to Common Stock basis, a written request or requests that the
Company effect a registration on Form S-3 and any related qualification or
compliance with respect to all or a part of the Registrable Securities owned by
such Holder or Holders, the Company will:
(a) promptly give written notice of the proposed registration,
and any related qualification or compliance, to all other Holders; and
(b) as soon as practicable, effect such registration and all
such qualifications and compliances as may be so requested and as would permit
or facilitate the sale and distribution of all or such portion of such Holder's
or Holders' Registrable Securities as are specified in such request, together
with all or such portion of the Registrable Securities of any other Holder or
Holders joining in such request as are specified in a written request given
within fifteen (15) days after receipt of such written notice from the Company;
provided, however, that the Company shall not be obligated to effect any such
registration, qualification or compliance, pursuant to this Section 3.12, (1) if
Form S-3 is not available for such offering by the Holders; (2) if the Holders,
together with the holders of any other securities of the Company entitled to
inclusion in such registration, propose to sell Registrable Securities and such
other securities (if any) at an aggregate price to the public (net of any
underwriters' discounts or commissions) of less than $1,000,000; (3) if the
Company shall furnish to the Holders a certificate signed by the president of
the Company stating that in the good faith judgment of the Board of Directors,
it would be materially detrimental to the Company and its stockholders for such
Form S-3 Registration to be effected at such time, in which event the Company
shall have the right to defer the filing of the Form S-3 registration statement
for a period of not more than ninety (90) days after receipt of the request of
the Holder or Holders under this Section 3.12; provided, however, that the
Company shall not utilize this right more than once in any twelve (12) month
period; (4) if the Company has already effected two (2) registrations on Form
S-3 for the Holders pursuant to this Section 3.12; (5) for any Holder if such
Holder can sell all of its Registrable Securities for which registration is
requested within a three month period pursuant to SEC Rule 144 or otherwise free
of the registration requirements of the Securities Act; or (6) in any particular
jurisdiction in which the Company would be required to qualify to do business or
to execute a general consent to service of process in effecting such
registration, qualification or compliance.
(c) Subject to the foregoing, the Company shall file a
registration statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request or requests of the Holders. All expenses
10
incurred in connection with a registration requested pursuant to this Section
3.12, including (without limitation) all registration, filing, qualification,
printers and accounting fees and the reasonable fees and disbursements of
counsel for the Company, shall be borne by the Company. Registrations effected
pursuant to this Section 3.12 shall not be counted as demands for registration
or registrations effected pursuant to Sections 3.2 or 3.3 hereof.
3.13 Assignment of Registration Rights. The rights to cause the
Company to register Registrable Securities pursuant to this Section 3 may only
be assigned by a Holder to a transferee or assignee of the Shares or Common
Stock into which such Shares are convertible provided that (i) no party may be
assigned any of the foregoing rights unless the Company is given written notice
by the transferring or assigning party at the time of such transfer or
assignment stating the name and address of the transferee or assignee and
identifying the securities of the Company as to which the rights in question are
being assigned; (ii) any such transferee or assignee shall receive such assigned
rights subject to all the terms and conditions of this Agreement, including
without limitation the provisions of this Section 3; (iii) such transferee or
assignee acquires from such Holder at least 100,000 Shares and/or Common Stock
into which such Shares are convertible unless such transferee or assignee is a
partner or affiliate of such Holder in which case there shall be no minimum
amount; and (iv) such assignment shall be effective only if immediately
following such transfer the further disposition of such securities by the
transferee or assignee is restricted under the Securities Act.
3.14 Limitations on Subsequent Registration Rights. From and after
the date of this Agreement, the Company shall not, without the prior written
consent of the Holders of a majority of the outstanding Registrable Securities,
enter into any agreement with any holder or prospective holder of any securities
of the Company which would grant rights to such holder or prospective holder any
more favorable than are provided herein or which otherwise would result in or
permit the modification or amendment of the terms hereof.
3.15 "Market Stand-off" Agreement. Each Holder hereby agrees that
during the one hundred eighty (180) day period following the effective date of a
registration statement of the Company filed under the Securities Act, it shall
not, to the extent requested by the Company and its underwriter, sell or
otherwise transfer or dispose of (other than to donees who agree to be similarly
bound) any Common Stock of the Company held by it at any time during such period
except Common Stock included in such registration; provided, however, that:
(a) such agreement shall be applicable only to the first such
registration statement of the Company which covers Common Stock (or other
securities) sold on its behalf to the public in an underwritten offering; and
(b) all officers and directors of the Company and all other
Holders holding Registrable Securities exceeding one percent (1%) of the
outstanding stock of the Company whether or not pursuant to this Agreement enter
into similar agreements.
To enforce the foregoing covenant, the Company may impose stop transfer
instructions with respect to the Registrable Securities of the Investors (and
the shares or securities of every other person subject to the foregoing
restriction) until the end of such period.
