As filed with the Securities and Exchange Commission on April 23, 1999
Registration No. 333-74293
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
Amendment No. 2
to
FORM S-1
REGISTRATION STATEMENT
Under
The Securities Act of 1933
--------------
MAKER COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
--------------
<TABLE>
<S> <C> <C>
Delaware 3674 04-3276285
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
73 Mount Wayte Avenue
Framingham, MA 01702
(508) 628-0622
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
William N. Giudice
President and Chief Executive Officer
Maker Communications, Inc.
73 Mount Wayte Avenue
Framingham, MA 01702
(508) 628-0622
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
--------------
Copies to:
<TABLE>
<S> <C>
Richard M. Stein, Esquire Edwin L. Miller, Jr., Esquire
HUTCHINS, WHEELER & DITTMAR TESTA, HURWITZ & THIBEAULT, LLP
A Professional Corporation 125 High Street
101 Federal Street Boston, Massachusetts 02110
Boston, Massachusetts 02110 (617) 248-7000
(617) 951-6600
</TABLE>
--------------
Approximate date of commencement of proposed sale to the public: As soon
as practicable after the effective date of this Registration Statement.
--------------
If any of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of earlier effective
registration statement for the same offering. [ ] _________
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the
same offering. [ ] _________
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the earlier
registration statement number of the earlier effective registration statement
for the same offering. [ ] _________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [ ]
--------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until the Registration Statement
shall become effective on such date as the Securities and Exchange Commission,
acting pursuant to said Section 8(a), may determine.
================================================================================
<PAGE>
Subject to Completion, dated April 23, 1999
PROSPECTUS
3,500,000 Shares
[Maker Communications logo]
Maker Communications, Inc.
Common Stock
- --------------------------------------------------------------------------------
Maker is offering shares of common stock in its initial public offering.
Maker proposes to list the shares on the Nasdaq National Market under the
symbol "MAKR."
Anticipated Price Range: $9.00 to $11.00 per share
Investing in the shares involves risks. Risk Factors begin on page 7.
<TABLE>
<CAPTION>
Per Share Total
----------- ---------
<S> <C> <C>
Public Offering Price .......... $ $
Underwriting Discount .......... $ $
Proceeds to Maker .............. $ $
</TABLE>
Maker has granted the underwriters the right to purchase up to 525,000
additional shares within 30 days to cover any over-allotments.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if
this prospectus is truthful or complete. Any representation to the contrary is
a criminal offense.
- --------------------------------------------------------------------------------
LEHMAN BROTHERS
BT ALEX. BROWN
SALOMON SMITH BARNEY
, 1999
[red herring information]
The information in this prospectus is not complete and may change. Maker and
the underwriters may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus
is not an offer to sell these securities and it is not soliciting an offer to
buy these securities in any state where the offer or sale is not permitted.
[end red herring]
<PAGE>
Inside Page
A collage of Maker's processors and words representing applications addressed
by Maker's products with the following three sentences:
Maker is a fabless semiconductor company that develops and markets
high-performance programmable communications processors, development tools
and application software for use in communications systems equipment.
Maker focuses on emerging high growth segments of the communications
systems market that require sophisticated traffic management and
internetworking functions.
Our MXT3010 Cell Processor and related software target the high performance
segment of the ATM equipment market. Our recently announced MXT4000 Traffic
Stream Processor family and related software will address both IP-based
and ATM equipment markets.
Gatefold
Gatefold artwork illustrating the types of networks and equipment that
incorporate Maker's communications processors.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
-----
<S> <C>
Prospectus Summary ............................ 4
Risk Factors .................................. 7
Use of Proceeds ............................... 14
Dividend Policy ............................... 14
Capitalization ................................ 15
Dilution ...................................... 16
Selected Consolidated Financial Data .......... 17
Management's Discussion and Analysis of
Financial Condition and Results of
Operations ................................. 18
Business ...................................... 24
Management .................................... 36
<CAPTION>
Page
-----
<S> <C>
Principal Shareholders ........................ 44
Certain Transactions with Executive
Officers, Directors and Principal
Shareholders ............................... 46
Description of Capital Stock .................. 47
Shares Eligible for Future Sale ............... 50
Underwriting .................................. 52
Legal Matters ................................. 53
Experts ....................................... 54
Where You Can Find More Information ........... 54
Index to Consolidated Financial
Statements ................................. F-1
</TABLE>
ABOUT THIS PROSPECTUS
Investors should rely only on the information contained in this
prospectus. Maker and the underwriters have not authorized anyone to provide
any different or additional information. This prospectus is not an offer to
sell or a solicitation of an offer to buy common stock in any jurisdiction
where it is unlawful. The information contained in this prospectus is accurate
only as of the date of this prospectus, regardless of the time of delivery of
this prospectus or of any sale of common stock. This preliminary prospectus is
subject to completion prior to this offering.
This prospectus makes forward-looking statements. Investors should
consider any statements that are not statements of historical fact to be
forward-looking statements. The words "believes," "anticipates," "plans,"
"expects," "seeks," "estimates" and similar expressions identify
forward-looking statements. There are a number of important factors that could
cause the results of Maker to differ materially from those indicated by such
forward-looking statements, including those discussed under the section of this
prospectus entitled "Risk Factors."
All trademarks and trade names appearing in this prospectus are the
property of their respective holders.
Until , 1999, all dealers selling shares of the common stock, whether
or not participating in this offering, may be required to deliver a prospectus.
This is in addition to the obligation of dealers to deliver a prospectus when
acting as underwriters and with respect to their unsold allotments or
subscriptions.
<PAGE>
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information and the financial statements and notes appearing elsewhere in this
prospectus. Unless otherwise indicated, information in this prospectus assumes
that the underwriters will not exercise their over-allotment option. This
prospectus also assumes the redemption of all outstanding shares of Class A
Redeemable Preferred Stock and the conversion into common stock of all
outstanding shares of Junior Convertible Preferred Stock, Class B Convertible
Preferred Stock and Class C Convertible Preferred Stock all of which will occur
simultaneously with the closing of this offering, as well as the conversion
into common stock of a convertible note prior to or upon the closing of this
offering.
Maker
Maker is a semiconductor company that develops and markets
high-performance programmable processors, development tools and application
software for use in communications systems equipment. Our processors are
optimized for processing and switching data, voice and video in high-capacity
networks. Our processors perform complex tasks such as managing network traffic
and interconnecting networks that are based on advanced networking
technologies, such as Asynchronous Transfer Mode (ATM) and Internet Protocol
(IP) packet switching. We have over 50 design wins with over 30
telecommunications and network equipment vendors, of which over 15 were in
production during the first quarter of 1999. Our top five customers in 1998
were Ascend, Cisco, Fore, Lucent and Nortel.
The explosive growth of the Internet, the increase in demand for higher
speed interconnectivity between wide area networks and local area networks and
the increased use of technology that enables networks to be accessed remotely
are creating a rapidly expanding and increasingly complex communications
network infrastructure. Network service providers are adding capacity and
offering enhanced services that require new equipment with much higher
performance and the flexibility to support rapidly evolving industry standards.
This equipment traditionally has incorporated fixed-function integrated
circuits, called ASICs and ASSPs, which provide the requisite level of
performance but cannot adapt to changing market requirements and require
lengthy development cycles, or general purpose processors, called RISC and CISC
processors, that are programmable but have limited performance.
Our communications processors are optimized for networks based on advanced
technologies and have performance levels equivalent to fixed-function
integrated circuits and superior to general purpose processors. Unlike
fixed-function integrated circuits, our processors provide functional
flexibility which enables communications systems vendors to:
o quickly adapt to rapidly evolving standards and market requirements;
o improve time-to-market of new and improved products;
o add features to create product differentiation; and
o utilize a common architecture across product lines.
We focus on emerging high growth segments of communications systems
equipment markets that require sophisticated functionality in managing network
traffic and performing translation functions used to interconnect different
networks and protocols. Our MXT3010 Cell Processor and related software target
the high-performance segment of the Asynchronous Transfer Mode equipment
market. We believe that we have become a leading provider in the market for
Segmentation and Reassembly (SAR) devices that operate at OC-12 (622 Mbps)
rates, an industry-standard measurement of speed. Currently OC-12 is the
fastest speed at which commercial Asynchronous Transfer Mode Segmentation and
Reassembly devices operate. We recently announced the introduction of our
MXT4000 Traffic Stream Processor family and related software to address the
opportunity for Internet Protocol-based services in addition to Asynchronous
Transfer Mode. These devices will support sophisticated traffic management and
internetworking at rates up to OC-48 (2.5 Gbps), or four times faster than
OC-12/622Mbps. We offer complete production-tested application software that
runs on our processor families. Customers may use this software as is, customize
it or write their own custom software to address specific applications using our
development tools.
4
Prospectus Summary
<PAGE>
Our principal executive offices are located at 73 Mount Wayte Avenue,
Framingham, Massachusetts 01702, and our telephone number is 508-628-0622. We
were incorporated in California in 1994 as Maker Communications Equipment
Corporation and reincorporated in Delaware in 1996 as Maker Communications,
Inc.
The Offering
<TABLE>
<S> <C>
Common Stock Offered by Maker .......... 3,500,000 shares
Common Stock to be Outstanding after the
Offering .............................. 17,531,983 shares
Use of Proceeds ........................ For working capital, the redemption of redeemable
preferred stock in the amount of $8,635,000 and other
general corporate purposes. See "Use of Proceeds."
Proposed Nasdaq National Market Symbol "MAKR"
</TABLE>
Common stock to be outstanding after the offering excludes 2,536,190
shares issuable upon exercise of currently outstanding stock options.
5
Prospectus Summary
<PAGE>
Summary Consolidated Financial Data
The following table summarizes the financial data of our business. The pro
forma basic and diluted net loss per share gives effect to the automatic
conversion of all the outstanding shares of Junior Convertible Preferred Stock,
the Class B Convertible Preferred Stock and the Class C Convertible Preferred
Stock into common stock which will occur upon the closing of this offering. See
Note 2(c) of Notes to Consolidated Financial Statements.
<TABLE>
<CAPTION>
Period from
inception
(October 21, 1994) Year Ended December 31,
to December 31, --------------------------------------------------------
1994 1995 1996 1997 1998
------------------- ------------- ------------- ------------- --------------
(In thousands, except share and per share amounts)
<S> <C> <C> <C> <C> <C>
Consolidated Statement of Operations Data:
Revenues ................................. $-- $-- $342 $1,774 $7,694
Gross profit ............................. -- -- 13 743 4,456
Loss from operations ..................... (14) (957) (1,890) (4,080) (4,210)
Net loss ................................. (14) (1,003) (1,971) (3,901) (3,754)
Basic and diluted net loss per share ..... $(0.00) $(0.25) $(1.30) $(0.72) $(0.66)
Basic and diluted weighted average
common shares outstanding ............... 4,019,654 4,019,654 1,515,998 5,383,080 5,646,822
Pro forma basic and diluted
net loss per share ...................... $(0.31)
Pro forma basic and diluted weighted
average common shares outstanding ....... 12,229,795
<CAPTION>
Three Months
Ended March 31,
-----------------------------
1998 1999
------------- --------------
(In thousands, except share
and per share amounts)
<S> <C> <C>
Consolidated Statement of Operations Data:
Revenues ................................. $1,019 $3,162
Gross profit ............................. 533 2,119
Loss from operations ..................... (1,316) (131)
Net loss ................................. (1,193) (12)
Basic and diluted net loss per share ..... $(0.22) $(0.00)
Basic and diluted weighted average
common shares outstanding ............... 5,418,506 5,967,190
Pro forma basic and diluted
net loss per share ...................... $(0.00)
Pro forma basic and diluted weighted
average common shares outstanding ....... 13,651,760
</TABLE>
The following table summarizes our balance sheet data as of March 31,
1999. The pro forma column reflects the automatic conversion of all the
outstanding shares of Junior Convertible Preferred Stock, Class B Convertible
Preferred Stock and Class C Convertible Preferred Stock into common stock which
will occur upon the closing of this offering, as well as the conversion into
common stock of a convertible note prior to or upon the closing of this
offering. The pro forma as adjusted column reflects the sale of 3,500,000
shares of common stock offered by Maker at an assumed initial public offering
price of $10.00 per share, after deducting the estimated underwriting discount
and offering expenses, the redemption of all outstanding shares of Class A
Redeemable Preferred Stock for $8,635,000 which will occur simultaneously with
the closing of this offering and the repayment of bank debt (approximately
$1,328,000 at March 31, 1999). See "Use of Proceeds" and "Capitalization".
<TABLE>
<CAPTION>
As of March 31, 1999
-------------------------------------
Pro Forma
Actual Pro Forma As Adjusted
------------ ----------- ------------
(in thousands)
<S> <C> <C> <C>
Consolidated Balance Sheet Data:
Cash and cash equivalents .................... $ 14,275 $14,275 $35,862
Working capital .............................. 12,527 12,527 34,639
Total assets ................................. 17,263 17,263 38,587
Long-term debt, less current portion ......... 1,303 803 --
Redeemable preferred stock ................... 23,890 8,635 --
Stockholders' equity (deficit) ............... (11,226) 4,529 36,079
</TABLE>
6
Prospectus Summary
<PAGE>
RISK FACTORS
An investment in our common stock is risky. You should carefully consider
the following risks, as well as the other information contained in this
prospectus.
We Have a Limited Operating History and Have Not Had a Profitable Quarter
We were incorporated in 1994 and did not begin shipping products in volume
until 1997. We have a limited operating history upon which investors may
evaluate us and our prospects. Although our revenues have increased in recent
years, and revenues for recent quarters have exceeded revenues for the same
quarter for the prior year, we have not yet completed a profitable quarter. In
1998, we incurred a net loss of $3.8 million. We intend to increase our
operating expenses significantly in 1999, particularly in research and
development and sales and marketing. Our operating results will be adversely
affected if our revenues do not increase significantly over the same period. We
may not be able to achieve profitability on a quarterly or an annual basis.
We Experience Fluctuations in Our Operating Results Due to a Number of
Frequently Changing Business Conditions
We have experienced fluctuations in our operating results in the past and
we expect such fluctuations to occur in the future due to a variety of factors.
These factors include:
o changes in demand by the end user for our customers' products;
o timing and amount of orders from our customers, including
cancellations and reschedulings;
o the gain or loss of significant customers, including as a result
of industry consolidation;
o changes in the mix of products sold by us, including the mix
between processors and development tools and application
software;
o timing of "design wins" with related software application and
development tool revenue, which have much greater average
selling prices than individual communications processors;
o market acceptance of our current and new products;
o new product introductions by us or our competitors;
o variability of our customers' product life cycles;
o erosion of average selling prices due to a number of factors,
including our customers reaching volume production, rapid
technological change, price/performance enhancements and product
obsolescence;
o cancellations, changes or delays of deliveries to us by our
suppliers, including the availability and terms of foundry
capacity;
o the cyclical nature of the semiconductor industry;
o significant increases in expenses associated with the expansion of
operations; and
o general economic conditions.
Revenue derived from communications processors is dependent upon design
wins, production ramp-up and the timing of orders due to customers' management
of inventory. Revenue from the licensing of application software and
development tools primarily coincides with design wins at new customers and in
limited instances at existing customers. Our gross margins are impacted by
changes in the mix of revenue between software and communications processors.
As a result of these factors, our lengthy sales cycle and our dependence on
relatively few customers whose order cycles vary significantly, we expect our
revenue and gross margins to fluctuate significantly from period to period.
7
Risk Factors
<PAGE>
These and other factors could materially and adversely affect us. You
should be aware that we cannot accurately forecast all of the above factors. We
believe that period-to-period comparisons are not necessarily meaningful and
should not be relied upon as indicative of future operating results.
Our operating results in a future quarter or quarters may fall below the
expectations of public market analysts or investors. In such event, the price
of our common stock will likely be materially and adversely affected.
We Have a Costly and Lengthy Sales Cycle Which May Increase Our Exposure to
Customer Cancellations or Similar Risks
Our sales cycle typically includes a three to six month evaluation and
test period, a twelve to eighteen month development period by our customers and
an additional three to six month period before a customer commences volume
production of equipment incorporating our products. This lengthy sales cycle
creates risks related to customer decisions to cancel or change product plans,
which could result in the loss of anticipated sales. During our sales cycle,
our engineers assist our customers in implementing our solutions into their
product. We incur significant research and development and selling, general and
administrative expenses as part of this process before we generate the related
revenues from such customer. We derive revenue from this process only if our
design is selected. Achieving a "design win" with a communications systems
vendor provides no assurance that such communications systems vendor will
ultimately ship products incorporating our communications processors. It is
possible a customer may cancel orders even after we have achieved a design win.
We could be materially and adversely affected if customers curtail, reduce or
delay orders during our sales cycle, choose not to use our products or choose
not to release products employing our communications processors.
Our Revenues Could Decrease If There Is a Slowdown in the Growth in Demand for
Communications Systems
We derive all of our revenues from the sale of communications processors,
development tools and application software to communications markets. These
markets are characterized by intense competition and rapid technological
change. Although these markets have grown rapidly in the last few years, they
may not continue to grow and a significant slowdown in these markets may occur.
In addition, a substantial majority of our revenues has been, and is
expected to continue to be, derived from sales of products for Asynchronous
Transfer Mode equipment. We have announced new products directed at
communications systems that are based on other technologies. If these other
technologies were to quickly achieve widespread acceptance before our new
products have achieved market acceptance, or if our new products do not achieve
market acceptance, we will be materially and adversely affected.
