EXHIBIT 10.6
METAWAVE COMMUNICATIONS CORPORATION
THIRD AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
AUGUST 6, 1997
THIRD AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
THIS THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT (the
"Agreement") is made as of the 6th day of August, 1997, by and among Metawave
Communications Corporation, a Delaware corporation (the "Company"), and the
investors and the founders listed on Schedule A hereto (the "Investors" and the
"Founders," respectively).
RECITALS
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A. The Company and certain of the Investors have entered into the Series D
Preferred Stock Purchase Agreement dated August 6, 1997 (the "Series D
Agreement") pursuant to which the Company shall sell to such Investors (the
"Series D Investors") up to 2,500,000 shares of its Series D Preferred Stock.
B. The Company, the Founders and certain of the Investors who purchased
the Company's Series A Preferred Stock (the "Series A Investors") pursuant to
the Series A Preferred Stock Purchase Agreement dated as of July 7, 1995,
previously entered into that certain Investors' Rights Agreement of even date
therewith (the "First Investors' Rights Agreement"), which granted to the Series
A Investors certain rights with respect to the Series A Preferred Stock.
C. The Company, the Founders, the Series A Investors, and certain of the
Investors who purchased the Company's Series B Preferred Stock (the "Series B
Investors") pursuant to the Series B Preferred Stock Purchase Agreement dated as
of May 30, 1996, subsequently entered into that certain Amended and Restated
Investors' Rights Agreement dated as of even date therewith (the "Restated
Investors' Rights Agreement"), which amended, restated and superseded the First
Investors' Rights Agreement, and which granted to the Series A Investors and the
Series B Investors certain rights with respect to the Series A Preferred Stock
and the Series B Preferred Stock, respectively.
D. The Company, the Founders, the Series A Investors, the Series B
Investors, and certain of the Investors who purchased the Company's Series C
Preferred Stock (the "Series C Investors") pursuant to the Series C Preferred
Stock Purchase Agreement dated as of October 30, 1996, subsequently entered into
that certain Second Amended and Restated Investors' Rights Agreement dated as of
even date therewith (the "Second Restated Investors' Rights Agreement"), which
amended, restated and superseded the Restated Investors' Rights Agreement, and
which granted to the Series A Investors, the Series B Investors and the Series C
Investors certain rights with respect to the Series A Preferred Stock, Series B
Preferred Stock and the Series C Preferred Stock, respectively.
E. The closing of the Series D Agreement, pursuant to which the Series D
Investors will receive Series D Preferred Stock, is subject to certain
conditions, including the condition that the Company, the Founders, the Series A
Investors, the Series B Investors and the Series C Investors grant to the Series
D Investors certain rights as set forth herein.
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F. The Company, the Founders and the Investors are willing to enter into
this Agreement for the purpose of setting forth certain rights to which the
Investors are entitled.
NOW, THEREFORE, in consideration of the foregoing recitals and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company, the Founders, the Series A Investors, the Series B
Investors, the Series C Investors and the Series D Investors hereby agree as
follows:
1. Registration Rights. The Company covenants and agrees as follows:
1.1 Definitions. For purposes of this Agreement:
(a) The term "Act" means the Securities Act of 1933, as amended.
(b) The term "Form S-3" means such form under the Act as in effect on
the date hereof or any registration form under the Act subsequently adopted by
the SEC which permits inclusion or incorporation of substantial information by
reference to other documents filed by the Company with the SEC.
(c) The term "Holder" means any person owning or having the right to
acquire Registrable Securities or any assignee thereof in accordance with
Section 1.13 hereof.
(d) The term "1934 Act" shall mean the Securities Exchange Act of
1934, as amended.
(e) The term "register", "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Act, and the declaration or ordering of
effectiveness of such registration statement or document.
(f) The term "Registrable Securities" means Common Stock of the
Company not previously sold to the public and (i) issuable or issued upon
conversion of the Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock and Series D Preferred Stock (whether currently issued or
hereafter acquired), (ii) issued as (or issuable upon the conversion or exercise
of any warrant, right or other security that is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of the shares
referenced in (i) above, and (iii) for purposes of Section 1.3 (and other
portions of this Section 1, to the extent they relate to rights or registration
under Section 1.3) the term "Registrable Securities" shall also include shares
of Common Stock of the Company (other than shares described in clauses (i) and
(ii) of this subsection 1.1(f)) eligible for registration pursuant to subsection
1.3(b). Notwithstanding the foregoing, "Registrable Securities" shall exclude
any Registrable Securities to the extent (A) sold by a person in a transaction
in which his rights under this Section 1 are not assigned, or (B) the
registration rights with respect to such Registrable Securities have been
terminated pursuant to Section 1.16.
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(g) The number of shares of "Registrable Securities then outstanding"
shall be determined by the number of shares of Common Stock outstanding that
are, and the number of shares of Common Stock issuable pursuant to then
exercisable or convertible securities that are, Registrable Securities.
(h) The term "SEC" shall mean the Securities and Exchange Commission.
(i) The term "Affiliate" shall refer to any person or entity
controlling, controlled by or under common control with such Investors.
1.2 Request for Registration
(a) If the Company shall receive at any time after the earlier of (i)
June 30, 2000, or (ii) six (6) months after the effective date of the first
registration statement for a public offering of securities of the Company (other
than a registration statement relating either to the sale of securities to
employees of the Company pursuant to a stock option, stock purchase or similar
plan or a SEC Rule 145 transaction), a written request, from (i) the Holders of
a majority of the Registrable Securities then outstanding in the case of the
first such written request and (ii) the Holders of at least forty percent (40%)
of the Registrable Securities then outstanding in the case of the second such
request, that the Company file a registration statement under the Act covering
the registration of Registrable Securities then outstanding having an aggregate
offering price, net of underwriting discounts and commissions, of at least
$7,500,000, then the Company shall:
(A) within ten (10) days of the receipt thereof, give written notice
of such request to all Holders; and
(B) effect as soon as practicable, and in any event within sixty (60)
days of the receipt of such request, the registration under the Act of all
Registrable Securities that the Holders request to be registered, subject to the
limitations of subsection 1.2(b), within twenty (20) days of the mailing of such
notice by the Company in accordance with Section 3.5.