11
3.16 Termination of Registration Rights. No Holder shall be entitled
to exercise any right provided for in this Section 3 (a) after five (5) years
following the consummation of the Company's sale of its Common Stock in a bona
fide, firm commitment underwriting pursuant to a registration statement on Form
S-1 under the Securities Act which results in aggregate gross cash proceeds to
the Company in excess of $10,000,000 (other than a registration statement
relating either to the sale of securities to employees of the Company, pursuant
to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction)
or (b) at and after such time following the Company's initial public offering as
such Holder holds Registrable Securities equal to one percent (1%) or less of
the outstanding stock of the Company.
4. Additional Rights.
4.1 Pre-emptive Right. Subject to the terms and conditions specified
in this Section 4.1, the Company hereby grants to each Original Investor, Series
C Investor, Series D Investor, Series E Investor, Series F Investor and Series G
Investor (each a "RIGHTHOLDER" and collectively, the "RIGHTHOLDERS"), a
pre-emptive right with respect to future sales by the Company of its New
Securities (as hereinafter defined). For purposes of this Section 4.1, the term
Rightholder includes any partners, stockholders or affiliates of such Original
Investor, Series C Investor, Series D Investor, Series E Investor, Series F
Investor or Series G Investor. A Rightholder shall be entitled to apportion the
pre-emptive right hereby granted among itself and its partners, stockholders and
affiliates in such proportions as it deems appropriate.
(a) In the event the Company proposes to issue New Securities, it
shall give the Rightholders written notice (the "4.1 NOTICE") of its intention
stating (i) a description of the New Securities it proposes to issue, (ii) the
number of shares of New Securities it proposes to offer, (iii) the price per
share at which, and other terms on which, it proposes to offer such New
Securities and (iv) the number of shares that each Rightholder has the right to
purchase under this Section 4.1, based on such Rightholder's Percentage (as
defined in Subsection 4.1(d)(ii) hereof).
(b) Within thirty (30) days after the 4.1 Notice is given (in
accordance with Section 5.6 hereof), each Rightholder may elect to purchase, at
the price specified in the 4.1 Notice, up to the number of shares of the New
Securities proposed to be issued that the Rightholder has the right to purchase
as specified in the 4.1 Notice. An election to purchase shall be made in writing
and must be given to the Company within such thirty (30) day period (in
accordance with Section 5.6 hereof). The closing of the sale of New Securities
by the Company to the participating Rightholders upon exercise of the rights
under this Section 4.1 shall take place simultaneously with the closing of the
sale of New Securities to third parties.
(c) After the last date on which the Rightholders' pre-emptive
right lapses, the Company shall have ninety (90) days to enter into an agreement
(pursuant to which the sale of New Securities covered thereby shall be closed,
if at all, within forty-five (45) days from the execution thereof) to sell the
New Securities which the Rightholders did not elect to purchase under this
Section 4.1, at or above the price and upon terms not materially more favorable
to the purchasers of such securities than the terms specified in the initial 4.1
Notice given in connection with such sale. In the event the Company has not
entered into an agreement to sell the New Securities within such ninety (90) day
period (or sold and issued New Securities in accordance with the foregoing
within forty-five (45) days from the date of said agreement), the
12
Company shall not thereafter issue or sell any New Securities without first
offering such New Securities to the Rightholders in the manner provided in this
Section 4.1
(d) (i) "NEW SECURITIES" shall mean any shares of, or securities
convertible into or exercisable for any shares of, any class of the Company's
capital stock; provided that "New Securities" does not include: (i) the Shares
or Common Stock issuable upon conversion thereof; (ii) securities issued
pursuant to the acquisition of another business entity by the Company by merger,
purchase of substantially all of the assets of such entity, or other
reorganization whereby the Company owns not less than a majority of the voting
power of such entity; (iii) shares, or options to purchase shares, of Common
Stock and the shares of Common Stock issuable upon exercise of such options,
issued pursuant to any arrangement approved by the Board of Directors to
employees, officers and directors of, or consultants, advisors or other persons
performing services for the Company; (iv) shares of Common Stock or Preferred
Stock of any series issued in connection with any stock split, stock dividend or
recapitalization of the Company; (v) Common Stock issued upon exercise of
warrants, options or convertible securities if the issuance of such warrants,
options or convertible securities was a result of the exercise of the
pre-emptive right granted under this Section 4.1 or was subject to the
pre-emptive right granted under this Section 4.1, (vi) capital stock or warrants
or options for the purchase of shares of capital stock issued by the Company to
a lender in connection with any loan or lease financing transaction or to a
business partner or licensee of the Company; and (vii) securities sold to the
public in an offering pursuant to a registration statement filed with the SEC
under the Securities Act.