Our Success Depends upon Our Customers' Acceptance of Our Processors as an
Alternative to Traditional Solutions
Our future prospects depend on the acceptance of programmable
communications processors as an alternative to fixed-function devices and
general purpose processors traditionally used by communications systems
vendors. We would be materially and adversely affected if:
o communications systems vendors do not accept programmable communications
processors;
o communications systems vendors develop or acquire the technology to
develop such components internally rather than purchase our products; or
o we are otherwise unable to develop strong relationships with
communications systems vendors.
Our future prospects also depend upon acceptance by our customers of third
party sourcing for communications processors as an alternative to in-house
development. Many of our current and potential customers have substantial
technological capabilities and financial resources which enable them
8
Risk Factors
<PAGE>
to develop fixed-function components and to program general purpose processors
used in their products. In the future, these customers may continue to use
internally-developed fixed-function components and general purpose processors
or may decide to develop or acquire components, technologies or communications
processors that are similar to, or are substitutes for, our products.
Our Failure to Introduce New Products on a Timely Basis Could Diminish Our
Ability to Attract and Maintain Customers
The communications systems industry is characterized by rapidly changing
technology, frequent product introductions and evolving industry standards. Our
products are based on these continually evolving industry standards. New
standards and protocols could render our existing products unmarketable or
obsolete. We may not be able to successfully design and manufacture new
products that comply with these standards and protocols. Specifically, our
future performance depends on a number of factors, including our ability to:
o identify target markets and emerging technological trends in these
markets, including new standards and protocols;
o define new products accurately;
o develop and maintain competitive products by improving performance and
adding innovative features that differentiate our products from those of
our competitors;
o bring products to market on a timely basis at competitive prices; and
o respond effectively to new technological changes or new product
announcements by others.
We cannot assure you that the design and introduction schedules for any
additions and enhancements to our existing and future products will be met,
that these products will achieve market acceptance or that we will be able to
sell these products at average selling prices that are favorable to us.
Our Future Success is Dependent on the Release and the Acceptance of Our New
MXT4400 Processor
We announced our newest product, the MXT4400 Traffic Stream Processor, in
March 1999. While we have delivered design plans for the MXT4400 to our
foundry, we have not yet been provided with finished prototypes. We cannot
assure you that the MXT4400 will perform as anticipated and there may be
unforeseen delays in its final release. Our failure to release the product on
schedule or the failure of the MXT4400 to meet our customers' expectations
would materially and adversely affect us. We do not expect to receive
significant revenues from the MXT4400 in 1999, and we cannot assure you that
future revenues will be sufficient to recover the costs associated with its
development.
Products as complex as those such as the MXT4400 frequently contain
errors, defects and bugs when first introduced or as new versions are released.
Delivery of products with production defects or reliability, quality or
compatibility problems could require significant expenditures of capital and
resources and significantly delay or hinder market acceptance of such products.
This could damage our reputation and adversely affect our ability to retain our
existing customers and to attract new customers.
Our Revenues and Profits May Decrease if We Lose Any of Our Major Customers
Historically, a relatively small number of customers has accounted for a
significant portion of our total revenues in any particular period. The loss of
any such single customer would have a material adverse effect on us. Maker's
top three customers in 1998 accounted for 29%, 16% and 13% of revenues. These
customers in alphabetical order are Ascend, Cisco and Fore. No other customer
accounted for revenues greater than 10% in 1998. We anticipate that sales of
our products to relatively few customers will continue to account for a
significant portion of our total revenues. We have no long-term volume purchase
commitments from any of our significant customers. Each of our customers could
cease purchasing our products with limited notice and with little or no
penalty.
Our dependence on few customers increases our exposure to potential
adverse consequences resulting from business combinations or consolidations of
our customers. Specifically, two of our top
9
Risk Factors
<PAGE>
five customers are in the process of completing a consolidation. This
consolidation may result in the cancellation of current product orders. This
industry may experience further consolidation in the future which may result in
product duplication and cancellation of current projects, which may materially
and adversely affect us. Furthermore, Lucent, who is one of our top five
customers, is also a competitor of ours. It is possible that Lucent could
change its purchase patterns because of this relationship.
Our relationships with many of our manufacturers' representatives have
been established within the last year, and we are unable to predict the extent
to which some of these representatives will be successful in marketing and
selling our products. We cannot assure you that our current customers will
continue to place orders with us, that orders by existing customers will
continue at the levels of previous periods or that we will be able to obtain
orders from new customers.
Our Limited Resources Make Us More Susceptible to Competitive Pressures in the
Marketplace
A number of our competitors are more established, benefit from greater
market recognition and have substantially greater financial, development,
manufacturing and marketing resources than we have. Moreover, several of the
largest electronics and semiconductor suppliers have recently entered or
indicated an intent to enter the communications market for semiconductor
devices.
Intel has announced an intention to expand its presence in the networking
business, and has announced an agreement to acquire Level One Communications,
one of our stockholders. We have an agreement with Level One that requires us
to disclose to Level One upon request (and its successors, which would include
Intel) early versions of technology incorporated into our MXT3010 Cell
Processor, MXT3020 Co-Processor and related software applications. Our
agreement with Level One does not permit this technology to be incorporated in
a product that competes with us.
In addition, many of our existing and potential customers internally
develop processors and other devices which attempt to perform all or a portion
of the functions performed by our products.
Our ability to compete successfully in the rapidly evolving area of
high-performance communications processors depends on factors both within and
outside our control, including:
o performance;
o price;
o features and functionality;
o adaptability of products to specific applications;
o support of product differentiation by our customers;
o length of development cycle;
o design wins with major communications systems vendors;
o support for new communications standards and protocols;
o reliability;
o technical service and support; and
o protection of products by effective utilization of intellectual property
laws.
Our failure to compete successfully as to any of these or other factors
could materially and adversely affect us. To the extent that our competitors
offer sales representatives more favorable terms or a higher volume of
business, our sales representatives may decline to carry, or discontinue
carrying, our products.
10
Risk Factors
<PAGE>
The Loss of Any of Our Key Personnel or the Failure to Hire Additional
Personnel Could Impact Our Ability to Meet Customer and Technological
Demands
Our success depends to a significant degree upon the continued
contributions of our key management, engineering, sales and marketing and
manufacturing personnel, many of whom would be difficult to replace. The loss
of the services of any of our key personnel, the inability to attract or retain
qualified personnel in the future or delays in hiring required personnel,
particularly engineers and sales personnel, could materially and adversely
affect us. In particular, the loss of either of our founders, William Giudice,
President and Chief Executive Officer, and Paul Bergantino, Vice President and
Chief Technology Architect, could reduce our future success. We have neither
employment contracts with, nor key person life insurance on, any of our key
personnel.
Competition for highly skilled managerial, engineering, sales and
marketing, finance and manufacturing personnel is intense and there can be no
assurance that we will be successful in attracting and retaining such
personnel.
We Depend on Outside Manufacturers to Make Our Products
We currently outsource all manufacturing, assembly and test of our
communications processors to three outside foundries. In 1998, substantially
all of our manufacturing was outsourced to IBM, who is also a competitor. In
addition, each of our processors is manufactured for us by only one supplier.
These suppliers may allocate, and in the past have allocated, capacity to the
production of other products while reducing deliveries to us on short notice.
There are other significant risks associated with our reliance on outside
foundries, including:
o the lack of assured semiconductor wafer supply and control over delivery
schedules;
o the unavailability of, or delays in obtaining access to, key process
technologies;
o limited control over quality assurance, manufacturing yields and
production costs; and
o penalties for failure to achieve targeted volume commitments.
Currently, our suppliers quote a lead time for new orders of approximately
13 to 15 weeks in advance of expected delivery which requires us to place
orders in advance of expected purchase orders from our customers. As a result,
we have only a limited ability to react to fluctuations in demand for our
products, which could cause us to have an excess or a shortage of inventory of
a particular product. We have experienced delays and may in the future
experience delays in receiving supplies of products, and we cannot assure you
that we will be able to obtain such products within the time frames and in the
volumes required by us at an affordable cost or at all. Our failure to obtain
such products on a timely basis at a favorable cost could materially and
adversely affect us.
Moreover, any failure of global semiconductor manufacturing capacity to
increase in line with demand could cause foundries to allocate available
capacity to larger customers or customers with long-term supply contracts. Our
independent manufacturers' inability to provide adequate foundry capacity at
acceptable prices, or any delay or interruption in supply, could reduce our
product revenues or increase our cost of revenues and could materially and
adversely affect us.
In 1999, we will begin investigating the potential for assuming greater
manufacturing responsibilities during 2000. These responsibilities may include
contracting for wafer manufacturing and subcontracting for assembly and test
rather than purchasing finished product. The assumption of greater
manufacturing responsibilities involves additional risks, including not only
the risks discussed above but also risks associated with variances in
production yields, obtaining adequate test and assembly capacity at a
reasonable cost and other general risks associated with the manufacture of
semiconductors.
We Need to Protect Our Intellectual Property and Avoid Infringement of the
Intellectual Property of Others
Our success depends in part on our ability to obtain patents and licenses
and to preserve other intellectual property rights covering our products and
development and testing tools. In particular, the rapidly evolving nature of
the semiconductor industry requires that companies continually seek and
11
Risk Factors
<PAGE>
maintain patent protection of their technology. To that end, we have obtained
several domestic patents and have several foreign patent applications on file.
We intend to continue to seek patents on our inventions when appropriate. The
process of seeking patent protection can be time consuming and expensive. We
cannot ensure that:
o patents will issue from currently pending or future applications;
o our existing patents or any new patents will be sufficient in scope or
strength to provide meaningful protection or any commercial advantage to
us;
o foreign intellectual property laws will protect our intellectual
property rights; or
o others will not independently develop similar products, duplicate our
products or design around any patents issued to us.
Intellectual property rights are uncertain and involve complex legal and
factual questions. We may be unknowingly infringing on the proprietary rights
of others and may be liable for that infringement, which could result in
significant liability for us. We have not been informed that we infringe any
third party intellectual property rights that would prevent our use and sale of
our products. If we do infringe the proprietary rights of others, we could be
forced to either seek a license to intellectual property rights of others or
alter our products so that they no longer infringe the proprietary rights of
others. A license could be very expensive to obtain or may not be available at
all. Similarly, changing our products or processes to avoid infringing the
rights of others may be costly or impractical.
If we were to become involved in a dispute regarding intellectual
property, whether ours or that of another company, we may have to participate
in legal proceedings. These types of proceedings may be costly and time
consuming for us, even if we eventually prevail. If we do not prevail, we might
be forced to pay significant damages, obtain a license or stop making a
product.
We also rely on trade secrets, proprietary know-how and confidentiality
provisions in agreements with employees and consultants to protect our
intellectual property. Other parties may not comply with the terms of their
agreements with us, and we may not be able to adequately enforce our rights
against these parties.
Rapid Growth Could Strain Our Resources
We have experienced a period of rapid growth and expansion which has
placed, and continues to place, a significant strain on our resources. This
growth, as well as our product development activities, has required us to
increase our number of employees, which has resulted in increased
responsibilities for our management. As we continue to expand we may
significantly strain our management, manufacturing, financial, systems and
other resources. We cannot assure you that our systems, procedures, controls
and existing space will be adequate to support our operations.
The Price of Our Common Stock May Fluctuate Significantly
The market for securities of high technology companies in the
semiconductor and communications systems industries has been highly volatile.
It is likely that the price of our common stock will fluctuate widely in the
future. Factors affecting the trading price of our common stock include:
o responses to quarter-to-quarter variations in operating results;
o announcements of technological innovations or new products by us or our
competitors;
o general conditions in the communications system market; and
o changes in earnings estimates by analysts.
Certain Factors May Delay or Prevent a Change of Control Transaction
Delaware corporate law contains, and our certificate of incorporation and
by-laws contain, provisions that could have the effect of delaying, deferring
or preventing a change in control of our Company on terms which you may deem
advantageous. These provisions could limit the price that investors might be
willing to pay in the future for shares of our common stock. These provisions:
12
Risk Factors
<PAGE>
o authorize the issuance of "blank check" preferred stock (preferred stock
which our board of directors can create and issue without prior
stockholder approval) with rights senior to those of common stock;
o provide for a board of directors with staggered terms;
o prohibit stockholder action by less than unanimous written consent; and
o establish advance notice requirements for submitting nominations for
election to the board of directors and for proposing matters that can be
acted upon by stockholders at a meeting.
A Limited Number of Stockholders Will Have the Ability to Influence Our
Policies Following the Offering
A substantial majority of our capital stock is held by a limited number of
stockholders. After completion of this offering, our officers and directors and
parties affiliated with or related to such persons or to Maker will own
approximately 75% of the shares of common stock outstanding. Accordingly, such
stockholders will likely control major decisions of corporate policy and
determine the outcome of any major transaction or other matter submitted to our
stockholders or board of directors, including potential mergers or
acquisitions, and amendments to our certificate of incorporation. Stockholders
other than these principal stockholders are therefore likely to have little or
no influence on decisions regarding such matters.
The Price of Our Stock Could Decrease as a Result of Shares Being Sold in the
Market After the Offering
The market price of our common stock could drop as a result of sales of a
large number of shares of common stock in the market after the offering, or the
perception that such sales could occur. These factors also could make it more
difficult for us to raise funds through future offerings of common stock.
There will be 17,531,983 shares of common stock outstanding immediately
after the offering. Of these shares, the shares sold in the offering will be
freely transferable without restriction or further registration under the
Securities Act, except for any shares purchased by our "affiliates" as defined
in Rule 144 under the Securities Act. The remaining 14,031,983 shares of common
stock outstanding will be "restricted securities" as defined in Rule 144. These
shares may be sold in the future without registration under the Securities Act
to the extent permitted by Rule 144 or an exemption under the Securities Act.
In addition, additional shares of common stock subject to outstanding vested
stock options could also be sold. The holders of the shares of common stock
issued upon conversion of Class B Convertible Preferred Stock and Class C
Convertible Preferred Stock will also have registration rights allowing them to
cause us to register their shares under the Securities Act.
In connection with the offering, Maker's executive officers, directors and
stockholders owning, in the aggregate, 13,780,782 shares have agreed that,
without the consent of Lehman Brothers Inc., they will not sell any shares of
common stock for at least 150 days after the date of this prospectus.
Additionally, these stockholders will not sell more than one-third of their
shares of common stock for at least 180 days after the date of this prospectus.
Finally, these stockholders will not sell more than two-thirds of their shares
of common stock for at least 210 days after the date of this prospectus. These
lock-up agreements expire in full 210 days after the date of this prospectus.
Maker has agreed not to sell or otherwise dispose of any shares of common stock
for a period of 180 days, except as consideration for the acquisition of
businesses.
13
Risk Factors
<PAGE>
USE OF PROCEEDS
We estimate that we will receive net proceeds from this offering of
approximately $31,550,000, or $36,432,500 if the underwriters exercise their
over-allotment option in full, assuming an initial public offering price of
$10.00 per share after deducting the estimated underwriting discount and
offering expenses. We will use the net proceeds for working capital, to redeem
the Class A Redeemable Preferred Stock in the amount of $8,635,000 (which will
occur simultaneously with the closing of this offering), to repay bank debt
(approximately $1,328,000 at March 31, 1999), and for other general corporate
purposes. Borrowings under the bank debt bear interest at the prime rate plus
.25% to 1.0% and mature in May 2002. Pending these uses, we intend to invest
the proceeds in investment-grade, interest-bearing investments.
The principal purposes of this offering are to increase our capitalization
and financial flexibility, to provide a public market for our common stock and
to facilitate access to public equity markets. As of the date of this
prospectus we cannot specify with certainty all of the particular uses for the
remaining net proceeds we will have upon completion of the offering.
Accordingly, our management will have broad discretion in the application of
net proceeds.
DIVIDEND POLICY
We have never declared or paid cash dividends on our capital stock. We
currently anticipate that we will retain all available funds for use in our
business, and do not anticipate paying any cash dividends in the foreseeable
future. In addition, our existing lines of credit prohibit the distribution of
dividends without the lender's consent.
14
Use of Proceeds/Dividend Policy
<PAGE>
CAPITALIZATION
The following table sets forth our capitalization as of March 31, 1999.
Our capitalization is presented:
o on an actual basis;
o on a pro forma basis to give effect to the automatic conversion of all
outstanding shares of Junior Convertible Preferred Stock, Class B
Convertible Preferred Stock, Class C Convertible Preferred Stock which
will occur upon the closing of this offeing and the conversion into
common stock of a convertible note prior to or upon the closing of this
offering into an aggregate of 7,833,433 shares; and
o on a pro forma as adjusted basis to reflect our receipt of the estimated
net proceeds from the sale of 3,500,000 shares of common stock at an
assumed initial public offering price of $10.00 per share after
deducting the estimated underwriting discount and offering expenses, the
redemption of all outstanding shares of Class A Redeemable Preferred
Stock for $8,635,000 and the repayment of bank debt (approximately
$1,328,000 at March 31, 1999).