(1) If the Holders initiating the registration request hereunder
("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 subsection 1.2(a) and the Company
shall include such information in the written notice referred to in subsection
1.2(a). The underwriter will be selected by the majority in interest of the
Initiating Holders. In such event, the right of any Holder to include his
Registrable Securities in such registration 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) to the extent
provided herein. All Holders proposing to distribute their securities through
such underwriting shall (together with the Company as provided in
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subsection 1.4(e)) enter into an underwriting agreement in customary form with
the underwriter or underwriters selected for such underwriting. Notwithstanding
any other provision of this Section 1.2, if the underwriter advises the
Initiating Holders in writing that marketing factors require a limitation of the
number of shares to be underwritten, then the Initiating Holders shall so advise
all Holders of Registrable Securities that would otherwise be underwritten
pursuant hereto, and the number of shares of Registrable Securities that may be
included in the underwriting shall be allocated among all Holders (electing to
include shares in the offering) thereof, including the Initiating Holders, in
proportion (as nearly as practicable) to the amount of Registrable Securities of
the Company owned by each Holder; provided, however, that the number of shares
of Registrable Securities to be included in such underwriting shall not be
reduced unless all other securities are first entirely excluded from the
underwriting.
(2) Notwithstanding the foregoing, if the Company shall furnish to
Holders requesting a registration statement pursuant to this Section 1.2, a
certificate signed by the President of the Company stating that in the good
faith judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its stockholders for such registration statement
to be filed and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer taking action
with respect to such filing for a period of not more than ninety (90) days after
receipt of the request of the Initiating Holders; provided, however, that the
Company may not utilize this right more than once in any twelve (12) month
period.
(3) The Company is obligated to effect only two (2) such registrations
pursuant to this Section 1.2.
1.3 Company Registration
(a) If (but without any obligation to do so) the Company proposes to
register (including for this purpose a registration effected by the Company for
stockholders other than the Holders) any of its stock or other securities under
the Act in connection with the public offering of such securities solely for
cash (other than a registration relating solely to the sale of securities to
participants in a Company stock plan or a registration on any form that does not
include substantially the same information as would be required to be included
in a registration statement covering the sale of the Registrable Securities),
the Company shall, at such time, promptly give each Holder written notice of
such registration. Upon the written request of each Holder given within twenty
(20) days after mailing of such notice by the Company in accordance with Section
3.5, the Company shall, subject to the provisions of Section 1.8, include in the
registration statement all of the Registrable Securities that each such Holder
has requested to be registered.
(b) Each Founder shall be deemed a Holder for purposes of Section
1.3(a) and shall be entitled to include Common Stock held by such Founder in any
registration described in Section 1.3(a) so long as such Founder (A) continues
to serve as an officer or director of the Company on the date the registration
statement is filed by the Company
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and (B) agrees to be bound by all other provisions of this Agreement and to
participate in any such registration on the same basis as each other Holder in
accordance with all applicable provisions of this Agreement.
1.4 Obligations of the Company. Whenever required under this Section
1 to effect the registration of any Registrable Securities, the Company shall,
as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, upon the request of the Holders
of a majority of the Registrable Securities registered thereunder, keep such
registration statement effective for a period of up to one hundred twenty (120)
days or until the Holders have completed the distribution described in the
registration statement relating thereto, whichever first occurs.
(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Act, and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or "Blue Sky"
laws of such jurisdictions as shall be reasonably requested by the Holders;
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering. Each Holder participating
in such underwriting shall also enter into and perform its obligations under
such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the 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.
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(g) Cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange or nationally recognized
quotation system on which similar securities issued by the Company are then
listed.
1.5 Furnish Information
(a) It shall be a condition precedent to the obligations of the
Company to take any action pursuant to this Section 1 with respect to the
Registrable Securities of any selling Holder that such Holder shall furnish to
the Company such information regarding itself, the Registrable Securities held
by it, and the intended method of disposition of such securities as shall be
required to effect the registration of such Holder's Registrable Securities.
(b) The Company shall have no obligation with respect to any
registration requested pursuant to Section 1.2 or Section 1.12 if, due to the
operation of subsection 1.5(a), the number of shares or the anticipated
aggregate offering price of the Registrable Securities to be included in the
registration does not equal or exceed the number of shares or the anticipated
aggregate offering price required to originally trigger the Company's obligation
to initiate such registration as specified in subsection 1.2(a) or subsection
1.12(b)(ii), whichever is applicable.
1.6 Expenses of Demand Registration. All expenses other than
underwriting discounts and commissions incurred in connection with
registrations, filings or qualifications pursuant to Section 1.2, including
(without limitation) all registration, filing and qualification fees, printers'
and accounting fees, fees and disbursements of counsel for the Company and the
reasonable fees and disbursements of one counsel (not to exceed $10,000) for the
selling Holders shall be borne by the Company; provided, however, that the
Company shall not be required to pay for any expenses of any registration
proceeding begun pursuant to Section 1.2 if the registration request is
subsequently withdrawn at the request of the Holders of a majority of the
Registrable Securities to be registered (in which case all participating Holders
shall bear such expenses), unless the Holders of a majority of the Registrable
Securities agree to forfeit their right to one demand registration pursuant to
Section 1.2; provided further, however, that if at the time of such withdrawal,
the Holders have learned of a material adverse change in the condition,
business, or prospects of the Company from that known to the Holders at the time
of their request and have withdrawn the request with reasonable promptness
following disclosure by the Company of such material adverse change, then the
Holders shall not be required to pay any of such expenses and shall retain their
rights pursuant to Section 1.2.
1.7 Expenses of Company Registration. The Company shall bear and pay
all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
pursuant to Section 1.3 for each Holder (which right may be assigned as provided
in Section 1.13), including (without limitation) all registration, filing, and
qualification fees, printers' and accounting fees relating or apportionable
thereto and the fees and disbursements of counsel for this purpose; the Company
will pay the reasonable fees
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and disbursements of one counsel (not to exceed $10,000), for the selling
Holders selected by them but excluding underwriting discounts and commissions
relating to Registrable Securities.
