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EXHIBIT 4.2
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This Amended and Restated Registration Rights Agreement (the "AGREEMENT"), dated
as of December__, 1999, is entered into by and among IET-INTELLIGENT ELECTRONICS
LTD. (the "COMPANY"), OAK INVESTMENT PARTNERS VI, L.P., OAK VI AFFILIATES FUND
L.P., GENESIS PARTNERS I, L.P., THE GENESIS PARTNERS I (CAYMAN) L.P. WORLDVIEW
TECHNOLOGY PARTNERS I, L.P., WORLDVIEW TECHNOLOGY INTERNATIONAL I, L.P.,
WORLDVIEW STRATEGIC PARTNERS I L.P. SEMEL INVESTMENTS LTD., ADSHA PROJECT
INITIATION AND DEVELOPMENT LTD., NORMAN NIE, HAMBRECHT AND QUIST CALIFORNIA,
CHRISTINA M. MORGAN, JAMES A. DAVIDSON, MARK J. ZANOLI, ZOHAR ZISAPEL, MERITECH
CAPITAL PARTNERS L.P. and MERITECH CAPITAL AFFILIATES L.P. (collectively, the
"SHAREHOLDERS") and PROF. MOSHE BEN BASSAT and IDIT BEN BASSAT (together the
"FOUNDER").
R E C I T A L S
The parties wish to set out their respective rights and obligations with respect
to registration of the shares of the company for trading and to replace all
previous agreements between the Company and any of them regarding such
registration by the terms and provisions of this Agreement.
NOW THEREFORE, in consideration of the mutual promises and covenants hereinafter
set forth, the parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms shall
have the following respective meanings:
"COMMISSION" shall mean the United States Securities and Exchange
Commission or any other federal agency at the time administering the
Securities Act or the equivalent authority of any other applicable
jurisdiction.
"DOLLAR OR $" shall mean United States dollar.
"EXCHANGE ACT" shall mean the United States Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
"HOLDER" shall mean any holder, or an assignee under Section 11 hereof, of
outstanding Registrable Securities.
"INITIATING HOLDERS" shall mean any Holders who in the aggregate are
Holders of twenty percent (20%) or more of the outstanding Registrable
Securities.
"ORDINARY SHARES" shall mean the voting ordinary shares of the Company.
"PUBLIC OFFERING" shall mean the closing of the initial offering to the
public of the Company's shares in any jurisdiction.
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The terms "REGISTER", "REGISTERED" and "REGISTRATION" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act or prospectus in compliance with the
Israel Securities Law, 1968 and the declaration or ordering of the
effectiveness of such registration statement.
"REGISTRABLE SECURITIES" shall mean Ordinary Shares (i) issued or issuable
pursuant to the conversion of the Shares, (ii) issued in respect of
securities issued pursuant to the conversion of the Shares upon any stock
split, stock dividend, recapitalization, substitution, or similar event,
(iii) issued in respect of securities purchased pursuant to preemptive
rights or rights of first refusal conferred upon the Holders of the
Shares, and (iv) only with regard to Section 3, held by the Founder and
Ordinary Shares issued, pursuant to the conversion of the Shares, but only
to the extent provided by Section 3(c) hereof; provided, however, that
Registrable Securities shall not include any (a) Ordinary Shares which
have previously been registered, (b) Ordinary Shares which have previously
been sold to the public, or (c) securities which would otherwise be
Registrable Securities held by a Holder who is then permitted to sell all
such securities within any three (3) month period following the Public
Offering pursuant to Rule 144 under the Securities Act if such securities
then held by such Holder constitute less than one percent of the Company's
out standing equity securities.
"REGISTRATION EXPENSES" shall mean all expenses (excluding Selling
Expenses) incurred in connection with a registration or offering under
this Agreement, including, without limitation, all registration and filing
fees, printing expenses, fees and disbursements of counsel for the
Company, blue sky fees and expenses, and the expense (not to exceed
$15,000) 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).
"SECURITIES ACT" shall mean the United States Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"SELLING EXPENSES" shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities, and fees and
expenses of special counsel for the selling shareholders.