<TABLE>
<CAPTION>
As of March 31, 1999
-------------------------------------
Pro Forma
Actual Pro Forma As Adjusted
------------ ----------- ------------
(in thousands, except share and per
share amounts)
<S> <C> <C> <C>
Current portion of long-term debt ..................................... $ 525 $ 525 $ --
======= ======= =======
Long-term debt, less current portion .................................. $ 1,303 $ 803 $ --
Redeemable preferred stock:
Class A preferred stock ............................................. 8,635 8,635 --
Class B convertible preferred stock ................................. 10,249 -- --
Class C convertible preferred stock ................................. 5,006 -- --
------- ------- -------
Total redeemable preferred stock .................................... 23,890 8,635 --
Stockholders' equity (deficit):
Junior convertible preferred stock, $.01 par value; 3,154,000 shares
authorized, issued and outstanding, actual; no shares authorized,
issued and outstanding, pro forma and pro forma as adjusted ......... 32 -- --
Preferred stock, $.01 par value, no shares authorized, issued or
outstanding, actual; 1,000,000 shares authorized and none issued and
outstanding pro forma and pro forma as adjusted ..................... -- -- --
Common stock, $.01 par value; 17,174,670 shares authorized,
6,098,800 shares issued and outstanding actual; 100,000,000 shares
authorized, 13,932,233 shares issued and outstanding, pro forma and
100,000,000 shares authorized, 17,432,233 shares issued and
outstanding, pro forma as adjusted .................................. 61 139 174
Additional paid-in capital .......................................... 198 15,907 47,422
Accumulated deficit ................................................. (11,517) (11,517) (11,517)
------- ------- -------
Total stockholders' equity (deficit) ............................ (11,226) 4,529 36,079
------- ------- -------
Total capitalization ............................................ $13,967 $13,967 $36,079
======= ======= =======
</TABLE>
Common stock to be outstanding after the offering excludes 2,536,190
shares issuable upon exercise of currently outstanding stock options.
See "Selected Consolidated Financial Data," "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and the Consolidated
Financial Statements and Notes thereto included in this prospectus.
15
Capitalization
<PAGE>
DILUTION
The pro forma net tangible book value of the common stock as of March 31,
1999 was $4,266,000, or $.31 per share, after giving effect to the automatic
conversion of all outstanding shares of Junior Convertible Preferred Stock,
Class B Convertible Preferred Stock and Class C Convertible Preferred Stock
into an aggregate of 7,708,433 shares of common stock which will occur upon the
closing of this offering, as well as the conversion into common stock of a
convertible note on or prior to the closing of this offering. After giving
effect to the sale of the common stock pursuant to this offering at an assumed
initial public offering price of $10.00 per share, assuming that the
underwriters' over-allotment option is not exercised, and after deducting the
estimated underwriting discount and expenses of the offering, the adjusted pro
forma net tangible book value at March 31, 1999, would have been $36,079,000,
or $2.07 per share.
Pro forma net tangible book value per share before the offering has been
determined by dividing pro forma net tangible book value (total tangible assets
less total liabilities) by the pro forma number of shares of common stock
outstanding at March 31, 1999. The offering will result in an increase in pro
forma net tangible book value per share of $1.76 to existing stockholders and
dilution in pro forma net tangible book value per share of $7.93 to new
investors who purchase shares in the offering. Dilution is determined by
subtracting pro forma net tangible book value per share from the assumed
initial public offering price of $10.00 per share. The following table
illustrates this dilution:
<TABLE>
<S> <C> <C>
Assumed initial public offering price ................................................. $ 10.00
Pro forma net tangible book value per share at March 31, 1999 ........................ $ .31
Increase attributable to sale of common stock in the offering (1) .................... 1.76
-------
Pro forma net tangible book value per share after the offering ........................ 2.07
-------
Dilution of net tangible book value per share to persons who purchase shares in the
offering ............................................................................. $ 7.93
=======
</TABLE>
- ------------
(1) After deduction of the estimated underwriting discount and offering
expenses totaling $3,450,000.
If the underwriters' over-allotment option were exercised in full, the pro
forma net tangible book value per share after the offering would be $2.28 per
share, the increase in net tangible book value per share to existing
stockholders would be $1.97 per share and the dilution to persons who purchase
shares in the offering would be $7.72 per share.
The following table summarizes, on a pro forma basis as of March 31, 1999,
the differences between the total consideration paid and the average price per
share paid by the existing shareholders and the new investors with respect to
the number of shares of common stock purchased from us based on an assumed
initial public offering price of $10.00 per share:
<TABLE>
<CAPTION>
Shares Total Consideration Average
---------------------- ------------------------ Price Per
Number Percent Amount Percent Share
------------ --------- -------------- --------- ----------
<S> <C> <C> <C> <C> <C>
Shares purchased in the offering .............. 3,500,000 20% $35,000,000 69% $ 10.00
Shares owned by existing stockholders ......... 13,932,233 80 16,015,000 31 1.15
---------- -- ----------- --
Total ......................................... 17,432,233 100% $51,015,000 100%
</TABLE>
These tables do not assume exercise of stock options outstanding at March
31, 1999. At March 31, 1999, there were 2,635,940 shares of common stock
issuable upon exercise of outstanding stock options at a weighted average
exercise price of $1.98 per share. To the extent that outstanding options are
exercised in the future, there will be further dilution to new investors.
16
Dilution
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA
The selected consolidated financial data of Maker set forth below as of
December 31, 1997 and 1998 and for each of the years ended December 31, 1996,
1997 and 1998 are derived from consolidated financial statements of Maker
audited by Arthur Andersen LLP, independent public accountants, which are
included elsewhere in this prospectus. The selected consolidated financial data
as of December 31, 1994, 1995 and 1996 and for the period from inception
(October 21, 1994) through December 31, 1994 and the year ended December 31,
1995 are derived from audited consolidated financial statements of Maker which
are not included in this prospectus. The selected financial data as of March
31, 1999 and for the three months ended March 31, 1998 and 1999 are derived
from Maker's unaudited Consolidated Financial Statements which are included
elsewhere in this prospectus and which include, in the opinion of Maker, all
adjustments (consisting only of normal recurring adjustments) that are
necessary for a fair presentation of its financial position and the results of
its operations for those periods. Operating results for the three months ended
March 31, 1999 are not necessarily indicative of the results that may be
expected for the fiscal year ending December 31, 1999. The pro forma basic and
diluted net loss per share is described in Note 2(e) of Notes to Consolidated
Financial Statements. The pro forma March 31, 1999 balance sheet data reflects
the automatic conversion of all the outstanding shares of Junior Convertible
Preferred Stock, Class B Convertible Preferred Stock and Class C Convertible
Preferred Stock into common stock which will occur upon the closing of this
offering, as well as the conversion into common stock of a convertible note
prior to or upon the closing of this offering. The data should be read in
conjunction with the Consolidated Financial Statements and the Notes thereto
and with Management's Discussion and Analysis of Financial Condition and
Results of Operations appearing elsewhere in this prospectus.
<TABLE>
<CAPTION>
Period from
Inception
(October 21, 1994) Years Ended December 31,
to December 31, --------------------------------------------------------
1994 1995 1996 1997 1998
-------------------- ------------- ------------- ------------- --------------
(in thousands, except share and per share amounts)
<S> <C> <C> <C> <C> <C>
Consolidated Statements of Operations Data:
Revenues:
Product ..................................... $ -- $ -- $ 101 $ 1,231 $ 6,309
Software and maintenance .................... -- -- 241 543 1,385
----------- --------- --------- --------- ----------
Total revenues ............................. -- -- 342 1,774 7,694
Cost of revenues ............................. -- -- 329 1,031 3,238
----------- --------- --------- --------- ----------
Gross profit ................................. -- -- 13 743 4,456
----------- --------- --------- --------- ----------
Operating expenses:
Research and development ................... 4 644 1,198 2,727 4,171
Selling and marketing ...................... -- 86 332 883 2,078
General and administrative ................. 10 227 373 751 1,299
Litigation ................................. -- -- -- 462 1,118
----------- --------- --------- --------- ----------
Total operating expenses ................. 14 957 1,903 4,823 8,666
----------- --------- --------- --------- ----------
Loss from operations ......................... (14) (957) (1,890) (4,080) (4,210)
Interest income .............................. -- -- 51 212 538
Interest expense ............................. -- (46) (132) (33) (82)
----------- --------- --------- --------- ----------
Net loss ..................................... $ (14) $ (1,003) $ (1,971) $ (3,901) $ (3,754)
=========== ========= ========= ========= ==========
Basic and diluted net loss per share ......... $ (0.00) $ (0.25) $ (1.30) $ (0.72) $ (0.66)
Basic and diluted weighted average common
shares outstanding .......................... 4,019,654 4,019,654 1,515,998 5,383,080 5,646,822
Pro forma basic and diluted net loss
per share ................................... $ (0.31)
Pro forma basic and diluted weighted
average common shares outstanding ........... 12,229,795
<CAPTION>
Three Months
Ended March 31,
----------------------------
1998 1999
------------- --------------
(in thousands, except share
and per share amounts)
<S> <C> <C>
Consolidated Statements of Operations Data:
Revenues:
Product ..................................... $ 758 $ 2,723
Software and maintenance .................... 261 439
--------- ----------
Total revenues ............................. 1,019 3,162
Cost of revenues ............................. 486 1,043
--------- ----------
Gross profit ................................. 533 2,119
--------- ----------
Operating expenses:
Research and development ................... 894 1,341
Selling and marketing ...................... 443 515
General and administrative ................. 341 394
Litigation ................................. 171 --
--------- ----------
Total operating expenses ................. 1,849 2,250
--------- ----------
Loss from operations ......................... (1,316) (131)
Interest income .............................. 133 160
Interest expense ............................. (10) (41)
--------- ----------
Net loss ..................................... $ (1,193) $ (12)
========= ==========
Basic and diluted net loss per share ......... $ (0.22) $ (0.00)
Basic and diluted weighted average common
shares outstanding .......................... 5,418,506 5,967,190
Pro forma basic and diluted net loss
per share ................................... $ (0.00)
Pro forma basic and diluted weighted
average common shares outstanding ........... 13,651,760
</TABLE>
<TABLE>
<CAPTION>
As of December 31, As of March 31, 1999
------------------------------------------------------- -----------------------
1994 1995 1996 1997 1998 Actual Pro forma
--------- ----------- ---------- ---------- ----------- ------------ ----------
(in thousands)
<S> <C> <C> <C> <C> <C> <C> <C>
Consolidated Balance Sheet Data:
Cash and cash equivalents ................ $ 3 $ 93 $ 4,591 $ 10,865 $ 13,615 $ 14,275 $14,275
Working capital (deficit) ................ (4) (16) 4,631 10,649 12,228 12,527 12,527
Total assets ............................. 25 363 5,204 12,397 15,957 17,263 17,263
Long-term debt, less current portion ..... 26 1,260 35 290 1,142 1,303 803
Redeemable preferred stock ............... -- -- 8,601 18,795 23,440 23,890 8,635
Stockholders' equity (deficit) ........... (13) (1,016) (3,671) (7,634) (11,346) (11,226) 4,529
</TABLE>
17
Selected Consolidated Financial Data
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion of the financial condition and results of
operations of Maker should be read in conjunction with the Consolidated
Financial Statements and the Notes thereto included elsewhere in this
prospectus. Maker's actual results could differ significantly from those
discussed in these forward-looking statements as a result of certain factors,
including those set forth under "Risk Factors" and elsewhere in this
prospectus.
Overview
Maker is a leading developer of high-performance programmable
communications processors, development tools and application software for
communications markets requiring high-intensity communications processing. From
its inception in October 1994 through 1996, Maker was engaged principally in
research and development, and a substantial portion of Maker's operating
expenses during such period was related to such activities. Maker commenced
volume shipments of its MXT3010 Cell Processors and related development tools
and application software in 1997. Substantially all of Maker's revenue to date
has been derived from the sales of the MXT3010 Cell Processor and related
software.
Maker recognizes product revenue upon shipment of its communications
processors. Maker recognizes revenue from software license agreements upon
execution of a license agreement and delivery of the software. Software license
agreements may include royalty fees based upon customer shipments, revenue from
which is recognized upon payment to Maker. Maker recognizes revenue from
software maintenance agreements ratably over the term of the maintenance
period, which is typically one year.
Maker's sales cycle typically includes a three to six month evaluation and
test period, a twelve to eighteen month development period by its customers and
an additional three to six month period before a customer commences volume
production of equipment incorporating its products. Maker's engineers work
closely with its customers in designing and implementing its solutions into
their products. Maker incurs significant research and development and selling
and administrative expenses as part of this process before it generates any
related revenue from such customer.
Revenue derived from communications processors is dependent upon design
wins, production ramp-up and the timing of orders due to customers' management
of inventory. Revenue from the licensing of software and development tools
primarily coincides with design wins at new customers and in limited instances
at existing customers. New design wins with existing customers who have
previously licensed the Company's software generally do not result in
additional software licensing revenue. Since software revenues have no material
direct cost, Maker's gross margins are impacted by changes in the mix of
revenues between software and communications processors. As a result, Maker's
revenue and gross margins can fluctuate from period to period.
Maker markets and sells its products primarily through a direct sales
force in the United States, manufacturers' representatives in the United States
and Canada and a distributor in Japan. Substantially all of Maker's sales to
date have been to customers located in the United States. In its latest fiscal
year, sales in the United States accounted for approximately 92% of Maker's
revenues.
Maker's top five customers in 1998 were Ascend, Cisco, Fore, Lucent and
Nortel. Maker expects that these five customers will continue to account for a
significant portion of Maker's total 1999 revenues. Lucent and Ascend recently
announced that they have entered into a definitive agreement pursuant to which
they will combine their operations. Maker expects that significant customer
concentration will continue for the foreseeable future. Maker's customers
typically place large orders which could cause revenues to fluctuate
significantly from period to period.
18
Management's Discussion and Analysis of
Financial Condition and Results of Operations
<PAGE>
Results of Operations
Three Months Ended March 31, 1998 and 1999
Total Revenues. Total revenues increased from $1.0 million for the three
months ended March 31, 1998 to $3.2 million for the three months ended March
31, 1999. The increase in total revenues primarily reflects an increased number
of customers reaching volume production.
Cost of Revenues. Cost of revenues increased from $486,000 for the three
months ended March 31, 1998 to $1.0 million for the three months ended March
31, 1999. Approximately 60% of the increase was due to an increase in direct
product costs which is associated with the increase in product revenues. The
remainder of the increase was due to an increase in personnel and related
overhead costs to support the Company's customers. The gross margin increased
from 52% for the three months ended March 31, 1998 to 67% for the three months
ended March 31, 1999. The increase in gross margin reflects lower product cost
as a result of the Company meeting volume purchase commitments and the
absorption of fixed costs over higher revenues. Cost of revenues includes the
cost of purchasing fully assembled, tested and packaged communications
processors from Maker's independent foundries, production related expenses,
warranty and quality assurance for those products, as well as costs of
personnel associated with supporting Maker's customers. Cost of revenues also
includes software costs consisting of the costs of the media in which it is
delivered; these costs are not significant.
Research and Development Expenses. Research and development expenses
increased from $894,000 for the three months ended March 31, 1998 to $1.3
million for the three months ended March 31, 1999. Approximately 70% of the
increase was due to an increase in personnel and related costs and the
remainder of the increase was primarily due to an increase in recruiting and
outside consulting costs. Research and development expenses consist primarily
of salaries and related costs of employees engaged in research, design and
development activities.
Selling and Marketing Expenses. Selling and marketing expenses increased
from $443,000 for the three months ended March 31, 1998 to $515,000 for the
three months ended March 31, 1999. Substantially all of the increase reflects
an increase in personnel to support the Company's product marketing activities
which included the introduction of MXT4400 Traffic Stream Processor in March
1999. Selling and marketing expenses consist mainly of employee-related
expenses, commissions to sales representatives, product marketing and
promotional expenses.
General and Administrative Expenses. General and administrative expenses
increased from $341,000 for the three months ended March 31, 1998 to $394,000
for the three months ended March 31, 1999. Substantially all of the increase
reflects increased personnel and related costs incurred in expanding the human
resource and accounting functions. General and administrative expenses consist
substantially of expenses to support the business, including, corporate,
accounting, legal, information technology systems and human resources.
Litigation. In July 1998, Maker settled a lawsuit with LSI Logic
Corporation. Costs associated with the litigation and settlement of the lawsuit
were $171,000 for the three months ended March 31, 1998.
Interest Income. Interest income increased from $133,000 for the three
months ended March 31, 1998 to $160,000 for the three months ended March 31,
1999. The increase reflects interest earned on higher balances of cash and cash
equivalents.
Interest Expense. Interest expense increased from $10,000 for the three
months ended March 31, 1998 to $41,000 for the three months ended March 31,
1999. The increase was due to the increased borrowing under Maker's equipment
line of credit to finance the purchase of capital equipment.
Years Ended December 31, 1996, 1997 and 1998
Total Revenues. Total revenues increased from $342,000 in 1996 to $1.8
million in 1997 to $7.7 million in 1998. Maker commenced sales of its products
in late 1996 and substantially increased shipments to its new and existing
customers in 1997 and 1998. The increase in revenues reflects certain customers
reaching volume production and increased software revenues from new customer
design wins.
19
Management's Discussion and Analysis of
Financial Condition and Results of Operations
<PAGE>
Cost of Revenues. Cost of revenues increased from $329,000 in 1996 to $1.0
million in 1997 to $3.2 million in 1998. Approximately 60% of the increase in
cost of revenues in 1997 and 1998 was due to increases in direct product costs
and the remainder of the increase was due to increases in pre-production costs
and support and documentation costs associated with the increase in revenues.
