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Exhibit 4.3
NETGEAR, INC.
INVESTOR RIGHTS AGREEMENT
This Agreement dated as of March __, 2000 is entered into by and among
NETGEAR, Inc., a Delaware corporation (the "Company"), Nortel Networks NA Inc.,
a Delaware corporation ("Nortel Networks"), and the individuals and entities
listed on Exhibit A attached hereto (such individuals and entities and their
successors and assigns, the "Purchasers").
Recitals
WHEREAS, the Company, Nortel Networks and the Purchasers have entered into
a Series B Convertible Participating Preferred Stock Purchase Agreement of even
date herewith (the "Purchase Agreement"); and
WHEREAS, the Company, Nortel Networks and the Purchasers desire to provide
for certain arrangements with respect to (i) the registration of shares of
capital stock of the Company under the Securities Act of 1933 and (ii) the
Purchasers' right of first refusal with respect to certain issuances of
securities of the Company;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, the parties hereto agree as follows:
1. Certain Definitions.
As used in this Agreement, the following terms shall have the following
respective meanings:
"Commission" means the Securities and Exchange Commission, or any
other federal agency at the time administering the Securities Act.
"Common Stock" means the common stock, $.001 par value per share, of
the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any successor federal statute, and the rules and regulations of the
Commission issued under such Act, as they each may, from time to time, be in
effect.
"Initiating Holders" means the Stockholders initiating a request for
registration pursuant to Section 2.1(a) and the Stockholders electing to
include their Shares in such registration pursuant to Section 2.1(b).
"Other Holders" shall have the meaning set forth in Section 2.1(d).
"Prospectus" means the prospectus included in any Registration
Statement, as amended or supplemented by an amendment or prospectus supplement,
including post-effective
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amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
"Qualified Initial Public Offering" means the initial firm commitment
underwritten public offering of shares of Common Stock pursuant to an effective
Registration Statement under the Securities Act which results in gross proceeds
before deduction of selling and other related expenses to the Company of at
least $25,000,000 at a concurrent valuation of the Company of not less than
$300,000,000.
"Registration Statement" means a registration statement filed by the
Company with the Commission for a public offering and sale of securities of the
Company (other than a registration statement on Form S-8 or Form S-4, or their
successors, or any other form for a similar limited purpose, or any
registration statement covering only securities proposed to be issued in
exchange for securities or assets of another corporation).
"Registration Expenses" means the expenses described in Section 2.4.
"Registrable Shares" means (i) the shares of Common Stock issued or
issuable upon conversion of the Shares and the shares of Common Stock issued or
issuable upon exercise of the Warrant (as defined in the Purchase Agreement),
(ii) any shares of Common Stock, and any shares of Common Stock issued or
issuable upon the conversion or exercise of any other securities, acquired by
the Purchasers pursuant to Section 3 of this Agreement and (iii) any other
shares of Common Stock issued in respect of such shares (because of stock
splits, stock dividends, reclassifications, recapitalizations, or similar
events); provided, however, that shares of Common Stock which are Registrable
Shares shall cease to be Registrable Shares upon (i) any sale pursuant to a
Registration Statement or Rule 144 under the Securities Act or (ii) any sale in
any manner to a person or entity which, by virtue of Section 4 of this
Agreement, is not entitled to the rights provided by this Agreement. Wherever
reference is made in this Agreement to a request or consent of holders of a
certain percentage of Registrable Shares, the determination of such percentage
shall include shares of Common Stock issuable upon conversion of the Shares
even if such conversion has not been effected.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor federal statute, and the rules and regulations of the Commission
issued under such Act, as they each may, from time to time, be in effect.
"Selling Stockholder" means any Stockholder owning Registrable Shares
included in a Registration Statement.
"Shares" means the Series A Preferred Stock and Series B Preferred
Stock of the Company, and any shares of Common Stock that may be issued upon
conversion of the Series A Preferred Stock and Series B Preferred Stock of the
Company.
"Stockholders" means Nortel Networks, the Purchasers and any persons
or entities to whom the rights granted under this Agreement are transferred by
Nortel Networks, the Purchasers, their successors or assigns pursuant to
Section 4 hereof.
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2. Registration Rights.
2.1 Required Registrations. Beginning one year after March __, 2000,
and provided that any requested registration which is an initial public
offering shall be a Qualified Initial Public Offering:
(a) Nortel Networks, or each Purchaser or Purchasers holding in
the aggregate at least 25% of the Registrable Shares held by the Purchasers,
may request, in writing, that the Company effect the registration on Form S-1,
Form S-2 or Form S-3 (or any successor form) of registrable Shares owned by
such requested Stockholder or Stockholders having an aggregate value of at
least $5,000,000 (based on the then current market price of fair value); and
(b) Upon receipt of any request for registration pursuant to
this Section 2, the Company shall promptly give written notice of such proposed
registration to all other Stockholders. Such Stockholders shall have the
right, by giving written notice to the Company within 20 days after the Company
provides its notice, to elect to have included in such registration such of
their Registrable Shares as such Stockholders may request in such notice of
election, subject in the case of an underwritten offering to the approval of
the managing underwriter as provided in Section 2.1(d) below. Thereupon, the
Company shall, as expeditiously as possible, use its best efforts to effect the
registration on an appropriate registration form of all Registrable Shares
which the Company has been requested to so register.
(c) If the Initiating Holders intend to distribute the
Registrable Shares covered by their request by means of an underwriting, they
shall so advise the Company. The right of any other person to include its
securities in such registration pursuant to Section 2.1(c) shall be conditioned
upon such other person's participation in such underwriting on the terms set
forth herein.