"SHARES" shall mean shares of the Company's Class A Convertible Preferred
Shares, Class A-1 Convertible Preferred Shares, Class B Convertible
Preferred Shares, Class B Convertible Ordinary Shares, Class C Convertible
Preferred Shares and Class D Convertible Preferred Shares.
2. Requested Registration.
a. Shares held by Founder: For the purpose of this Section only and
notwithstanding anything to the contrary contained herein,
Registrable Securities shall not include Ordinary Shares held by the
Founder, except for Ordinary Shares issued or issuable pursuant to
conversion of Preferred Shares.
b. Request for Registration. If after the earlier of March 29, 2001 or
12 months following the Public Offering, the Company shall receive
from Initiating Holders a written request that the Company effect
any registration in the jurisdiction in which the public offering is
made, with respect to the lesser of at least twenty
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percent (20%) of the Registrable Securities or such lesser number of
Registrable Securities which would result in an aggregate offering
of at least $10,000,000, the Company will:
(i) promptly give written notice of the proposed registration to
all other Holders; and
(ii) as soon as practicable, use its best efforts to effect such
registration (including, without limitation, the execution of
an undertaking to file post effective amendments, appropriate
qualification under applicable blue sky or other state
securities laws and appropriate compliance with applicable
regulations issued under the Securities Act) as may be so
requested and as would permit or facilitate the sale and
distribution of all or such portion of such Registrable
Securities as are specified in such request, together with all
or such portion of the Registrable Securities of any Holder or
Holders joining in such request as are specified in a written
request delivered to the Company within fifteen (15) days
after receipt of such written notice from the Company;
provided that the Company shall not be obligated to effect, or
to take any action to effect, any such registration pursuant
to this Section after the Company has effected two (2) such
registrations pursuant to this subsection (a) and such
registrations have been declared or ordered effective and the
sales of such Registrable Securities have closed (or such
registration was not declared or ordered effective); provided
further that no such demand shall be made within 180 days of
the effective date of a prior registration statement.
The Company shall file a registration statement covering the
Registrable Securities so requested to be registered as soon as
practicable, after receipt of the request or requests of the
Initiating Holders; provided, however, that if the Company shall
furnish to such Holders a certificate signed by the Chairman of the
Board of Directors 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 on or before the time filing
would be required and it is therefore essential to defer the filing
of such registration statement, the Company shall have the right to
defer such filing for a period of not more than ninety (90) days
after receipt of the request of the Initiating Holders.
A registration requested pursuant to this Section shall not be
deemed to have been effected (i) unless a registration statement
with respect thereto has become effective under the Securities Act
or any equivalent law of any other applicable jurisdiction, provided
that a registration which does not become effective after the
Company has filed a registration statement with respect thereto
solely by reason of the refusal of the holders of Registrable
Securities to proceed shall be deemed to have been effected by the
Company pursuant to this Section unless such refusal to proceed is
caused by a material adverse change in the business or operations of
the Company after such request for registration or (ii) if, after it
has become effective, such registration becomes subject to any stop
order, injunction or other order or requirement of the Commission or
other governmental agency or court for any reason and such order,
injunction or requirement is not promptly withdrawn or lifted.
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(c) Underwriting. If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of an
underwriting, they shall so advise the Company as a part of their
request made pursuant to this Section, and the Company shall include
such information in the written notice referred to in subsection
(b)(i) above. The right of any Holder to registration pursuant to
this Section shall be conditioned upon such Holder's participation
in such underwriting and the inclusion of such Holder's Registrable
Securities in the underwriting (unless otherwise mutually agreed by
a majority in interest of the Initiating Holders and such Holder
with respect to such participation and inclusion) to the extent
provided herein. A Holder may elect to include in such underwriting
all or a part of the Registrable Securities he holds.