(ii) The applicable "PERCENTAGE" for each Rightholder shall
be applied to the number of shares of New Securities and calculated by dividing
(i) the total number of shares of Common Stock owned by such Rightholder
(assuming conversion of all shares of Preferred Stock) by (ii) the total number
of shares of Common Stock outstanding at the time the 4.1 Notice is given
(assuming conversion of all shares of Preferred Stock and exercise of all
outstanding options and warrants).
4.2 Co-Sale Rights.
(a) With respect to this Section 4.2, "CO-SALE STOCK" shall mean
any shares of, or securities convertible into or exercisable for any shares of,
any class of the Company's capital stock now owned or subsequently acquired by
the Founder or, as described below, by the Rightholders.
(b) If the Founder proposes to sell or transfer any shares of
Co-Sale Stock for value, then he shall promptly give written notice (the "4.2
NOTICE") to the Company and the Rightholders at least thirty (30) days prior to
the closing of such proposed sale or transfer. The 4.2 Notice shall describe in
reasonable detail the proposed sale or transfer for value including, without
limitation, the number of shares of Co-Sale Stock to be sold or transferred, the
nature of such sale or transfer, the consideration to be paid, and the name and
address of each prospective purchaser or transferee.
(c) The Rightholders shall have the right (the "CO-SALE RIGHT"),
exercisable upon written notice to the Founder within thirty (30) days after the
Rightholders'
13
receipt of the 4.2 Notice, to participate in such sale of Co-Sale Stock on the
same terms and conditions, to the extent set forth in paragraphs (d) and (e)
below.
(d) The Rightholders each may sell all or any part of that number
of shares of Co-Sale Stock proposed for sale or transfer by the Founder equal to
the product obtained by multiplying (i) the aggregate number of shares of
Co-Sale Stock covered by the 4.2 Notice by (ii) a fraction, the numerator of
which is the number of shares of Common Stock owned by such holder (assuming
conversion of all shares of Preferred Stock) at the time of the proposed sale or
transfer, and the denominator of which is the total number of all shares of
Common Stock Stock owned by the Founder and the Rightholders (assuming
conversion of all shares of Preferred Stock) at the time of the sale or
transfer.
(e) The Rightholders shall effect their participation in the sale
by promptly delivering to the Founder for transfer to the prospective purchaser
one or more certificates, properly endorsed for transfer, which represent the
number of shares of Co-Sale Stock which the Rightholders elect to sell.
(f) The stock certificate or certificates that the Rightholders
deliver to the Founder pursuant to paragraph (e) of this Section 4.2 shall be
transferred to the prospective purchaser in consummation of the sale of the
Co-Sale Stock pursuant to the terms and conditions specified in the 4.2 Notice,
and the Founder shall concurrently therewith remit to the Rightholders that
portion of the sale proceeds to which the Rightholders are entitled by reason of
their participation in such sale. To the extent that any prospective purchasers
refuse to purchase shares or other securities from the Rightholders in
exercising their Co-Sale Right hereunder, the Founder shall not sell to such
prospective purchasers any Co-Sale Stock unless and until, simultaneously with
such sale, the Founder shall purchase such shares or other securities from such
Rightholders on the same terms and conditions.
(g) The exercise or non-exercise of the rights of the
Rightholders hereunder to participate in one or more sales of Co-Sale Stock made
by the Founder shall not adversely affect their rights to participate in
subsequent sales of Co-Sale Stock subject to this Section 4.2.
(h) Notwithstanding the foregoing, the Co-Sale Rights herein
shall not apply to any transfer by the Founder of up to 450,000 of the shares of
Series A Preferred Stock (and any Common Stock into which such stock may be
converted) held by him as of the date of the Initial Closing as defined in the
Purchase Agreement, as adjusted to reflect any stock dividends, splits,
combinations, recapitalizations or other similar events, provided that the
Founder shall inform the Company and the Rightholders of such transfer prior to
effecting it.
(i) Notwithstanding any other provisions hereof, this Section 4.2
shall not apply to the sale of any Co-Sale Stock to the public pursuant to a
registration statement filed with, and declared effective by, the SEC under the
Securities Act.
(j) In the event the Founder should sell any Co-Sale Stock in
contravention of the Co-Sale Right (a "PROHIBITED TRANSFER"), the Rightholders,
in addition to such other remedies as may be available at law, in equity or
hereunder, shall have the put option provided below, and the Founder shall be
bound by the applicable provisions of such option.
14
(k) In the event of a Prohibited Transfer, the Rightholders shall
have the right, but not the obligation, to sell to the Founder the type and
number of shares of Co-Sale Stock equal to the number of shares the Rightholders
would have been entitled to transfer to the purchaser under Subsection 4.2(d)
hereof had such Prohibited Transfer been effected pursuant to and in compliance
with the terms hereof. Such sale shall be made on the following terms and
conditions:
(i) The price per share at which the shares are to be sold to
the Founder shall equal the price per share paid by the purchaser to the Founder
in the Prohibited Transfer. The Founder shall also reimburse the Rightholders
for any and all fees and expenses, including legal fees and expenses, incurred
pursuant to the exercise or the attempted exercise or any enforcement (including
litigation) of the Rightholders' rights under Section 4.2 hereof.