Subject to Section 2.9 herein, if the Company desires that any officers or
directors of the Company holding securities of the Company be included in any
registration for an underwritten offering requested pursuant to Section 2.1(c)
or if other holders of securities of the Company who are entitled, by contract
with the Company entered into after the date of this Investor Rights Agreement,
to have securities included in such a registration (the "Other Holders")
request such inclusion, the Company may include the securities of such
officers, directors and Other Holders in such registration and underwriting on
the terms set forth herein. The Company shall (together with all Stockholders,
officers, directors and Other Holders proposing to distribute their securities
through such underwriting) enter into an underwriting agreement in customary
form (including, without limitation, but subject to the provisions of Section
2.5(b) herein, customary indemnification and contribution provisions on the
part of the Company) with the managing underwriter. Notwithstanding any other
provision of this Section 2.1(c), if the managing underwriter gives the Company
a written opinion that the inclusion of all shares requested to be registered
would adversely affect the offering, the securities of the Company held by
officers or directors of the Company (other than Registrable Shares) and the
securities held by Other Holders (other than Registrable Shares) shall be
excluded from such registration and underwriting to the extent deemed advisable
by the managing underwriter, and if a further limitation of the number of
shares is required, the number of shares that may be included in such
registration and underwriting shall be allocated among all holders of
Registrable Shares
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requesting registration in proportion, as nearly as practicable, to the
respective number of Registrable Shares requested to be registered by them in
the aggregate at the time of the respective requests for registration were made
pursuant to Section 2.1(a), PROVIDED, HOWEVER, THAT IN NO EVENT SHALL THE
NUMBER OF REGISTRABLE SHARES REQUESTED TO BE REGISTERED BY NORTEL NETWORKS AND
THE PURCHASERS BE REDUCED TO LESS THAN 30% OF ANY UNDERWRITING SUBSEQUENT TO
THE QUALIFIED INITIAL PUBLIC OFFERING. If any holder of Registrable Shares,
officer, director or Other Holder who has requested inclusion in such
registration as provided above disapproves of the terms of the underwriting,
such person may elect to withdraw therefrom by written notice to the Company,
and the securities so withdrawn shall also be withdrawn from registration. If
the managing underwriter has not limited the number of Registrable Shares or
other securities to be underwritten, the Company may include securities for its
own account in such registration if the managing underwriter so agrees and if
the number of Registrable Shares and other securities which would otherwise
have been included in such registration and underwriting will not thereby be
limited.
(d) The Initiating Holders shall have the right to select the
managing underwriter(s) for any underwritten offering requested pursuant to
Section 2.1(a), subject to the approval of the Company, which approval will not
be unreasonably withheld.
(e) The Company shall not be required to effect more than four
registrations requested by such Purchaser or Purchasers pursuant to Section
2.1(a). In addition, the Company shall not be required to effect any
registration within six months after the effective date of any other
Registration Statement of the Company. For purposes of this Section 2.1(e), a
Registration Statement shall not be counted until such time as such
Registration Statement has been declared effective by the Commission and
remains continuously effective for the lesser of (i) the period during which
all Registrable Shares registered in such registration are sold and (ii) six
months; provided, however, that for purposes of this Section 2.1(e), a
Registration Statement shall not be counted if (x) after such Registration
Statement has become effective, such registration or the related offer, sale or
distribution of Registrable Shares thereunder is interfered with by any stop
order, injunction or other order or requirement of the Commission or other
governmental agency or court for any reason not attributable to the Initiating
Holders and such interference is not thereafter eliminated or (y) the
conditions specified in the underwriting agreement, if any, entered into in
connection with such Registration Statement are not satisfied or waived, other
than by reason of the Initiating Holders. The time period referred to in
Section 2.3(a)(ii) during which the Registration Statement must be kept
effective shall be extended for an additional number of business days equal to
the number of business days during which the right to sell shares was
suspended pursuant to the preceding sentence.
(f) If at the time of any request to register Registrable
Shares by Initiating Holders pursuant to this Section 2.1, the Company is
engaged or has plans to engage in a registered public offering or is engaged in
any other activity which, in the good faith determination of the Company's
Board of Directors, would be adversely affected by the requested registration,
then the Company may at its option direct that such request be delayed for a
period not in excess of 90 days from the date of such request, such right to
delay a request to be exercised by the Company not more than twice in any
12-month period. If after a Registration Statement becomes effective, the
Company advises the holders of Registrable Shares that the Company considers it
appropriate that the Registration Statement be amended, the holders of
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such shares shall suspend any further sales of their Registrable Shares until
the Company advises them that the Registration Statement has been amended. The
time period referred to in Section 2.3(a)(ii) during which the Registration
Statement must be kept effective shall be extended for an additional number of
business days equal to the number of business days during which the right to
sell shares was suspended pursuant to the preceding sentence.