1.8 Underwriting Requirements. In connection with any offering
involving an underwriting of shares of the Company's capital stock, the Company
shall not be required under Section 1.3 to include any of the Holders'
securities in such underwriting unless they accept the terms of the underwriting
as agreed upon between the Company and the underwriters selected by it, and then
only in such quantity as the underwriters determine in their sole discretion
will not adversely affect their ability to market the offering. If the total
amount of securities, including Registrable Securities, requested by
stockholders to be included in such offering exceeds the amount of securities
sold other than by the Company that the underwriters determine in their sole
discretion is compatible with the success of the offering, then the Company
shall be required to include in the offering only that number of such
securities, including Registrable Securities, that the underwriters determine in
their sole discretion will not adversely affect their ability to market the
offering (the securities so included to be apportioned pro rata among the
selling stockholders according to the total amount of securities owned by each
selling stockholder or in such other proportions as shall mutually be agreed to
by such selling stockholders) but in no event shall (a) the amount of securities
of the selling Holders included in the offering be reduced below thirty percent
(30%) of the total amount of securities included in such offering, unless such
offering is the initial public offering of the Company's securities in which
case the selling stockholders may be reduced to a lesser percentage if the
underwriters make the determination described above and no other stockholder's
securities are included or (b) notwithstanding clause (a) above, any shares
being sold by a stockholder exercising a demand registration right similar to
that granted in Section 1.2 be excluded from such offering. For purposes of the
preceding parenthetical concerning apportionment, for any selling stockholder
that is a holder of Registrable Securities and which is a partnership or
corporation, the partners, retired partners and stockholders of such holder, or
the estates and family members of any such partners and retired partners and any
trusts for the benefit of any of the foregoing persons shall be deemed to be a
single "selling stockholder", and any pro-rata reduction with respect to such
"selling stockholder" shall be based upon the aggregate amount of shares
carrying registration rights owned by all entities and individuals included in
such "selling stockholder", as defined in this sentence.
1.9 Delay of Registration. No Holder shall have any right to obtain
or seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 1.
1.10 Indemnification. In the event any Registrable Securities are
included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, any underwriter (as defined in the Act) for such
Holder and each person, if any, who controls such Holder or underwriter within
the meaning of the Act or the 1934 Act, against any losses, claims, damages, or
liabilities (joint or several) to which they may
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become subject under the Act, or the 1934 Act or other federal or state
securities law, insofar as such losses, claims, damages, or liabilities (or
actions in respect thereof) arise out of or are based upon any of the following
statements, omissions or violations (collectively a "Violation"): (i) any untrue
statement or alleged untrue statement of a material fact contained in such
registration statement, including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto, (ii) the omission or
alleged omission to state therein a material fact required to be stated therein,
or necessary to make the statements therein not misleading, or (iii) any
violation or alleged violation by the Company of the Act, the 1934 Act, any
state securities law or any rule or regulation promulgated under the Act, or the
1934 Act or any state securities law; and the Company will pay to each such
Holder, underwriter or controlling person, as incurred, any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided, however,
that the indemnity agreement contained in this subsection 1.10(a) shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability,
or action if such settlement is effected without the consent of the Company
(which consent shall not be unreasonably withheld), nor shall the Company be
liable in any such case for any such loss, claim, damage, liability, or action
to the extent that it arises out of or is based upon a Violation that occurs in
reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by any such Holder, underwriter or
controlling person.
(b) To the extent permitted by law, each selling Holder will indemnify
and hold harmless the Company, each of its directors, each of its officers who
has signed the registration statement, each person, if any, who controls the
Company within the meaning of the Act, any underwriter, any other Holder selling
securities in such registration statement and any controlling person of any such
underwriter or other Holder, against any losses, claims, damages, or liabilities
(joint or several) to which any of the foregoing persons may become subject,
under the Act, the 1934 Act or other federal or state securities law, insofar as
such losses, claims, damages, or liabilities (or actions in respect thereto)
arise out of or are based upon any Violation, in each case to the extent (and
only to the extent) that such Violation occurs in reliance upon and in
conformity with written information furnished by such Holder expressly for use
in connection with such registration; and each such Holder will pay, as
incurred, any legal or other expenses reasonably incurred by any person intended
to be indemnified pursuant to this subsection 1.10(b), in connection with
investigating or defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnity agreement contained in this subsection
1.10(b) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of the Holder, which consent shall not be unreasonably withheld; provided, that,
in no event shall any indemnity under this subsection 1.10(b) exceed the net
proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this Section
1.10 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 1.10, deliver to the
indemnifying party a written notice
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of the commencement thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume the defense
thereof with counsel mutually satisfactory to the parties; provided, however,
that an indemnified party (together with all other indemnified parties that may
be represented without conflict by one counsel) shall have the right to retain
one separate counsel, with the fees and expenses to be paid by the indemnifying
party, if representation of such indemnified party by the counsel retained by
the indemnifying party would be inappropriate due to actual or potential
differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time of the commencement of
any such action, if materially prejudicial to its ability to defend such action,
shall relieve such indemnifying party of any liability to the indemnified party
under this Section 1.10, but the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 1.10.
(d) If the indemnification provided for in this Section 1.10 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any loss, liability, claim, damage, or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
(e) The obligations of the Company and Holders under this Section 1.10
shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 1, and otherwise.
1.11 Reports Under Securities Exchange Act of 1934. With a view to
making available to the Holders the benefits of Rule 144 promulgated under the
Act and any other rule or regulation of the SEC that may at any time permit a
Holder to sell securities of the Company to the public without registration or
pursuant to a registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times after the effective date of
the first registration statement filed by the Company for the offering of its
securities to the general public;
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(b) take such action, including the voluntary registration of its
Common Stock under Section 12 of the 1934 Act, as is necessary to enable the
Holders to utilize Form S-3 for the sale of their Registrable Securities, such
action to be taken as soon as practicable after the end of the fiscal year in
which the first registration statement filed by the Company for the offering of
its securities to the general public is declared effective;
(c) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the 1934 Act; and
(d) furnish to any Holder, so long as the Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by the Company that
it has complied with the reporting requirements of SEC Rule 144 (at any time
after ninety (90) days after the effective date of the first registration
statement filed by the Company), the Act and the 1934 Act (at any time after it
has become subject to such reporting requirements), or that it qualifies as a
registrant whose securities may be resold pursuant to Form S-3 (at any time
after it so qualifies), (ii) a copy of the most recent annual or quarterly
report of the Company and such other reports and documents so filed by the
Company, and (iii) such other information as may be reasonably requested in
availing any Holder of any rule or regulation of the SEC that permits the
selling of any such securities without registration or pursuant to such form.