(ii) Within ninety (90) days after the later of the dates on
which the Rightholders (A) received notice of the Prohibited Transfer or (B)
otherwise became aware of the Prohibited Transfer, the Rightholders shall, if
exercising the put option created hereby, deliver to the Founder the
certificates representing the amount of the shares to be sold, each certificate
to be properly endorsed for transfer.
(iii) The Founder shall, upon receipt of the certificate or
certificates for the shares to be sold by Investors, pursuant to this paragraph
(k) of Section 4.2, pay the aggregate purchase price therefor and the amount of
reimbursable fees and expenses, as specified in subparagraph 4.2(k)(i), in cash
or by other means acceptable to the Rightholders.
(iv) Notwithstanding the foregoing, any attempt by the
Founder to transfer Co-Sale Stock in violation of this Section 4.2 hereof shall
be void and the Company agrees it will not effect such a transfer nor will it
treat any alleged transferee as the holder of such shares without the written
consent of the Rightholders.
4.3 Termination. The rights granted under Sections 4.1 and 4.2 hereof
shall expire upon the consummation of the Company's sale of its Common Stock in
a bona fide, firm commitment underwritten offering pursuant to a registration
statement on Form S-l under the Securities Act which results in aggregate gross
cash proceeds to the Company in excess of $10,000,000 (other than a registration
statement relating either to the sale of securities to employees of the Company
pursuant to a stock option, stock purchase or similar plan or an SEC Rule 145
transaction) or (ii) the closing of (A) a business combination transaction in
which the Company is sold or merged and as a result of such transaction, the
holders of Common Stock (assuming conversion of all Preferred Stock) prior to
such transaction do not own or control a majority of the outstanding shares of
the successor corporation or (B) a sale by the Company of all or substantially
all of its assets.
4.4 Assignment of Rights. Subject to compliance with all applicable
securities laws, the rights granted under Sections 4.1 and 4.2 hereof may be
assigned by a Rightholder to a transferee or assignee of such party's shares of
the Company's stock; provided however that any such transferee or assignee shall
receive such assigned rights subject to all the terms and conditions of this
Agreement, including without limitation the provisions of this Section 4. In the
event that the Rightholder shall assign its rights pursuant to Section 4.1 or
4.2 hereof in
15
connection with the transfer of less than all of its shares of the Company's
stock, the Rightholder shall also retain its rights as to the proportion of
shares not transferred.
5. Miscellaneous.
5.1 Assignment. Subject to the provisions of Section 3.13 and 4.4
hereof, the terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective successors and assigns of the parties hereto.
5.2 New Investors. Notwithstanding anything herein to the contrary,
if pursuant to Section 1.4 of the Series G Agreement, additional parties
purchase shares of Series G Preferred Stock as "Investors" thereunder, then each
such new investor shall become a party to this Agreement as an "Investor"
hereunder, without the need of any consent, approval or signature of any
Investor when such Investor has both: (i) purchased shares of Series G Preferred
Stock under the Series G Agreement and paid the Company all consideration
payable for such shares and (ii) executed, with the Company's consent, one or
more counterpart signature pages to this Agreement as an "Investor". If in
connection with the above, any such new Investor receives additional or more
favorable registration rights, preemptive rights or co-sale rights than those
granted herein, then all the then current Series G Investors shall receive such
rights without the need of any consent, approval or signature of any Investor.
In addition, if the Company hereinafter issues any warrants for the Company's
capital stock and grants the holders of such warrants registration rights with
respect to the underlying capital stock, then each such new warrantholder shall
become a party to this Agreement with respect to Sections 3 and 5 hereof,
without the need of any consent, approval or signature of any Investor, when
such warrantholder has executed, with the Company's consent, one or more
counterpart signature pages to this Agreement.
5.3 Third Parties. Nothing in this Agreement, express or implied, is
intended to confer upon any party, other than the parties hereto, and their
respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
herein.
5.4 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of California without regard to principles of
conflicts of laws.
5.5 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5.6 Notices. Unless otherwise provided, any notice required or
permitted by this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or when
sent by telex or facsimile transmission (confirming the same by mail) to the
party to be notified, or four (4) days (or seven (7) days if the addressee or
transmitter is located outside of the United States) after deposit with the
relevant post office, by registered or certified mail, postage prepaid and
addressed to the party to be notified at the address set forth below such
party's signature on this Agreement or on Schedule A hereto, or at such other
address as such party may designate by ten (10) days advance notice.
16
5.7 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, portions of such provisions, or
such provisions in their entirety, to the extent necessary, shall be severed
from this Agreement, and the balance of this Agreement shall be enforceable in
accordance with its terms.