2.2 Incidental Registration.
(a) Whenever the Company proposes to file a Registration Statement
(other than a Registration Statement filed pursuant to Section 2.1 and a
Registration Statement covering shares to be sold solely for the account of
Other Holders) at any time and from time to time after the closing of the
Qualified Initial Public Offering, it will, prior to such filing, give written
notice to all Stockholders of its intention to do so; provided, that no such
notice need be given if no Registrable Shares are to be included therein as a
result of a determination of the managing underwriter pursuant to Section
2.2(b). Upon the written request of a Stockholder or Stockholders given within
20 days after the Company provides such notice (which request shall state the
intended method of disposition of such Registrable Shares), the Company shall
use its best efforts to cause all Registrable Shares which the Company has been
requested by such Stockholder or Stockholders to register to be registered
under the Securities Act to the extent necessary to permit their sale or other
disposition in accordance with the intended methods of distribution specified
in the request of such Stockholder or Stockholders; provided that the Company
shall have the right to postpone or withdraw any registration effected pursuant
to this Section 2.2 without obligation to any Stockholder.
(b) If the registration for which the Company gives notice pursuant
to Section 2.2(a) is a registered public offering involving an underwriting,
the Company shall so advise the Stockholders as a part of the written notice
given pursuant to Section 2.2(a). In such event, the right of any Stockholder
to include its Registrable Shares in such registration pursuant to Section 2.2
shall be conditioned upon such Stockholder's participation in such
underwriting on the terms set forth herein. All Stockholders proposing to
distribute their securities through such underwriting shall (together with the
Company, Other Holders, and any officers or directors distributing their
securities through such underwriting) enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for the
underwriting by the Company. Notwithstanding any other provision of this
Section 2.2, if the managing underwriter determines that the inclusion of all
shares requested to be registered would adversely affect the offering, the
Company may limit the number of Registrable Shares to be included in the
registration and underwriting. The Company shall so advise all holders of
Registrable Shares requesting registration, and the number of shares that are
entitled to be included in the registration and underwriting shall be allocated
in the following manner. The securities of the Company held by officers and
directors of the Company (other than Registrable Shares) shall be excluded from
such registration and underwriting to the extent deemed advisable by the
managing underwriter, and, if a further limitation on the number of shares is
required, the number of shares that may be included in such registration and
underwriting shall be allocated among all Stockholders and Other Holders
requesting registration in proportion, as nearly as practicable, to the
respective number of shares of Common Stock (on an as-converted basis) which
they held at the time the Company gives the notice specified in Section 2.2(a),
provided, however, that the number of shares held by Stockholders that may be
included in such
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registration and underwriting may not be reduced below thirty percent (30%) of
any registration and underwriting after the Qualified Initial Public Offering.
If any Stockholder or Other Holder would thus be entitled to include more
securities than such holder requested to be registered, the excess shall be
allocated among other requesting Stockholders and Other Holders pro rata in the
manner described in the preceding sentence. If any holder of Registrable Shares
or any officer, director or Other Holder disapproves of the terms of any such
underwriting, such person may elect to withdraw therefrom by written notice to
the Company, and any Registrable Shares or other securities excluded or
withdrawn from such underwriting shall be withdrawn from such registration.
(c) Notwithstanding the foregoing, the Company shall not be
required, pursuant to this Section 2.2, to include any Registrable Shares in a
Registration Statement if such Registrable Shares can then be sold pursuant to
Rule 144(k) under the Securities Act.
2.3 Registration Procedures.
(a) If and whenever the Company is required by the
provisions of this Agreement to use its best efforts to effect the registration
of any Registrable Shares under the Securities Act, the Company shall:
(i) file with the Commission a Registration Statement
with respect to such Registrable Shares and use its best efforts to cause that
Registration Statement to become effective as soon as possible; at least ten
(10) days before filing a registration statement or prospectus or at least
three (3) business days before filing any amendments or supplements thereto,
the Company will furnish counsel of the holders of a majority of the
Registrable Shares being registered copies of all documents proposed to be
filed for that counsel's review and approval, which approval shall not be
unreasonably withheld or delayed;
(ii) as expeditiously as possible prepare and file with
the Commission any amendments and supplements to the Registration Statement and
the prospectus included in the Registration Statement as may be necessary to
comply with the provisions of the Securities Act (including the anti-fraud
provisions thereof) and to keep the Registration Statement effective for six
months from the effective date or such lesser period until all such Registrable
Shares are sold;
(iii) as expeditiously as possible furnish to each
Selling Stockholder such reasonable numbers of copies of the Prospectus,
including any preliminary Prospectus, in conformity with the requirements of
the Securities Act, and such other documents as such Selling Stockholder may
reasonably request in order to facilitate the public sale or other disposition
of the Registrable Shares owned by such Selling Stockholder;
(iv) as expeditiously as possible use its best efforts
to register or qualify the Registrable Shares covered by the Registration
Statement under the securities or Blue Sky laws of such states as the Selling
Stockholders shall reasonably request, and do any and all other acts and things
that may be necessary or desirable to enable the Selling Stockholders to
consummate the public sale or other disposition in such states of the
Registrable Shares owned by the Selling Stockholder; provided, however, that
the Company shall not be required in
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connection with this paragraph (iv) to qualify as a foreign corporation or
execute a general consent to service of process in any jurisdiction;
(v) as expeditiously as possible, cause all such Registrable
Shares to be listed on each securities exchange or automated quotation system on
which similar securities issued by the Company are then listed;
(vi) promptly provide a transfer agent and registrar for all
such Registrable Shares not later than the effective date of such registration
statement;
(vii) promptly make available for inspection by the Selling
Stockholders, any managing underwriter participating in any disposition pursuant
to such Registration Statement, and any attorney or accountant or other agent
retained by any such underwriter or selected by the Selling Stockholders, all
financial and other records, pertinent corporate documents and properties of the
Company and cause the Company's officers, directors, employees and independent
accountants to supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such Registration
Statement;
(viii) as expeditiously as possible, notify each Selling
Stockholder, promptly after it shall receive notice thereof, of the time when
such Registration Statement has become effective or a supplement to any
Prospectus forming a part of such Registration Statement has been filed;
(ix) as expeditiously as possible following the effectiveness
of such Registration Statement, notify each seller of such Registrable Shares of
(A) any request by the Commission for the amending or supplementing of such
Registration Statement or Prospectus and (B) any event as a result of which the
Prospectus or any document incorporated therein by reference contains an untrue
statement of a material fact or omits to state any material fact necessary to
make the statements therein not misleading, and, in either case, prepare a
supplement or amendment to the Prospectus or any such document incorporated
therein so that thereafter the Prospectus will not contain any untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein not misleading;
(x) use its best efforts to comply with all applicable rules
and regulations of the Commission, and make available to its securityholders, as
soon as reasonably practicable, an earnings statement complying with the
provisions of Section 11(a) of the Securities Act;
(xi) cooperate with each seller of Registrable Shares and each
underwriter participating in the disposition of such Registrable Shares and
their respective counsel in connection with any filings required to be made with
the National Association of Securities Dealers, Inc. (the ""NASD");
(xii) immediately notify each seller of Registrable Shares of
any stop order threatened or issued by the Commission and take all actions
reasonably required to prevent the entry of a stop order or if entered to have
it rescinded or otherwise removed; and
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(xiii) take all other steps reasonably necessary to effect the
registration of the Registrable Shares contemplated hereby.