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 representative of
the underwriter or underwriters (the "UNDERWRITER") selected for
such underwriting by sixty percent (60%) of the Initiating Holders
and reasonably acceptable to the Company. Notwithstanding any other
provision of this Section, if the Underwriter determines that
marketing factors require a limitation on the number of shares to be
underwritten, the Underwriter may (subject to the allocation
priority set forth below) limit the number of Registrable Securities
to be included in the registration and underwriting to not less than
fifty percent (50%) of the securities which Holders have requested
be included therein. The Company shall so advise all holders of
securities requesting registration, and the number of shares of
securities that are entitled to be included in the registration and
underwriting shall be allocated pro rata among such holders on the
basis of all Registrable Securities then held by such holders. If
any Holder disapproves of the terms of any such underwriting, such
holder may elect to withdraw therefrom by written notice to the
Company and the Underwriter. Any Registrable Securities excluded or
withdrawn from such underwriting shall be withdrawn from such
registration. If the Underwriter has not limited the number of
Registrable Securities or other securities to be underwritten, the
Company may include its securities for its own account in such
registration if the Underwriter so agrees and if the number of
Registrable Securities and other securities which would otherwise
have been included in such registration and underwriting will not
thereby be limited.
3. Company Registration.
(a) If the Company shall determine to register, or offer to the public
in any jurisdiction, any of its securities either for its own
account or for the account of a security holder or holders
exercising their respective demand registration rights, other than a
registration (or its equivalent in other jurisdictions) (i) relating
solely to employee benefit plans or to a Commission Rule 145
transaction, or (ii) on any form which does not permit secondary
sales or does not include substantially the same information as
would be required to be included in a registration statement
covering the sale of Registrable Securities, the Company will:
(i) promptly give to each Holder written notice thereof (which, to
the extent then known, shall include a list of the
jurisdictions in which the Company
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intends to attempt to qualify such securities under the
applicable blue sky or other state securities laws); and
(ii) include in such registration (and any related qualification
under blue sky laws or other compliance), and in any
underwriting involved therein, all of the Registrable
Securities specified in a written request or requests made by
any Holder within fifteen (15) days after receipt of the
written notice from the Company described in clause (i) above,
except as set forth in subsection (b) below. Such written
request may specify all or a part of a Holder's Registrable
Securities.
(b) Underwriting. If the registration of which the Company gives notice
is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice
given pursuant to subsection (b)(i) above. In such event the right
of any Holder to registration pursuant to this Section 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) enter into an underwriting agreement in
customary form with the Underwriter selected for underwriting by the
Company. Notwithstanding any other provision of this Section, if the
Underwriter determines that marketing factors require a limitation
on the number of shares to be underwritten, and (a) if such
registration is the first offering of the Company's securities to
the public, the Underwriter may (subject to the allocation priority
set forth below) exclude from such registration and underwriting
some or all of the Registrable Securities which would otherwise be
underwritten pursuant hereto (but no Registrable Securities may be
excluded until all other securities held by Company's shareholders
have been excluded), and (b) if such registration is other than the
first registered offering of the sale of the Company's securities to
the public, the Underwriter may (subject to the allocation priority
set forth below) limit the number of Registrable Securities to be
included in the secondary portion of the registration and
underwriting to not less than twenty five percent (25%) of the total
number of securities to be offered to the public. The Company shall
so advise all holders of securities requesting registration, and the
number of shares of securities that are entitled to be included in
the registration and underwriting by persons other than the Company
shall be allocated in the following priority: first, to Holders of
Registrable Securities and to the Founder only with respect to
Ordinary Shares issued pursuant to conversion of Shares of the
Founder, to the extent of seventy five percent (75%) of the
Registrable Securities to be included in the registration and
underwriting (and pro rata among such holders on the basis of all
the aforesaid shares); and then, to Founder, to the extent of
twenty-five percent (25%) of the Registrable Securities to be
included in the registration and underwriting. If any Holder
disapproves of the terms of any such underwriting, he may elect to
withdraw therefrom by written notice to the Company and the
Underwriter. Any Registrable Securities or other securities excluded
or withdrawn from such underwriting shall be withdrawn from such
registration.
(c) Piggyback Registration Rights. The Founder shall be entitled to
include (subject to any underwriter cutbacks as provided in this
Agreement) Ordinary Shares in any registration by the Company under
subsection (a) above.