5.8 Amendment and Waiver. Any provision of this Agreement may be
amended with the written consent of the Company and the Holders of at least a
majority of the Registrable Securities. Any amendment or waiver effected in
accordance with this paragraph shall be binding upon each Holder of Registrable
Securities and the Company.
5.9 Effect of Amendment or Waiver. Investors and their respective
successors and assigns acknowledge that by the operation of Section 5.8 hereof
the Holders of a majority of the Registrable Securities, acting in conjunction
with the Company, will have the right and power to diminish or eliminate all
rights pursuant to this Agreement.
5.10 Rights of Holders. Each Holder of Registrable Securities shall
have the absolute right to exercise or refrain from exercising any right or
rights that such Holder may have by reason of this Agreement, including, without
limitation, the right to consent to the waiver or modification of any obligation
under this Agreement, and such Holder shall not incur any liability to any other
Holder of any securities of the Company as a result of exercising or refraining
from exercising any such right or rights.
5.11 Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to any party to this Agreement, upon any breach or
default of any other party, shall impair any such right, power or remedy of such
non-breaching party nor shall it be construed to be a waiver of any such breach
or default, or an acquiescence therein, or of any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or character on
the part of any party of any breach or default under this Agreement, or any
waiver on the part of any party of any provisions or conditions of this
Agreement, must be made in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement, or by law or otherwise afforded to any holder, shall be cumulative
and not alternative.
5.12 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 attorney's fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
17
The parties have executed this Agreement as of the date first written
above.
COMPANY:
FORMFACTOR, INC.
By: /s/ Xxxx Xxxxxxxxx
----------------------------------
Name: Xxxx Xxxxxxxxx
--------------------------------
Title: CFO
-------------------------------
Address: 0000 Xx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax (000) 000-0000
INVESTOR:
Advantest Corporation
-------------------------------------
Print Investor's Name
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxxx
--------------------------------
Title: Senior Managing Director
-------------------------------
SIGNATURE PAGE FOR FORMFACTOR, INC.
SIXTH AMENDED AND RESTATED RIGHTS AGREEMENT
The parties have executed this Agreement as of the date first written
above.
COMPANY:
FORMFACTOR, INC.
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
Address: 0000 Xx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax (000) 000-0000
INVESTOR:
/s/ Shigenobu Kanagawa
-------------------------------------
Print Investor's Name
By: NGK Spark Plug Co., Ltd.
----------------------------------
Name: Shigenobu Kanagawa
--------------------------------
Title: CEO, President
-------------------------------
SIGNATURE PAGE FOR FORMFACTOR, INC.
SIXTH AMENDED AND RESTATED RIGHTS AGREEMENT
The parties have executed this Agreement as of the date first written
above.
COMPANY:
FORMFACTOR, INC.
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
Address: 0000 Xx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax (000) 000-0000
INVESTOR:
SHINKO ELECTRIC INDUSTRIES CO., LTD.
-------------------------------------
Print Investor's Name
By: /s/ Jun-ichi Mogi
----------------------------------
Name: Jun-ichi Mogi
--------------------------------
Title: President
-------------------------------
SIGNATURE PAGE FOR FORMFACTOR, INC.
SIXTH AMENDED AND RESTATED RIGHTS AGREEMENT
The parties have executed this Agreement as of the date first written
above.
COMPANY:
FORMFACTOR, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address: 0000 Xx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax (000) 000-0000
INVESTOR:
Tokyo Semitsu Co., Ltd.
---------------------------------------
Print Investor's Name
By: /s/ Sadakatsu Suzuki
------------------------------------
Name: Sadakatsu Suzuki
----------------------------------
Title: Representative Director C.O.O.
---------------------------------
SIGNATURE PAGE FOR FORMFACTOR, INC.
SIXTH AMENDED AND RESTATED RIGHTS AGREEMENT
The parties have executed this Agreement as of the date first written
above.
COMPANY:
FORMFACTOR, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address: 0000 Xx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax (000) 000-0000
INVESTOR:
Teradyne, Inc.
---------------------------------------
Print Investor's Name
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
----------------------------------
Title: VP / General Counsel
---------------------------------
SIGNATURE PAGE FOR FORMFACTOR, INC.
SIXTH AMENDED AND RESTATED RIGHTS AGREEMENT
The parties have executed this Agreement as of the date first written
above.
COMPANY:
FORMFACTOR, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address: 0000 Xx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax (000) 000-0000
INVESTOR:
Institutional Venture Partners VII
by its General Partner
Institutional Venture Management VII
By: /s/ T. Xxxxx Xxxxxx
------------------------------------
T. Xxxxx Xxxxxx, General Partner
IVP Founders Fund I, L.P.
by its General Partner
Institutional Venture Management VI
By: /s/ T. Xxxxx Xxxxxx
------------------------------------
T. Xxxxx Xxxxxx, General Partner
INSTITUTIONAL VENTURE MANAGEMENT VII
By: /s/ T. Xxxxx Xxxxxx
------------------------------------
T. Xxxxx Xxxxxx, General Partner
SIGNATURE PAGE FOR FORMFACTOR, INC.