(b) If the Company has delivered a Prospectus to the Selling
Stockholders and after having done so the Prospectus is amended to comply with
the requirements of the Securities Act, the Company shall promptly notify the
Selling Stockholders and, if requested, the Selling Stockholders shall
immediately cease making offers of Registrable Shares and return all
Prospectuses to the Company. The Company shall promptly provide the Selling
Stockholders with revised Prospectuses and, following receipt of the revised
Prospectuses, the Selling Stockholders shall be free to resume making offers of
the Registrable Shares. The time period referred to in Section 2.3(a)(ii)
during which the Registration Statement must be kept effective shall be
extended for an additional number of business days equal to the number of
business days during which the right to sell shares was suspended pursuant to
this paragraph (b).
(c) In the event that, in the judgment of the Company, it is
advisable to suspend use of a Prospectus included in a Registration Statement
due to pending material developments or other events that have not yet been
publicly disclosed and as to which the Company believes public disclosure would
be detrimental to the Company, the Company shall notify all Selling
Stockholders to such effect, and, upon receipt of such notice, each such
Selling Stockholder shall immediately discontinue any sales of Registrable
Shares pursuant to such Registration Statement until such Selling Stockholder
has received copies of a supplemented or amended Prospectus or until such
Selling Stockholder is advised in writing by the Company that the then current
Prospectus may be used and has received copies of any additional or
supplemental filings that are incorporated or deemed incorporated by reference
in such Prospectus. The time period referred to in Section 2.3(a)(ii) during
which the Registration Statement must be kept effective shall be extended for
an additional number of business days equal to the number of business days
during which the right to sell shares was suspended pursuant to the preceding
sentence.
2.4 Registration Expenses. The Company will pay all Registration Expenses
for all registrations under this Agreement. For purposes of this Section, the
term "Registration Expenses" shall mean all expenses incident to the Company's
performance of or compliance with this Agreement, including, without
limitation: all registration and filing fees; exchange listing fees; NASD
registration and filing fees; printing expenses; messenger, telephone and
delivery expenses; fees and expenses of counsel for the Company and the fees
and expenses of one counsel selected by the Selling Stockholders to represent
the Selling Stockholders; state Blue Sky fees and expenses; and the expense of
any special audits incident to or required by any such registration; but
excluding underwriting discounts, selling commissions and the fees and expenses
of Selling Stockholders' own counsel (other than the counsel selected to
represent all Selling Stockholders).
2.5 Indemnification and Contribution.
(a) In the event of any registration of any of the Registrable
Shares under the Securities Act pursuant to this Agreement, the Company will
indemnify and hold harmless the seller of such Registrable Shares, each
underwriter of such Registrable Shares, and
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each other person, if any, who controls such seller or underwriter within the
meaning of the Securities Act or the Exchange Act against any losses, claims,
damages or liabilities, joint or several, to which such seller, underwriter or
controlling person may become subject under the Securities Act, the Exchange
Act, state securities or Blue Sky laws or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement under which such Registrable Shares
were registered under the Securities Act, any preliminary prospectus or final
prospectus contained in the Registration Statement, or any amendment or
supplement to such Registration Statement, or arise out of or are based upon
the omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and the
Company will reimburse such seller, underwriter and each such controlling
person for any legal or any other expenses reasonably incurred by such seller,
underwriter or controlling person in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any untrue statement
or omission made in such Registration Statement, preliminary prospectus or
prospectus, or any such amendment or supplement, in reliance upon and in
conformity with information furnished to the Company, in writing, by or on
behalf of such seller, underwriter or controlling person specifically for use
in the preparation thereof.