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4. Registration on Form S-3. In case the Company shall receive from any
Holder or Holders of Registrable Securities a written request or requests
that the Company effect a registration on Form S-3 (or any successor to
Form S-3) or any similar short-form registration statement, including Form
F-3 (for purposes of this Agreement, "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:
(i) promptly give written notice of the proposed registration, and any
related qualification or compliance, to all other Holders of
Registrable Securities; and
(ii) 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, subject only to the following limitations:
(a) The Company shall not be obligated to cause a registration pursuant
on Form S-3 to become effective prior to sixty (60) days following
the effective date of the Company's most recent registration,
provided that the Company shall use its best efforts to achieve such
effectiveness promptly following such sixty (60) days period, and
that notice of Company-initiated registration is given to Holders
before the receipt of a request from a holder of Registrable
Securities for registration on Form S-3, provided, however, that if
the Company shall furnish to such Holders a certificate signed by
the Chairman of the Board of Directors 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 on or
before the time filing would be required and it is therefore
essential to defer the filing of such registration statement, the
Company shall have the right to defer such filing for a period of
not more than sixty (60) days after receipt of the request of the
Initiating Holders.
(b) The Company shall not be required to effect a registration pursuant
to this Section unless the Holder or Holders requesting registration
propose to dispose of shares of Registrable Securities having an
aggregate disposition price (before deduction of underwriting
discounts and expenses of sale) of at least $500,000; and
(iii) The Company shall not be required to maintain and keep any such
registration on Form S-3 effective for a period exceeding ninety
(90) days from the effective date thereof. The Company shall give
notice to all Holders of the receipt of a request for registration
pursuant to this Section and shall provide a reasonable opportunity
for all such other holders to participate in the registration.
Subject to the foregoing, the Company will use its best efforts to
effect promptly the registration of all shares of Registrable
Securities on Form S-3 to the extent requested by the Holder or
Holders thereof for purposes of disposition. In the event the
Underwriter determines that market factors require a limitation on
the number of shares to be underwritten, then shares shall be
excluded from such registration and underwriting pursuant to the
method described in Section 3(b).
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(iv) Subject to the foregoing, the Company shall file a Form S-3
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.
Registrations effected pursuant to this Section 4 shall not be
counted as requested registrations or registrations effected
pursuant to Sections 2 or 3, respectively.
5. Expenses of Registration. All Registration Expenses incurred in connection
with any registration, qualification or compliance pursuant to this
Agreement shall be borne by the Company, and all Selling Expenses shall be
borne by the holders of the securities so registered pro rata on the basis
of the number of their shares so registered; provided, however, that the
Company shall not be required to pay any Registration Expenses if, as a
result of the withdrawal of a request for registration by Initiating
Holders, the registration statement does not become effective, unless such
withdrawal is caused by a material adverse change in the business or
operations of the Company after such request for registration, or unless
the Initiating Holders agree to have such registration considered effected
and the sales of which have closed. If the Company is not required to pay
any Registration Expenses, then the Holders requesting registration shall
bear such Registration Expenses pro rata on the basis of the number of
their shares so included in the registration request, and such
registration shall not be considered a registration for purposes computing
the number of effected requested registrations of which the sales have
closed.
6. Registration Procedures. In the case of each registration effected by the
Company pursuant to this Agreement, the Company will keep each Holder
advised in writing as to the initiation of such registration and as to the
completion thereof. At its expense, the Company will:
(a) Prepare and file with the Commission a registration statement with
respect to such Registrable Securities and use all reasonable
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 ninety (90) days or, if earlier, until
the Holder or Holders have completed the distribution related
thereto.
(b) Prepare and file with the Commission 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 for the
period set forth in paragraph (a) above.
(c) Furnish to the Holders such number 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 reasonable 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.
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(e) 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.
(f) Use its best efforts to furnish, on the date that such Registrable
Securities are delivered to the underwriters for sale, if such
securities are being sold through underwriters, (i) an opinion,
dated as of 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 (ii) a letter
dated as of such date, from the independent certified public
accountants of the Company, in form and substance as is customarily
given by independent certified public accountants to underwriters in
an underwritten public offering addressed to the underwriters.