SIXTH AMENDED AND RESTATED RIGHTS AGREEMENT
The parties have executed this Agreement as of the date first written
above.
COMPANY:
FORMFACTOR, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address: 0000 Xx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax (000) 000-0000
INVESTOR:
Xxxx, Xxxxxxx Ventures IV, L.P.
By: Fourth MDV Partners, L.L.C., General Partner
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Xxxxxxx Xxxxxxx, Member
MDV IV Entrepreneurs' Network, L.P.
By: Fourth MDV Partners, L.L.C., General Partner
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Xxxxxxx Xxxxxxx, Member
SIGNATURE PAGE FOR FORMFACTOR, INC.
SIXTH AMENDED AND RESTATED RIGHTS AGREEMENT
The parties have executed this Agreement as of the date first written
above.
COMPANY:
FORMFACTOR, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address: 0000 Xx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax (000) 000-0000
INVESTOR:
XXXXXX XXXXXXX VENTURE PARTNERS III, X.X.
XXXXXX XXXXXXX VENTURE INVESTORS III, L.P.
THE XXXXXX XXXXXXX VENTURE PARTNERS ENTREPRENEUR FUND, L.P.
By: Xxxxxx Xxxxxxx Venture Partners III, L.L.C.
as General Partner of each of the limited
partnerships named above
By: Xxxxxx Xxxxxxx Venture Capital III, Inc.,
as Member
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Xxxxxxx Xxxxxxx
SIGNATURE PAGE FOR FORMFACTOR, INC.
SIXTH AMENDED AND RESTATED RIGHTS AGREEMENT
SCHEDULE A
SCHEDULE OF INVESTORS
INVESTOR NAMES AND ADDRESSES CLASS OF SECURITIES NUMBER OF SHARES
---------------------------- ------------------- ----------------
Advantest Series G 333,334
Xxxxxxx Xxxxxxxx
000-0 Xxxx, Xxxxx-xxxxx
Xxx-xxx, Xxxxx, 000-0000
Xxxxx
Xxxxxxxx, Xxxxx & Xxxxxxxx Series F 10,000
0000 Xxx Xx Xxxxxxx
Xxxxxxxxxx, XX 00000
Xxxxxx, Xxxxxxx X., P.C. Series A 31,722
00 Xxxx Xxxxxx, 0xx Xxxxx Series C 10,528
Xxx Xxxx, XX 00000 Series F 1,000
Bayview Investors, Ltd. Series D 44,927
c/x Xxxxxxxxx Xxxxxxxx & Company
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Xxxxx, Xxxxx Series A 3,000,000
00 Xxxxxxxxx Xxxx
Xxxxxx, XX 00000
Xxxxxxxxxxx, Xxxx Series F 6,000
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
Xxxxxx, Xxxxx and Xxxxxx Series F 45,470
00 xxx xxx Xxxxxxxxxxx
00000 Xxxxxxxx en Brie
France
Chairmanship Enterprises Co., Ltd. Series E 400,000
Xx. 0, Xxxxxxxxxx Xxxx 0
Xxxxxxx-Xxxxx Xxxxxxxxxx Xxxx
Xxxxxxx 00000, Xxxxxx R.O.C.
Attn: Xxxxxxxx Xx
Xxxxxxxxxx, Xxxxxx Series D 1,449
0000 Xxxxxx Xxx Series F 10,037
Xxxxxxxxxx, XX 00000
Xxxx Xx-Xxxxx Series E 40,000
Spirox Corp.
6F-1, Xx. 00, Xxx Xxx Xx.
Xxxxxxx, Xxxxxx X.X.X.
INVESTOR NAMES AND ADDRESSES CLASS OF SECURITIES NUMBER OF SHARES
---------------------------- ------------------- ----------------
Xxxxxxxx, Xxxxx X. Series D 1,449
Silver Lake Partners Series E 4,000
0000 Xxxx Xxxx Xxxx, Xxxx. X, Xxxxx 000 Series F 000
Xxxxx Xxxx, XX 00000
DBS Technology Ventures, L.L.C. Series D 123,188
c/o ABS Ventures
Xxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
DMG Technology Partners Series D 21,740
c/o CSFB
0000 Xxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx
Xxxxxx, Xxxxxx and Xxxxxx Series F 10,000
0000 Xxxxxx Xxx
Xxxxxxxxx, XX 00000
Xxxxxxxx, Xxx Series A 31,722
000 Xxxxx Xxxx
Xxxxxxxx, XX 00000
Ell & Co. Series D 532,920
c/o Xxxx Xxxxx Series E 245,143
Charlesbank Capital Partners
000 Xxxxxxxx Xxx., 00xx Xxxxx
Xxxxxx, XX 00000-0000
AND c/o Xxxxx X. Xxxxx
Lucent Technologies Inc.