The gross margin increased from 4% in 1996 to 42% in 1997 to 58% in 1998. The
increase in gross margin reflects the absorption of fixed costs such as
production related expenses and personnel costs associated with supporting
Maker's customers due to a greater sales volume.
Research and Development Expenses. Research and development expenses
increased from $1.2 million in 1996 to $2.7 million in 1997 to $4.2 million in
1998. Approximately 70% of the increase in 1997 was due to increases in
personnel and related costs and the remainder was primarily due to increases in
engineering supplies and prototype costs. The increase in 1997 reflects the
continued development of the MXT3010 Cell Processor and related development
tools and application software and the development of the MXT3020 Circuit
Co-processor and related development tools and application software.
Approximately 50% of the increase in 1998 was due to increases in personnel and
related costs and the remainder was primarily due to increases in outside
consulting services and depreciation of computer equipment. The increase in
1998 primarily reflects the development of the MXT4400 Traffic Stream Processor
and related development tools and application software and the continued
development of development tools and application software for the MXT3010 Cell
Processor.
Selling and Marketing Expenses. Selling and marketing expenses increased
from $332,000 in 1996 to $883,000 in 1997 to $2.1 million in 1998. The
increases were primarily due to additional personnel, including senior level
management, increased product marketing costs associated with new products,
increased commissions as a result of higher sales and costs associated with the
establishment of a sales office in Santa Clara, California in 1998.
Approximately 80% and 70% of the increases in 1997 and 1998, respectively, were
due to increases in salaries and related costs. The remainder of the increases
in both 1997 and 1998 were due to increased public relation costs and marketing
materials.
General and Administrative Expenses. General and administrative expenses
increased from $373,000 in 1996 to $751,000 in 1997 to $1.3 million in 1998.
Approximately 60% and 35% of the increases in 1997 and 1998, respectively, were
primarily due to the hiring of additional personnel, including senior level
management. The remainder of the increase was due to increases in costs
associated with supporting the business including increases in legal and
professional fees and human resource activities of approximately 35% and 50% in
1997 and 1998, respectively.
Litigation Expense. In July 1998, Maker settled a lawsuit with LSI Logic
Corporation. Costs associated with the litigation and settlement of the lawsuit
were $462,000 in 1997 and $1.1 million in 1998.
Interest Income. Interest income increased from $51,000 in 1996 to
$212,000 in 1997 to $538,000 in 1998. The increase reflects interest earned on
higher balances of cash and cash equivalents resulting from sales of preferred
stock in September 1996, October 1997 and December 1998.
Interest Expense. Interest expense was $132,000, $33,000 and $82,000 in
1996, 1997 and 1998, respectively. The decrease in interest expense in 1997 was
primarily the result of the repayment of a note payable to one of Maker's
shareholders. The increase in interest expense in 1998 was due to increased
borrowing under Maker's equipment line of credit to finance the purchase of
capital equipment.
20
Management's Discussion and Analysis of
Financial Condition and Results of Operations
<PAGE>
Quarterly Results of Operations
The following tables set forth certain statement of operations data for
each quarter of 1998 and the first quarter of 1999, as well as such data
expressed as a percentage of Maker's revenues for each quarter. This
information has been presented on the same basis as the audited Consolidated
Financial Statements appearing elsewhere in this prospectus and, in the opinion
of management, includes all adjustments, consisting only of normal recurring
adjustments, that Maker considers necessary to present fairly the unaudited
quarterly results. This information should be read in conjunction with Maker's
audited Consolidated Financial Statements and Notes thereto appearing elsewhere
in this prospectus. The operating results for any quarter are not necessarily
indicative of results for any future period. See "Risk Factors--We Experience
Fluctuations in Our Operating Results Due to a Number of Frequently Changing
Business Conditions."
<TABLE>
<CAPTION>
Quarter Ended
------------------------------------------------------------------
March 31, June 30, September 30, December 31, March 31,
1998 1998 1998 1998 1999
----------- ------------ --------------- -------------- ----------
(in thousands)
<S> <C> <C> <C> <C> <C>
Revenues:
Product ............................ $ 758 $ 1,463 $ 1,714 $2,374 $2,723
Software and maintenance ........... 261 212 502 410 439
-------- -------- -------- ------ ------
Total revenues .................... 1,019 1,675 2,216 2,784 3,162
Cost of revenues .................... 486 845 946 961 1,043
-------- -------- -------- ------ ------
Gross profit ........................ 533 830 1,270 1,823 2,119
-------- -------- -------- ------ ------
Operating expenses:
Research and development ........... 894 976 932 1,369 1,341
Selling and marketing .............. 443 548 480 607 515
General and administrative ......... 341 330 275 353 394
Litigation ......................... 171 232 715 -- --
-------- -------- -------- ------ ------
Total operating expenses .......... 1,849 2,086 2,402 2,329 2,250
-------- -------- -------- ------ ------
Loss from operations ................ (1,316) (1,256) (1,132) (506) (131)
Interest income ..................... 133 138 136 131 160
Interest expense .................... (10) (15) (29) (28) (41)
-------- -------- -------- ------ ------
Net loss ............................ $ (1,193) $ (1,133) $ (1,025) $ (403) $ (12)
======== ======== ======== ====== ======
</TABLE>
<TABLE>
<CAPTION>
Quarter Ended
--------------------------------------------------------------------
March 31, June 30, September 30, December 31, March 31,
1998 1998 1998 1998 1999
------------- ------------ --------------- -------------- ----------
<S> <C> <C> <C> <C> <C>
Revenues:
Product ............................ 74% 87% 77% 85% 86%
Software and maintenance ........... 26 13 23 15 14
-- -- -- -- --
Total revenues .................... 100 100 100 100 100
Cost of revenues .................... 48 50 43 35 33
--- --- --- --- ---
Gross margin ........................ 52 50 57 65 67
--- --- --- --- ---
Operating expenses:
Research and development ........... 88 58 42 49 43
Selling and marketing .............. 43 33 22 22 16
General and administrative ......... 33 20 12 12 12
Litigation ......................... 17 14 32 0 0
--- --- --- --- ---
Total operating expenses .......... 181 125 108 83 71
--- --- --- --- ---
Loss from operations ................ (129) (75) (51) (18) (4)
Interest income ..................... 13 8 6 5 5
Interest expense .................... (1) (1) (1) (1) (1)
------ ----- ----- ----- ----
Net loss ............................ (117%) (68%) (46%) (14%) 0%
====== ===== ===== ===== ====
</TABLE>
21
Management's Discussion and Analysis of
Financial Condition and Results of Operations
<PAGE>
During 1998 and the first quarter of 1999, revenues increased each
quarter, due primarily to growth in sales of communications processors. Over
the course of this period, several significant customers commenced shipment of
communications systems using Maker's communications processors. Gross margin
improved from 52% in the first quarter of 1998 to 67% in the first quarter of
1999, due primarily to Maker achieving volume shipments of the MXT3010 Cell
Processor which enabled Maker to absorb fixed costs over greater revenues.
Research and development expenses generally increased during this period due to
the addition of personnel and related costs. The increase in selling and
marketing expenses during this period is primarily due to an increase in
personnel and related costs.
Liquidity and Capital Resources
Since its inception in 1994, Maker has financed its operations and capital
requirements from the sale of $23.9 million of preferred stock, borrowings
under an equipment line of credit of $1.6 million and revenue. Net cash used in
operating activities for the years ended December 31, 1996, 1997 and 1998 was
$2.0 million, $3.6 million and $1.8 million, respectively. Cash used in
operating activities consisted primarily of cash utilized to fund operating
losses and for working capital. In the first quarter of 1999, operating
activities generated $264,000 primarily from increases in accrued expenses of
$404,000 and depreciation and amortization expenses of $132,000; partially
offset by an increase in inventory of $206,000. The increase in accrued
expenses was primarily a result of increased accrued professional fees and the
increase in inventory was sales volume related. At March 31, 1999, Maker had
$14.3 million in cash and cash equivalents.
Maker has a $2.5 million revolving line of credit facility and a $1.0
million equipment line of credit facility with a bank. Borrowings under both
facilities bear interest at the bank's prime rate plus .25% and expire in
February 2000. At March 31, 1999, Maker had not made any borrowings under
either facility. In addition, at March 31, 1999, Maker had $1.3 million
outstanding under equipment notes with the bank which bear interest at prime
plus .25% to prime plus 1.0% and which are repayable over approximately the
next three years. See Note 5 of Notes to Consolidated Financial Statements.
From inception through March 31, 1999, Maker acquired $2.1 million in
capital assets. Maker intends to purchase approximately $1.0 million of
additional capital assets during 1999. A portion of Maker's future capital
expenditures will be devoted to enhancing and expanding Maker's operational
infrastructure, research and development tools and financial and management
information systems. Maker expects such expenditures to be funded out of
working capital or Maker's bank facilities.
Maker currently uses independent suppliers to manufacture all of its
products. These arrangements allow Maker to avoid utilizing its capital
resources for manufacturing facilities and work-in-process inventory and focus
substantially all of its resources on the design, development and marketing of
its products. Maker expects to assume more responsibility for managing product
manufacturing in the future, which may require additional expenditures. Maker
anticipates that any such expenditures will be funded by working capital.
Maker requires substantial working capital to fund its business,
particularly to finance accounts receivable and inventory, and for investments
in property and equipment. Maker believes the net proceeds of this offering
combined with its existing capital resources and cash generated from
operations, if any, will be sufficient to meet Maker's needs for at least the
next 12 months, although Maker could seek to raise additional capital during
that period if it identified acquisitions or investments in complimentary
business, technologies or product lines.
Income Taxes
At December 31, 1998, Maker had available net operating loss carryforwards
of approximately $8.7 million for federal and state income tax purposes, which
expire at various dates through 2018. Maker also has available federal tax
credits of approximately $330,000 expiring through 2010. Maker has recorded a
full valuation allowance against its deferred tax asset due to uncertainties
surrounding the realization of these assets.
The Internal Revenue Code of 1986, as amended, contains provisions that
may limit the net operating loss and tax credit carryforwards available to be
used in any given year upon the occurrence
22
Management's Discussion and Analysis of
Financial Condition and Results of Operations
<PAGE>
of certain events, including changes in the ownership interests of significant
stockholders. In the event of a cumulative change in ownership in excess of 50%
over a three year period, the amount of the net operating loss carryforwards
that Maker can utilize in any one year may be limited. In the event of a change
in ownership the annual limitation on the use of the existing net operating
loss carryforwards is equal to an amount determined by multiplying the value of
Maker at the time of the ownership change by the federal applicable rate of
interest as determined by the Internal Revenue Service. Maker has completed
several financings since its inception and has incurred an ownership charge as
defined under the Code. The Company does not believe that this change in
ownership will have a material impact on its ability to utilize its net
operating loss and tax credit carryforwards.
Year 2000
Many currently installed computer systems and software products are
dependent upon internal calendars coded to accept only two digit entries in the
date code field. These date code fields will need to accept four digit entries
to distinguish 21st century dates from 20th century dates. Computer systems and
software used by many companies may need to be upgraded to comply with such
"Year 2000" requirements. Maker has completed a review of its computer systems
to assess what steps, if any, are required to achieve full Year 2000
compliance. Based upon this review Maker believes that its systems are
currently Year 2000 compliant. Maker does not anticipate that it will incur
material expenses or meaningful delays in connection with Year 2000 compliance.
None of our products use internal calendars that are dependent upon the
input of a specific date. As a result, all of our current products are
inherently Year 2000 compliant. Moreover, based on assessments made to date, we
do not anticipate material disruptions to our operations as a result of Year
2000 issues.
Maker is currently discussing Year 2000 readiness with its material supply
and service vendors. To date, those vendors that have been contacted have
indicated that their hardware or software are or will be Year 2000 compliant on
a timely basis. However, Maker intends to continue through 1999 to assess its
exposure to Year 2000 noncompliance on the part of any of its material vendors
and there can be no assurance that their systems will be Year 2000 compliant.
Additionally, Maker has not yet begun to assess the Year 2000 readiness of its
material customers.
Maker believes that Year 2000 issues will not pose significant operational
problems for its business. Therefore, Maker does not have, and does not intend
to create, a contingency plan in the event Year 2000 compliance cannot be
achieved in a timely manner.
23
Management's Discussion and Analysis of
Financial Condition and Results of Operations
<PAGE>
BUSINESS
Maker is a fabless semiconductor company that develops and markets
high-performance programmable communications processors, development tools and
application software for use in communications systems equipment. Maker's
processors have a proprietary architecture and instruction set optimized for
processing and switching data, voice and video in broadband networks. Maker's
processors perform high-bandwidth or compute-intensive functions such as
traffic management and internetworking in Asynchronous Transfer Mode (ATM) and
Internet Protocol (IP) packet switching networks. Maker has over 50 design wins
with over 30 telecommunications and network equipment vendors, of which over 15
were in production during the first quarter of 1999. Maker's top five customers
in 1998 were Ascend, Cisco, Fore, Lucent and Nortel.
Industry Overview
Public communications networks, such as those used by local and long
distance carriers, and specialized networks, such as those used by Internet
service providers, are experiencing dramatic growth in data traffic. This
increase in data traffic reflects a number of factors, including:
o the explosive growth of the Internet;
o the increase in demand for higher speed interconnectivity between wide
area networks and local area networks; and
o the growing demand for remote network access.
While voice traffic is growing at a modest rate, data traffic is growing
much more rapidly and represents an increasing portion of the traffic carried
by public networks.
Today's telecommunications infrastructure is primarily based on circuit
switched technology, which was developed to support voice communications.
Circuit switched technology creates a dedicated circuit with a fixed amount of
bandwidth for the duration of the connection, regardless of a user's actual
bandwidth usage. Circuit switched technology is inefficient for high speed data
transmission because data is transmitted in bursts and therefore has bandwidth
requirements that vary over time. As a result, today's public communications
networks do not have the bandwidth and cannot scale on a cost effective basis
to support the continuing increase in data traffic.
In addition to the increase in traffic volume, the nature of the network
traffic is becoming increasingly complex. To differentiate themselves, network
service providers are offering, on a converged voice and data network
infrastructure, enhanced communications services such as:
o guaranteed Internet access;
o virtual private networks;
o videoconferencing;
o service level agreements; and
o Internet Protocol telephony.
The increase in the volume and complexity of traffic is driving the demand
for sophisticated network traffic management, which is an immature discipline
that is continuing to evolve. Communications systems vendors are developing
schemes that intelligently manage network traffic, such as Quality of Service
and Class of Service. Quality of Service guarantees a specific level of
end-to-end service across the network, while Class of Service prioritizes
service levels for different classes of users and applications.
In order to provide improvements in capacity and service offerings, new
standards and protocols are constantly being developed and introduced into the
network infrastructure. These standards and protocols are being deployed into
networks in an evolutionary fashion due to the mission-critical nature of
communications networks and network service providers' large investment in
existing infrastructure. As a result, communications network infrastructures
are becoming more complex. This increasing complexity is driving the demand for
sophisticated internetworking, the translation function between different
network standards and protocols.
Key standards and protocols that are emerging to address the limitations
of existing circuit switched networks include Asynchronous Transfer Mode and
Internet Protocol. Asynchronous Transfer
24
Business
<PAGE>
Mode is based on fixed-sized packets, called cells, and is designed to
efficiently integrate voice, data and video and easily scale in capacity.
Internet Protocol is a packet-based protocol that is generally accepted as the
industry standard for local area network data transfer and is being
increasingly used in wide area network data transfer. Neither packet nor
Asynchronous Transfer Mode switching requires end-to-end fixed bandwidth for
dedicated circuits and therefore have inherent benefits over circuit switching
in terms of bandwidth utilization. Both Asynchronous Transfer Mode and Internet
Protocol packet switching network technologies are being deployed over optical
networks based on the complementary SONET/SDH standards, known as Asynchronous
Transfer Mode over SONET (Synchronous Optical Network) and Packet over SONET.
SONET is a cabling and signaling standard that is widely used in wide area
networks for carrying circuit switched, cell or packet-based traffic.
Traditional systems vendors and multiple new entrants are competing to
meet the evolving requirements of advanced communications networks by
introducing increasingly sophisticated communications systems, including
switches, access devices, routers and transmission equipment. To achieve the
performance, functionality and price required by such communications systems,
communications systems vendors are using increasingly complex integrated
circuits. As a result of time-to-market pressures, constantly evolving
standards and protocols and the difficulty of designing and producing the
requisite integrated circuits, these vendors are increasingly using integrated
circuits supplied by specialized communications semiconductor companies.
The key integrated circuit elements of a typical communications system
consist of physical connection elements, cell or packet processing device and
port interconnection. The physical connection elements convert and condition
the signal for transmission on or off the network cabling. The port
interconnection transfers data between ports through elements such as switching
fabrics or shared system busses. The cell or packet processing device performs
a variety of complex data manipulation functions, including traffic management
and internetworking. Of the three elements, cell or packet processing, because
of its broad functionality, provides communications systems vendors with the
greatest opportunity to differentiate their products with increased
functionality and features.