(b) In the event of any registration of any of the Registrable Shares
under the Securities Act pursuant to this Agreement, each seller of Registrable
Shares, severally and not jointly, will indemnify and hold harmless the Company,
each of its directors and officers and each underwriter (if any) and each
person, if any, who controls the Company or any such underwriter within the
meaning of the Securities Act or the Exchange Act, against any losses, claims,
damages or liabilities, joint or several, to which the Company, such directors
and officers, underwriter or controlling person may become subject under the
Securities Act, Exchange Act, state securities or Blue Sky laws or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement under which
such Registrable Shares were registered under the Securities Act, any
preliminary prospectus or final prospectus contained in the Registration
Statement, or any amendment or supplement to the Registration Statement, or
arise out of or are based upon any omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, if the statement or omission was made in reliance upon
and in conformity with information relating to such seller furnished in writing
to the Company by or on behalf of such seller specifically for use in connection
with the preparation of such Registration Statement, prospectus, amendment or
supplement; provided, however, that the obligations of a Stockholder hereunder
shall be limited to an amount equal to the net proceeds to such Stockholder of
Registrable Shares sold in connection with such registration.
(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
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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, provided, further, that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section except to the extent
that the Indemnifying Party is adversely affected by such failure. The
Indemnified Party may participate in such defense at such party's expense;
provided, however, that the Indemnifying Party shall pay such expense if
representation of such Indemnified Party by the counsel retained by the
Indemnifying Party would be inappropriate due to actual or potential differing
interests between the Indemnified Party and any other party represented by such
counsel in such proceeding; provided, further, that in no event shall the
Indemnifying Party be required to pay the expenses of more than one law firm per
jurisdiction as counsel for the Indemnified Party. The Indemnifying Party also
shall be responsible for the expenses of such defense if the Indemnifying Party
does not elect to assume such defense. 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
of such claim or litigation, and no Indemnified Party shall consent to entry of
any judgment or settle such claim or litigation without the prior written
consent of the Indemnifying Party, which consent shall not be unreasonably
withheld.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 2.5 is
due in accordance with its terms but for any reason is held to be unavailable
to an Indemnified Party in respect to any losses, claims, damages and
liabilities referred to herein, then the Indemnifying Party shall, in lieu of
indemnifying such Indemnified Party, contribute to the amount paid or payable
by such Indemnified Party as a result of such losses, claims, damages or
liabilities to which such party may be subject in such proportion as is
appropriate to reflect the relative fault of the Company on the one hand and
the Stockholders on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative fault of the Company and
the Stockholders shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of material fact related to
information supplied by the Company or the Stockholders and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Stockholders agree that
it would not be just and equitable if contribution pursuant to this Section 2.5
were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph of Section 2.5, (a) in no case
shall any one Stockholder be liable or responsible for any amount in excess of
the net proceeds received by such Stockholder from the offering of Registrable
Shares and (b) the Company shall be liable and responsible for any amount in
excess of such proceeds; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action, suit or proceeding
against such party in respect of which a claim for contribution may be made
against another party or parties under this Section, notify such
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party or parties from whom contribution may be sought, but the omission so to
notify such party or parties from whom contribution may be sought shall not
relieve such party from any other obligation it or they may have thereunder or
otherwise under this Section. No party shall be liable for contribution with
respect to any action, suit, proceeding or claim settled without its prior
written consent, which consent shall not be unreasonably withheld.
2.6 Other Matters with Respect to Underwritten Offerings. In the event
that Registrable Shares are sold pursuant to a Registration Statement in an
underwritten offering pursuant to Section 2.1, the Company agrees to (a) enter
into an underwriting agreement containing customary representations and
warranties with respect to the business and operations of the Company and
customary covenants and agreements to be performed by the Company, including
without limitation customary provisions with respect to indemnification by the
Company of the underwriters of such offering; (b) use its best efforts to cause
its legal counsel to render customary opinions to the underwriters with respect
to the Registration Statement; and (c) use its best efforts to cause its
independent public accounting firm to issue customary "cold comfort letters" to
the underwriters with respect to the Registration Statement. No underwriting
agreement will result in liability of a Stockholder in excess of the net
proceeds from the offering received by such Stockholder, including such
liability under Section 2.5 of this Agreement.
2.7 Information by Holder. Each holder of Registrable Shares included in
any registration shall furnish to the Company such information regarding such
holder and the distribution proposed by such holder as the Company may
reasonably request in writing and as shall be required in connection with any
registration, qualification or compliance referred to in this Agreement.
2.8 "Stand-Off" Agreement; Confidentiality of Notices. The Company and
each Stockholder, if requested by the Company and the managing underwriter of
an underwritten public offering by the Company of Common stock, shall not sell
or otherwise transfer or dispose of any Registrable Shares or other securities
of the Company held by such Person for a period of 180 days following the
effective date of a Registration Statement, provided that:
(a) such agreement shall only apply to the Qualified Initial Public
Offering;
(b) all Stockholders of the Company then holding at least 1% of the
outstanding Common Stock (on an as-converted basis) and all officers and
directors of the Company enter into similar agreements.
Compliance with such agreements may not be waived. The Company may impose
stop-transfer instructions with respect to the Registrable Shares or other
securities subject to the foregoing restriction until the end of such 180-day
period. Any Stockholder receiving any written notice from the Company regarding
the Company's plans to file a Registration Statement shall treat such notice
confidentially and shall not disclose such information to any person other than
as necessary to exercise its rights under this Agreement.