1.12 Form S-3 Registration. In case the Company shall receive from
any Holder or Holders a written request or requests that the Company effect a
registration on Form S-3 and any related qualification or compliance with
respect to all or a part of the Registrable Securities owned by such Holder or
Holders, the Company will:
(a) promptly give written notice of the proposed registration, and any
related qualification or compliance, to all other Holders; and
(b) as soon as practicable, effect such registration and all such
qualifications and compliances as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such Holder's or
Holders' Registrable Securities as are specified in such request, together with
all or such portion of the Registrable Securities of any other Holder or Holders
joining in such request as are specified in a written request given within
fifteen (15) days after receipt of such written notice from the Company;
provided, however, that the Company shall not be obligated to effect any such
registration, qualification or compliance, pursuant to this Section 1.12: (i)
if Form S-3 is not available for such offering by the Holders; (ii) if the
Holders, together with the holders of any other securities of the Company
entitled to inclusion in such registration, propose to sell Registrable
Securities and such other securities (if any) at an aggregate price to the
public (net of any underwriters' discounts or commissions) of less than
$1,000,000; (iii) if the Company shall furnish to the Holders a certificate
signed by the President of the Company stating that in the good faith judgment
of the Board of Directors of the Company, it would be seriously detrimental to
the Company and its stockholders for such Form S-3 Registration to be effected
at such time, in which event the Company shall have the right to defer the
filing of the Form S-3 registration statement for a period of not more than 90
days after
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receipt of the request of the Holder or Holders under this Section 1.12;
provided, however, that the Company shall not utilize this right more than once
in any twelve (12) month period; (iv) if the Company has, within the twelve (12)
month period preceding the date of such request, already effected (A) one (1)
registration on Form S-3 for the requesting Holder or Holders or (B) two (2)
registrations on Form S-3 pursuant to this Section 1.12; (v) if the Company has
already effected four (4) registrations on Form S-3 pursuant to this Section
1.12; or (vi) in any particular jurisdiction in which the Company would be
required to qualify to do business or to execute a general consent to service of
process in effecting such registration, qualification or compliance.
(c) Subject to the foregoing, the Company shall file a registration
statement covering the Registrable Securities and other securities so requested
to be registered as soon as practicable after receipt of the request or requests
of the Holders. All expenses incurred in connection with a registration
requested pursuant to Section 1.12, including (without limitation) all
registration, filing, qualification, printer's and accounting fees and the
reasonable fees and disbursements of counsel (not to exceed $10,000) for the
selling Holder or Holders and counsel for the Company, but excluding any
underwriters' discounts or commissions associated with Registrable Securities,
shall be borne by the Company. Registrations effected pursuant to this Section
1.12 shall not be counted as demands for registration or registrations effected
pursuant to Sections 1.2 or 1.3, respectively.
1.13 Assignment of Registration Rights. The rights to cause the
Company to register Registrable Securities pursuant to this Section 1 may be
assigned (but only with all related obligations) by a Holder to a transferee or
assignee of such securities who acquires all of the Registrable Securities
previously held by such Holder, or who, after such assignment or transfer, holds
at least 100,000 shares of Registrable Securities (subject to appropriate
adjustment for stock splits, stock dividends, combinations and other
recapitalizations), provided: the Company is, within a reasonable time after
such transfer, furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned; and provided, further, that such
assignment shall be effective only if immediately following such transfer the
further disposition of such securities by the transferee or assignee is
restricted under the Act. For the purposes of determining the number of shares
of Registrable Securities held by a transferee or assignee, the holdings of
transferees and assignees of a partnership who are partners or retired partners
of such partnership (including spouses and ancestors, lineal descendants and
siblings of such partners or spouses who acquire Registrable Securities by gift,
will or intestate succession) shall be aggregated together and with the
partnership; provided that all assignees and transferees who would not qualify
individually for assignment of registration rights shall have a single attorney-
in-fact for the purpose of exercising any rights, receiving notices or taking
any action under this Section 1.
1.14 Limitations on Subsequent Registration Rights. From and after
the date of this Agreement, the Company shall not, without the prior written
consent of the Holders of a majority of the Registrable Securities then
outstanding, enter into any agreement with any holder or
-11-
prospective holder of any securities of the Company that would allow such holder
or prospective holder (a) to include such securities in any registration filed
under Section 1.2 hereof, unless under the terms of such agreement, such holder
or prospective holder may include such securities in any such registration only
to the extent that the inclusion of his securities will not reduce the amount of
the Registrable Securities of the Holders that is included or (b) to make a
demand registration which could result in such registration statement being
declared effective prior to the earlier of either of the dates set forth in
subsection 1.2(a) or within one hundred twenty (120) days of the effective date
of any registration effected pursuant to Section 1.2.
1.15 "Market Stand-Off" Agreement. Each Investor hereby agrees that,
during the period of duration (not to exceed one hundred eighty (180) days)
specified by the Company and an underwriter of Common Stock or other securities
of the Company, following the effective date of a registration statement filed
under the Act for the initial public offering of the Company's Common Stock, it
shall not, to the extent requested by the Company and such underwriter, directly
or indirectly, sell, offer to sell, contract to sell (including, without
limitation, any short sale), grant any option to purchase or otherwise transfer
or dispose of (other than to donees who agree to be similarly bound) any
securities of the Company held by it at any time during such period except
Common Stock included in such registration; provided, however, that the
restrictions imposed by this subsection 1.15 shall not apply to Common Stock
purchased by an Investor in the initial public offering of the Company's Common
Stock or acquired by an Investor by purchases in the public market following
such initial public offering; and provided further, that all officers and
directors of the Company and all other persons with registration rights (whether
or not pursuant to this Agreement) enter into similar agreements. In order to
enforce the foregoing covenant, the Company may impose stop-transfer
instructions with respect to the securities of the Company (except Common Stock
included in such registration) held at any time during such period by each
Investor (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period.