Traditionally, communications systems vendors have utilized general
purpose processors, fixed- function Application Specific Standard Products
(ASSP) or custom developed, fixed-function devices, often implemented utilizing
Application Specific Integrated Circuits or ASICs, to provide the cell or
packet processing functions. General purpose processors are programmable and
therefore enable products to be brought to market relatively rapidly. They can
also be easily adapted to changes in industry standards and to add additional
features. However, these benefits are usually not achievable without
significant performance degradation. Fixed-function integrated circuits can be
designed to achieve high performance. However, fixed-function integrated
circuits cannot be adapted to changing functional requirements and must be
redesigned if errors are found in their implementation. Furthermore, developing
fixed-function integrated circuits for emerging applications is relatively time
consuming and limits the ability of communications systems vendors to meet
time-to-market constraints. Consequently, none of these approaches is ideal for
meeting the market requirements for high-performance cell or packet processing.
The Maker Solution
Maker is a leading developer of high-performance programmable
communications processors, development tools and application software targeting
communications markets requiring high-intensity (high-bandwidth or
computing-intensive) communications processing. Maker's communications
processors are based on proprietary cores which are optimized for cell and
packet processing to enable high-speed performance that is superior to
general-purpose processors and equivalent to fixed-function integrated
circuits. Unlike fixed-function integrated circuits, Maker's processors have a
programmable architecture which, together with Maker's development tools,
enable the Maker solution to address the requirements of a variety of markets
using a single processor. Maker's solution provides functional flexibility
which enables communications systems vendors to quickly adapt to rapidly
evolving standards and market requirements, improve time-to-market of new and
improved products, add features to create product differentiation and utilize a
common architecture across product lines.
25
Business
<PAGE>
Maker focuses on emerging high growth segments of the communications
systems markets that require sophisticated traffic management and
internetworking functions. Maker's MXT3010 Cell Processor, together with its
CellMaker(R) and AccessMaker(TM) software applications, targets the high-
performance segment of the Asynchronous Transfer Mode equipment market. Maker
believes it is a leading provider of SARs, an internetworking device, that
operate at OC-12 (622 Mbps) rates, which is an industry-standard measurement of
speed. Maker recently announced the introduction of the MXT4000 Traffic Stream
Processor family and related PortMaker(TM) software application. The MXT4000
family increases Maker's market opportunity by allowing it to address the
opportunity for Internet Protocol-based services, to provide lower customer
system costs through higher levels of integration and to support more
sophisticated traffic management and internetworking functions.
Business Strategy
Maker's objective is to be the leading developer of high-performance
programmable communications processors, development tools and application
software for communications markets requiring high-intensity communications
processing(TM). Key elements of Maker's strategy include:
Target Emerging High-Intensity, High Growth Communications Markets. Maker
targets emerging high growth segments of the communications market. Examples of
these segments include Asynchronous Transfer Mode SARing, traffic shaping for
Asynchronous Transfer Mode or Packet over SONET networks and multi-service wide
area network access. These market segments are characterized by rapidly
evolving performance and function requirements and are well-addressed by
Maker's high-performance programmable architecture.
Expand ATM Market Leadership into New Markets and Applications. Maker
believes it is a leading provider of OC-12 Asynchronous Transfer Mode cell
processing solutions. Maker believes that its proprietary technology is well
suited for other emerging high-performance segments of the communications
industry, including packet processing and multi-service wide area network
access. Maker recently announced the MXT4000 Traffic Stream Processor family
and related PortMaker software application. The MXT4000 family increases
Maker's market opportunity by allowing it to address the opportunity for
Internet Protocol-based services.
Leverage Platforms Across Multiple Applications. Maker seeks to leverage
its processors to address a variety of applications in the communications
markets. Maker provides multiple off-the-shelf software applications based on
the same programmable processor. In addition, Maker delivers a development
platform for its processors which allows customers to support applications
which are not specifically addressed by Maker. Maker believes that this
approach allows it to diversify its market opportunities and address early
stage markets with relatively low development cost and risk.
Provide Integrated Silicon/Software Solutions. Maker seeks to
differentiate itself and reduce its customers' time-to-market by providing
off-the-shelf software for specific communications applications, such as SARing
and multi-service wide area network access. The systems knowledge gained in
creating these applications also enables Maker to continue to improve its
integrated circuit designs. Approximately two-thirds of Maker's research and
development engineers are engaged in software-related activities.
Build and Capitalize on Close Relationships with Industry Leaders. Maker
has developed close customer relationships with leading communications systems
vendors, including Ascend, Cisco, Fore, Lucent and Nortel. By working with
leading customers early in their product architecture and development stage,
Maker is able to gain valuable insights into future industry requirements and
trends. These customer relationships provide Maker with multiple sales
opportunities across customers' product lines.
Leverage Fabless Semiconductor Model. By using outside manufacturers to
manufacture its processors, Maker seeks to leverage the flexibility of this
"fabless" semiconductor business model to lower technology and product risks,
increase profitability and reduce the time-to-market of new products compared
to an integrated semiconductor manufacturer. Maker's fabless model allows it to
focus on its core communications processor design competencies, while
minimizing capital and operating infrastructure requirements.
26
Business
<PAGE>
Markets and Applications
Maker focuses on emerging high growth segments of the communications
systems markets requiring high-intensity communications processing. These
market segments are characterized by rapidly evolving performance and
functional requirements. Within these markets, Maker focuses on applications
that involve high-performance internetworking and network traffic management.
Internetworking is a translation function used to interconnect different
networks and protocols. Traffic management describes a collection of functions
which are involved in optimally using network bandwidth and providing
differentiated services over the network. In particular, traffic management is
critical in allowing data to be combined with delay-sensitive information, such
as voice or video, on a network.
Asynchronous Transfer Mode and Internet Protocol networks are two markets
with significant traffic management and internetworking requirements.
Asynchronous Transfer Mode is based on fixed-sized packets, called cells, and
is designed to efficiently integrate voice, data and video and to easily scale
in capacity. Internet Protocol is a packet-based protocol that is generally
accepted as the industry standard for local area network data transfer and is
being increasingly used in wide area network data transfer. Maker's
high-intensity communications processing products are well suited for the high-
capacity and evolving functional requirements of Asynchronous Transfer Mode and
Internet Protocol networks. Maker's products address internetworking
applications, including Asynchronous Transfer Mode SARing, and a variety of
traffic management functions including traffic shaping, traffic policing and
queue management required by these markets.
High-Performance SARing. SARing or Segmentation and Reassembly is an
internetworking function for translating between fixed-sized-packet
Asynchronous Transfer Mode networks and variable-sized-packet networks, such as
Ethernet, Frame Relay and Packet over SONET, or time-division-multiplexed
networks (commonly used in the telecommunications infrastructure). SARing takes
place in packet-based communications systems, such as Ethernet switches and
Internet routers in circumstances where an Asynchronous Transfer Mode
connection is required, or in Asynchronous Transfer Mode-based systems such as
multi-service wide area network switches where packet interfaces such as Frame
Relay or Packet Over SONET are required. Maker was one of the first vendors to
deliver a SAR that operates at OC-12 (622Mbps) rates, and believes it is a
leading provider of Asynchronous Transfer Mode SAR devices in this market. An
OC-12 SAR can support multiple configurations including one OC-12 network port
or 4 OC-3 (155Mbps) ports.
Asynchronous Transfer Mode Traffic Shaping. Traffic shaping is a complex
function that determines the time and rate at which various categories of
network traffic can be sent onto the network. Maker supports this application
at rates up to OC-12 in Asynchronous Transfer Mode switches, typically located
at the edge between enterprise, carrier or service provider networks, and in
Asynchronous Digital Subscriber Line access multiplexers.
Asynchronous Transfer Mode Traffic Policing. Traffic policing monitors
traffic coming into a port from the network and ensures that it conforms to
predetermined bandwidth policies. Maker supports this application at rates up
to OC-12 in Asynchronous Transfer Mode switches, typically located at the edge
between enterprise, carrier or service provider networks.
Multi-Service Wide Area Network Access. Multi-Service wide area network
access applications allow service providers to supply a variety of Asynchronous
Transfer Mode, Frame Relay, or leased line services on demand on a line-by-line
basis through software control. These applications typically involve services
that require relatively low bandwidth but high computing power. Multi-service
wide area network access products also can integrate voice and data over a
single access line, offering potential economic benefits to the subscriber.
This functionality can be used in wide area network edge switches, Asynchronous
Transfer Mode access multiplexers, SONET add/drop multiplexers and wireless
base station equipment.
Packet Over SONET Link Management. This emerging application supports
traffic management, including policing, shaping and queue management and
internetworking functions such as Multi-Protocol Label Switching (MPLS) for
Packet Over SONET ports in Internet routers and enterprise
27
Business
<PAGE>
switches. In the future, Maker expects the MXT4400 to support this application
at rates up to OC-12, with the future members of the MXT4000 family expected to
support rates up to OC-48.
Products
Maker provides high-performance programmable communications processors,
development tools and applications software. Maker's processors are adapted to
a variety of communications applications through the use of software that is
either provided by Maker or written by customers. To facilitate software
development, Maker provides a hardware/software development environment, a
library of high-performance network routines and several off-the-shelf software
applications targeted at rapidly growing markets.
Maker's product line includes the MXT3010 Cell Processor, the MXT3020
Circuit Co-processor and the MXT4400 Traffic Stream Processor. The MXT3010 Cell
Processor, together with the Company's CellMaker software application, targets
the high-performance Asynchronous Transfer Mode SARing market. The MXT3010 Cell
Processor and the MXT3020 Circuit Co-Processor, together with the Company's
AccessMaker software, target multi-service wide area network access
applications. Maker recently announced the introduction of the MXT4000 Traffic
Stream Processor family and the related PortMaker software application
targeting sophisticated traffic management and internetworking for Asynchronous
Transfer Mode and packet-based networks.
The following table summarizes Maker's products, applications targeted by
Maker and the status of the solution for each targeted application:
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------
Communications Processors Application Software Targeted Application Status
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
MXT3010 CellMaker-622 OC-12 SAR Production
Cell Processor 4-Port OC-3 SAR
Customer-written ATM Traffic Shaping Production
- ------------------------------------------------------------------------------------------------------
MXT3010 Cell Processor/ AccessMaker Multi-service WAN Production
MXT3020 Circuit Co-processor Access
- ------------------------------------------------------------------------------------------------------
MXT4400 PortMaker OC-12 SAR In Development
Traffic Stream 4-Port OC-3 SAR
Processor
Customer-written ATM Traffic Shaping In Development
PortMaker with POS Link Planned
customer extensions Management
Customer-written ATM Traffic Policing Future
- ------------------------------------------------------------------------------------------------------
</TABLE>
Communications Processors
MXT3010 Cell Processor. The MXT3010 Cell Processor is a high-performance,
programmable Asynchronous Transfer Mode Cell Processing integrated circuit that
is based on Maker's proprietary 16-bit RISC core. This device was introduced in
1997 to address a variety of applications ranging from OC-12 SARing to T1
(1.544 Mbps) speed multi-service wide area network access.
MXT3020 Circuit Co-processor. The MXT3020 Circuit Co-processor is a device
that works in conjunction with the MXT3010 to connect Asynchronous Transfer
Mode and packet-based networks to circuit switched networks. This device
leverages the programmability of the MXT3010 to adapt to evolving standards and
supports a wide range of Asynchronous Transfer Mode and Time Division
Multiplexed internetworking functions.
28
Business
<PAGE>
MXT4000 Traffic Stream Processor Family. The MXT4400 Traffic Stream
Processor is the first member of the MXT4000 family. The MXT4400 is a
high-performance, programmable packet and cell processor based on Maker's new
proprietary 32-bit RISC core. The MXT4000 family increases Maker's market
opportunity by allowing it to address the opportunity for Internet Protocol
based services, to provide lower customer system costs through higher levels of
integration, to support rates up to OC-48 (2.5 Gbps) and to support more
sophisticated traffic management and internetworking functions.
Maker announced the introduction of the MXT4400 Traffic Stream Processor
in March 1999 and expects it to be in volume production in the second half of
the year. Maker has delivered Verilog simulation models of the MXT4400 to two
alpha customers, Lucent and Xylan. The design data base is at the foundry for
layout and an initial production run.
Application Software
Maker offers complete production-tested application software that runs on
the MXT3010 or MXT4400 processors. Customers may use this software as is,
customize it or write their own custom software to address specific
applications.
CellMaker. CellMaker is SARing software that runs on the MXT3010 Cell
Processor. This application supports internetworking between Asynchronous
Transfer Mode and packet-based networks such as Ethernet or Frame Relay. Maker
offers versions of this software that support data rates of OC-3 (155Mbps) and
OC-12 (622Mbps).
AccessMaker. AccessMaker is software that runs on the MXT3010 Cell
Processor coupled with up to four MXT3020 Circuit Coprocessors and supports the
integration of both voice and data over Asynchronous Transfer Mode networks.
AccessMaker allows customers to design a single piece of hardware that can
support many common T1/E1 services such as Frame Relay, Asynchronous Transfer
Mode, and leased lines in any combination up to 28 T1/E1 ports. This allows
service providers to provision new services to their end-user customers quickly
and cost-effectively through software control, rather than having to physically
reconfigure equipment using field technicians.
PortMaker. PortMaker is software that runs on the MXT4400 Traffic Stream
Processor and supports OC-12 Asynchronous Transfer Mode SARing. This
application was announced with the MXT4400 in March 1999. Maker intends to
expand the application to support a common set of traffic management and
internetworking functions for Packet Over SONET and Asynchronous Transfer Mode
networks.
Development Tools
To accelerate time-to-market for new products, Maker offers customers a
full set of development tools including Verilog models, simulation
environments, assemblers and debuggers for both of Maker's processors, as well
as a variety of demonstration cards for the MXT3010. These tools allow
customers to write and debug software for systems based on Maker's processors
prior to using actual hardware and to simulate system and network operations
for the purpose of optimizing performance. Maker's tools also allow customers
to verify any custom hardware that they have developed to interface with
Maker's products. To further facilitate software development by its customers,
Maker expects to introduce a C compiler for the MXT4400 Traffic Stream
Processor.
Customers, Sales and Marketing
Maker targets leading telecommunications and data networking vendors.
Maker has over 50 design wins with over 30 customers, of which over 15 were in
production during the first quarter of 1999. Maker defines a design win as a
discernible commitment by a vendor to use Maker products in a development
program that is funded, staffed and targeted for production. Maker can provide
no
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assurance that a particular design win will result in production revenue. The
following is a list of Maker's customers:
3Com nCUBE
Alcatel Netcom Systems
Ascend Communications Newbridge Networks
Cabletron Systems Nexabit Networks
Cisco Systems Nortel Networks
Ennovate Premisys
Fore Systems Siemens
GTE Sonoma Systems
Hewlett-Packard Sonus Networks
Hitachi Visual Networks
Juniper Networks Xylan
Lucent Technologies
Maker's top five customers in 1998 were Ascend, Cisco, Fore, Lucent and
Nortel. Ascend, Cisco and Fore each accounted for more than 10% of 1998
revenues. Ascend and Lucent recently announced that they have entered into a
definitive agreement pursuant to which they will combine their operations. See
"Risk Factors--Our Revenues and Profits May Decrease If We Lose Any of Our
Major Customers."
Maker's sales and marketing strategy is to achieve design wins with
industry leaders in emerging high growth segments of the communications systems
markets that require high-intensity communications processing. In many cases,
Maker's processors are a key element in the architectural designs of its
customers' communications systems. As a result, prior to a design win Maker's
engineers often act as consultants to its customers in early architectural
discussions and decisions.
Maker markets and sells its products primarily through a direct sales
force in the United States; manufacturers' representatives in the United States
and Canada and a distributor in Japan. Maker has sales offices located in
Framingham, Massachusetts and Santa Clara, California. Maker selects its
independent manufacturers' representatives based on their understanding of the
communication processor marketplace and their ability to provide effective
field sales support for Maker's products.
In its latest fiscal year, sales in the United States accounted for
approximately 92% of Maker's revenues. Although Maker achieved a number of
design wins with customers outside of the United States, none of these
customers has reached volume production.
Maker targets its marketing efforts at identifiable industry leaders.
Maker has a number of marketing programs designed to inform communications
systems vendors about the capabilities and benefits of Maker's products.
Maker's marketing efforts include an emphasis on applications notes, design
examples and other technical documentation to accelerate customer designs. In
addition, for the purpose of building a high level of industry awareness,
Maker's marketing efforts also include participation in industry trade shows,
technical conferences and technology seminars, publication of technical and
educational articles in industry journals, maintenance of Maker's World Wide
Web site and press tours.
Technical support to customers is provided through Maker system engineers
and, if necessary, product designers and architects. Local field support is
provided by systems engineers in person or by telephone. Maker believes that
providing communications systems vendors with comprehensive product service and
support is critical to maintaining a competitive position in the communications
market and is critical to shortening customers' design-in cycles. Maker works
closely with its customers to monitor the progress of its product designs and
to provide support at each stage of customer product development.
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<PAGE>
Technology
Maker has developed proprietary communications processors that combine
high-speed performance with a programmable architecture. Maker's solution
architecture is comprised of both integrated circuits and software components,
including:
o a proprietary, programmable processor;
o a lightweight kernel that provides the basic software infrastructure upon
which applications are written;
o communications processing applications; and
o a well-defined application programming interface that enables customers'
systems to communicate with Maker's software.
To facilitate the development of specific applications, Maker also provides a
development environment and a library of performance-optimized software
routines that implement a number of common networking functions.
