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EXHIBIT 4.5
REPEATER TECHNOLOGIES, INC.
SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
NOVEMBER 25, 1998
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TABLE OF CONTENTS
PAGE
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I. DEFINITIONS..........................................................1
1.1 "Restricted Securities".......................................1
1.2 "Registrable Securities"......................................1
1.3 The terms "register," "registered" and "registration".........1
1.4 "Registration Expenses".......................................1
1.5 "Selling Expenses"............................................2
1.6 "Holder"......................................................2
1.7 "Preferred Stock".............................................2
II. AMENDMENT AND RESTATEMENT OF PRIOR INVESTORS' RIGHTS AGREEMENT.......2
III. REGISTRATION; RESTRICTIONS ON TRANSFER...............................2
3.1 Restrictions on Transferability...............................2
3.2 Restrictive Legend............................................2
3.3 Notice of Proposed Transfers..................................3
3.4 Requested Registration........................................3
3.5 Company Registration..........................................5
3.6 Expenses of Registration......................................6
3.7 Registration Procedures.......................................6
3.8 Registration on Form S-3......................................6
3.9 Termination of Registration Rights............................7
3.10 Lockup Agreement..............................................7
3.11 Indemnification...............................................7
3.12 Information by Holder.........................................8
3.13 Rule 144 Reporting............................................9
3.14 Transfer of Registration Rights...............................9
IV. COVENANTS OF THE COMPANY.............................................9
4.1 Annual Financial Information..................................9
4.2 Inspection...................................................10
4.3 Assignment of Rights to Financial Information................10
4.4 Proprietary Information and Non-Competition Agreements.......10
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TABLE OF CONTENTS
(CONTINUED)
4.5 Confidentiality Agreement....................................10
4.6 Insider Transactions.........................................10
4.7 Employee Stock and Option Plans..............................10
4.8 Financial Updates to Board...................................11
4.9 Termination of Covenants.....................................11
V. RIGHTS OF FIRST REFUSAL.............................................11
5.1 New Securities...............................................11
5.2 Outstanding Securities.......................................12
VI. MISCELLANEOUS.......................................................13
6.1 Governing Law................................................13
6.2 Survival.....................................................13
6.3 Successors and Assigns.......................................13
6.4 Separability.................................................13
6.5 Amendment and Waiver.........................................13
6.6 Delays or Omissions..........................................14
6.7 Notices, etc.................................................14
6.8 Attorneys' Fees..............................................14
6.9 No Investment Obligation.....................................14
6.10 Aggregation and Affiliate Status.............................14
6.11 Entire Agreement.............................................14
6.12 Titles and Subtitles.........................................14
6.13 Counterparts.................................................15
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REPEATER TECHNOLOGIES, INC.
THIS SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT (the
"Agreement") is entered into as of November 25, 1998, by and among REPEATER
TECHNOLOGIES, INC., a California corporation (the "Company"), those prior
purchasers of the Company's preferred stock set forth on Exhibit A hereto and
those purchasers under that certain Convertible Debenture Purchase Agreement of
even date herewith (the "Debenture Purchase Agreement") set forth on Exhibit A
hereto (collectively, the "Purchasers").
I. DEFINITIONS
1.1 "RESTRICTED SECURITIES" shall mean the securities of the Company
required to bear the legend set forth in Section 3.2 hereof (or any similar
legend).
1.2 "REGISTRABLE SECURITIES" shall mean (i) shares of the Company's
Common Stock issued or issuable pursuant to the conversion of the Company's
Series A Preferred Stock (the "Series A Stock"), Series B Preferred Stock (the
"Series B Stock"), Series C Preferred Stock (the "Series C Stock"), Series D
Preferred Stock (the "Series D Stock"), Series E Preferred Stock (the "Series E
Stock"), Series AA Preferred Stock (the "Series AA Stock"), Series BB Preferred
Stock (the "Series BB Stock"), Series CC Preferred Stock (the "Series CC Stock")
and Series DD Preferred Stock (the "Series DD Stock"), (ii) shares of the
Company's Common Stock issued or issuable upon exercise of the Warrants granted
in connection with the Company's interim financings in 1985, 1986 and 1990 (the
"Prior Warrants"), (iii) shares of the Company's Common Stock issued upon
exercise of Warrants granted in connection with the Series A Preferred Stock
Purchase Agreements dated April 17, 1987 and November 23, 1988 pursuant to
Warrant Agreements of even date therewith (the "1987 Warrants" and the "1988
Warrants" respectively), (iv) shares of the Company's Common Stock issued upon
exercise of Warrants granted in 1995 (the "1995 Warrants"), (v) shares of Series
BB Preferred Stock issued upon exercise of Warrants granted in connection with
the Company's 1997 Series BB and Warrant financing (the "1997 Warrants"), (vi)
shares of Series DD Preferred Stock issued or issuable upon conversion of
Convertible Debentures issued pursuant to the Debenture Purchase Agreement (the
"Convertible Debentures"), (vii) shares of the Company's Common Stock issued or
issuable upon conversion of the Series DD Preferred Stock, and (viii) any Common
Stock of the Company issued or issuable in respect of any of such shares upon
any stock split, stock dividend, recapitalization or similar event.
1.3 THE TERMS "REGISTER," "REGISTERED" AND "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act of 1933, as amended (the "Securities Act"),
and the declaration or ordering of the effectiveness of such registration
statement.
1.4 "REGISTRATION EXPENSES" shall mean all expenses incurred by the
Company in complying with Sections 3.4, 3.5 and 3.8 hereof, including, without
limitation, all registration,
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qualification, and filing fees, printing expenses, escrow fees, fees and
disbursements of counsel for the Company, fees and disbursements of one special
counsel for all Holders which shall be the same as counsel for the Company
unless the holders of a majority of the Registrable Securities of the selling
Holders specify otherwise, blue sky fees and expenses, and the expense of any
special audits incident to or required by any such registration (but excluding
the compensation of regular employees of the Company which shall be paid in any
event by the Company).
1.5 "SELLING EXPENSES" shall mean all underwriting discounts, selling
commissions, and stock transfer taxes applicable to the securities registered by
the Holders.
1.6 "HOLDER" shall mean any holder of Registrable Securities, or any
transferee of such Holder under Section 3.14, which have not been sold to the
public.
1.7 "PREFERRED STOCK" shall mean shares of the Company's Series A Stock,
Series B Stock, Series C Stock, Series D Stock, Series E Stock, Series AA Stock,
Series BB Stock, Series CC Stock and Series DD Stock.
II. AMENDMENT AND RESTATEMENT OF PRIOR INVESTORS' RIGHTS AGREEMENT
Effective and contingent upon the first closing of the sale of
Convertible Debentures of the Company pursuant to the Convertible Debenture
Purchase Agreement, that certain Fifth Amended and Restated Investors' Rights
Agreement dated as of November 26, 1997, by and among the Company and certain
holders of the Company's securities shall be null and void and superseded by the
rights and obligations set forth in this Agreement.
III. REGISTRATION; RESTRICTIONS ON TRANSFER
3.1 RESTRICTIONS ON TRANSFERABILITY. The Registrable Securities shall
not be transferable except upon the conditions specified in this Article III,
which conditions are intended to ensure compliance with the provisions of the
Securities Act. Each Holder will cause any proposed transferee of Registrable
Securities held by a Holder to agree to take and hold such securities subject to
the provisions and upon the conditions specified in this Article III.