2.9 Limitations on Subsequent Registration Rights. The Company shall not,
without the prior written consent of both (i) Nortel Networks and (ii) the
holders of at least 50%
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of the Registrable Shares then held by the Purchasers, enter into any agreement
(other than this Agreement) with any holder or prospective holder of any
securities of the Company which grant such holder or prospective holder rights
to include securities of the Company in any Registration Statement, unless (a)
such rights to include securities in a registration initiated by the Company or
by Stockholders are not more favorable than the rights granted to Other Holders
under Sections 2.1 and 2.2 of this Agreement, and (b) no rights are granted to
initiate a registration, other than registration pursuant to a registration
statement on Form S-3 (or its successor) in which Stockholders are entitled to
include Registrable Shares on a pro rata basis with such holders based on the
number of shares of Common Stock (on an as-converted basis) owned by
Stockholders and such holders.
2.10 Rule 144 Requirements. After the earliest of (i) the closing of
the sale of securities of the Company pursuant to a Registration Statement,
(ii) the registration by the Company of a class of securities under Section 12
of the Exchange Act, or (iii) the issuance by the Company of an offering
circular pursuant to Regulation A under the Securities Act, the Company agrees
to:
(a) make and keep current public information about the Company
available, as those terms are understood and defined in Rule 144;
(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); and
(c) furnish to any holder of Registrable Shares upon request
(i) a written statement by the Company as to its compliance with the reporting
requirements of Rule 144 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 such holder may reasonably
request to avail itself of any similar rule or regulation of the Commission
allowing it to sell any such securities without registration.
2.11 Termination. All of the Company's obligations to register
Registrable Shares under Sections 2.1 and 2.2 of this Agreement shall
terminate: (i) three years after the closing of the Qualified Initial Public
Offering, or (ii) as to Nortel Networks or any Purchaser, when Nortel Networks
or such Purchaser (together with its affiliates) holds less than twenty-five
percent (25%) of the original number of shares of Series A Preferred Stock or
the Series B Preferred Stock, as the case may be, held on the date hereof (as
adjusted for stock splits and similar events), on an as-converted basis.
3. PREEMPTIVE RIGHTS.
3.1 Rights of Purchasers and Nortel Networks.
(a) The Company shall not issue, sell or exchange, agree to
issue, sell or exchange, or reserve or set aside for issuance, sale or
exchange, (i) any shares of its Common Stock, (ii) any other equity securities
of the Company, including, without limitation, shares of preferred stock, (iii)
any option, warrant or other right to subscribe for, purchase or otherwise
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acquire any equity securities of the Company, or (iv) any debt securities
convertible into capital stock of the Company (collectively, the "Offered
Securities"), unless in each such case the Company shall have first complied
with this Section 3.1. The Company shall deliver to Nortel Networks and each
Purchaser a written notice of any proposed or intended issuance, sale or
exchange of Offered Securities (the "Offer"), which Offer shall (i) identify
and describe the Offered Securities, (ii) describe the price and other terms
upon which they are to be issued, sold or exchanged, and the number or amount
of the Offered Securities to be issued, sold or exchanged, (iii) identify the
persons or entities (if known) to which or with which the Offered Securities
are to be offered, issued, sold or exchanged and (iv) offer to issue and sell to
or exchange with Nortel Networks or such Purchaser (A) a pro rata portion of
the Offered Securities determined by dividing (x) the aggregate number of
shares of Common Stock then held by Nortel Networks or such Purchaser (giving
effect to the conversion of all shares of convertible preferred stock then held
and subject to appropriate adjustment for stock splits, stock dividends,
combinations or other similar recapitalizations affecting the Common Stock) by
(y) the total number of shares of Common Stock then outstanding (giving effect
to the conversion of all outstanding shares of convertible preferred stock and
subject to appropriate adjustment for stock splits, stock dividends,
combinations or other similar recapitalizations affecting the Common Stock)
(such pro rata portion of the Offered Securities, the "Basic Amount"), and (B)
any additional portion of the Offered Securities attributable to the Basic
Amounts of Nortel Networks and other Purchasers as Nortel Networks or such
Purchaser shall indicate it will purchase or acquire should Nortel Networks or
the other Purchasers subscribe for less than their Basic Amounts (the
"Undersubscription Amount").
(b) To accept an Offer, in whole or in part, Nortel Networks
or a Purchaser must deliver a written notice to the Company prior to the end of
the 30-day period of the Offer, setting forth the portion of Nortel Networks'
or the Purchaser's Basic Amount that Nortel Networks or such Purchaser elects
to purchase and, if Nortel Networks or such Purchaser shall elect to purchase
all of its Basic Amount, the Undersubscription Amount (if any) that Nortel
Networks or such Purchaser elects to purchase (the "Notice of Acceptance"). If
the Basic Amounts subscribed for by Nortel Networks or all Purchasers are less
than the total of all of the Basic Amounts available for purchase, then Nortel
Networks or each Purchaser who has set forth an Undersubscription Amount in its
Notice of Acceptance shall be entitled to purchase, in addition to the Basic
Amounts subscribed for, the Undersubscription Amount it has subscribed for;
provided, however, that if the Undersubscription Amounts subscribed for exceed
the difference between the total of all of the Basic Amounts available for
purchase and the Basic Amounts subscribed for (the "Available Undersubscription
Amount"), Nortel Networks or each Purchaser who has subscribed for any
Undersubscription Amount shall be entitled to purchase only that portion of the
Available Undersubscription Amount as the Undersubscription Amount subscribed
for by Nortel Networks or such Purchaser bears to the total Undersubscription
Amounts subscribed for by Nortel Networks and all Purchasers, subject to
rounding by the Board of Directors to the extent it deems reasonably necessary.