1.16 Termination of Registration Rights
No Holder shall be entitled to exercise any right provided for in this
Section 1 after the earlier of (a) three (3) years following the consummation of
the sale of securities pursuant to a registration statement filed by the Company
under the Act in connection with the initial firm commitment underwritten
offering of its securities to the general public, the public offering price of
which was not less than $9.25 per share (adjusted to reflect subsequent stock
dividends, stock splits or recapitalizations), and $15,000,000 in the aggregate,
or (b) as to any Holder, such time at which all Registrable Securities held by
such Holder can be sold in any three month period without registration in
compliance with Rule 144 of the Act.
2. Covenants
2.1 Delivery of Financial Statements. The Company shall deliver
to each Investor:
(a) as soon as practicable, but in any event within ninety (90) days
after the end of each fiscal
-12-
year of the Company, an income statement for such fiscal year, a balance sheet
of the Company and statement of stockholder's equity as of the end of such year,
and a statement of cash flows for such year, such year-end financial reports to
be in reasonable detail, prepared in accordance with generally accepted
accounting principles ("GAAP"), and audited and certified by independent public
accountants of nationally recognized standing selected by the Company;
(b) so long as such Investor holds an aggregate of at least 400,000
shares of Series A, Series B, Series C and/or Series D Preferred Stock (or
Common Stock issued upon conversion thereof and as adjusted for subsequent stock
splits, recombinations or reclassifications) as soon as practicable, but in any
event within thirty (30) days after the end of each of the first three (3)
quarters of each fiscal year of the Company, an unaudited income statement,
statement of cash flows for such fiscal quarter and an unaudited balance sheet
as of the end of such fiscal quarter;
(c) so long as such Investor holds an aggregate of at least 400,000
shares of Series A, Series B, Series C and/or Series D Preferred Stock (or
Common Stock issued upon conversion thereof and as adjusted for subsequent stock
splits, recombinations or reclassifications) within thirty (30) days of the end
of each month, an unaudited income statement, statement of cash flows and
balance sheet for and as of the end of such month, in reasonable detail;
(d) so long as such Investor holds an aggregate of at least 400,000
shares of Series A, Series B, Series C and/or Series D Preferred Stock (or
Common Stock issued upon conversion thereof and as adjusted for subsequent stock
splits, recombinations or reclassifications) as soon as practicable, but in any
event thirty (30) days prior to the end of each fiscal year, a budget and
business plan for the next fiscal year, prepared on a monthly basis, including
balance sheets and income statements for such months and, as soon as prepared,
any other budgets or revised budgets prepared by the Company;
(e) with respect to the financial statements called for in subsections
(b) and (c) of this Section 2.1, an instrument executed by the Chief Financial
Officer or Chief Executive Officer of the Company and certifying that such
financials were prepared in accordance with GAAP consistently applied with prior
practice for earlier periods (with the exception of footnotes that may be
required by GAAP) and fairly present the financial condition of the Company and
its results of operation for the period specified, subject to year-end audit
adjustment;
(f) such other information relating to the financial condition,
business, prospects or corporate affairs of the Company as the Investor or any
assignee of the Investor may from time to time request, provided, however, that
the Company shall not be obligated under this subsection (f) or any other
subsection of Section 2.1 to provide information which it deems in good faith to
be a trade secret or similar confidential information.
-13-
2.2 Inspection. The Company shall permit each Investor, at such
Investor's expense, to visit and inspect the Company's properties, to examine
its books of account and records and to discuss the Company's affairs, finances
and accounts with its officers, all at such reasonable times as may be requested
by the Investor; provided, however, that the Company shall not be obligated
pursuant to this Section 2.2 to provide access to any information that it
reasonably considers to be a trade secret or similar confidential information.
2.3 Termination of Information and Inspection Covenants. The
covenants set forth in Section 2.1 and Section 2.2 shall terminate as to
Investors and be of no further force or effect (a) when the sale of securities
pursuant to a registration statement filed by the Company under the Act in
connection with the firm commitment underwritten offering of its securities to
the general public is consummated, the public offering price of which was not
less than $9.25 per share (adjusted to reflect subsequent stock dividends, stock
splits or recapitalizations), and $15,000,000 in the aggregate or (b) when the
Company first becomes subject to the periodic reporting requirements of Sections
12(g) or 15(d) of the 1934 Act, whichever event shall first occur.
2.4 Right of First Offer. Subject to the terms and conditions
specified in this Section 2.4, the Company hereby grants to each Investor a
right of first offer to purchase its pro rata share (in whole or in part) with
respect to future sales by the Company of its Shares (as hereinafter defined).
An Investor shall be entitled to assign or apportion the right of first offer
hereby granted it among itself and its partners and affiliates (including in the
case of a venture capital fund among other venture capital funds affiliated with
such fund) in such proportions as it deems appropriate. For purposes of this
Section 2.4, an Investor's pro rata share of Shares shall mean that number of
Shares that equals the proportion that the number of shares of Common Stock
issued and held by each Investor (assuming full conversion, exercise and/or
exchange of all convertible, exercisable and exchangeable securities) bears to
the total number of shares of Common Stock issued and outstanding immediately
prior to the issuance of Shares (assuming full conversion, exercise and/or
exchange of all convertible, exercisable and exchangeable securities).
Notwithstanding anything herein to the contrary, if the aggregate number of
Shares which the Investors elect to purchase pursuant to this Section 2.4
exceeds sixty-six and two-thirds percent (66 2/3%) of the Shares to be offered
by the Company, the number of Shares to be purchased by each Investor shall be
reduced proportionately so that the aggregate number of Shares to be purchased
by the Investors is no more than sixty-six and two-thirds percent (66 2/3%) of
the Shares to be issued.
