AMENDMENT NO. 3 TO
INVESTOR RIGHTS AGREEMENT
This AMENDMENT NO. 3 TO INVESTOR RIGHTS AGREEMENT (this
"Amendment No. 3") is made as of August 31, 2000 by and among Lineo, Inc., a
Delaware corporation (the "Company"), the investors listed on Schedule 1 hereto
(individually and collectively, the "Series A Investors"), the investors listed
on Schedule 2 hereto (individually and collectively, the "Series B Investors"),
the investors listed on Schedule 3 hereto (individually and collectively, the
"Series C Investors"), and Metrowerks Holdings, Inc., a Delaware corporation
("Metrowerks") with respect to that certain Investor Rights Agreement dated
February 17, 2000 by and among the Company and the Series A Investors (the
"Investor Rights Agreement"). The Series A Investors, Series B Investors, Series
C Investors, and Metrowerks, are sometimes individually referred to herein as an
"Investor," or collectively as the "Investors."
WHEREAS, in connection with their purchase of shares of the
Company's Series A Convertible Preferred Stock, the Series A Investors were
extended certain registration, information and inspection rights as set forth in
the Investor Rights Agreement,
WHEREAS, in connection with their purchase of shares of the
Company's Series B Convertible Preferred Stock, the Series B Investors were
extended certain registration, information and inspection rights as set forth in
Amendment No. 1 to the Investor Rights Agreement dated March 15, 2000
("Amendment No. 1"),
WHEREAS, in connection with their purchase of shares of the
Company's Series C Convertible Preferred Stock, the Series C Investors were
extended certain registration, information and inspection rights as set forth in
Amendment No. 2 to the Investor Rights Agreement dated April __, 2000
("Amendment No. 2"), and
WHEREAS, the Company, the Series A Investors, the Series B
Investors and the Series C Investors wish to amend the registration, information
and inspection rights set forth in the Investor Rights Agreement, Amendment No.
1 and Amendment No. 2, and for good and valuable consideration, the receipt of
which is hereby acknowledged, the Company is willing to grant such registration,
information and inspection rights to Metrowerks as set forth in the Investor
Rights Agreement, as amended by Amendment No. 1 and Amendment No. 2;
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants, and conditions set forth herein and in
the Warrant Purchase Agreement of even date herewith (the "Warrant Purchase
Agreement") the parties hereto mutually agree to amend the Investor Rights
Agreement to provide as follows:
1. DEFINITIONS.
A. The definition of "Registrable Securities" set forth in the
Investor Rights Agreement is hereby deleted in its entirety and replaced with
the following definition:
"Registrable Securities" shall mean any shares of Common Stock
now or hereafter held by the Investors and permitted assignees
(or subject to acquisition by the Investors and permitted
assignees upon exercise of the Warrant issued to Metrowerks
pursuant to the Warrant Purchase Agreement (the "Warrant"),
conversion of Series A Preferred Stock, Series B Convertible
Preferred Stock, $.001 par value per share, of the Company
("Series B Preferred Stock") or Series C Convertible Preferred
Stock, $.001 par value per share, of the Company ("Series C
Preferred Stock")), including any shares issued by way of a
stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation
or other reorganization; provided, however, that if a Holder
owns the Warrant, Series A Preferred Stock, Series B Preferred
Stock or Series C Preferred Stock, the Holder may exercise its
registration rights hereunder by exercising the Warrant or
converting the shares to be sold publicly into Common Stock as
of the closing of the relevant offering and shall not be
required to exercise the Warrant or cause such Series A
Preferred Stock, Series B Preferred Stock or Series C
Preferred Stock to be converted to Common Stock until and
unless such closing occurs; and provided, further, that any
Common Stock that is sold in a registered sale pursuant to an
effective registration statement under the Securities Act or
pursuant to Rule 144 thereunder, or that may be sold without
restriction as to volume or otherwise pursuant to Rule 144
under the Securities Act (as confirmed by an unqualified
opinion of counsel to the Company), shall not be deemed
Registrable Securities.