3.2 RESTRICTIVE LEGEND. Each certificate representing Preferred Stock or
Registrable Securities shall (unless otherwise permitted by the provisions of
Section 3.3 below) be stamped or otherwise imprinted with a legend in the
following form (in addition to any legend required under applicable state
securities laws):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933. THESE SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT OR EXCEPT
PURSUANT TO RULE 144. COPIES OF THE AGREEMENT COVERING THE PURCHASE OF
THESE SECURITIES AND RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT NO
COST BY WRITTEN
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REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE
TO THE SECRETARY OF THE CORPORATION AT THE PRINCIPAL EXECUTIVE OFFICES
OF THE CORPORATION.
3.3 NOTICE OF PROPOSED TRANSFERS. The holder of each certificate
representing Preferred Stock or Registrable Securities 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 Registrable Securities,
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, if the Company so requests, 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 or Registrable Securities 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
transfer 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 Registrable Securities
shall be entitled to transfer such Preferred Stock or Registrable Securities in
accordance with the terms of the notice delivered by the holder to the Company;
provided, however, that no opinion or No Action letter need be obtained with
respect to a transfer to (A) a partner, active or retired, of a Holder, (B) the
estate of any such partner, or (C) an "affiliate" of a Holder, as that term is
defined in Rule 405 promulgated by the Commission under the Securities Act, if
the transferee agrees to be subject to the terms hereof. Each certificate
evidencing the Preferred Stock or Registrable Securities 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.
3.4 REQUESTED REGISTRATION.
(a) REQUEST FOR REGISTRATION. In case the Company shall receive
from any Holder or group of Holders holding at least 35% of the Registrable
Securities a written request that the Company effect any registration,
qualification, or compliance with respect to such Holder's or Holders'
Registrable Securities having an anticipated aggregate offering price of at
least $10,000,000, 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, 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 promulgated 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
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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 15 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 3.4:
(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 November 25, 2000, or six months
following the close of the Company's initial underwritten public offering,
whichever shall first occur;
(C) after the Company has effected two such
registrations pursuant to this subparagraph 3.4(a), such registrations have been
declared or ordered effective and the securities offered pursuant to such
registration have been sold.
Subject to the foregoing clauses (A) through (C), 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
any Holder or Holders. If, however, the Company shall furnish to the Holder or
Holders requesting a registration statement pursuant to this Section 3.4, a
certificate signed by the President of the Company stating that, in the good
faith judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its shareholders for such registration statement
to be filed and that it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer such filing
for a period of not more than 120 days after receipt of the request of the
Holder or Holders requesting such registration; provided, however, that the
Company may not utilize this right more than once in any twelve-month period.
(b) UNDERWRITING. If the 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
Section 3.4 and the Company shall include such information in the written notice
referred to in Section 3.4(a)(i). The right of any Holder to registration
pursuant to Section 3.4 shall be conditioned upon such Holder's participation in
such underwriting and the inclusion of such Holder's Registrable Securities in
the underwriting to the extent requested (unless otherwise mutually agreed by a
majority in interest of the Holders) 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 Holders requesting registration and reasonably
acceptable to the company. Notwithstanding any other provision of this Section
3.4, if the managing underwriter advises the Holders in writing that the
marketing factors require a limitation of the number of shares to be
underwritten, then, subject to the provisions of Section 3.4(a), shares will be
excluded from such underwriting as follows:
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securities (other than Registrable Securities) held by officers or directors of
the Company shall first be excluded; second, if required, all securities (other
than Registrable Securities) shall be excluded on a pro rata basis; and third,
if required, the Registrable Securities requested to be registered under this
Section 3.4 shall be excluded on a pro rata basis. No Registrable Securities
excluded from the underwriting by reason of the managing underwriter's marketing
limitation shall be included in such registration.
If any Holder of Registrable Securities disapproves of the terms of the
underwriting, such Holder may elect to withdraw therefrom by written notice to
the Company, the managing underwriter, and the other Holders. The Registrable
Securities and/or other securities so withdrawn shall also be withdrawn from
registration; provided, however, that if by the withdrawal of such Registrable
Securities a greater number of Registrable Securities held by other Holders may
be included in such registration (up to the maximum of any limitation imposed by
the underwriters), then, the Company shall offer to all Holders who have
included Registrable Securities in the same proportion used in determining the
underwriter limitation in this Section 3.4(b). If the registration does not
become effective due to the withdrawal of Registrable Securities, then, unless
the withdrawal was due to the discovery by the withdrawing Holder of material
information relating to the registration that was not previously known by such
Holder, either, at the option of a majority of the Holders requesting such
registration, (1) the Holders requesting registration shall reimburse the
Company for expenses incurred in complying with the request or (2) the aborted
registration shall be treated as effected for purposes of Section 3.4(a)(ii)(C).
3.5 COMPANY REGISTRATION.
(a) NOTICE OF REGISTRATION. If at any 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 exercising their respective demand
registration rights, 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 of the Company 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 15 days after receipt of such written notice from the
Company, by any Holder or Holders.
(b) 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 subsection
3.5(a)(i). In such event the right of any Holder to registration pursuant to
this Section 3.5 shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's 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 parties distributing their securities through such underwriting, enter
into an underwriting agreement in customary form with the
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underwriter or underwriters selected for such underwriting by the Company.
Notwithstanding any other provision of this Section 3.5, if the underwriter
shall advise the Company in writing that marketing factors (including, without
limitation, an adverse effect on the per share offering price) require a
limitation of the number of shares to be underwritten, then shares (other than
securities to be sold for the account of the Company), shall be excluded as
follows: securities (other than Registrable Securities) and second, if required,
the Registrable Securities requested to be registered shall be excluded on a pro
rata basis; provided, however, that in connection with any registration under
this Section 3.5, other than the registration pertaining to the Company's
initial public offering of securities, the amount of Registrable Securities of
the selling Holders to be included in the offering shall not be reduced below
50% of the securities included in such offering. No Registrable Securities
excluded from the underwriting by reason of the managing underwriter's marketing
limitation shall be included in such registration.
If any Holder disapproves of the terms of the underwriting, it may elect
to withdraw therefrom by written notice to the Company and the underwriter. Any
securities so withdrawn shall also be withdrawn from registration. If by the
withdrawal of such securities a greater number of securities held by other
Holders may be included in such registration (up to the maximum of any
limitation imposed by the underwriters), then the Company shall offer to all
Holders who have included securities in the registration the right to include
additional securities in the same proportion used in determining the underwriter
limitation in this paragraph 3.5(b).
3.6 EXPENSES OF REGISTRATION. Except as set forth in Section 3.4(b), the
Registration Expenses incurred in connection with (i) registrations pursuant to
Section 3.4, (ii) all registrations pursuant to Section 3.8 below, and (iii) all
registrations pursuant to Section 3.5 shall be borne by the Company. Unless
otherwise stated, all Selling Expenses relating to securities registered by the
Holders shall be borne by the holders of such securities pro rata on the basis
of the number of shares so registered.
3.7 REGISTRATION PROCEDURES. In the case of each registration,
qualification, or compliance effected by the Company pursuant to this Article
III, the Company will keep each Holder advised in writing as to the initiation
of each registration, qualification, and compliance and as to the completion
thereof. At its expense, the Company will:
(a) Keep such registration, qualification, or compliance
effective for a period of 120 days or until the Holder or Holders have completed
the distribution described in the registration statement relating thereto,
whichever first occurs; and
(b) Furnish such number of prospectuses and other documents
incident thereto as a Holder from time to time may reasonably request.