(g) In connection with any underwritten offering pursuant to a
registration statement filed pursuant to Section 2 hereof, the
Company will enter into any underwriting agreement reasonably
necessary to effect the offer and sale of Ordinary Shares, provided
such underwriting agreement contains customary underwriting
provisions, and provided further that if the underwriter so requests
the underwriting agreement will contain customary indemnification
and contribution provisions, and provided further that the
Underwriter is reasonably acceptable to the Company.
7. Indemnification.
(a) The Company will indemnify each Holder, each of its officers,
directors and partners, and each person controlling such Holder, if
Registrable Securities held by such Holder are included in the
securities with respect to which registration, qualification or
compliance has been effected pursuant to this Agreement, and each
underwriter, if any, and each person who controls any underwriter,
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
prospectus, offering circular or other document (including any
related registration statement, notification or the like) 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 the Securities Act
including any rule or regulation thereunder applicable to the
Company 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 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 and 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 alleged untrue statement) or omission
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(or alleged omission) based upon written information furnished to
the Company by such Holder or underwriter and stated to be
specifically for use therein.
(b) Each Holder will, if Registrable Securities or other securities held
by such Holder are included in the securities as to which such
registration, qualification or compliance is being effected,
indemnify the Company, each of its directors, officers and agents
and 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 the Securities Act and the
rules and regulations thereunder, each other such Holder and each of
their officers, directors and partners, and each person controlling
such Holder, 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, in light of the circumstances in
which they were made, not misleading, and will reimburse the Company
and such Holders, directors, officers, agents, partners, persons,
underwriters or control persons for any legal or any other expenses
reasonably incurred in connection with investigating of 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 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 proceeds to each such Holder of securities sold as
contemplated herein.
(c) Each party entitled to indemnification under this Section (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 any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose
approval shall not unreasonably be withheld), and the Indemnified
Party may participate in such defense at such party's expense, and
provided further that the failure of any Indemnified Party to give
notice as provided herein shall not relieve the Indemnifying Party
of its obligations under this Agreement. 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. Each Indemnified Party shall furnish
such information regarding itself or the claim in question as an
Indemnifying Party may reasonably request in writing and as shall be
reasonably required in connection with defense of such claim and
litigation resulting therefrom.
8. Information by Holder. Each Holder holding securities included in any
registration shall furnish to the Company such information regarding such
Holder as the
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Company may reasonably request in writing and as shall be reasonably
required in connection with any registration, qualification or compliance
referred to in this Agreement.
9. Limitations on Registration. From and after the date of this Agreement,
the Company shall not enter into any agreement with any holder or
prospective holder of any securities of the Company giving such holder or
prospective holder rights that, in the good faith judgment of the
Company's Board of Directors, are superior to the rights herein, unless
such superior rights are granted to each Shareholder.
10. Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission which may permit the sale
of securities to the public without registration, 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 from and after ninety (90) days following 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 file with the Commission in a timely manner
all reports and other documents required of the Company under the
Securities Act and the Exchange Act at any time after it has become
subject to such reporting requirements;
(c) Furnish to each Holder upon request a written statement by the
Company as to its compliance with the reporting requirements of Rule
144 (at any time from and after ninety (90) days following 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), a copy of the
most recent annual or quarterly report of the Company, and such
other reports and documents so filed as a Shareholder may reasonably
request in availing itself of any rule or regulation of the
Commission allowing a Holder to sell any such securities without
registration.
11. Transfer of Rights. The rights to cause the Company to register the
Shareholder's securities granted by the Company hereof may be transferred
or assigned, provided that (i) the Company is given written notice by a
Shareholder at the time of said transfer or assignment, stating the name
and address of said transferee or assignee and identifying the securities
with respect to which such registration rights are being transferred or
assigned, (ii) the transfer is in connection with a transfer of all
securities of the Company held by the transferor and involves at least
100,000 shares, or is to constituent partners or shareholders who agree to
act through a single representative; and (iii) the transferee or assignee
assumes the obligations of a Shareholder under this Agreement.