2. MISCELLANEOUS.
2.1 RATIFICATION. Except as expressly set forth in this Amendment No.
3, the terms of the Investor Rights Agreement, as amended by Amendment No. 1,
and Amendment No. 2 shall remain in full force and effect. In the event of a
conflict between the terms of this Amendment No. 3 and the terms of the Investor
Rights Agreement, as amended by Amendment No. 1 and Amendment No. 2, the terms
of this Amendment No. 3 shall control.
2.2 SPECIFIC ENFORCEMENT. The Company, the Series A Investors, the
Series B Investors and the Series C Investors expressly agree that they will be
irreparably damaged if this Amendment No. 3 is not specifically enforced. Upon a
breach or threatened breach of the terms, covenants and/or conditions of this
Amendment No. 3 by any party, the Company and the Series A, B and C Investors
shall, in addition to all other remedies, each be entitled to a temporary or
permanent injunction, without showing any actual damage, and/or a decree for
specific performance, in accordance with the provisions of this Amendment No. 3.
2.3 NOTICES. Unless otherwise provided, any notice under this Amendment
No. 3 shall be in writing and shall be deemed given (i) five (5) days after
having been sent by registered or certified mail, return receipt requested,
postage prepaid, or (ii) one (1) day (or five
2
(5) days in the case of
international deliveries) after the deposit with a nationally recognized
overnight courier, having specified next day delivery, with written verification
of receipt. All notices shall be addressed to each holder of record at the
address of such holder appearing on the books of the Corporation.
2.4 GOVERNING LAW. This Amendment No. 3 shall be governed by and
construed under the laws of the State of Delaware without regard to principles
of conflict of laws.
2.5 SUCCESSORS AND ASSIGNS. The terms and conditions of this Amendment
No. 3 shall inure to the benefit of and be binding on the respective successors
and assigns of the parties.
2.6 SEVERABILITY. If one or more provisions of this Amendment No. 3 are
held to be unenforceable under applicable law, such provision shall be excluded
from this Amendment No. 3, and the balance of this Amendment No. 3 shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
2.7 COUNTERPARTS. This Amendment No. 3 may be executed in two or more
counterparts, including counterparts transmitted by telecopier or telefax, each
of which shall be deemed an original, but all of which together shall constitute
one instrument.
2.8 AUTHORIZATION. Each party represents that this Amendment No. 3 has
been duly authorized, executed and delivered by such party and constitutes a
valid and binding obligation of such party, enforceable against such party in
accordance with its terms.
2.9 LEGEND. Each certificate evidencing any of the shares of capital
stock of the Company owned by the Series A Investors, Series B Investors, or
Series C Investors shall bear a legend substantially as follows:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
TERMS AND CONDITIONS OF A CERTAIN INVESTOR RIGHTS AGREEMENT
DATED AS OF FEBRUARY 17, 2000, AS AT ANY TIME AMENDED, AND MAY
NOT BE SOLD, TRANSFERRED OR ENCUMBERED EXCEPT IN ACCORDANCE
WITH THE TERMS AND PROVISIONS OF SAID AGREEMENT, A COPY OF
WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICE OF THE
COMPANY AND WILL BE FURNISHED TO THE HOLDER OF THIS
CERTIFICATE UPON REQUEST AND WITHOUT CHARGE.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties have executed this Amendment
No. 3 as of the date first above written.
COMPANY:
Lineo, Inc.,
a Delaware corporation
By: ___________________________________________
Bryan Sparks, President and Chairman
SERIES A INVESTORS
Egan-Managed Capital, L.P.
By EMC Partners, L.P.,
its General Partner
By___________________________
Michael H. Shanahan
General Partner
Motorola, Inc.
By: ______________________
Its: _____________________
The Canopy Group, Inc.
By: ______________________
Its: _____________________
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SERIES B INVESTORS
Acer Investment Worldwide Rainer Investors, LLC
By: _____________________________ By: ______________________________
Its: _____________________________ Its: ______________________________
AII Holding Samsung Electro-Mechanics Co., Ltd.
By: ____________________________ By: ______________________________
Its: ____________________________ Its: ______________________________
Arima Computer Corporation Seligman New Technologies Fund, Inc.