3.8 REGISTRATION ON FORM S-3. In addition to the rights set forth in
Section 3.4, if Holder or Holders of at least 25% of the then outstanding
Registrable Securities of the Company request that the Company file a
registration statement on Form S-3 (or any successor thereto) for a public
offering of shares of such Registrable Securities, the reasonably anticipated
aggregate price to the public of which would exceed $3,000,000, and the Company
is a registrant entitled to use Form S-3 to register securities for such an
offering, the Company shall use its best efforts to cause such shares to be
registered for the offering on such form (or any successor thereto),
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provided, however, that the Company shall not be required to effect any such
registration within 180 days of the effective date of any registration statement
pertaining to an underwritten public offering of the Company's securities or if
the Company has, within the 12 month period preceding the date of such request,
already effected a registration on Form S-3 for the Holders pursuant to this
Section 3.8.
3.9 TERMINATION OF REGISTRATION RIGHTS. The registration rights granted
pursuant to this Article III shall terminate as to each Holder at such time as
all Registrable Securities or held by such Holder (including any Common Stock
issued upon conversion of the Preferred Stock of each Holder) can be sold
without compliance with the registration requirements of the Securities Act
pursuant to Rule 144(k).
3.10 LOCKUP AGREEMENT. In consideration for the Company agreeing to its
obligations under this Article III, each Holder and each transferee pursuant to
Section 3.14 hereof agrees (but only if each Company officer, director and
shareholder beneficially owning 5% or more of the Company's equity securities,
and each shareholder selling shares in such offering, also agrees), in
connection with the initial registration of the Company's securities, upon
request of the Company or the underwriters managing any underwritten offering of
the Company's securities, 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) without the prior written
consent of the Company or such underwriters, as the case may be, for such period
of time (not to exceed 180 days) from the effective date of such registration as
the Company or the underwriters may specify. The Holders agree that the Company
may instruct its transfer agent to place stop-transfer notations in its records
to enforce the provisions of this Section 3.10.
3.11 INDEMNIFICATION. The Company will indemnify each Holder, each of
its officers, directors, and partners, and such Holder's legal counsel and
independent accountants, and 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 Article III, and
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, and 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 rule or regulation promulgated under the
Securities Act or under state securities laws applicable to the Company and
relating to action or inaction required of the Company in connection with any
such registration, qualification, or compliance, and will reimburse each such
Holder, each of its officers, directors, and partners, and such Holder's legal
counsel and independent accountants, 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
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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 or underwriter and stated to be
specifically for use therein.
(a) 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, severally and not jointly,
indemnify the Company, each of its directors and officers and its legal counsel
and independent accountants, 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, and will reimburse
the Company, such Holders, such directors, officers, legal counsel, independent
accountants, 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;
provided, however, that the obligations of such Holders hereunder shall be
limited to an amount equal to the net proceeds after expenses and commissions to
each such Holder of Registrable Securities sold as contemplated herein.
(b) Each party entitled to indemnification under this Section
3.11 (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 not be
unreasonably 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 Article III, except to the
extent, but only to the extent, that the Indemnifying Party's ability to defend
against such claim or litigation is impaired as a result of such failure to give
notice. 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.
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3.12 INFORMATION BY HOLDER. Each Holder including securities of the
Company in any registration shall furnish to the Company such information
regarding such Holder and the distribution proposed by such Holder as the
Company may request in writing and as shall be required in connection with any
registration, qualification, or compliance referred to in this Article III.
3.13 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 Preferred Stock and/or Registrable 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:
(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 of the first registration under the Securities Act
filed by the Company for an offering of its securities to the general public;
(b) Use its best efforts to then 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 (the
"Exchange Act") (at any time after it has become subject to such reporting
requirements);
(c) So long as a Holder owns Preferred Stock and/or Registrable
Securities to furnish to the Holder forthwith upon request (i) a written
statement by the Company as to its compliance with the reporting requirements of
Rule 144 (at any time after 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 Exchange Act (at any time
after it has become subject to such reporting requirements), (ii) a copy of the
most recent annual or quarterly report of the Company, and (iii) such other
reports and documents of 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.
3.14 TRANSFER OF REGISTRATION RIGHTS. The right to cause the Company to
register securities granted Holders under Sections 3.4, 3.5, and 3.8 may be
assigned to a transferee or assignee who acquires at least 25,000 shares of
Preferred Stock (or securities convertible thereinto) (or Common Stock issued
upon conversion of the Preferred Stock or a combination of such Common Stock and
Preferred Stock) then held by such Holder, provided that the Company is given
written notice of such assignment prior to such assignment. In addition, rights
to cause the Company to register securities may be freely assigned to any
constituent partner of a Holder, where such Holder is a partnership, or to any
affiliate (as that term is defined in Rule 405 promulgated by the Commission
under the Securities Act) or any officer, director, or principal shareholder
thereof, where such Holder is a corporation.
IV. COVENANTS OF THE COMPANY
The Company hereby covenants and agrees as follows:
9.
13
4.1 ANNUAL FINANCIAL INFORMATION. The Company will furnish the following
reports to each Holder for so long as such Holder (together will all of its
affiliates) is a holder of more than 5% of any series of Preferred Stock, as
soon as practicable after the end of each fiscal year, and in any event within
90 days thereafter: (i) consolidated balance sheet of the Company and its
subsidiaries, if any, as of the end of such fiscal year, and (ii) consolidated
statement of income and consolidated statement of cash flows of the Company and
its subsidiaries, if any, for such year, prepared in accordance with generally
accepted accounting principles consistently applied and setting forth in each
case in comparative form the figures for the previous fiscal year, all in
reasonable detail and certified in an unqualified opinion by a national
accounting firm selected by the Company.
4.2 INSPECTION. For so long as a Holder is eligible to receive reports
under Section 4.1, 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.
4.3 ASSIGNMENT OF RIGHTS TO FINANCIAL INFORMATION. The rights granted
pursuant to Sections 4.1 and 4.2 may be assigned or otherwise conveyed by any
Holder or by any subsequent transferee of any such rights, upon written notice
to the Company; provided, however, that such rights may not be transferred to
any transferee who the Company, acting in good faith, deems to be a competitor
of the Company.
4.4 PROPRIETARY INFORMATION AND NON-COMPETITION AGREEMENTS. The Company
will require each person employed by the Company in a technical or management
position, whether at present or in the future, to execute a Proprietary
Information Agreement in the Company's standard form, as a condition of such
employment. The Company will also require certain key employees to enter into
non-competition agreements as a condition of their continued employment.
4.5 CONFIDENTIALITY AGREEMENT. Each Holder agrees that it will use its
best efforts to hold any information such Holder receives after the date of this
Agreement regarding the Company pursuant to Section 4.1 or 4.2, or while in
attendance at meetings of the Board of Directors, and which the Company deems to
be confidential, in confidence and will use its best efforts not to disclose
such information without the prior consent of the Company, except to the extent
such information: (i) is or becomes publicly known from a source other than a
Holder, (ii) is made publicly known by the Company, (iii) is known by the Holder
at the time of disclosure by the Company or (iv) is disclosed to the Holder by a
source other than the Company or another Holder free of any obligation of
confidentiality. Notwithstanding the foregoing, the Company will collaborate
with each Holder as necessary to develop mutually agreed-upon information which
such Holder can provide to its investors.
4.6 INSIDER TRANSACTIONS. The Company will not enter into any material
insider transactions without the approval of a majority of the representatives
of the Holders, if any, to the Board of Directors.