Each time the Company proposes to offer any shares of, or securities
convertible into or exercisable for any shares of, any class of its capital
stock ("Shares"), the Company shall first make an offering of such Shares to
each Investor in accordance with the following provisions:
(a) The Company shall deliver a notice by certified mail ("Notice") to
the Investors stating (i) its bona fide intention to offer such Shares, (ii) the
number of such Shares to be offered, and (iii) the price and terms, if any, upon
which it proposes to offer such Shares.
-14-
(b) By written notification received by the Company within twenty (20)
calendar days after receipt of the Notice, each Investor may elect to purchase
or obtain, at the price and on the terms specified in the Notice, up to its pro
rata share of such Shares.
(c) If all Shares that Investors are entitled to obtain pursuant to
subsection 2.4(b) are not elected to be obtained as provided in subsection
2.4(b) hereof, the Company may, during the 30-day period following the
expiration of the period provided in subsection 2.4(b) hereof, offer the
remaining unsubscribed portion of such Shares to any person or persons at a
price not less than, and upon terms no more favorable to the offeree than those
specified in the Notice. If the Company does not enter into an agreement for
the sale of the Shares within such period, or if such agreement is not
consummated within 30 days of the execution thereof, the right provided
hereunder shall be deemed to be revived and such Shares shall not be offered
unless first reoffered to the Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be
applicable (i) to the issuance or sale of no more than 3,950,000 shares of
Common Stock (or options therefor, including the number of options outstanding
as of the date of this Agreement) to employees, consultants or directors for the
primary purpose of soliciting or retaining their services, (ii) to or after
consummation of a bona fide, firmly underwritten public offering of shares of
Common Stock, registered under the Act pursuant to a registration statement on
Form S-1, at an offering price of at least $9.25 per share (appropriately
adjusted for any stock split, dividend, combination or other recapitalization)
and $15,000,000 in the aggregate, (iii) the issuance of securities pursuant to
the conversion or exercise of convertible or exercisable securities, (iv) the
issuance of securities in connection with a bona fide business acquisition of or
by the Company, whether by merger, consolidation, sale of assets, sale or
exchange of stock or otherwise, (v) the issuance of securities in connection
with a transaction the primary purpose of which is to acquire technology, (vi)
the issuance of securities to vendors, suppliers, equipment lessors or bank
lenders where such issuance is not principally for the purpose of raising
additional equity capital; or (vii) the issuance of securities to corporate
partners or in connection with other strategic alliances approved by the Board
of Directors of the Company.
2.5 Board of Directors
(a) With respect to those three (3) directors that the Company's Third
Amended and Restated Certificate of Incorporation provides are to be elected by
holders of Series A, Series B, Series C and Series D Preferred Stock, the
Investors hereby agree to vote all of their shares of Series A, Series B, Series
C and Series D Preferred Stock in favor of the election of one designee of each
of Venrock Associates ("Venrock"), Sevin Rosen Fund IV, L.P. ("Sevin Rosen"),
and Oak Investment Partners VI, L.P. ("Oak"). Notwithstanding the foregoing if
pursuant to Article IV, Section (B), Paragraph 5(b) of the Company's Third
Amended and Restated Certificate of Incorporation (which Paragraph is entitled
"Voting for the Election of Directors"), as such provision may be amended from
time to time, the number of directors to be elected by the holders of Series A,
Series B, Series C and Series D Preferred Stock shall be decreased from three
(3) directors to either two (2) directors or one (1) director, then among
-15-
Venrock, Sevin Rosen and Oak, those two (2) stockholders (in the case where the
Series A, Series B, Series C and Series D Preferred Stock elects two (2)
directors) or the one (1) stockholder (in the case where the Series A, Series B,
Series C and Series D Preferred Stock elects one (1) director) holding the most
shares of Series A, Series B, Series C and Series D Preferred Stock shall be
entitled to designate the director(s) pursuant to this subsection (a).
(b) So long as (i) Integral Capital Partners III, L.P. ("Integral") or
(ii) Bowman Capital or its related entities ("Bowman") holds an aggregate of at
least 243,507 shares of Series C Preferred Stock and/or Series D Preferred Stock
(or Common Stock issued upon conversion thereof and as adjusted for subsequent
stock splits, recombinations or reclassifications), the Company shall invite one
(1) designated representative of each of Integral and Bowman to attend all
meetings of its Board of Directors in a nonvoting advisory capacity, and so long
as any Investor holds an aggregate of at least 324,675 shares of Series C
Preferred Stock and/or Series D Preferred Stock (or Common Stock issued upon
conversion thereof and as adjusted for subsequent stock splits, recombinations
or reclassifications), the Company shall invite one (1) designated
representative of such Investor to attend all meetings of its Board of Directors
in a nonvoting observer capacity. The Company shall give such designated
representatives copies of all notices, minutes, consents, and other materials
that it provides to its directors at the same time as such materials are
provided to the directors; provided, however, that such representatives shall
agree to hold in confidence and trust and to act in a fiduciary manner with
respect to all information so provided; and, provided further, that the Company
reserves the right to withhold any information and to exclude such
representatives from any meeting or portion thereof if the Company believes,
upon advise of counsel, that such exclusion is reasonably necessary to preserve
the attorney-client privilege, to protect highly confidential information, or
for other similar reasons. The covenants and rights set forth in this Section
2.6 shall terminate and be of no further force or effect upon the closing of the
Company's initial firm commitment underwritten offering of its securities to the
general public, the public offering price of which was not less than $9.25 per
share (adjusted to reflect subsequent stock dividends, stock splits or
recapitalizations), and $15,000,000 in the aggregate.
3. Miscellaneous
3.1 Successors and Assigns. Except as otherwise provided herein, the
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties (including
transferees of any shares of Registrable Securities). Nothing in this
Agreement, express or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
3.2 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of Delaware as applied to agreements among Delaware
residents entered into and to be performed entirely within Delaware.