12. "Market Stand-off" Agreement. Each Shareholder and the Founder agrees, if
requested by the Company and an underwriter of Ordinary Shares (or other
securities) of the Company, not to sell or otherwise transfer or dispose
of any Ordinary Shares (or other securities) of the Company held by
Shareholder or Founder during a period of time determined by the Company
and its Underwriters (not to exceed 180 days) following the effective date
of a registration statement of the
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Company filed under the Securities Act, provided that all officers and
directors of the Company who then hold Ordinary Shares (or other
securities) of the Company and holders of more than 1% of the Company's
voting securities enter into similar agreements.
Such agreement shall be in writing in a form satisfactory to the Company
and such underwriter. The Company may impose stop-transfer instructions
with respect to the Shares (or securities) subject to the foregoing
restriction until the end of said period.
13. Transfers to Permitted Transferees. In the event of a transfer to a
Permitted Transferee (as defined in the Articles of Association of the
Company in force at the date of this Agreement), such Permitted Transferee
shall be entitled to all the rights and shall assume in writing all the
obligations of the transferor with respect to the transferred shares.
14. Public Offering Outside of the U.S. As to each Public Offering in a
jurisdiction outside the United States, the rights contained in this
Agreement shall be read as replaced (for such offering) by the most
comparable provisions of such jurisdiction's securities laws. The Company
and each of the Shareholders and the Founder shall take all necessary and
advisable action in order so that all the Company's Class B Ordinary
Shares and Class C Ordinary Shares will entitle their holders to the same
rights and privileges according to this Agreement as if they were holding
Ordinary Shares.
15. [Reserved]
16. Governing Law. This Agreement shall be governed by, construed and enforced
in accordance with the laws of the State of Israel, while giving effect to
the applicable securities and other laws of the United States.
17. Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement between the parties regarding rights to
registration and all previous agreements regarding registration rights are
superseded by this Agreement and are of no further force and effect.
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.
18. Notices, Etc. All notices and other communications required or permitted
hereunder shall be in writing and shall be in English and be mailed by
first-class mail, postage prepaid, or otherwise delivered by hand or by
messenger, addressed at such address as such holder shall have furnished
the other parties in writing.
19. 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.
20. Amendments. Any provision of this Agreement may be amended, waived or
modified upon the written consent of the Company, the Founder and the
Shareholders (or their assignees to whom Shareholders have expressly
assigned their rights in compliance with Section 11 hereof) who then hold
at least seventy-five percent (75%) of the Registrable Securities then
held by persons entitled to registration rights hereunder (excluding the
Founder).
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IN WITNESS WHEREOF, the parties have executed this Amended and Restated
Registration Rights Agreement as of the date first above written.
IET - INTELLIGENT ELECTRONICS LTD.
By:
---------------------------------
------------------------ -----------------------
MOSHE BEN BASSAT IDIT BEN BASSAT
OAK INVESTMENT PARTNERS VI, L.P.
By:
---------------------------------
OAK VI AFFILIATES FUND L.P.
By:
---------------------------------
GENESIS PARTNERS I L.P
By:
---------------------------------
GENESIS PARTNERS (CAYMAN) I L.P.
By:
---------------------------------
WORLDVIEW TECHNOLOGY PARTNERS I, L.P.,
By:
---------------------------------
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WORLDVIEW TECHNOLOGY INTERNATIONAL I,
L.P.,
By:
-----------------------------------
WORLDVIEW STRATEGIC PARTNERS I, L.P.,
By:
-----------------------------------
SEMEL INVESTMENTS LTD.
By:
-----------------------------------
ADSHA PROJECT INITIATION DEVELOPMENT
(TA) LTD.
By:
-----------------------------------
------------------------------------------
ZOHAR ZISAPEL
HAMBRECHT AND QUIST CALIFORNIA
By:
-----------------------------------------
--------------------------------------------
NORMAN NIE
--------------------------------------------
CHRISTINA M. MORGAN
--------------------------------------------
JAMES A. DAVIDSON
--------------------------------------------
MARK J. ZANOLI
--------------------------------------------
MERITECH CAPITAL PARTNERS L.P.
By:
-----------------------------------
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------------------------------------------
MERITECH CAPITAL AFFILIATES L.P.
By:
-----------------------------------
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