4.7 EMPLOYEE STOCK AND OPTION PLANS. The Company will not sell shares of
its Common Stock or options to purchase shares of its Common Stock to its
employees except
10.
14
pursuant to an existing plan and any future plan approved by a unanimous vote of
the Board of Directors of the Company.
4.8 FINANCIAL UPDATES TO BOARD. At each meeting of the Board of
Directors of the Company, each member of the Board of Directors will receive
actual and forecasted updated financial statements for the current year by
quarter.
4.9 TERMINATION OF COVENANTS. Notwithstanding anything to the contrary
set forth herein, the covenants set forth in this Article IV shall terminate and
be of no further force or effect on or after the date of the first sale of the
Company's securities pursuant to which a registration statement is filed by the
Company under the Securities Act in connection with an underwritten public
offering of its securities.
V. RIGHTS OF FIRST REFUSAL
5.1 NEW SECURITIES. The Company hereby grants to the holders of
Convertible Debentures (the "Debenture Holders") and the Series CC Preferred
Stock and Series DD Preferred Stock (the "Series CC and DD Holders," and,
together with the Debenture Holders, the "Rightholders") the right of first
refusal to purchase such Rightholder's pro rata share of "New Securities" (as
defined in this Section 5.1) that the Company may propose to sell and issue.
Such Rightholder's pro rata share, for purposes of this right of first refusal,
is the ratio of (X) the number of shares of Registrable Securities with respect
to which such Rightholder is deemed to be a holder immediately prior to the
issuance of such New Securities to (Y) the total number of outstanding shares of
Common Stock on an as-converted basis. For all purposes in this Agreement of
determining the Preferred Stock held by a Purchaser, all Convertible Debentures
shall be treated as if converted to Series DD Preferred. This right of first
refusal shall be subject to the following provisions:
(a) "New Securities" shall mean any Common Stock and Preferred
Stock of the Company whether or not authorized on the date hereof, and rights,
options, or warrants to purchase said Common Stock or Preferred Stock and
securities of any type whatsoever that are, or may become, convertible into said
Common Stock or Preferred Stock; provided, however, that "New Securities" does
not include the following:
(i) up to 4,025,000 shares of Common Stock, or options to
purchase shares of Common Stock, issued, issuable or granted to officers,
directors, and employees of or consultants to the Company pursuant to stock
plans or option plans approved by the Board of Directors;
(ii) shares of Common Stock issuable upon conversion of
the Preferred Stock;
(iii) securities of the Company offered to the public
pursuant to a registration statement filed under the Securities Act;
(iv) securities of the Company issued in connection with
strategic transactions approved by the Board of Directors of the Company;
11.
15
(v) securities of the Company issued pursuant to the
acquisition of another corporation by the Company by merger, purchase of all or
substantially all of the assets, or other reorganization whereby the Company
owns more than fifty percent (50%) of the voting power of such other
corporation, so long as such transactions were approved by the Board of
Directors of the Company; or
(vi) securities issued in connection with any stock split,
stock dividend, or recapitalization by the Company.
(b) In the event that Company proposes to undertake an issuance
of New Securities, the Company shall give each Rightholder written notice of its
intention, describing the type of New Securities, the price, and the general
terms upon which the Company proposes to issue the same. Each Rightholder shall
have 20 days after receipt of such notice to agree to purchase its pro rata
share of such New Securities at the price and upon the terms specified in the
notice by giving written notice to the Company and stating therein the quantity
of New Securities to be purchased.
(c) In the event that any Rightholder fails to exercise in full
the right of first refusal within the 20-day period specified above, the Company
shall have 120 days thereafter to sell (or enter into an agreement pursuant to
which the sale of New Securities covered thereby shall be closed, if at all,
within 60 days from the date of said agreement) any remaining New Securities
respecting which the Rightholders' Rights were not exercised, at a price and
upon terms no more favorable to the purchasers thereof than specified in the
Company's notice to the Rightholders. In the event the Company has not sold any
remaining New Securities within such 120 day period (or sold and issued New
Securities in accordance with the foregoing within 60 days from the date of such
agreement) the Company shall not thereafter issue or sell any New Securities,
without first offering such New Securities to the Rightholders in the manner
provided above.
(d) The right of first refusal granted under this Section 5.1
shall not apply to, and shall terminate on the earlier of (i) the date of a
liquidation, dissolution or winding up of the Company pursuant to Section 3 of
the Articles of Incorporation, or (ii) the date upon which a registration
statement filed by the Company under the Securities Act, in connection with an
underwritten public offering, first becomes effective.
(e) This right of first refusal is nonassignable except to any
transferee to whom registration rights may be transferred pursuant to Section
3.14.
5.2 OUTSTANDING SECURITIES. If (i) the Company receives notice under
Section 10.1(a) of the Company's Bylaws of the proposed sale of shares of the
Company's capital stock by (A) an officer of the Company, (B) a director of the
Company or (C) a holder of at least 5% of the Company's capital stock
(determined on an as-converted-to Common Stock basis) and (ii) the Company
elects not to purchase such shares pursuant to the right of first refusal in
favor of the Company provided in Section 10.1 of the Company's Bylaws, then the
Company shall within ten days of such notice assign its right of first refusal
to the Rightholders (on a pro-rata basis with respect to the number of shares of
Common Stock (as determined on an as-converted-basis) by each such holder) and
provide notice of such assignment to such holders and, thereafter, shall
12.
16
take such actions as are reasonably necessary to permit such holders to exercise
such right of first refusal.
VI. MISCELLANEOUS
6.1 GOVERNING LAW. This Agreement shall be governed in all respects by
the laws of the State of California.
6.2 SURVIVAL. The representations, warranties, covenants, and agreements
made herein shall survive any investigation made by any Holder and the closing
of the transactions contemplated hereby. All statements as to factual matters
contained in any certificate or other instrument delivered by or on behalf of
the Company pursuant hereto in connection with the transactions contemplated
hereby shall be deemed to be representations and warranties by the Company
hereunder solely as of the date of such certificate or instrument.
6.3 SUCCESSORS AND ASSIGNS. Except as otherwise expressly 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 and shall inure to the benefit of and be enforceable by each
person who shall be a holder of Registrable Securities from time to time;
provided, however, that prior to the receipt by the Company of adequate written
notice of the transfer of any Registrable Securities specifying the full name
and address of the transferee, the Company may deem and treat the person listed
as the holder of such shares in its records as the absolute owner and holder of
such shares for all purposes, including the payment of dividends or any
redemption price.
6.4 SEPARABILITY. In case any provision of the Agreement shall be
invalid, illegal, or unenforceable, the validity, legality, and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
6.5 AMENDMENT AND WAIVER.
(a) This Agreement may be amended or modified only upon the
written consent of the Holders of not less than 66-2/3% of the Registrable
Securities; provided, however, that the rights set forth in paragraph 3.5 of
this Agreement may be amended or modified only with the written consent of the
Company and Holders of more than 66-2/3% of the aggregate outstanding shares of
Registrable Securities.
(b) The obligations of the Company and the rights of the Holders
under this Agreement may be waived only with the written consent of the Holders
of not less than 66-2/3% of the Registrable Securities; provided, however, that
the obligations of the Company and the rights of the Holders set forth in
Section 3.5 of this Agreement may be waived only with the written consent of the
Company and Holders of more than 66-2/3% of the aggregate outstanding shares of
Registrable Securities.