-16-
3.3 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
3.4 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
3.5 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or upon
delivery by facsimile or overnight courier or upon deposit with the United
States Post Office, by registered or certified mail, postage prepaid and
addressed to the party to be notified at the address indicated for such party on
the signature page hereof, or at such other address as such party may designate
by ten (10) days' advance written notice to the other parties.
3.6 Expenses. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
3.7 Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders of
at least sixty-five percent (65%) of the Registrable Securities then
outstanding; provided, however, that in the event such amendment or waiver (a)
adversely affects the rights and/or obligations of an individual Holder in a
different manner than the other Holders, such amendment or waiver shall also
require the written consent of such individual Holder or (b) adversely affects
the rights and/or obligations of the Founders under Section 1 of this Agreement
in a different manner than the other Holders, such amendment or waiver shall
also require the written consent of the Holders of at least a majority of the
Common Stock (assuming the conversion of all outstanding shares of Preferred
Stock) then held by the Founders; or (c) affects the rights and/or obligations
of Integral and/or Bowman under Section 2.5(b) of this Agreement, such amendment
or waiver shall also require the written consent of Integral and/or Bowman, as
the case may be.
3.8 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement, and the balance of the Agreement shall be interpreted as if
such provision were so excluded, and shall be enforceable in accordance with its
terms.
3.9 Aggregation of Stock. All shares of Registrable Securities of
the Company held or acquired by affiliated stockholders shall be aggregated
together for the purpose of determining the availability of any rights under
this Agreement. For purposes of the foregoing, the shares held by any
stockholder that (a) is a partnership or corporation shall be
-17-
deemed to include shares held by the partners, retired partners and stockholders
of such holder or members of the "immediate family" (as defined below) of any
such partners, retired partners and stockholders, and any custodian or trustee
for the benefit of any of the foregoing persons and (b) is an individual shall
be deemed to include shares held by any members of the stockholder's immediate
family ("immediate family" shall include any spouse, father, mother, brother,
sister, lineal descendant of spouse or lineal descendant) or to any custodian or
trustee for the benefit of any of the foregoing persons.
3.10 Amendment and Restatement. The Company, the Founders and the
Investors consent to the execution of this Agreement, and to any and all other
documents and agreements contemplated hereby and waive any and all rights they
may have to object hereto or thereto and agree that this Agreement supersedes in
all respects all prior agreements relating to the rights set forth herein,
including the Second Restated Investors' Rights Agreement.
[SIGNATURE PAGES FOLLOW]
-18-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
-------
METAWAVE COMMUNICATIONS CORPORATION
By:
----------------------------------------------
Vito Palermo
Chief Financial Officer and Secretary
Address: 8700 148th Avenue N.E.
Redmond, WA 98052
INVESTORS:
---------
SPINNAKER TECHNOLOGY FUND, L.P.
By: Bowman Capital Management, L.L.C.
Its: General Partner
By:
------------------------------------------
Its:
-------------------------------------
Address: 1875 South Grant Road, Suite 1600
San Mateo, CA 94402
[SIGNATURE PAGE TO SERIES D INVESTOR RIGHTS AGREEMENT]
SPINNAKER TECHNOLOGY OFFSHORE FUND LIMITED
By: Bowman Capital Management, L.L.C.
Its: Investment Advisor and Attorney-in-Fact
By:
------------------------------------------
Its:
-------------------------------------
Address: 1875 South Grant Road, Suite 1600
San Mateo, CA 94402
SPINNAKER FOUNDERS FUND, L.P.
By: Bowman Capital Management, L.L.C.
Its: General Partner
By:
------------------------------------------
Its:
-------------------------------------
Address: 1875 South Grant Road, Suite 1600
San Mateo, CA 94402
SPINNAKER CLIPPER FUND, L.P.
By: Bowman Capital Management, L.L.C.
Its: General Partner
By:
------------------------------------------
Its:
-------------------------------------
Address: 1875 South Grant Road, Suite 1600
San Mateo, CA 94402
[SIGNATURE PAGE TO SERIES D INVESTOR RIGHTS AGREEMENT]
VENROCK ASSOCIATES
By:
----------------------------------------------
Its:
-----------------------------------------
Address: 30 Rockefeller Plaza
Room 5508
New York, NY 10112
VENROCK ASSOCIATES II, L.P.
By:
----------------------------------------------
Its:
-----------------------------------------
Address: 30 Rockefeller Plaza
Room 5508
New York, NY 10112
OAK INVESTMENT PARTNERS VI, L.P.
By:
----------------------------------------------
Its:
-----------------------------------------
Address: 525 University Avenue, Suite 1300
Palo Alto, CA 94301
OAK VI AFFILIATES FUND, L.P.
By:
----------------------------------------------
Its:
-----------------------------------------
Address: 525 University Avenue, Suite 1300
Palo Alto, CA 94301
[SIGNATURE PAGE TO SERIES D INVESTOR RIGHTS AGREEMENT]
SEVIN ROSEN FUND IV L.P.
By: SRB Associates IV L.P.
Its: General Partner
By:
------------------------------------------
Its: General Partner
Address: 13455 Noel Road., Suite 1670
Dallas, TX 75240
Attn: John V. Jaggers
SEVIN ROSEN FUND V L.P.
By: SRB Associates V L.P.
Its: General Partner
By:
------------------------------------------
Its: General Partner
Address: 13455 Noel Road., Suite 1670
Dallas, TX 75240
Attn: John V. Jaggers
SEVIN ROSEN BAYLESS MANAGEMENT CO.
By:
----------------------------------------------
Its: Vice President
Address: 13455 Noel Road., Suite 1670
Dallas, TX 75240
Attn: John V. Jaggers
[SIGNATURE PAGE TO SERIES D INVESTOR RIGHTS AGREEMENT]
SEVIN ROSEN V AFFILIATES FUND L.P.
By: SRB Associates V L.P.
Its: General Partner
By:
------------------------------------------
Its: General Partner
Address: 13455 Noel Road., Suite 1670
Dallas, TX 75240
Attn: John V. Jaggers
--------------------------------------------------
Jennifer G. Roberts
Address: c/o The Sevin Rosen Funds
550 Lytton Avenue, Suite 200
Palo Alto, CA 94301
--------------------------------------------------
Stephen L. Domenik
Address: c/o The Sevin Rosen Funds
550 Lytton Avenue, Suite 200
Palo Alto, CA 94301
--------------------------------------------------
David F. Bellet
Address: c/o Crown Advisors, Ltd.