Below is an overview of Maker's solution architecture:
[typeset representation of graphic]
- ---------------------------------------------------------------
Maker Application Programming Interface
--------------------------------------------------
Communications Processing Applications
-- Network
Maker Maker Customized Customer -- Function
Development Applications Maker Applications Library
Environment Applications
--------------------------------------------------
Light-Weight Kernel Software
-------------------------------------------------------------------
Communications Processor Integrated
Circuits
- ---------------------------------------------------------------
Maker's Solution Architecture
[end graphic]
The core technologies employed by Maker include its proprietary RISC
architecture, high-speed context switching, network traffic management
technology and TDM (Time Division Multiplexed) service internetworking
technology.
Proprietary RISC Architecture. Maker's philosophy is to base its
processors on the fastest and most cost-effective processor cores for
communications applications. Rather than using commercially available RISC
processors such as MIPS or PowerPC, Maker has developed proprietary processor
cores which have an architecture and instruction set that are optimized for the
tasks of processing and switching data, voice and video in broadband networks.
Optimizing the instruction set allows these processors to perform common
communications processing steps using a minimum number of instructions,
delivering higher CPU performance and higher throughput at a given clock rate
than general purpose RISC or CISC processors can provide.
High-Speed Context Switching. Maker's communications processors have
event-driven architectures that can quickly adapt to the arrival of new network
traffic or new traffic management information. One of the key differences
between communications processors and general purpose RISC processors is the
speed at which they perform context switching. Context is any descriptive
information, such as traffic contracts and network statistics, that the
processor requires to process a particular packet or Asynchronous Transfer Mode
cell. The processor must gather all of the context information that is
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relevant to that particular cell, perform any necessary translation and traffic
management processing based on that context, and then store the updated context
before the next cell arrives. In OC-12 Asynchronous Transfer Mode networks, for
example, new Asynchronous Transfer Mode cells arrive every 680 nanoseconds. The
faster the processor can gather and store context, the more time that processor
has for cell or packet processing, thereby increasing the speed of the overall
solution.
Network Traffic Management Technology. Maker has developed hardware and
software technology that provides an extensive set of programmable traffic
management capabilities intended to allow its customers to adapt to evolving
and increasingly sophisticated functional requirements. Traffic management is a
critical requirement for providing high-quality network services and supporting
the convergence of voice, data and video in the communications infrastructure.
Elements of Maker's solution include per-stream buffer queuing, traffic shaping
capability, congestion and flow control algorithms. These programmable
functions can allow network equipment to deploy sophisticated traffic
management services at very high performance levels.
TDM Service Internetworking Technology. Maker has developed a specialized
software kernel which provides a unified methodology for managing a diverse set
of the most common T1/E1 and DS3 services such as Frame Relay, a variety of
Asynchronous Transfer Mode services, and leased lines. This is synergistic with
other Maker hardware and software technologies such as fast context switching
and advanced traffic management and is a core element of Maker's AccessMaker
application. The specialized software kernel allows network equipment to
integrate data, voice and video traffic and permits service providers to
provision new services to their customers on demand from a single equipment
platform.
Research and Development
Maker focuses its research and development efforts on the development of
programmable high-performance communications processors, development tools and
applications software. As of March 31, 1999, Maker had 35 employees and
full-time contractors engaged in research and development, of which 15 are
involved in the development of development tools and applications software and
20 are involved in algorithm and integrated circuit design and verification.
Maker's research and development facilities are located at its headquarters in
Framingham, Massachusetts.
Maker's research and development expenses for the years ended December 31,
1996, December 31, 1997 and December 31, 1998 were approximately $1.2 million,
$2.7 million and $4.2 million, respectively. Research and development expenses
primarily consist of salaries and related costs of employees engaged in ongoing
research, design and development activities.
Manufacturing
Currently, Maker outsources all of its semiconductor manufacturing,
assembly and testing to suppliers that deliver fully assembled and tested
products to Maker on a turnkey basis. This fabless semiconductor manufacturing
model allows Maker to focus substantially all of its resources on the design,
development and marketing of products and significantly reduces its capital
requirements.
In 1996 and 1997, Maker subcontracted its semiconductor manufacturing to
Toshiba, VLSI Technology and IBM. In 1998, substantially all of Maker's
manufacturing was subcontracted to IBM.
Maker uses state-of-the-art, fully digital CMOS processes for the
manufacturing of its semiconductor devices. Maker's main products currently are
fabricated in .35 micron CMOS. Maker continuously evaluates the benefits of
adopting smaller geometry processes in order to achieve optimal performance and
cost.
Maker will begin to investigate the possibility of assuming more
manufacturing responsibilities in 1999. Such changes may include contracting
for wafer processing, and subcontracting with other suppliers for assembly and
test. As a result of such changes, Maker would likely be required to enter into
volume purchase agreements pursuant to which Maker would commit to minimum
levels of purchases and which may require up front investments. See "Risk
Factors--We Depend on Outside Manufacturers to Make Our Products."
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Competition
The communications semiconductor industry is intensely competitive and is
characterized by constant technological change, rapid rates of product
obsolescence and price erosion. Maker products compete with fixed-function
integrated circuits and programmable integrated circuits which are typically
based on general purpose processors. In the OC-3 SAR market, Maker has a
relatively small market share and competes with a number of competitors
offering fixed-function devices including Conexant, IBM, Texas Instruments,
Integrated Device Technology, PMC-Sierra, Lucent, Fujitsu, NEC and TranSwitch.
In the developing OC-12 SAR market, in which Maker believes there is currently
little competition, Maker expects to compete in the future with several of the
foregoing companies and others. In the Asynchronous Transfer Mode traffic
policing market, a targeted future market for Maker, there are a number of
competitors, including Lucent and PMC-Sierra. In Asynchronous Transfer Mode
markets for programmable integrated circuits, LSI Logic and Motorola currently
offer programmable cell processing capability; Maker believes it competes
effectively at the high-end (integrated circuits which run at rates greater
than OC-3) of this market.
Competitive factors in the market for integrated circuits are:
o performance;
o impact of the integrated circuit on end-product cost;
o adaptability to changing market requirements;
o quality and availability of technical support;
o feature set;
o ease of designing with and debugging; and
o compatibility with customer system architectures and complementary
components.
In addition to the list above, programmable communication processors face
additional competitive factors such as:
o ease of writing and debugging high-performance software;
o availability of tools and software libraries;
o completed software applications;
o compatibility with customer simulation environments; and
o scalability across a breadth of applications.
Several of the largest electronics and semiconductor suppliers have
recently entered or indicated an intent to enter the communication market for
semiconductor devices. Many of Maker's existing and potential customers
internally develop fixed-function integrated devices, general purpose
processors, communications processors and other devices which attempt to
perform all or a portion of the functions performed by Maker's products. Maker
understands that there may be a number of smaller emerging companies that are
contemplating entering the communications processors market. In addition, Maker
also may face competition from suppliers of products based on new or emerging
technologies. See "Risk Factors--Our Limited Resources Make Us More Susceptible
to Competitive Pressures in the Marketplace."
Intellectual Property
Maker's future success and ability to compete are dependent, in part, upon
its proprietary technology. Maker has numerous technology and software licenses
which entitle it to use software and technology of other companies. Maker has
one technology license agreement which it believes to be material. This
agreement is in effect until terminated by one of the parties. Maker has been
granted four patents in the United States in the field of cell processors.
These patents expire on May 9, 2016. In addition, Maker has filed additional
U.S. patent applications in the United States. There can be no assurance that
any patents will issue pursuant to Maker's current or future patent
applications or that patents issued pursuant to such applications will not be
invalidated, circumvented, challenged or licensed
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to others. In addition, there can be no assurance that the rights granted under
any such patents will provide competitive advantages to Maker or be adequate to
safeguard and maintain Maker's proprietary rights. Not all of Maker's
proprietary technology is patented.
In addition, Maker claims copyright protection for proprietary software
and documentation used in its products and software. Maker also attempts to
protect its trade secrets and other proprietary information through agreements
with its customers, suppliers, employees and consultants, and through other
security measures. Although Maker intends to protect its rights vigorously,
there can be no assurance that these measures will be successful. In addition,
the laws of certain countries in which Maker's products are or may be
manufactured or sold may not protect Maker's products and intellectual property
rights to the same extent as the laws of the United States.
While Maker's ability to compete may be affected by its ability to protect
its intellectual property, Maker believes that, because of the rapid pace of
technological change in the communications systems industry, its technical
expertise and ability to introduce new products on a timely basis will be more
important in maintaining its competitive position than protection of its
intellectual property. Maker believes that patent, trade secret and copyright
protection are important but must be supported by expanding the knowledge,
ability and experience of Maker's personnel and introducing and enhancing
products. Although Maker continues to implement protective measures and intends
to defend vigorously its intellectual property rights, there can be no
assurance that these measures will be successful.
Many participants in the semiconductor and communications systems industry
have a significant number of patents and have frequently demonstrated a
readiness to commence litigation based on allegations of patent and other
intellectual property infringement. From time to time, third parties, including
competitors of Maker, may assert patent, copyright and other intellectual
property rights to technologies that are important to Maker. Third parties may
assert infringement claims against Maker in the future, which may result in
costly litigation. Maker may not prevail in any such litigation or may not be
able to license any valid and infringed patents from third parties on
commercially reasonable terms, if at all. Litigation, regardless of the
outcome, is likely to result in substantial cost and diversion of resources of
Maker. Any infringement claim or other litigation against or by Maker could
materially adversely affect Maker.
In addition, competitors of Maker, many of which have substantially
greater resources than Maker and have made substantial investments in competing
technologies, may have, or may seek to apply for and obtain, patents that will
prevent, limit or interfere with Maker's ability to make, use or sell its
products either in the United States or in international markets. Maker may
also become subject to patent infringement claims and litigation or
interference proceedings to determine the priority of inventions due to the
significant number of patents in the industry. This large volume of patented
technology makes infringement difficult to assess. The defense and prosecution
of intellectual property suits, interference proceedings and related legal and
administrative proceedings are both costly and time consuming. Any such suit or
proceeding involving Maker could have a material adverse effect on Maker. See
"Risk Factors--We Need to Protect Our Intellectual Property and Avoid
Infringement of the Intellectual Property of Others."
Backlog
Maker does not believe that the amount of its backlog is material. This
backlog is subject to continued fluctuations and is not necessarily indicative
of future sales. Customers purchase Maker's products pursuant to short term
purchase orders which may be canceled without charge if notice is given within
an agreed upon period.
Employees
As of March 31, 1999, Maker had 60 full-time employees and 3 contract
employees. Of the total number of full-time employees and contract employees,
35 were in research and development, 17 were in sales, marketing and technical
support and 11 were in operations and administration. Maker's employees do not
have any collective bargaining agreement, and Maker has never experienced a
work
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<PAGE>
stoppage. Maker believes its employee relations are good. See "Risk
Factors--The Loss of Any of Our Key Personnel or the Failure to Hire Additional
Personnel Could Impact Our Ability to Meet Customer and Technological Demands."
Facilities
Maker's main executive, administrative and technical offices occupy
approximately 18,498 square feet in Framingham, Massachusetts, under a lease
that expires on June 30, 2000. Maker also leases a sales office in Santa Clara,
California.
Legal Proceedings
Maker is not currently involved in any material legal proceedings.
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<PAGE>
MANAGEMENT
Directors and Executive Officers
The directors and executive officers of Maker and their respective ages
and positions are as follows:
<TABLE>
<CAPTION>
Name Age Position
- ----------------------------- ----- --------------------------------------------------------
<S> <C> <C>
William N. Giudice .......... 44 President, Chief Executive Officer and Director
Michael Rubino .............. 41 Vice President, Finance and Operations, Chief Financial
Officer and Treasurer
Paul Bergantino ............. 35 Vice President and Chief Technology Architect
Walter Jones ................ 51 Vice President, Engineering
Thomas J. Medrek ............ 42 Vice President, Marketing
Jon Sherburne ............... 48 Vice President, Sales
Roger Evans ................. 53 Director
Rob Soni .................... 30 Director
Louis Tomasetta ............. 50 Director
Paul R. Low ................. 66 Director
</TABLE>
William N. Giudice. Mr. Giudice has been President, Chief Executive
Officer and a director of Maker since its inception in 1994. Prior to
co-founding Maker, Mr. Giudice spent nine years at LSI Logic, a semiconductor
company, in a variety of sales and sales management positions, including
Director of Sales from 1991 until his departure in 1994.
Michael Rubino. Mr. Rubino has been Vice President, Finance and
Operations, and Chief Financial Officer of Maker since February 1998. From 1994
to 1998, Mr. Rubino held several senior finance positions at Agile Networks,
Inc., a communications systems vendor, most recently as Vice President and
Chief Financial Officer. Agile Networks was acquired by Lucent Technologies in
1996. From November 1991 to March 1994, Mr. Rubino was Vice President, Finance
and Administration at Process Software Corporation, a networking software
vendor.
Paul Bergantino. Mr. Bergantino has been Vice President and Chief
Technology Architect of Maker since its inception in 1994. Prior to co-founding
Maker, Mr. Bergantino spent seven years at LSI Logic where he served as a
Product Marketing Manager in the networking products division from June 1993 to
August 1994.
Walter Jones. Mr. Jones has been Vice President, Engineering of Maker
since June 1998. Mr. Jones served as Vice President of Engineering at
Videoserver Corporation, a communications systems company, from October 1996 to
June 1998. From January 1994 to September 1996, Mr. Jones was the Director of
Development at ISIS Distributed Systems, a division of Stratus, Inc.
Thomas J. Medrek. Mr. Medrek has been Vice President, Marketing of Maker
since July 1997. From 1989 to 1997, Mr. Medrek held a number of senior level
marketing and product planning positions at 3Com Corporation and Synernetics,
Inc., a communications systems vendor, which 3Com acquired in 1994. Mr. Medrek
served as Director of Product Planning from 1996 to 1997, and as Director of
Marketing from 1993 to 1995.
Jon Sherburne. Mr. Sherburne has been Vice President, Sales of Maker since
October 1997. Mr. Sherburne held several senior management positions at VLSI
Technology, Inc., a semiconductor company. He served as Vice President of
Western U.S. Sales and Technology from July 1996 to September 1997 and Vice
President of North American Computer and Government Sales and Technology
Centers from 1994 to July 1996. He also served as Director of Apple Worldwide
Sales from January 1992 to July 1995.
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Management
<PAGE>
Roger Evans. Mr. Evans has been a director of Maker since 1996. Mr. Evans
is a general partner of Greylock, a venture capital firm. Mr. Evans is also a
Director of Ascend Communications, Inc., a communications system vendor, and
several privately held companies.
Rob Soni. Mr. Soni has been a director of Maker since 1996. Mr. Soni is a
partner with Bessemer Venture Partners, which he joined in 1994. Prior to that
time, Mr. Soni worked for The Boston Consulting Group.
Louis Tomasetta. Louis Tomasetta, Ph.D., has been a director of Maker
since 1997. Dr. Tomasetta is co-founder of Vitesse Semiconductor Corporation
and has served as its President, Chief Executive Officer and Director since it
was founded in 1987.
Paul R. Low. Paul R. Low, Ph.D., has been a director of Maker since March
1999. Dr. Low has been President and Chief Executive Officer of PRL Associates,
a technology consulting company, since June 1992. Previously Dr. Low was Vice
President and General Manager of IBM Microelectronics, IBM's silicon design and
fabrication group, and was a member of the IBM Corporate Management Board from
June 1990 to June 1992. Dr. Low is a member of the Board of Directors of
Applied Materials, Network Computing Devices, Solectron, Veeco Instruments,
VLSI Technology and Xionics.
Board Committees
The compensation committee of the board of directors of Maker is comprised
of Roger Evans, Rob Soni and Louis Tomasetta.
The audit committee of the board of directors of Maker is comprised of Rob
Soni and Louis Tomasetta.
Election of Directors
After Maker files an Amended and Restated Certificate of Incorporation in
connection with this offering, Maker's Amended and Restated Certificate of
Incorporation will provide for a classified board of directors divided into two
classes. Class I will expire at the annual meeting of stockholders to be held
in 2000 and Class II will expire at the annual meeting of stockholders to be
held in 2001. Mr. Evans and Mr. Soni will initially serve as Class I Directors
and Mr. Giudice, Mr. Low and Mr. Tomasetta will initially serve as Class II
directors. At each annual meeting of stockholders, beginning with the 2000
annual meeting, the successors to directors whose terms will then expire will
be elected to serve from the time of election and qualification until the
second annual meeting following election and until their successors have been
duly elected and qualified, or until their earlier resignation or removal, if
any. To the extent there is an increase or reduction in the number of
directors, the increase or decrease in directorships resulting therefrom will
be distributed among the classes so that, as nearly as possible, each class
will consist of an equal number of directors.
Compensation of Directors
The current directors of Maker receive no cash compensation for serving as
directors; however, they are reimbursed for the expenses they incur in
attending meetings of the board or board committees. Non-employee directors are
eligible to receive options to purchase common stock awarded under Maker's
equity compensation plans. See "--Benefit Plans".
Compensation Committee Interlocks and Insider Participation
Upon completion of this offering, the compensation committee will make all
compensation decisions. No interlocking relationship exists between the board
of directors or compensation committee and the board of directors or
compensation committee of any other company. Roger Evans is a general partner
of Equity GP Limited Partnership, the general partner of Greylock Equity
Limited Partnership, which will beneficially own 15.1% of Maker's common stock
after the offering. Rob Soni is a member of Deer IV & Co. LLC, which will
beneficially own 15.1% of Maker's common stock after the offering.