(c) Except to the extent provided in this Section 6.5, neither
this Agreement nor any provision hereof may be changed, waived, discharged, or
terminated, except by a
13.
17
statement in writing signed by the party against which enforcement of the
change, waiver, discharge, or termination is sought.
6.6 DELAYS OR OMISSIONS. It is agreed that no delay or omission to
exercise any right, power, or remedy accruing to any Holder, upon any breach,
default or noncompliance of the Company under this Agreement shall impair any
such right, power, or remedy, nor shall it be construed to be a waiver of any
such breach, default or noncompliance, or any acquiescence therein, or of or in
any similar breach, default or noncompliance thereafter occurring. It is further
agreed that any waiver, permit, consent, or approval of any kind or character on
any Holder's part of any breach, default or noncompliance under the Agreement or
any waiver on such Holder's part of any provisions or conditions of this
Agreement must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement, by law, or otherwise afforded to Holders, shall be cumulative and not
alternative.
6.7 NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be sent by registered or
certified mail, return receipt requested, postage prepaid, by means of a
nationally recognized overnight courier service, by telex or by facsimile,
addressed or sent: (a) if to a Holder, at such Holder's address or facsimile
number as set forth on the Company's records, or at such other address or
facsimile number as such Holder shall have furnished to the Company in writing,
or (b) if to the Company, at its address or facsimile number as set forth at the
end of this Agreement, or at such other address or facsimile number as the
Company shall have furnished to the Holders in writing.
6.8 ATTORNEYS' FEES. If legal action is brought to enforce or interpret
this Agreement, the prevailing party shall be entitled to recover its reasonable
attorneys' fees and legal costs in connection therewith.
6.9 NO INVESTMENT OBLIGATION. The Company and each of the Purchasers
hereby agree and acknowledge that the Purchasers, individually and jointly, are
under no express or implied obligation to continue to invest in the Company. The
decision to make any future investments in the Company is within the complete
and absolute discretion of each Purchaser.
6.10 AGGREGATION AND AFFILIATE STATUS. For purposes of determining the
amount of shares or Registrable Securities held by a Purchaser or Holder, all
shares or Registrable Securities held by entities affiliated with such Purchaser
or Holder shall be aggregated with the shares or Registrable Securities held by
such Purchaser or Holder. For such purpose, all entities under the management of
Chancellor LGT Asset Management shall be deemed to be affiliates of each other
and of Chancellor LGT Asset Management.
6.11 ENTIRE AGREEMENT. The Company and each of the Purchasers hereby
agrees and acknowledges that this Agreement and all exhibits hereto constitute
the full and entire understanding and agreement between the parties with regard
to the subject matter hereof. There are no other agreements or understandings
with respect to the subject matter set forth herein, express or implied, other
than this Agreement.
14.
18
6.12 TITLES AND SUBTITLES. The titles of the paragraphs and
subparagraphs of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
6.13 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
15.
19
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth in the first paragraph hereof.
COMPANY:
REPEATER TECHNOLOGIES, INC.
By: /s/ XXX XXXXXXXX
-------------------------------------
Xxx Xxxxxxxx
President
PURCHASER:
BRENTWOOD ASSOCIATES VI, L.P.
BY BRENTWOOD VI VENTURES, L.P., GENERAL PARTNER
By:
-------------------------------------
Name:
Title:
20
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth in the first paragraph hereof.
COMPANY:
REPEATER TECHNOLOGIES, INC.
By:
-------------------------------------
Xxx Xxxxxxxx
President
PURCHASER:
BRENTWOOD ASSOCIATES VI, L.P.
BY BRENTWOOD VI VENTURES, L.P., GENERAL PARTNER
By: /s/ XXXX X. XXXXXXX
-------------------------------------
Name: Xxxx X. Xxxxxxx
Title: General Partner
21
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth in the first paragraph hereof.
COMPANY:
REPEATER TECHNOLOGIES, INC.
By: /s/ XXX XXXXXXXX
-------------------------------------
Xxx Xxxxxxxx
President
PURCHASER:
CHANCELLOR LGT PRIVATE CAPITAL III, L.P.
BY:
BY:
By:
-------------------------------------
Name:
Title:
22
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth in the first paragraph hereof.
COMPANY:
REPEATER TECHNOLOGIES, INC.
By:
-------------------------------------
Xxx Xxxxxxxx
President
PURCHASER:
CHANCELLOR PRIVATE CAPITAL PARTNERS III, L.P.
By: CPCP Associates L.P. its General Partner
By: INVESCO Private Capital Inc, its General Partner
By: /s/ XXXXXXXXXX XXXX
-------------------------------------
Name: Xxxxxxxxxx Xxxx
Title: Managing Director
23
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth in the first paragraph hereof.
COMPANY:
REPEATER TECHNOLOGIES, INC.
By:
-------------------------------------
Xxx Xxxxxxxx
President
PURCHASER:
CHANCELLOR PRIVATE CAPITAL OFFSHORE PARTNERS I, C.V.
BY: Chancellor KME IV Partner, L.P., its Investment General Partner
BY: INVESCO Private Capital, Inc., its General Partner
By: /s/ XXXXXXXXXX XXXX
-------------------------------------
Name: Xxxxxxxxxx Xxxx
Title: Managing Director
24
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth in the first paragraph hereof.
COMPANY:
REPEATER TECHNOLOGIES, INC.
By:
-------------------------------------
Xxx Xxxxxxxx
President
PURCHASER:
CHANCELLOR PRIVATE CAPITAL OFFSHORE PARTNERS II, L.P.
BY: CPCO Associates, L.P., its Investment General Partner
BY: INVESCO Private Capital, Inc., its General Partner
By: /s/ XXXXXXXXXX XXXX
-------------------------------------
Name: Xxxxxxxxxx Xxxx
Title: Managing Director
25
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth in the first paragraph hereof.
COMPANY:
REPEATER TECHNOLOGIES, INC.
By:
-------------------------------------
Xxx Xxxxxxxx
President
PURCHASER:
CITIVENTURE 96 PARTNERSHIP FUND, L.P.
By: INVESCO (NY), INC., as Investment Adviser
By: /s/ [SIGNATURE ILLEGIBLE]
-------------------------------------
Name: [ILLEGIBLE]
Title: Managing Director
26
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth in the first paragraph hereof.
COMPANY:
REPEATER TECHNOLOGIES, INC.
By:
-------------------------------------
Xxx Xxxxxxxx
President
PURCHASER:
CHARTER GROWTH CAPITAL, L.P.
By: /s/ [SIGNATURE ILLEGIBLE]
-------------------------------------
Name: [ILLEGIBLE]
Title: General P
27
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth in the first paragraph hereof.
COMPANY:
REPEATER TECHNOLOGIES, INC.
By:
-------------------------------------
Xxx Xxxxxxxx
President
PURCHASER:
CHARTER GROWTH CAPITAL CO-INVESTMENT FUND, L.P.
By: /s/ XXXXX XxXXXXXXX
-------------------------------------
Name: Xxxxx XxXxxxxxx
Title: General Partner
28
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth in the first paragraph hereof.
COMPANY:
REPEATER TECHNOLOGIES, INC.
By:
-------------------------------------
Xxx Xxxxxxxx
President
PURCHASER:
CGC INVESTORS, L.P.
By: /s/ XXXXX XXXXXXXXX
-------------------------------------
Name: Xxxxx XxXxxxxxx
Title: General Partner
29
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth in the first paragraph hereof.