The Lincoln Building
60 East 42nd Street, Suite 3405
New York, NY 10165
[SIGNATURE PAGE TO SERIES D INVESTOR RIGHTS AGREEMENT]
INTEGRAL CAPITAL PARTNERS III, L.P.
By: Integral Capital Management III, L.P.
Its: General Partner
By:
------------------------------------------
Its: General Partner
Address: 2750 Sand Hill Road
Menlo Park, CA 94025
INTEGRAL CAPITAL PARTNERS INTERNATIONAL III, L.P.
By: Integral Capital Management III, L.P.
Its: Investment General Partner
By:
------------------------------------------
Its: General Partner
Address: 2750 Sand Hill Road
Menlo Park, CA 94025
[SIGNATURE PAGE TO SERIES D INVESTOR RIGHTS AGREEMENT]
WORLDVIEW TECHNOLOGY PARTNERS I, L.P.
By:
----------------------------------------------
James Wei
Managing Director
-------------------------------------------------
Worldview Capital I, L.P.
Its: General Partner
Address: 435 Tasso Street, Suite 120
Palo Alto, CA 94301
WORLDVIEW TECHNOLOGY INTERNATIONAL I, L.P.
By:
----------------------------------------------
James Wei
Managing Director
-------------------------------------------------
Worldview Capital I, L.P.
Its: General Partner
Address: 435 Tasso Street, Suite 120
Palo Alto, CA 94301
Address: 435 Tasso Street, Suite 120
Palo Alto, CA 94301
[SIGNATURE PAGE TO SERIES D INVESTOR RIGHTS AGREEMENT]
STANFORD UNIVERSITY
By:
----------------------------------------------
Its:
-----------------------------------------
Address: 2770 San Hill Rd.
Menlo Park, CA 94025
WA&H INVESTMENTS, L.L.C.
By: Wessels, Arnold & Henderson Group, L.L.C.
Its: Managing Member
By:
------------------------------------------
Kenneth J. Wessels
CEO/Managing Director
Address: 901 Marquette Avenue
Minneapolis, MN 55402-3280
MONTGOMERY ASSOCIATES, 1992 L.P.
By:
----------------------------------------------
Its:
-----------------------------------------
Address: 600 Montgomery Street
San Francisco, CA 94111
FOUNDERS:
---------
--------------------------------------------------
Thomas S. Huseby
Address: c/o Metawave Communications Corporation
8700 148th Avenue N.E.
Redmond, WA 98052
[SIGNATURE PAGE TO SERIES D INVESTOR RIGHTS AGREEMENT]
--------------------------------------------------
Douglas O. Reudink
Address: c/o Metawave Communications Corporation
8700 148th Avenue N.E.
Redmond, WA 98052
Schedule A
SCHEDULE OF INVESTORS
Investors
- ---------
Spinnaker Technology Fund, L.P.
Spinnaker Technology Offshore Fund Limited
Spinnaker Founders Fund, L.P.
Spinnaker Clipper Fund, L.P.
1875 South Grant Road, Suite 1600
San Mateo, CA 94402
Venrock Associates
Venrock Associates II, L.P.
30 Rockefeller Plaza, Room 5508
New York, NY 10112
Oak Investment Partners VI, L.P.
Oak VI Investment Affiliates Fund, L.P.
525 University Avenue, Suite 1300
Palo Alto, CA 94301
Sevin Rosen Fund IV L.P.
Sevin Rosen Fund V L.P.
Sevin Rosen Bayless Management Co.
Sevin Rosen V Affiliates Fund L.P.
Two Galleria Tower
13455 Noel Road, Suite 1670
Dallas, TX 75240
Jennifer G. Roberts
c/o The Sevin Rosen Funds
550 Lytton Avenue, Suite 200
Palo Alto, CA 94301
Stephen L. Domenik
c/o The Sevin Rosen Funds
550 Lytton Avenue, Suite 200
Palo Alto, CA 94301
David F. Bellet
c/o Crown Advisors Ltd.
The Lincoln Building
60 East 42nd Street, Suite 3405
New York, NY 10165
Integral Capital Partners III, L.P.
Integral Capital Partners International III, L.P.
Roger McNamee
2750 Sand Hill Road
Menlo Park, CA 94025
Worldview Technology Partners I, L.P.
Worldview Technology International I, L.P.
Worldview Strategic Partners I, L.P.
James Wei
435 Tasso Street, Suite 120
Palo Alto, CA 94301
Stanford University
Carol Gilmer
2770 Sand Hill Rd.
Menlo Park, CA 94025
David F. Bellett - Trustee
Profit Sharing Plan DLJSC - Cust.
FBO David F. Bellett
Nicole Primack
Donaldson, Lufkin & Jenrette
Investment Services Group - 13th Floor
277 Park Avenue
New York, NY 10172
DMG Technology Ventures, L.L.C.
1550 El Camino Real, Suite 100
Menlo Park, CA 94025
Itochu Corporation
S-1, Kita-Aoyama 2-chome
Minato-ku Tokyo 107-77
Japan
NVCC No. 1 Investment Enterprise Partnership
7-1-16, Akaska
Minato-ku Tokyo 107
Japan
IBJ Strategic Investments USA, Inc.
1251 Avenue of the Americas
New York, NY 10020
Cowen Investment Partners XXVIII
Two International Place
Boston, MA 02110
Bayview Investors, Ltd.
555 California Street
San Francisco, CA 94104
Wessels, Arnold & Henderson Investment, L.L.C.
601 Second Avenue South, Suite 3100
Minneapolis, MN 55402-4314
Founders
- --------
Thomas S. Huseby
c/o Metawave Communications Corporation
8700 148th Avenue N.E.
Redmond, WA 98052
Doug Reudink
c/o Metawave Communications Corporation
8700 148th Avenue N.E.
Redmond, WA 98052