Prior to March 11, 1999, William Giudice, President and Chief Executive
Officer of Maker, served as a member of its compensation committee.
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Management
<PAGE>
Executive Compensation
The following table sets forth the compensation earned by Maker's Chief
Executive Officer and each of Maker's four other most highly compensated
executive officers (collectively, the "Named Executive Officers") during the
year ended December 31, 1998:
Summary Annual Compensation Table
<TABLE>
<CAPTION>
Securities
Other Underlying
Annual Options/
Name and Principal Position Year Salary Bonus Compensation SARs
- -------------------------------------------------- ------ ----------- ---------- -------------- -----------
<S> <C> <C> <C> <C> <C>
William N. Giudice ............................... 1996 $102,500 -- -- --
President, Chief Executive Officer 1997 120,000 -- -- --
and Director 1998 142,500 -- -- 510,000
Michael Rubino ................................... 1998 115,321 $25,000 -- 180,000
Vice President, Finance and Operations,
Chief Financial Officer and Treasurer
Commenced employment with Maker in February 1998
Paul Bergantino .................................. 1996 102,500 -- -- --
Vice President and Chief Technology Architect 1997 120,000 -- -- --
1998 127,500 -- -- 260,000
Thomas J. Medrek ................................. 1997 54,057 25,000 -- 337,000
Vice President, Marketing 1998 125,000 -- -- --
Commenced employment with Maker in July 1997
Jon Sherburne .................................... 1997 27,484 16,390 -- 168,000
Vice President, Sales 1998 125,000 65,013 -- --
Commenced employment with Maker in October 1997
</TABLE>
The following table sets forth certain information regarding the option
grants made during 1998 to each of the Named Executive Officers. Maker issued
no stock appreciation rights ("SARs") in 1998.
Option/SAR Grants in Last Fiscal Year
<TABLE>
<CAPTION>
Percent of Total
Number of Securities Option/SARs
Underlying Granted to Exercise or
Option/SARs Employees in Base Price
Name Granted Fiscal Year (per share)
- ---------------------------- ---------------------- ----------------- -------------
<S> <C> <C> <C>
William N. Giudice ......... 510,000(3) 28.9% $ 2.75
Michael Rubino ............. 180,000(4) 10.2 0.30
Paul Bergantino ............ 260,000(3) 14.7 2.75
Thomas J. Medrek ........... -- -- --
Jon Sherburne .............. -- -- --
<CAPTION>
Potential
Realizable Value
at Assumed Annual
Rates of Stock
Price Appreciation
Fair for Option
Value on Term (1)
Date of Grant Expiration -----------------------------
Name (per share) (2) Date 5% 10%
- ---------------------------- ----------------- ----------- ------------- --------------
<S> <C> <C> <C> <C>
William N. Giudice ......... $ 2.75 9/17/08 $6,905,400 $11,826,900
Michael Rubino ............. 0.30 3/12/08 2,878,200 4,615,200
Paul Bergantino ............ 2.75 9/17/08 3,520,400 6,029,400
Thomas J. Medrek ........... -- -- -- --
Jon Sherburne .............. -- -- -- --
</TABLE>
- ------------
(1) Amounts represent hypothetical gains that could be achieved for the
respective options if exercised at the end of the option term. These gains
are based on assumed rates of stock price appreciation of 5% and 10%
compounded annually from the date the respective options were granted to
their expiration date based on the initial public offering price. These
assumptions are not intended to forecast future appreciation of our stock
price. The potential realizable value computation does not take into
account federal or state income tax consequences of option exercises or
sales of appreciated stock.
(2) The grant date valuation is determined by the board of directors and is
consistent with the value used by Maker for accounting purposes to
determine if any compensation expense related to option grants is
reportable.
(3) The options become 20% vested on September 17, 1999. The remainder of the
options vest evenly on a quarterly basis over the next four years.
(4) The options became 20% vested on March 12, 1999. The remainder of the
options vest evenly on a quarterly basis over the next four years.
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Management
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The following table sets forth information regarding exercise of options
and the number and value of options held at December 31, 1998, by each of the
Named Executive Officers:
Aggregate Option Exercises in 1998 and
Year-End Option/SAR Values
<TABLE>
<CAPTION>
Number of Securities Value of Unexercised
Underlying Unexercised In-the-Money
Options at Options at
Shares Fiscal Year End Fiscal Year-End (1)
Acquired Value ------------------------- -------------------------------------
Name on Exercise Realized Vested Unvested (2) Exercisable Unexercisable (2)
- ---------------------------- ------------- ------------- -------- -------------- ------------- ------------------
<S> <C> <C> <C> <C> <C> <C>
William N. Giudice ......... -- -- -- 510,000 -- $3,697,500
Michael Rubino ............. -- -- -- 180,000 -- 1,746,000
Paul Bergantino ............ -- -- -- 260,000 -- 1,885,000
Thomas J. Medrek ........... 206,400 (3) $2,030,976 -- 130,600 -- 1,285,104
Jon Sherburne .............. 67,200 (4) 661,248 -- 100,800 -- 991,872
</TABLE>
- ------------
(1) Value is based on the difference between the option exercise price and the
initial public offering price of the common stock multiplied by the number
of shares of common stock underlying the option. No market existed for the
common stock prior to this offering. Assumed offering price of $10.00;
exercise prices range from $0.16 to $2.75.
(2) Options granted to executive officers under the 1996 Stock Option Plan are
generally immediately exercisable, but subject to an optional right of
repurchase by Maker at cost pursuant to the vesting schedule of each such
grant. Accordingly, these options are exercisable but would be subject to
repurchase since since they have not yet vested.
(3) Includes 114,275 shares which are subject to repurchase at cost by Maker
pursuant to stock repurchase agreements.
(4) Includes 33,600 shares which are subject to repurchase at cost by Maker
pursuant to stock repurchase agreements.
Benefit Plans
1996 Stock Option Plan
The 1996 Stock Option Plan (1996 Plan) provides for the granting of
incentive stock options and non-qualified options defined in Section 422 of the
Internal Revenue Code to Maker's employees. The 1996 Plan is administered by
Maker's board of directors. The board has the authority to take the following
actions:
(a) interpret and apply the 1996 Plan;
(b) determine the eligibility of an individual to participate in the 1996
Plan;
(c) approve the assignment of options immediately prior to the
registration of Maker's stock pursuant to the Securities Exchange Act of 1934,
as amended, if such assignment would increase the number of common
stockholders; and
(d) determine and allocate the cancellation or exchange of outstanding
options in the case of a recapitalization, acquisition, merger or change in
control.
No options may be granted to an employee who, at the time of the grant, owns
more than 10% of the voting power or greater than 10% of each class of Maker's
outstanding stock, unless the purchase price of the stock is not less than 110%
of the stock's fair market value on the date of the grant and the option, by
its terms, shall not be exercisable more than five years from the date it is
granted. Upon the effectiveness of the Company's 1999 Incentive Stock Plan, no
further options shall be granted under the 1996 Plan.
Vested options may be exercised in full at one time or in part from time
to time and the payment of the exercise price may be made by delivery of one of
the following:
(a) cash or a check payable to Maker in an amount equal to the exercise
price of the vested options;
(b) shares of Maker's common stock owned by the optionholder having a fair
market value equal in amount to the exercise price of the options being
exercised;
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<PAGE>
(c) the cancellation of shares covered by this option which are then
vested and exercisable having a fair market value equal in amount to the
purchase price of the shares being purchased; or
(d) any combination of (a), (b), (c) and (d); provided, however, that
payment of the exercise price by delivery of shares of common stock owned by
such option holder or cancellation of shares covered by the option may be made
only with the consent of the Board if the payment or cancellation results in a
charge to earnings for financial accounting purposes as determined by the
Board. Maker may delay the issuance of shares covered by the exercise of an
option until the shares for which the option has been exercised have been
registered or qualified under the applicable federal or state securities laws,
or counsel for Maker has opined that the shares are exempt from the
registration requirements of applicable federal or state securities laws.
Under the 1996 Plan, at the option of the board of directors, options
granted may be designated as immediately exercisable but subject to a right of
repurchase pursuant to the vesting schedule of each specific grant.
The term of any option granted under the Plan is limited to ten years.
Upon the termination of an optionholder's employment with Maker, his or her
options shall terminate between 30 and 180 days after that optionholder leaves
the employ of Maker.
As of March 31, 1999, 2,635,940 options were outstanding under the Plan.
Options granted vest over a term established by the board of directors at the
date of grant. In addition, upon a change in control of Maker, the
exercisability of options due to vest during the following twelve month period
are automatically accelerated. The outstanding options have an exercise price
ranging from $0.05 to $8.50 per share.
1999 Non-employee Director Stock Option Plan
The 1999 Non-employee Director Stock Option Plan (Director Plan) provides
for the grant of nonstatutory stock options to non-employee directors. The
director plan has a term of ten years, unless terminated sooner by the board of
directors. A total of 125,000 shares of common stock have been reserved for
issuance under the Director Plan, plus annual increases such that the total
number of shares subject to issuance shall be 125,000 shares, or a lesser
amount determined by the board of directors.
The Director Plan provides that each non-employee director will
automatically be granted an option to purchase 20,000 shares of common stock on
the date that he or she first becomes a non-employee director, unless
immediately prior to becoming a non-employee director, he or she was an
employee director of Maker. In addition, each non-employee director will
automatically be granted an option to purchase 15,000 shares on the date two
days after Maker announces its fiscal year-end earnings of each year, if at
that time he or she will have served on the board of directors for at least the
preceding six months. The term of each option shall not exceed ten years and
shall vest as determined by the board at the time of grant. In addition, upon a
change in control of Maker, all unvested options shall immediately vest.
The exercise price of each option is 100% of the fair market value per
share of the common stock, generally determined with reference to the closing
price of the common stock as reported on the Nasdaq National Market on the last
trading day prior to the date of grant. In the event of a merger of Maker or
the sale of substantially all of its assets, each outstanding option may be
assumed or an equivalent option substituted for by the successor corporation.
Options granted under the director plan must be exercised within three months
of the end of the option holder's tenure as a director of Maker, or within 12
months after a director's termination by death or disability, but in no event
later than the expiration of the option's term. No option granted under the
director plan is transferable by the option holder other than by will or the
laws of descent and distribution, and each option is exercisable, during the
lifetime of the option holder, only by that option holder.
1999 Stock Incentive Plan
Maker's 1999 Stock Incentive Plan (1999 Incentive Plan) permits the grant
of stock options, which may be either incentive stock or nonqualified options,
and stock awards. The maximum number of shares of Maker's common stock
available for stock options and stock awards granted under the 1999 Incentive
Plan is 2,600,000 shares plus annual cumulative increases on each January 1
beginning in 2000
40
Management
<PAGE>
equal to 5% of Maker's issued and outstanding common stock, calculated on a
fully diluted basis, or a lesser amount as determined by the board of
directors. The maximum number of shares available under the 1999 Incentive Plan
is subject to adjustment for capital changes.
At the discretion of Maker's board of directors, the 1999 Incentive Plan
is administered either by the full board of directors of Maker or by a
committee consisting of two or more members of Maker's board of directors. The
committee has the authority to adopt, amend and rescind rules and regulations
which, in its opinion, may be advisable in the administration of the 1999
Incentive Plan.
Options designated as incentive stock options may be granted only to
employees of Maker or any subsidiary. Non-qualified options may be granted to
any officer, employee, consultant or director of Maker or any of its
subsidiaries. No option designated as an incentive stock option shall be
granted to any employee of Maker or any subsidiary if that employee owns,
immediately prior to the grant of an option, stock representing more than 10%
of the combined voting power of all classes of stock of Maker or a parent or a
subsidiary, unless the purchase price for the stock under that option is at
least 110% of its fair market value at the time the option is granted and the
option, by its terms is not exercisable more than five years from the date it
is granted.
The maximum number of shares of Maker's common stock with respect to which
an option or options may be granted to any employee in any calendar year shall
not exceed 500,000 shares, taking into account shares subject to options
granted and terminated, or repriced, during that calendar year. Options granted
under the 1999 Incentive Plan will vest as determined by the board of directors
or the Committee. Upon a change in control of Maker, the exercisability of
options due to vest during the twelve month period are automatically
accelerated.
The right of any option holder to exercise an option granted to him or her
shall not be assignable or transferable by the option holder other than by will
or the laws of descent and distribution, except that an option holder may
transfer options that are not incentive stock options to the option holder's
spouse or children or to a trust for the benefit of the option holder or the
option holder's spouse or children. Incentive stock options are exercisable
during the lifetime of the option holder only by the option holder.
An option granted to any employee option holder who ceases to be an
employee of Maker or one of its subsidiaries shall terminate on the last day of
the month in which that option holder ceases to be an employee of Maker or one
of its subsidiaries. If that termination of employment is because of dismissal
for cause or because the employee is in breach of any employment agreement, the
option will terminate immediately on the date the option holder ceases to be an
employee of Maker or one of its subsidiaries. If that termination of employment
is because the option holder has become permanently disabled, the option shall
terminate on the last day of the twelfth month from the date that option holder
ceases to be an employee. In the event of the death of the option holder, the
option shall terminate on the last day of the twelfth month from the date of
death. In no event shall an option be exercisable after the date upon which it
expires by its terms.
An option granted to an employee option holder who ceases to be an
employee of Maker or one of its subsidiaries shall be exercisable only to the
extent that the right to purchase shares under the option has accrued and is in
effect on the date the option holder ceases to be an employee of Maker or one
of its subsidiaries. In the event of the death of any option holder, the option
may be exercised by the estate of the option holder, or by any person or
persons who acquired the right to exercise the option by bequest or inheritance
or by reason of the death of the option holder.
The board of directors or committee may grant, subject to the limitation
on the number of shares of common stock available under the plan, stock awards
to employees of and other key individuals engaged to provide services to Maker
and its subsidiaries. A stock award may be made in stock or denominated in
stock subject to final settlement in cash or stock. Each stock award granted
will be subject to such terms and conditions as the board of directors or
committee, in its sole discretion, shall determine and establish.
1999 Employee Stock Purchase Plan
The Maker 1999 Employee Stock Purchase Plan (Stock Purchase Plan) is
intended to provide a means whereby eligible employees may purchase common
stock of Maker through payroll deductions. Four
41
Management
<PAGE>
hundred thousand (400,000) shares of the common stock of Maker may be issued
pursuant to the Stock Purchase Plan.
All persons employed by Maker and any subsidiaries are eligible to
participate in the Stock Purchase Plan, except persons whose customary
employment is less than twenty hours per week or five months or less per year
and persons who have been employed by Maker for less than three months on the
first day of the purchase period, with the exception of persons previously
eligible. In addition, persons who are deemed for purposes of Section 423(b)(3)
of the Code, to own stock possessing 5% or more of the total combined voting
power or value of all classes of stock of Maker or a subsidiary are ineligible
to participate in the Stock Purchase Plan. Employment will be treated as
continuing intact while a participating employee is on military leave or other
bona fide leave of absence, for up to 90 days or for so long as such employee's
right to re-employment is guaranteed by statute or contract, if longer than 90
days.
The Stock Purchase Plan shall be administered by the board of directors or
the committee appointed from time to time by the board of directors. Committee
members shall be ineligible to participate under the Stock Purchase Plan. All
members of the committee shall serve at the discretion of the board. The board
of directors or the committee, if one has been appointed, is vested with full
authority to make, administer and interpret rules and regulations regarding the
Stock Purchase Plan as it may deem advisable. Determinations by the board of
directors, or the committee, as to the interpretation and operation of the
Stock Purchase Plan shall be final and conclusive.
There shall be four three month purchase periods within each year, with
each commencing on the first day of each three month period beginning February
1, May 1, August 1 and November 1 and continuing through the final day of such
three month period. The initial purchase period shall begin on a date
determined by Maker's board of directors. The participating employee authorizes
regular payroll deductions amounting to a full percentage of the participant's
regular compensation as the participant shall designate. These payroll
deductions cannot amount to less than one percent (1%) nor more than ten
percent (10%) of the participant's regular compensation and cannot exceed
$25,000 per year.
All sums deducted from the regular compensation of participants will be
credited to a stock purchase account established for each participant on the
books of Maker, but prior to use of these funds for the purchase of shares of
Maker's common stock in accordance with the Stock Purchase Plan, Maker may use
these funds for any valid corporate purpose. Maker is under no obligation to
pay interest on funds credited to a participant's stock purchase account in any
event.
The purchase price of shares of Maker common stock under the Stock
Purchase Plan is the lower of eighty-five percent (85%) of the fair market
value of a share of common stock for the first business day of the relevant
purchase period, or eighty-five percent (85%) of this value for the relevant
exercise date. The fair market value on a given day is the mean between the
high and low sales prices of a share of common stock of the Company on the
Nasdaq National Market. Each participating employee receives an option,
effective on the first day of the purchase period, to purchase shares of common
stock on the exercise date, which is the last business day of the purchase
period. The number of shares which a participant may purchase under the option
is the quotient of the aggregate payroll deductions in the purchase period
authorized by the participant, divided by the purchase price. No employee can
be granted an option under the Stock Purchase Plan to purchase shares of
Maker's common stock having a fair market value, as of the date the option to
purchase is granted, in any one calendar year of in excess of $25,000. No
employee can be granted an option in one purchase period for more than 750
shares or 3,000 shares annually, or such other number of shares as determined
from time to time by the board or the committee, as the case may be.