COMPANY:
REPEATER TECHNOLOGIES, INC.
By:
-------------------------------------
Xxx Xxxxxxxx
President
PURCHASER:
XXXXX R. DOLL AND XXXXX XXXX AS TRUSTEES UTA
9-10-92 OF THE XXXXX AND XXXXX XXXX FAMILY TRUST
By: /s/ XXXXX R. DOLL
-------------------------------------
Name: Xxxxx X. Xxxx
Title: Trustee
30
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth in the first paragraph hereof.
COMPANY:
REPEATER TECHNOLOGIES, INC.
By:
-------------------------------------
Xxx Xxxxxxxx
President
PURCHASER:
DOLL FAMILY PARTNERSHIP
By: /s/ XXXXX X. XXXX
-------------------------------------
Name: Xxxxx R. Doll
Title: Partner
31
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth in the first paragraph hereof.
COMPANY:
REPEATER TECHNOLOGIES, INC.
By:
-------------------------------------
Xxx Xxxxxxxx
President
PURCHASER:
DMW INVESTORS '95
By: /s/ [SIGNATURE ILLEGIBLE]
-------------------------------------
Name:
Title:
32
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth in the first paragraph hereof.
COMPANY:
REPEATER TECHNOLOGIES, INC.
By:
-------------------------------------
Xxx Xxxxxxxx
President
PURCHASER:
HALLADOR VENTURE FUND II, A CALIFORNIA LIMITED PARTNERSHIP
BY HALLADOR VENTURE PARTNERS
By: /s/ XXXXX X. XXXXXXXX Hallador Venture Fund II
------------------------------------- By Hallador Venture Ptrs.
Name: XXXXX X. XXXXXXXX By Xxxxx X. Xxxxxxxx
Title: General Partner
33
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth in the first paragraph hereof.
COMPANY:
REPEATER TECHNOLOGIES, INC.
By:
-------------------------------------
Xxx Xxxxxxxx
President
PURCHASER:
HMS GROUP
By: /s/ XXXXX XXXXXXXX
-------------------------------------
Name: Xxxxx Xxxxxxxx
Title: General Partner
34
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth in the first paragraph hereof.
COMPANY:
REPEATER TECHNOLOGIES, INC.
By:
-------------------------------------
Xxx Xxxxxxxx
President
PURCHASER:
INTERNATIONAL SYNERGIES LTD.
By: /s/ XXXXX R. DOLL
-------------------------------------
Name: Xxxxx X. Xxxx
Title: Authorized Agent
35
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth in the first paragraph hereof.
COMPANY:
REPEATER TECHNOLOGIES, INC.
By:
-------------------------------------
Xxx Xxxxxxxx
President
PURCHASER:
X.X. XXXX CO., INC. AS NOMINEE 1990-13
By: /s/ XXXXXX X. XXXX, XX.
-------------------------------------
Name: XXXXXX X. XXXX, XX.
Title: VICE PRESIDENT
36
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth in the first paragraph hereof.
COMPANY:
REPEATER TECHNOLOGIES, INC.
By:
-------------------------------------
Xxx Xxxxxxxx
President
PURCHASER:
NAZEM & COMPANY IV, L.P.
BY NAZEM & ASSOCIATES IV, L.P., GENERAL PARTNER
By: /s/ XXXXXX XXXXX
-------------------------------------
Name: XXXXXX XXXXX
Title: GENERAL MANAGER
37
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth in the first paragraph hereof.
COMPANY:
REPEATER TECHNOLOGIES, INC.
By:
-------------------------------------
Xxx Xxxxxxxx
President
PURCHASER:
OAK INVESTMENT PARTNERS VI, LIMITED PARTNERSHIP
By: /s/ XXXXXX XXXXXX
-------------------------------------
Name: Xxxxxx Xxxxxx
Title:
MANAGING MEMBER OF OAK ASSOCIATES VI, LLC,
THE GENERAL PARTNER OF
OAK INVESTMENT PARTNERS VI,
LIMITED PARTNERSHIP
38
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth in the first paragraph hereof.
COMPANY:
REPEATER TECHNOLOGIES, INC.
By:
-------------------------------------
Xxx Xxxxxxxx
President
PURCHASER:
TRANSATLANTIC VENTURE FUND C.V.
By: /s/ XXXXXX XXXXX
-------------------------------------
Name: XXXXXX XXXXX
Title: INVESTMENT MANAGER
39
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth in the first paragraph hereof.
COMPANY:
REPEATER TECHNOLOGIES, INC.
By:
-------------------------------------
Xxx Xxxxxxxx
President
PURCHASER:
UNIVERSITY OF MICHIGAN
BUSINESS SCHOOL GROWTH FUND
By: /s/ XXXXX R. DOLL
-------------------------------------
Name: XXXXX X. XXXX
Title: INV MANAGER
40
EXHIBIT A
PRIOR PURCHASERS
Bay Partners IV, L.P.
Brentwood Associates VI
California BPIV, X.X.
Xxxxxxxxxx LGT Private Capital Partners III, X.X.
Xxxxxxxxxx LGT Private Capital Offshore Partners I, C.V.
Chancellor LGT Private Capital Offshore Partners II, L.P.
Citiventure 96 Partnership Fund, X.X.
Xxxxx X. Xxxx & Xxxxx Xxxx as Trustees
DMW Investors '95
Doll Family Partnership
Hallador Venture Fund II, a California Limited Partnership
HMS Capital Partners
HMS Capital Partners (Annex)
HMS Group
HMS (Overseas) Partners
Xxxxxxx Xxxx as Trustee
International Synergies Ltd.
X.X. Xxxx Company, Inc., as nominee 1990-13
Nazem & Company IV, L.P.
Oak Investment Partners VI, L.P.
Oak VI Affiliates Fund, L.P.
Xxxxx X. XxXxxxxxx
Spring Point Partners, L.P.
Xxxxxx X. Xxxxxxx
Transatlantic Venture Fund
University of Michigan Business School Growth Fund
WA&H Investment, L.L.C.
New Purchasers
Charter Growth Capital, L.P.
Charter Growth Capital Co-investment Fund L.P.
CGC Investors, L.P.
1
41
AMENDMENT NO. 1 TO
THE SIXTH AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
This AMENDMENT NO. 1 TO THE SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS
AGREEMENT (the "Amendment No. 1) is made effective as of July 8, 1999, by and
among REPEATER TECHNOLOGIES, INC., a California corporation (the "Company"),
TBCC Funding Trust II ("TBCC") and those parties to that certain Sixth Amended
and Restated Investors' Rights Agreement of the Company entered into as of
November 25, 1998 (the "Investors' Rights Agreement") listed as "Prior
Purchasers" on Exhibit A hereto (capitalized terms used herein and not otherwise
defined are given the meanings assigned them in the Investors' Rights
Agreement).
RECITALS
A. WHEREAS, the Company and Transamerica Business Credit Corporation, a
Delaware corporation, entered into that certain Loan and Security Agreement
dated as of July 8, 1999 (the "Loan and Security Agreement") and, in connection
with such agreement, the Company and TBCC entered into that certain Stock
Subscription Warrant issued on July 8, 1999 (the "TBCC Warrant") which warrant
is exercisable in accordance with its terms to purchase up to 100,000 shares of
the Company's Series DD Preferred Stock, without par value.
B. WHEREAS, pursuant to Section 12 of the TBCC Warrant, the Company has
agreed to cause the Investors' Rights Agreement to be amended to include TBCC as
a "Purchaser" thereunder and the shares issuable upon exercise of the Warrant as
"Registrable Securities" thereunder.