By: ____________________________ By: ______________________________
Its: ____________________________ Its: ______________________________
Brilliant World Limited Seligman Investment Opportunities
(Master) Fund - NTV II Portfolio
By: ____________________________ By: ______________________________
Its: ____________________________ Its: ______________________________
Budworth Investments Limited Silver Star Developments Limited
By: ____________________________ By: ______________________________
Its: ____________________________ Its: ______________________________
Compal Electronics, Inc. Summit Law Group, PLLC
By: ____________________________ By: ______________________________
Its: ____________________________ Its: ______________________________
Egan-Managed Capital, L.P. Wisecom Investments, LLC
By: ____________________________ By: ______________________________
Its: ____________________________ Its: ______________________________
Exchange Place Investments, LLC
By: ____________________________
Its: ____________________________
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SERIES C INVESTORS
Access Co., Ltd. Armando and Isabelle Geday
By: ____________________________ By: ______________________________
Its: ____________________________ Its: ______________________________
Angel Partners Global Alliance Inc.
By: ____________________________ By: ______________________________
Its: ____________________________ Its: ______________________________
Astoria Capital Partners, L.P. Hikari Tsushin, Inc.
By: ____________________________ By: ______________________________
Its: ____________________________ Its: ______________________________
Alain Bankier Technocom Ventures
By: ____________________________ By: ______________________________
Its: ____________________________ Its: ______________________________
Citrix Development Corporation David Jubb
By: ____________________________ By: ______________________________
Its: ____________________________ Its: ______________________________
Francois Chateau MC Silicon Valley, Inc.
By: ____________________________ By: ______________________________
Its: ____________________________ Its: ______________________________
DRW Venture Partners LP Mitsubishi International Corporation
By: ____________________________ By: ______________________________
Its: ____________________________ Its: ______________________________
DaiShin Information & Communications Seligman Communications and Information
Co., LTD Fund, Inc.
By: ____________________________ By: ______________________________
Its: ____________________________ Its: ______________________________
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SERIES C INVESTORS (continued)
Seligman Investment Opportunities (Master)
Fund - NTV II Portfolio
By: ____________________________
Its: ____________________________
Seligman New Technologies Fund, Inc.
By: ____________________________
Its: ____________________________
Brigham Enterprises LLC
By: ____________________________
Its: ____________________________
Steve Young Family Foundation
By: ____________________________
Its: ____________________________
Andre Taliercio
By: ____________________________
Its: ____________________________
METROWERKS:
Metrowerks Holdings, Inc.,
a Delaware corporation
By: ____________________________
Its: ____________________________
SCHEDULE 1
SERIES A INVESTORS
Egan-Managed Capital, L.P.
Motorola, Inc
The Canopy Group, Inc.
SCHEDULE 2
SERIES B INVESTORS
Acer Investment Worldwide
AII Holding
Arima Computer Corporation
Brilliant World Limited
Budworth Investments Limited
Compal Electronics, Inc.
Egan-Managed Capital, L.P.
Exchange Place Investments, LLC
Rainier Investors, LLC
Samsung Electro-Mechanics Co., Ltd.
Seligman New Technologies Fund, Inc.
Seligman Investment Opportunities (Master) Fund - NTV II Portfolio
Silver Star Developments Limited
Summit Law Group, PLLC
Wisecom Investments, LLC
SCHEDULE 3
SERIES C INVESTORS
Access Co., Ltd.
Angel Partners
Astoria Capital Partners, L.P.
Alain Bankier
Citrix Development Corporation
Francois Chateau
DRW Venture Partners LP
DaiShin Information & Communications Co., LTD
Armando and Isabelle Geday
Global Alliance Inc.
Hikari Tsushin, Inc.
Technocom Ventures
David Jubb
MC Silicon Valley, Inc.
Mitsubishi International Corporation
Seligman Communications and Information Fund, Inc.
Seligman Investment Opportunities (Master) Fund - NTV II Portfolio
Seligman New Technologies Fund, Inc.
Brigham Enterprises LLC
Steve Young Family Foundation
Andre Taliercio