00 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
F&W Investments 1996-II Series D 14,493
c/o Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
F&W Investments LLC Series F 9,181
c/o Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
Gotoh, Hajime Series D 10,000
00 Xxxxxxxxxx Xxxxxxxx-xx
Xxxxxxxx-xxxx
Xxxxxxxx-xxx XXXXX 221-0843
2
INVESTOR NAMES AND ADDRESSES CLASS OF SECURITIES NUMBER OF SHARES
---------------------------- ------------------- ----------------
Gotoh, Kenichi Series D 10,000
00 Xxxxxxxxxx Xxxxxxxx-xx
Xxxxxxxx-xxxx
Xxxxxxxx-xxx XXXXX 221-0843
Xxxxxxxxx, Xxxxxxx Series D 1,449
0000 Xxxxxxx Xxxxxx Series X 000
Xxx Xxxxxxxxx, XX 00000 Series F 40
Xxxxxxxxx & Xxxxx California Series D 15,459
c/o XX Xxxxxx H&Q Series E 2,226
Xxx Xxxx Xxxxxx, 00xx Xxxxx Series F 000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx
Xxxxxxxxx & Xxxxx Employee Venture Fund, L.P. Series D 7,730
c/o XX Xxxxxx H&Q
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx
Xxxxxxxxx & Xxxxx Employee Venture Fund, X.X. XX Series E 2,226
c/o XX Xxxxxx H&Q
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx
H&Q Employee Venture Fund 2000, L.P. Series F 257
c/o XX Xxxxxx H&Q
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx
Hao, Xxxxxxx X. Series D 1,449
Silver Lake Partners Series E 1,000
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Hatsukano, Yoshikazu Series F 5,000
0-00-00-000 Xxxxxxxx, Xxxxxx-xx
Xxxxx, 000-0000, XXXXX
Xxxx, Xxxxxx Series E 20,000
0000 Xxxxx Xxxxxx #000
Xxx Xxxxxxxxx, XX 00000-0000
Xxxxxxx, Xxxxxxx X. Series A 226,281
c/x Xxxxxx & Xxxxxx LLP Series C 90,886
000 Xxxxx Xxxxxx Series D 7,246
Xxx Xxxx, XX 00000-0000
3
INVESTOR NAMES AND ADDRESSES CLASS OF SECURITIES NUMBER OF SHARES
---------------------------- ------------------- ----------------
Infineon Technologies AG Series F 455,000
Attn: Andreas Xxxxxxxxxx
00 Xx.-Xxxxxx-Xxx.
X.X. Xxx 00 00 00
X-00000 Xxxxxx
XXXXXXX
Innotech Corporation Series E 200,000
Planning Department
3-17-6, Shinyokohama,
Xxxxxx-xx
Xxxxxxxx, Xxxxxxxx 000-0000
XXXXX
Institutional Venture Management VII, L.P. Series C 27,273
0000 Xxxx Xxxx Xxxx Series D 8,696
Xxxxxxxx 0, Xxxxx 000 Series X 000
Xxxxx Xxxx, XX 00000
Attn: T. Xxxxx Xxxxxx
Institutional Venture Partners VII, L.P. Series C 1,727,273
0000 Xxxx Xxxx Xxxx Series D 408,696
Xxxxxxxx 0, Xxxxx 000 Series E 32,667
Xxxxx Xxxx, XX 00000
Attn: T. Xxxxx Xxxxxx
Intel Corporation Series D 1,449,276
0000 Xxxxxxx Xxxxxxx Xxxx., XX-0-000
Xxxxx Xxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
InveStar Semiconductor Development Fund Series E 266,666
RM#1201, 00X, 000 Xxxxxxx Xxxx, Xxx. 0,
Xxxxxx, Xxxxxx X.X.X.