C. WHEREAS, Section 6.5 of the Investors' Rights Agreement provides that
the Investors' Rights Agreement may be amended or modified upon the written
consent of the holders of not less than 66-2/3% of the Registrable Securities
thereunder.
D. WHEREAS, the requisite number of holders of such Registrable
Securities, by executing this Amendment No. 1, have agreed to amend the
Investors' Rights Agreement in accordance with the foregoing.
AGREEMENT
ACCORDINGLY, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree as follows:
1. The definition of "Purchaser" (and collectively, the "Purchasers")
under the Investors' Rights Agreement is hereby amended to include TBCC as a
"Purchaser" thereunder.
2. Section 1.2 of the Investors' Rights Agreement is amended to read in
its entirety as follows:
1.
42
"1.2 "REGISTRABLE SECURITIES" shall mean shares of the Company's
Common Stock issued or issuable pursuant to (i) the conversion of the
Company's Series A Preferred Stock (the "Series A Stock"), Series B
Preferred Stock (the "Series B Stock"), Series C Preferred Stock (the
"Series C Stock"), Series D Preferred Stock (the "Series D Stock"),
Series E Preferred Stock (the "Series E Stock"), Series AA Preferred
Stock (the "Series AA Stock"), Series BB Preferred Stock (the "Series BB
Stock"), Series CC Preferred Stock (the "Series CC Stock") and Series DD
Preferred Stock (the "Series DD Stock"), (ii) the exercise of the
warrants granted in connection with the Company's interim financings in
1985, 1986 and 1990 (the "Prior Warrants"), (iii) the exercise of
warrants granted in connection with the Series A Preferred Stock
Purchase Agreements dated April 17, 1987 and November 23, 1988 pursuant
to Warrant Agreements of even date therewith (the "1987 Warrants" and
the "1988 Warrants" respectively), (iv) the exercise of warrants granted
in 1995 (the "1995 Warrants"), (v) the exercise of warrants granted in
connection with the Company's 1997 Series BB Preferred Stock and Warrant
financing (the "1997 Warrants"), (vi) the conversion of convertible
debentures issued pursuant to that certain Convertible Debenture
Purchase Agreement dated as of November 25, 1998 (the "Convertible
Debentures") and (vii) the exercise of the TBCC Warrant, and any Common
Stock of the Company issued or issuable in respect of any of the
foregoing securities upon any stock split, stock dividend,
recapitalization or similar event."
3. Except as expressly set forth herein, all of the terms and conditions
set forth in the Investors' Rights Agreement shall remain in full force and
effect.
4. This Amendment shall be deemed to be a contract made under the laws
of the State of California and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to contracts to
be made and performed entirely within such State.
4. This Amendment may be executed in any number of counterparts and each
of such counterparts shall for all purposes be deemed to be an original, and all
such counterparts shall together constitute but one and the same instrument.
2.
43
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
1 as of the date set forth in the first paragraph hereof.
COMPANY:
REPEATER TECHNOLOGIES, INC.
By: /s/ XXX XXXXXXXX
-------------------------------------
Xxx Xxxxxxxx
President
TBCC:
TBCC FUNDING TRUST II
By: /s/ XXX XXXXXXXX
-------------------------------------
Name: Xxx Xxxxxxxx
-----------------------------------
Title: Senior Vice President
----------------------------------
General Manager
----------------------------------
AMENDMENT NO. 1 TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
SIGNATURE PAGE
44
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
1 as of the date set forth in the first paragraph hereof.
COMPANY:
REPEATER TECHNOLOGIES, INC.
By: /s/ XXX XXXXXXXX
-------------------------------------
Xxx Xxxxxxxx
President
PRIOR PURCHASER:
BRENTWOOD ASSOCIATES VI, L.P.
By: /s/ XXXX X. XXXXXXX
-------------------------------------
Name: Xxxx X. Xxxxxxx
-----------------------------------
Title: General Partner
----------------------------------
AMENDMENT NO. 1 TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
SIGNATURE PAGE
45
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
1 as of the date set forth in the first paragraph hereof.
COMPANY:
REPEATER TECHNOLOGIES, INC.
By: /s/ XXX XXXXXXXX
-------------------------------------
Xxx Xxxxxxxx
President
PRIOR PURCHASER:
CHARTER GROWTH CAPITAL, L.P.
By: /s/ XXXXX X. XxXXXXXXX
-------------------------------------
Name: Xxxxx X. XxXxxxxxx
-----------------------------------
Title: General Partner of the
----------------------------------
General Partner
----------------------------------
AMENDMENT NO. 1 TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
SIGNATURE PAGE
46
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
1 as of the date set forth in the first paragraph hereof.
COMPANY:
REPEATER TECHNOLOGIES, INC.
By: /s/ XXX XXXXXXXX
-------------------------------------
Xxx Xxxxxxxx
President
PRIOR PURCHASER:
TRANSATLANTIC VENTURE FUND
By: /s/ XXXXX X. XxXXXXXXX
-------------------------------------
Name: Xxxxx X. XxXxxxxxx
-----------------------------------
Title: General Partner of the
----------------------------------
General Partner
----------------------------------
AMENDMENT NO. 1 TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
SIGNATURE PAGE
47
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
1 as of the date set forth in the first paragraph hereof.
PRIOR PURCHASER:
TRANS ATLANTIC VENTURE FUND
By: /s/ XXXXXX XXXXX
-------------------------------------
Name: Xxxxxx Xxxxx
-----------------------------------
Title: Investment Manager
----------------------------------
COMPANY
REPEATER TECHNOLOGIES, INC.
By: /s/ XXX XXXXXXXX
-------------------------------------
Xxx Xxxxxxxx
President
AMENDMENT NO. 1 TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
SIGNATURE PAGE
48
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
1 as of the date set forth in the first paragraph hereof.
COMPANY:
REPEATER TECHNOLOGIES, INC.
By: /s/ XXX XXXXXXXX
-------------------------------------
Xxx Xxxxxxxx
President
PRIOR PURCHASER:
CHARTER GROWTH CAPITAL CO-INVESTMENT FUND, L.P.
By: /s/ XXXXX X. XxXXXXXXX
-------------------------------------
Name: Xxxxx X. XxXxxxxxx
-----------------------------------
Title: General Partner of the
----------------------------------
General Partner
----------------------------------
AMENDMENT NO. 1 TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
SIGNATURE PAGE
49
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
1 as of the date set forth in the first paragraph hereof.
COMPANY:
REPEATER TECHNOLOGIES, INC.
By: /s/ XXX XXXXXXXX
-------------------------------------
Xxx Xxxxxxxx
President
PRIOR PURCHASER:
BAY PARTNERS IV
By: /s/ XXXX XXXXX
-------------------------------------
Name: Xxxx Xxxxx
-----------------------------------
Title:
----------------------------------
AMENDMENT NO. 1 TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
SIGNATURE PAGE
50
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
1 as of the date set forth in the first paragraph hereof.
COMPANY:
REPEATER TECHNOLOGIES, INC.
By: /s/ XXX XXXXXXXX
-------------------------------------
Xxx Xxxxxxxx
President
PRIOR PURCHASER:
CHANCELLOR PRIVATE CAPITAL III, L.P.