(c) The Company shall have 90 days from the expiration of the
period set forth in Section 3.1(b) above to issue, sell or exchange all or any
part of such Offered Securities as to which a Notice of Acceptance has not been
given by Nortel Networks or the Purchasers (the "Refused Securities"), but only
to the offerees or purchasers described in the Offer (if so described therein)
and only upon terms and conditions (including, without limitation,
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unit prices and interest rates) which are not more favorable, in the aggregate,
to the acquiring person or persons or less favorable to the Company than those
set forth in the Offer.
(d) In the event the Company shall propose to sell less than
all the Refused Securities (any such sale to be in the manner and on the terms
specified in Section 3.1(c) above), then Nortel Networks and each Purchaser may,
at its sole option and in its sole discretion, reduce the number or amount of
the Offered Securities specified in its Notice of Acceptance to an amount that
shall be not less than the number or amount of the Offered Securities that
Nortel Networks or the Purchaser elected to purchase pursuant to Section 3.1(b)
above multiplied by a fraction, (i) the numerator of which shall be the number
or amount of Offered Securities the Company actually proposes to issue, sell or
exchange (including Offered Securities to be issued or sold to Nortel Networks
or Purchasers pursuant to Section 3.1(b) above prior to such reduction) and (ii)
the denominator of which shall be the original amount of the Offered Securities.
In the event that Nortel Networks or any Purchaser so elects to reduce the
number or amount of Offered Securities specified in its Notice of Acceptance,
the Company may not issue, sell or exchange more than the reduced number or
amount of the Offered Securities unless and until such securities have again
been offered to Nortel Networks and the Purchasers in accordance with Section
3.1(a) above.
(e) Upon the closing of the issuance, sale or exchange of all
or less than all of the Refused Securities, Nortel Networks and the Purchasers
shall acquire from the Company, and the Company shall issue to Nortel Networks
and the Purchasers, the number or amount of Offered Securities specified in the
Notices of Acceptance, as reduced pursuant to Section 3.1(d) above if Nortel
Networks or the Purchasers have so elected, upon the terms and conditions
specified in the Offer. The purchase by Nortel Networks or the Purchasers of
any Offered Securities is subject in all cases to the preparation, execution and
delivery by the Company and Nortel Networks or the Purchasers of a purchase
agreement relating to such Offered Securities reasonably satisfactory in form
and substance to Nortel Networks or the Purchasers and their respective counsel.
(f) Any Offered Securities not acquired by Nortel Networks or
the Purchasers or other persons in accordance with Section 3.1(c) above may not
be issued, sold or exchanged until they are again offered to Nortel Networks or
the Purchasers under the procedures specified in this Agreement.
(g) The rights of Nortel Networks and the Purchasers under
this Section 3 shall not apply to:
(1) the issuance of any shares of Common Stock upon
conversion of shares of convertible preferred stock;
(2) the issuance of shares of Common Stock or the grant
of options therefor, including shares issued upon exercise of options
outstanding on the date of this Agreement (such number to be proportionately
adjusted in the event of any stock splits, stock dividends, recapitalizations
or similar events occurring on or after the date of this Agreement) to
officers, directors, consultants and employees of the Company or any subsidiary
pursuant to any plan, agreement or arrangement approved by a vote of not less
than a majority of the members of
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the Board of Directors of the Company who are not employees of the Company or
any of its subsidiaries;
(3) securities issued solely in consideration for the
acquisition (whether by merger or otherwise) by the Company or any of its
subsidiaries of all or substantially all of the stock or assets of any other
entity;
(4) shares of Common Stock sold by the Company in an
underwritten public offering pursuant to an effective registration statement
under the Securities Act;
(5) shares of Common Stock issued upon the conversion of any
shares of preferred stock or upon the exercise of any options or warrants or
other rights to subscribe for, purchase or otherwise acquire any equity
securities of the Company;
(6) shares of Common Stock issued in connection with debt or
equipment financings approved by a majority of the Board of Directors; or
(7) securities issued to strategic investors as opposed to
financial investors.
(h) The failure of any Purchaser to exercise its rights under
this Section 3 shall not be deemed to be a waiver of its rights hereunder in
connection with any subsequent issuance, sale or exchange, agreement to issue,
sell or exchange, or reservation or setting aside for issuance, sale or exchange
of Offered Securities.
3.2 Termination. This Section 3 shall terminate upon the earlier of
the following events:
(a) The sale of all or substantially all of the assets or
business of the Company, by merger, sale of assets or otherwise; or
(b) The closing of the Qualified Initial Public Offering.
4. Transfer of Rights. This Agreement, and the rights and obligations of
each Stockholder hereunder, may be assigned, in whole or in part, by such
Stockholder to (i) any person or entity to which at least 500,000 Shares are
transferred by such Stockholder, (ii) any partner or stockholder of such
Stockholder, (iii) any venture capital fund, investment entity or investment
account for which Pequot Capital Management, Inc. or its successors or assigns
is the investment manager or investment advisor or (iv) if such Stockholder is
a corporation, a wholly owned subsidiary of such corporation or in a
distribution to its stockholders, and in each case such transferee shall be
deemed a "Stockholder" and, if applicable, a "Purchaser" for purposes of this
Agreement; provided that the transferee provides written notice of such
assignment to the Company and agrees in writing to be bound hereby.
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5. General.
(a) Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
(b) Specific Performance. In addition to any and all other
remedies that may be available at law in the event of any breach of this
Agreement, each Purchaser shall be entitled to specific performance of the
agreements and obligations of the Company hereunder and to such other
injunctive or other equitable relief as may be granted by a court of competent
jurisdiction.