IVP Founders Fund I, L.P. Series C 63,636
0000 Xxxx Xxxx Xxxx Series D 17,391
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: T. Xxxxx Xxxxxx
Xxxx, Xxx Series A 45,000
0-0-0-000
Xxxx Xxxxx, Xxxxxx-xx
Xxxxx, 000 XXXXX
Xxxxxxxx, Xxxx X. Series A 3,000,000
00 Xxxxxxxxx Xxxx
Xxxxxx, XX 00000
4
INVESTOR NAMES AND ADDRESSES CLASS OF SECURITIES NUMBER OF SHARES
---------------------------- ------------------- ----------------
Leeway & Co. Series D 336,646
XX Xxxxxx Investment Management Series E
000 Xxxxx Xxxxxx, 00xx Xxxxx 154,857
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxx
MDV IV Entrepreneurs' Network Fund, L.P. Series B 114,942
0000 Xxxx Xxxx Xxxx, Xxxxx 000 Series C 48,828
Xxxxx Xxxx, XX 00000 Series D 21,739
Attn: Xxxxxxx X. Xxxxxxx Series E 2,329
Xxxx, Xxxxxxx Ventures IV, L.P. Series B 3,275,880
0000 Xxxx Xxxx Xxxx, Xxxxx 000 Series C 1,171,903
Xxxxx Xxxx, XX 00000 Series D 413,044
Attn: Xxxxxxx X. Xxxxxxx Series E 44,255
Xxxxxx Xxxxxxx Venture Investors III, L.P. Series D 177,746
0000 Xxxx Xxxx Xxxx, 4-250 Series E 2,920
Xxxxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
Xxxxxx Xxxxxxx Venture Partners III, L.P. Series D 1,851,240
0000 Xxxx Xxxx Xxxx, 4-250 Series E 30,414
Xxxxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
Xxxxxxxx, Xxxx Series F 10,500
000 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
NGK Spark Plug Co., Ltd. Series G 000,000
X. Xxxxxxxxx
00-00 Xxxxxxxxx-xxx, Xxxxxx-xx
Xxxxxx, Xxxxx 467-8525
Xxxxxx, Xxxxxx Series A 54,378
000 Xxxxxx Xxxxxx Series C 11,622
Xxxxxxx, XX 00000 Series D 15,000
Series E 3,000
Series F 1,000
Oriens Investment & Advisory Limited Series E 40,000
c/o Oriens Capital Limited
12th Floor, Samsung Life Xxxxxxxx
000, 0-Xx, Xxxxxxxx-Xx
Xxxxx-Xx, Xxxxx, XXXXX
Park, JC Series E 26,666
x/x XXXX Xxxx Xxx.
0x, XXX Xxxx, Xxxxxxx-Xxxx, Xxxxxx xx
Xxxxx, XXXXX
5
INVESTOR NAMES AND ADDRESSES CLASS OF SECURITIES NUMBER OF SHARES
---------------------------- ------------------- ----------------
Xxxxxxxxx, Xxxxx Series D 40,000
000 Xxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Xxxxxxxxxx 1989 Family Trust Series E 13,400
Attn: Xxxxx X. Xxxxxxxxxx Series F 348
X.X. Xxx 00000 Xxxxxxxx, XX 00000-0000
Retirement Accounts, Inc.
Cust. FBO: Xxxxxx X. Series C 25,000
Norrett, Jr. (13676) Series D 10,000
0000 Xxxxxxx Xxx Series F 6,000
Xxx Xxxx, XX 00000
Xxxxxx, Xxxxxx X. Series C 121,212
00000 X.X. Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Xxxxxx, Xxxxx Series D 10,000
00 Xxxx Xxxx Xxxx Series X 000
Xxxx Xxxxxx, XX 00000
Samho Engineering Series E 53,333
x/x XXX Xxxx Xxx.
0x, XXX Xxxx, Xxxxxxx-Xxxx, Xxxxxx xx
Xxxxx, XXXXX
Shin, M.S. Series E 13,333
x/x XXX Xxxx Xxx.
0x, XXX Xxxx, Xxxxxxx-Xxxx, Xxxxxx xx
Xxxxx, XXXXX
Shinko Electric Industries Co., Ltd. Series G 133,334
00 Xxxxxxxx-xxxxx
Xxxxxx-xxx, 000-0000
Xxxxx
Siml, Eberhard Series F 55,671
Xxxxxxxxxxx 0, 00000 Xxxxxxxxxxx
XXXXXXX
Spirox Cayman Corporation Series E 400,000
Attn: Xxxxx Xxx
00X, Xxx Xxx Xxxx
Xxxxxxx, Xxxxxx R.O.C.
Stanford University Series B 57,471
Stanford Management Company
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
6
INVESTOR NAMES AND ADDRESSES CLASS OF SECURITIES NUMBER OF SHARES
---------------------------- ------------------- ----------------
Teradyne, Inc. Series E 266,666
000 Xxxxxxxx Xxxxxx Series F 6,929
MS-L53 Series G 13,003
Xxxxxx, XX 00000
Tokyo Seimitsu Co., Ltd. Series G 66,667
X. Xxxxxxxx
0-0-0, Xxxxxxxxxxxx, Xxxxxx-xxxx
Xxxxx 000-0000
Xxxxx
Twin Leaf International Ltd. Series E 133,333
c/o Merrill Xxxxx
Attn: Fao Xxxxxxxxx Xxxxxx
Belgravia House
00-00 Xxxxxxxx Xxxx
Xxxxxxx, Xxxx xx Xxx 0X0 0XX
XXXXXX XXXXXXX
Vanguard International Semiconductor Corp. Series E 266,666
123, Park Ave-3rd.,
Science-Based Industrial Park
Hsinchu 30077, Taiwan R.O.C.
Attn: Xxxxxx Xxxxx
7