By: CPCP Associates, L.P., its General Partner
By: INVESCO Private Capital One, its General Partner
By: /s/ XXXXXXXXXX XXXX
-------------------------------------
Name: Xxxxxxxxxx Xxxx
-----------------------------------
Title: Managing Director
----------------------------------
AMENDMENT NO. 1 TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
SIGNATURE PAGE
51
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
1 as of the date set forth in the first paragraph hereof.
COMPANY:
REPEATER TECHNOLOGIES, INC.
By: /s/ XXX XXXXXXXX
-------------------------------------
Xxx Xxxxxxxx
President
PRIOR PURCHASER:
CHANCELLOR PRIVATE CAPITAL OFFSHORE PARTNERS I, C.V.
By: Chancellor KME IV Partner, L.P., Its Investment General Partner
By: INVESCO Private Capital One, its General Partner
By: /s/ XXXXXXXXXX XXXX
-------------------------------------
Name: Xxxxxxxxxx Xxxx
-----------------------------------
Title: Managing Director
----------------------------------
AMENDMENT NO. 1 TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
SIGNATURE PAGE
52
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
1 as of the date set forth in the first paragraph hereof.
COMPANY:
REPEATER TECHNOLOGIES, INC.
By: /s/ XXX XXXXXXXX
-------------------------------------
Xxx Xxxxxxxx
President
PRIOR PURCHASER:
CHANCELLOR PRIVATE CAPITAL OFFSHORE PARTNERS II, L.P.
By: CPCP Associates L.P., its Investment General Partner
By: INVESCO Private Capital One, its General Partner.
By: /s/ XXXXXXXXXX XXXX
-------------------------------------
Name: Xxxxxxxxxx Xxxx
-----------------------------------
Title: Managing Director
----------------------------------
AMENDMENT NO. 1 TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
SIGNATURE PAGE
53
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
1 as of the date set forth in the first paragraph hereof.
PRIOR PURCHASER:
CITIVENTURE 96 Partnership, L.P.
By: INVESCO Private Capital Inc., its Investment Advisor
By: /s/ XXXXXXXXXX XXXX
-------------------------------------
Name: Xxxxxxxxxx Xxxx
-----------------------------------
Title: Managing Director
----------------------------------
AMENDMENT NO. 1 TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
SIGNATURE PAGE
54
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
1 as of the date set forth in the first paragraph hereof.
PRIOR PURCHASER:
HALLADOR VENTURE FUND II, A CALIFORNIA LIMITED PARTNERSHIP
By: HALLADOR VENTURE PARTNERS, G.P.
-------------------------------------
Name: /s/ XXXXX X. XXXXXXXX
-----------------------------------
Title:
----------------------------------
COMPANY:
REPEATER TECHNOLOGIES, INC.
By: /s/ XXX XXXXXXXX
-------------------------------------
Xxx Xxxxxxxx
President
AMENDMENT NO. 1 TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
SIGNATURE PAGE
55
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
1 as of the date set forth in the first paragraph hereof.
PRIOR PURCHASER:
HMS CAPITAL PARTNERS
By: /s/ X. X. XXXX
-------------------------------------
Name: X. X. Xxxx
-----------------------------------
Title: General Partner of HMS Group
----------------------------------
COMPANY:
REPEATER TECHNOLOGIES, INC.
By: /s/ XXX XXXXXXXX
-------------------------------------
Xxx Xxxxxxxx
President
AMENDMENT NO. 1 TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
SIGNATURE PAGE
56
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
1 as of the date set forth in the first paragraph hereof.
PRIOR PURCHASER:
HMS GROUP
By: /s/ X. X. XXXX
-------------------------------------
Name: X. X. Xxxx
-----------------------------------
Title: General Partner
----------------------------------
COMPANY:
REPEATER TECHNOLOGIES, INC.
By: /s/ XXX XXXXXXXX
-------------------------------------
Xxx Xxxxxxxx
President
AMENDMENT NO. 1 TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
SIGNATURE PAGE
57
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
1 as of the date set forth in the first paragraph hereof.
PRIOR PURCHASER:
NAZEM & COMPANY IV, L.P.
By: /s/ XXXXXX XXXXX
-------------------------------------
Name: Xxxxxx Xxxxx
-----------------------------------
Title: General Partner
----------------------------------
COMPANY:
REPEATER TECHNOLOGIES, INC.
By: /s/ XXX XXXXXXXX
-------------------------------------
Xxx Xxxxxxxx
President
AMENDMENT NO. 1 TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
SIGNATURE PAGE
58
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
1 as of the date set forth in the first paragraph hereof.
PRIOR PURCHASER:
OAK INVESTMENT PARTNERS VI, LIMITED PARTNERSHIP
By: /s/ XXXXXX XXXXXX
--------------------------------------------------
Name: Xxxxxx Xxxxxx
------------------------------------------------
Title: MANAGING MEMBER OF OAK ASSOCIATES VI, LLC.
---------------------------------------------
THE GENERAL PARTNER OF
---------------------------------------------
OAK INVESTMENT PARTNERS VI,
---------------------------------------------
LIMITED PARTNERSHIP
---------------------------------------------
COMPANY:
REPEATER TECHNOLOGIES, INC.
By: /s/ XXX XXXXXXXX
-------------------------------------
Xxx Xxxxxxxx
President
AMENDMENT NO. 1 TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
SIGNATURE PAGE
59
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
1 as of the date set forth in the first paragraph hereof.
PRIOR PURCHASER:
OAK VI AFFILIATES FUND, LIMITED PARTNERSHIP
By: /s/ XXXXXX XXXXXX
--------------------------------------------------
Name: Xxxxxx Xxxxxx
------------------------------------------------
Title: MANAGING MEMBER OF OAK VI ASSOCIATES, LLC.
---------------------------------------------
THE GENERAL PARTNER OF
---------------------------------------------
OAK AFFILIATES FUND, VI
---------------------------------------------
LIMITED PARTNERSHIP
---------------------------------------------
COMPANY:
REPEATER TECHNOLOGIES, INC.
By: /s/ XXX XXXXXXXX
-------------------------------------
Xxx Xxxxxxxx
President
AMENDMENT NO. 1 TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
SIGNATURE PAGE
60
EXHIBIT A
PRIOR PURCHASERS:
Bay Partners IV, L.P.
Brentwood Associates VI
CGC Investors, L.P.
California BPIV, X.X.
Xxxxxxxxxx LGT Private Capital Partners III, X.X.
Xxxxxxxxxx LGT Private Capital Offshore Partners I, C.V.
Chancellor LGT Private Capital Offshore Partners II, L.P.
Charter Growth Capital, L.P.
Charter Growth Capital Co-investment Fund L.P.
Citiventure 96 Partnership Fund, X.X.
Xxxxx X. Xxxx & Xxxxx Xxxx as Trustees
DMW Investors '95
Doll Family Partnership
Hallador Venture Fund II, a California Limited Partnership
HMS Capital Partners
HMS Capital Partners (Annex)
HMS Group
HMS (Overseas) Partners
Xxxxxxx Xxxx as Trustee
International Synergies Ltd.
X.X. Xxxx Company, Inc., as nominee 1990-13
Nazem & Company IV, L.P.
Oak Investment Partners VI, L.P.
Oak VI Affiliates Fund, L.P.
Xxxxx X. XxXxxxxxx
Spring Point Partners, L.P.
Xxxxxx X. Xxxxxxx
Transatlantic Venture Fund
University of Michigan Business School Growth Fund
WA&H Investment, L.L.C.
AMENDMENT NO. 1 TO SIXTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
SIGNATURE PAGE