(c) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of California
without giving effect to any choice or conflict of law provision or rule
(whether of the State of California or any other jurisdiction) that would cause
the application of laws of any other jurisdiction.
(d) Notices. All notices, requests, consents, and other
communications under this Agreement shall be in writing and shall be deemed
delivered on receipt after being sent by registered or certified mail, return
receipt requested, postage prepaid or via a reputable nationwide overnight
courier service, in each case to the intended recipient as set forth below:
If to the Company, at 4401 Great America Parkway, MS SC1-06, Santa Clara,
California 95052, Attention: President, or at such other address or addresses
as may have been furnished in writing by the Company to the Purchasers, with a
copy to Bruce E. Schaeffer, Esq., Gray Cary Ware & Freidenrich LLP, 400
Hamilton Avenue, Palo Alto, California 94301; or
If to Nortel Networks, at 4401 Great America Parkway, MS SC2-05, Santa
Clara, California 95052, Attention: Law Department, or at such other address or
addresses as may have been furnished to the other parties hereto in writing by
Nortel Networks; or
If to a Purchaser, at his or its address set forth on Exhibit A, or at
such other address or addresses as may have been furnished to the Company in
writing by such Purchaser, with a copy to E. Ann Gill, Esq., Dewey Ballantine
LLP, 1301 Avenue of the Americas, New York, New York 10019, or as otherwise
indicated on Exhibit A.
Any party may give any notice, request, consent or other communication
under this Agreement using any other means (including, without limitation,
personal delivery, messenger service, telecopy, first class mail or electronic
mail), but no such notice, request, consent or other communication shall be
deemed to have been duly given unless and until it is actually received by the
party for whom it is intended. Any party may change the address to which
notices, requests, consents or other communications hereunder are to be
delivered by giving the other parties notice in the manner set forth in this
Section.
(e) Complete Agreement. This Agreement constitutes the
entire agreement and understanding of the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings
relating to such subject matter.
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(f) Amendment and Waivers. Any term of this Agreement may be amended or
terminated and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), with the written consent of (i) the Company, (ii) Nortel
Networks and (iii) the holders of more than 50% of the Registrable Shares held
by all of the Purchasers; provided, that this Agreement may be amended with the
consent of the holders of less than all Registrable Shares only in a manner
which affects all such holders in the same fashion. Any such amendment,
termination or waiver effected in accordance with this Section 5(f) shall be
binding on all parties hereto, even if they do not execute such consent. No
waivers of or exceptions to any term, condition or provision of this Agreement,
in any one or more instances, shall be deemed to be, or construed as, a further
or continuing waiver of any such term, condition or provision.
(g) Pronouns. Whenever the context may require, any pronouns used in this
Agreement shall include the corresponding, feminine or neuter forms, and the
singular form of nouns and pronouns shall include the plural, and vice versa.
(h) Counterparts; Facsimile Signatures. This Agreement may be exceeded in
any number of counterparts, each of which shall be deemed to be an original,
and all of which together shall constitute one and the same document. This
Agreement may be executed by facsimile signatures.
(i) Section Headings. The section headings are for the convenience of the
parties and in no way alter, amend, limit or restrict the contractual
obligations of the parties.
(j) Recapitalization, Exchange and Similar Events. The provisions of this
Agreement shall apply to the full extent set forth herein with respect to (i)
the shares of Common Stock issuable upon conversion of the Shares, (ii) any and
all shares of voting common stock of the Company into which the Shares and/or
the shares of Common Stock are converted, exchanged or substituted in any
recapitalization or other capital reorganization by the Company and (iii) any
and all equity securities of the Company or any successor or assign of the
Company (whether by merger, consolidation, sale of assets or otherwise) which
may be issued in respect of, in conversion of, in exchange for or in
substitution of, the Shares and/or the shares of Common Stock and shall be
appropriately adjusted for any stock dividends, splits, reverse splits,
combinations, recapitalizations and the like occurring after the date hereof.
The Company shall cause any successor or assign (whether by merger, sale or
otherwise) to enter into a new investor rights agreement with Nortel Networks
and the Purchasers on terms substantially the same as those contained in this
Agreement as a condition to any such transaction.
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto
as of the day and year above first written.
NETGEAR, INC.
By: _________________________________
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IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto
as of the day and year above first written.
NETGEAR, INC.
By: /s/ PATRICK LO
----------------------------------------
Name: Patrick Lo
Title: Chief Executive Officer
NORTEL NETWORKS NA INC.
By: /s/ RICK TALLMAN
----------------------------------------
Name: Rick Tallman
Title: Assistant Secretary
PEQUOT PRIVATE EQUITY FUND II, L.P.
By: Pequot Capital Management, Inc. Investment
Manager
By:
----------------------------------------
Name: David J. Malat
Title: Chief Financial Officer, Pequot Capital
Management, Inc.
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Name: Patrick Lo
Title: Chief Executive Officer
NORTEL NETWORKS NA INC.
By:
----------------------------------------
Name:
Title:
PEQUOT PRIVATE EQUITY FUND II, L.P.
By: Pequot Capital Management, Inc., Investment
Manager
By: /s/ DAVID J. MALAT
----------------------------------------
Name: David J. Malat
Title: Chief Financial Officer, Pequot Capital
Management, Inc.
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EXHIBIT A
Purchasers
Pequot Private Equity Fund II, L.P.
500 Nyala Farm Road
Westport, Connecticut 06880
Attn: David J. Malat, Chief Financial Officer,
Pequot Capital Management, Inc.