Upon dissolution or liquidation of Maker or a merger or consolidation in
which Maker is not the surviving entity, every option outstanding under the
Stock Purchase Plan shall terminate, and each participant shall be refunded the
sums then in his account.
42
Management
<PAGE>
Limitation of Liability; Indemnification of Directors and Officers
In connection with the consummation of this offering, Maker will adopt and
file an Amended and Restated Certificate of Incorporation and Amended and
Restated By-Laws. As permitted by the Delaware General Corporation Law, Maker
has included in its Amended and Restated Certificate of Incorporation a
provision to eliminate the personal liability of its directors for monetary
damages for breach of their fiduciary duties as directors, subject to certain
exceptions. In addition, the Amended and Restated Bylaws of Maker provide that
Maker is required to indemnify its officers and directors under certain
circumstances, including those circumstances in which indemnification would
otherwise be discretionary, and Maker is required to advance expenses to its
officers and directors as incurred in connection with proceedings against them
for which they may be indemnified. Maker has also agreed to indemnify its
directors to the maximum extent permitted by Delaware law pursuant to
agreements with such directors and officers. At present, Maker is not aware of
any pending or threatened litigation or proceeding involving a director,
officer, employee or agent of Maker in which indemnification would be required
or permitted. Maker believes that its charter provisions and indemnification
agreements are necessary to attract and retain qualified persons as directors
and officers.
43
Management
<PAGE>
PRINCIPAL SHAREHOLDERS
The following table sets forth information with respect to the beneficial
ownership of Maker's common stock after the offering by each person who
beneficially owns more than 5% of the common stock; by each of our executive
officers and directors; and by all executive officers and directors as a group.
Beneficial ownership is determined in accordance with rules of the Securities
and Exchange Commission and includes general voting power or investment power
with respect to securities. Shares of common stock subject to options and
warrants currently exercisable or exercisable within 60 days of April 22, 1999
are deemed outstanding for computing the percentage of the person holding such
options, but are not deemed outstanding for computing the percentage of any
other person. Unless otherwise indicated, the address of each of the beneficial
owners identified is 73 Mount Wayte Avenue, Framingham, MA 01702.
<TABLE>
<CAPTION>
Amount and Nature of Shares Beneficially Owned as of April 22,
1999
--------------------------------------------------------------
Percent of Total
Outstanding Shares
Shares of Common Beneficially Owned (1)
Outstanding Stock Issuable ----------------------------
Shares of Upon Exercise Before the After the
Name Common Stock of Options Offering Offering
- ----------------------------------------------- -------------- ----------------- ------------ ----------
<S> <C> <C> <C> <C>
William N. Giudice (2) ........................ 1,243,112 510,000 12.1% 9.7%
Paul Bergantino (3) ........................... 1,122,619 260,000 9.7 7.8
Michael Rubino ................................ 20,000 160,000 1.3 1.0
Thomas J. Medrek .............................. 271,700 65,300 2.4 1.9
Jon Sherburne ................................. 67,200 100,800 1.2 *
Louis Tomasetta (4) ........................... 112,531 -- * *
Paul Low ...................................... -- 20,000 * *
Greylock Equity Limited Partnership ........... 2,643,378 -- 18.8 15.1
755 Page Hill Road, Suite A-100
Palo Alto, CA 94304
Roger Evans (5) ............................... 2,643,378 23,500 19.0 15.2
Bessemer Venture Partners (6) ................. 2,643,379 -- 18.8 15.1
1400 Old Country Road, Suite 407
Westbury, NY 11590
Rob Soni (7) .................................. 2,643,379 23,500 19.0 15.2
Bessemer Venture Partners
83 Walnut Street
Wellesley Hills, MA 02181
Level One Communications, Incorporated 1,209,103 -- 8.6 6.9
9750 Goethe Road
Sacramento, CA 95827
Norwest Venture Partners VI, L.P. ............. 1,471,140 -- 10.5 8.4
40 William Street, Suite 305
Wellesley, MA 02181
Weiss, Peck & Greer Venture Partners (8)
555 California Street, Suite 3130 1,378,984 -- 9.8 7.9
San Francisco, CA 94104
All directors and officers as a group
(10 persons) (2) (3) (4) (5) (7) (9) ......... 8,123,919 1,413,100 61.7 50.3
</TABLE>
- ------------
* Less than one percent
44
Principal Shareholders
<PAGE>
NOTES
(1) Includes shares from Column 1 and Column 2.
(2) Includes 197,234 shares of common stock owned by Tecumseh Limited
Partnership-I of which Mr. Giudice is the general partner. Also includes
150,000 shares held by the Piedmont 1999 Trust and 150,000 shares held by
the Acadia 1999 Trust.
(3) Includes 100,000 shares held by the Bergantino 1999 Grantor Retained
Annuity Trust and 100,000 shares held by the 1999 Irrevocable Trust.
(4) Includes 78,031 shares of common stock owned by the Tomasetta Trust of
which Dr. Tomasetta is the general partner.
(5) Includes shares owned by Greylock Equity Limited Partnership as indicated
above. Mr. Evans, a general partner of Greylock Equity GP Limited
Partnership, the General Partner of Greylock Equity Limited Partnership,
is a director of Maker. Mr. Evans and the other general partners of
Greylock Equity Limited Partnership, Messrs. McCance, Cox, Strohm, Helman
and Kaiser, share voting and investment power with respect to the shares
owned by Greylock Equity Limited Partnership. Mr. Evans disclaims any
beneficial ownership of the shares held by Greylock Equity Limited
Partnership except as to his proportionate partnership interest therein.
(6) Bessemer Venture Partners is the name used to refer to a group of
affiliated investment partnerships. Shares reflected include holdings of
three major partnerships--Bessemer Venture Partners IV L.P. (1,078,470
shares), Bessec Ventures IV L.P. (1,078,472 shares), and BVP IV Special
Situations L.P. (98,542 shares). The general partner of the three
partnerships is Deer IV & Co. LLC. Also reflected in the Bessemer Venture
Partners shares are 387,895 shares owned by members of Deer IV & Co. LLC
and employees of entities related to the funds. Under certain
circumstances, Bessemer Venture Partners IV L.P. can direct their voting
on corporate matters. The members of Deer IV & Co. LLC include Messrs.
Burgin, Buescher, Gabrieli, Cowan and Soni.
(7) Includes 2,643,379 shares attributed to Bessemer Venture Partners above. Of
these 2,643,379 shares, 10,352 shares are owned by Mr. Soni individually.
Mr. Soni is a director of Maker and a member of Deer IV, the general
partner of Bessemer Venture Partners IV L.P., Bessec Ventures IV L.P, and
BVP IV Special Situations L.P. Mr. Soni disclaims beneficial ownership of
the shares held by the three partnerships, except to the extent of his
proportionate partnership interests therein.
(8) Weiss, Peck & Greer Venture Partners is the name used to refer to a group
of related investment entities. Shares reflected include shares held by
WPG Enterprise Fund III, L.L.C. (638,598 shares), Weiss, Peck & Greer
Venture Associates IV, L.L.C. (711,101 shares) and WPG Information
Sciences Entrepreneur Fund, L.P. (29,285 shares). WPG VC Fund Adviser,
L.L.C. is the Fund Investment Advisory Member of WPG Enterprise Fund III,
L.L.C. and Weiss, Peck & Greer Venture Associates IV, L.L.C., and the
General Partner of WPG Information Sciences Entrepreneur Fund, L.P. The
managing members of WPG VC Fund Adviser L.L.C. are Messrs. Cogan, Eggers,
Johnson, Nieh, Greer, Schaepe and Ms. Delagardelle; these members have
shared voting power over the funds named herein.
(9) Includes 250,000 shares of common stock issuable to an additional executive
officer upon exercise of immediately exercisable options which are subject
to repurchase by Maker.
Except as otherwise specified above, the persons named in the table above
have sole voting and investment power with respect to all shares of common
stock shown as beneficially owned by them.
45
Principal Shareholders
<PAGE>
CERTAIN TRANSACTIONS WITH AND STOCK ISSUANCES TO
EXECUTIVE OFFICERS, DIRECTORS AND PRINCIPAL SHAREHOLDERS
Registration Rights Agreement
The registration rights agreement among Maker and the holders of Class B
Convertible Preferred Stock and Class C Convertible Preferred Stock of Maker
provides that such stockholders may require Maker to effect the registration of
shares of common stock held by such stockholders as a result of the conversion
of the preferred stock for sale to the public on three occasions on the earlier
of December 31, 1999 or six months following an initial public offering of
Maker's common stock, subject to limitations on resale. In addition, under the
terms of the registration rights agreement, if Maker proposes to register any
of its shares under the Securities Act, whether for its own account or
otherwise, any holders of Maker's registrable shares party to the registration
rights agreement are entitled to notice of such registration and are entitled
to include their shares therein, subject to specific conditions and
limitations. The holders of registrable shares have waived their rights to
include their shares in this offering. All fees, costs, and expenses (other
than underwriting discounts and commissions, transfer taxes and attorneys'
fees) of any registration effected pursuant to the registration rights
agreement will be paid by Maker.
Redemption of Class A Preferred Stock
All of the outstanding shares of Class A Preferred Stock shall be redeemed
by Maker upon the closing of this offering. The following related parties hold
shares of Class A Preferred Stock which will be redeemed; these related parties
will receive amounts payable as indicated.
<TABLE>
<S> <C>
Bessemer Venture Partners IV, L.P. .......... $1,469,519
BVP IV Special Situations, L.P. ............. $ 133,710
Bessec Ventures IV, L.P. .................... $1,469,519
Greylock Equity Limited Partnership ......... $3,577,709
William Giudice ............................. $ 33,490
Tecumseh Limited Partnership-I .............. $ 168,949
</TABLE>
Issuance of Preferred Stock
During the years 1997 through 1999, Maker issued shares of its Class B
Convertible Preferred Stock and Class C Convertible Preferred Stock. The
purchasers of such shares included Maker's directors, officers and significant
existing stockholders. Such persons received no extra or shared benefit not
shared on a pro rata basis with the other shareholders.
Severance Agreement with Michael Rubino
Maker has entered into a letter agreement with Mr. Rubino which provides
that in the event that his employment is terminated following a change of
control for any reason other than for cause, he will be entitled to receive six
months notice, or six months salary in lieu of such notice. Additionally, upon
a change of control, all unvested options held by Mr. Rubino will vest
immediately.
Other Transactions with Management
Compensation and Benefits
Maker's executive officers receive compensation, bonuses and other
benefits under employee benefit plan arrangements maintained by Maker and its
subsidiaries. The executive officers participate in such benefit plans under
the same terms generally made available to other similarly situated employees
of Maker or its subsidiary with similar responsibilities and levels of
compensation.
Indemnification Agreements
Maker has entered into Indemnification Agreements with each of its
directors. See "Management--Limitation of Liability; Indemnification of
Directors and Officers".
46
Certain Transactions with and Stock Issuances to
Executive Officers, Directors and Principal Shareholders
<PAGE>
DESCRIPTION OF CAPITAL STOCK
Upon completion of the offering, the authorized capital stock of Maker
will consist of 100,000,000 shares of common stock, $.01 par value per share,
of which 17,531,983 shares will be outstanding, and 1,000,000 shares of
preferred stock, $.01 par value per share, none of which will be outstanding.
The following description of the capital stock of Maker and certain provisions
of Maker's Amended and Restated Certificate of Incorporation and Amended and
Restated Bylaws is a summary and is qualified in its entirety by the provisions
of the Amended and Restated Certificate of Incorporation and Amended and
Restated Bylaws which will be adopted by Maker prior to the consummation of the
offering, copies of which have been filed as exhibits to Maker's Registration
Statement of which this prospectus is a part. The following summary assumes the
filing of Maker's Amended and Restated Certificate of Incorporation.
Common Stock
Holders of common stock are entitled to one vote for each share held on
all matters submitted to a vote of the stockholders, including the election of
directors. Accordingly, holders of a majority of the shares of common stock
entitled to vote in any election of directors may elect all of the directors
standing for election if they choose to do so. The Amended and Restated
Certificate of Incorporation does not provide for cumulative voting for the
election of directors. If shares of preferred stock are issued by Maker's board
of directors, the Amended and Restated Certificate of Incorporation eliminates
the rights of the holders of common stock to vote as a class on an increase or
decrease in the number of authorized shares of common stock. Holders of common
stock are entitled to receive ratably such dividends, if any, as may be
declared from time to time by the board of directors out of funds legally
available therefor, and shall be entitled to receive, pro rata, all assets of
Maker available for distribution to such holders upon liquidation. Holders of
common stock have no preemptive, subscription or redemption rights. There are
approximately 90 record holders of common stock.
Preferred Stock
Maker is authorized to issue "blank check" preferred stock, which may be
issued from time to time in one or more series upon authorization by Maker's
board of directors. The board of directors, without further approval of the
stockholders, is authorized to fix the dividend rights and terms, conversion
rights, voting rights, redemption rights and terms, liquidation preferences,
and any other rights, preferences, privileges and restrictions applicable to
each series of the preferred stock. The issuance of preferred stock, while
providing flexibility in connection with possible acquisitions and other
corporate purposes could, among other things, adversely affect the voting power
of the holders of common stock and, under certain circumstances, make it more
difficult for a third party to gain control of Maker, discourage bids for
Maker's common stock at a premium or otherwise adversely affect the market
price of the common stock. Maker currently has no plans to issue any preferred
stock.
Certain Certificate of Incorporation, Bylaw and Statutory Anti-Takeover
Provisions Affecting Stockholders
Classified Board
Maker's board of directors is divided into two classes, each of which,
after a transitional period, will serve for two years, with one class being
elected each year. Removal of a member of the board of directors with or
without cause requires a majority vote of the board of directors or of the
stockholders. A majority of the remaining directors then in office, though less
than a quorum, or the stockholders, are empowered to fill any vacancy on the
board of directors. A majority vote of the stockholders is required to alter,
amend or repeal the foregoing provisions.
Section 203 of Delaware General Corporation Law
Maker is subject to the "business combination" statute of the Delaware
General Corporation Law. In general, the statute prohibits a publicly held
Delaware corporation from engaging in "business combination" transactions with
any "interested shareholder" for a period of three years after the date of the
transaction in which the person became an "interested shareholder," unless:
47
Description of Capital Stock
<PAGE>
(a) the transaction is approved by the board of directors prior to the
date the interested shareholder obtained such status;
(b) upon consummation of the transaction which resulted in the shareholder
becoming an "interested shareholder," the "interested shareholder" owned at
least 85% of the voting stock of the corporation outstanding at the time the
transaction commenced, excluding for purposes of determining the number of
shares outstanding those shares owned by persons who are directors and also
officers and employee stock plans in which employee participants do not have
the right to determine confidentially whether shares held subject to the plan
will be tendered in a tender or exchange offer; or
(c) on or subsequent to such date the "business combination" is approved
by the board of directors and authorized at an annual or special meeting of
stockholders by the affirmative vote of at least 66-2/3% of the outstanding
voting stock which is not owned by the "interested shareholder."
A "business combination" includes mergers, asset sales and other transactions
resulting in a financial benefit to a shareholder. An "interested shareholder"
is a person who, together with affiliates and associates, owns (or within three
years, did own) 15% or more of a corporation's voting stock. By virtue of
Maker's decision not to elect out of the statute's provisions, the statute
applies to Maker. No current stockholders of Maker are "interested
stockholders" because their acquisition of shares was approved by Maker's board
of directors. The statute could prohibit or delay the accomplishment of mergers
or other takeover or change in control attempts with respect to Maker and,
accordingly, may discourage attempts to acquire Maker.
Director Liability
The Amended and Restated Certificate of Incorporation provides that no
director shall be personally liable to Maker or its stockholders for monetary
damages for breach of fiduciary duty as a director notwithstanding any
provision of law imposing such liability, provided that, to the extent provided
by applicable law, the Amended and Restated Certificate of Incorporation shall
not eliminate the liability of a director for:
(a) any breach of the director's duty of loyalty to Maker or its
stockholders;
(b) acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
(c) acts or omissions in respect of certain unlawful dividend payments or
stock redemptions or repurchases; or
(d) any transaction from which such director derives improper personal
benefit.
The effect of this provision is to eliminate the rights of Maker and its
stockholders, through stockholders' derivative suits on behalf of Maker to
recover monetary damages against a director for breach of the fiduciary duty of
care as a director, including breaches resulting from negligent or grossly
negligent behavior, except in the situations described in clauses (a) through
(d) above. The limitations summarized above, however, do not affect the ability
of Maker or its stockholders to seek non-monetary based remedies, such as an
injunction or rescission, against a director for breach of his fiduciary duty
nor would such limitations limit liability under the federal securities laws.
Maker's Amended and Restated Bylaws provide that Maker shall, to the extent
permitted by Delaware General Corporation Law, as amended from time to time,
indemnify and advance expenses to the currently acting and former directors,
officers, employees and agents of Maker or of another corporation, partnership,
joint venture, trust or other enterprise if serving at the request of Maker
arising in connection with their acting in such capacities.
The provisions described above may also have the effect of delaying
stockholder actions with respect to certain business combinations and the
election of new members to the board of directors. As such, the provisions
could have the effect of discouraging open market purchases of Maker's common
stock.
Registration Rights of Holders of Preferred Stock
Under the terms of the registration rights agreement among Maker and the
holders of Class B Convertible Preferred Stock and Class C Convertible
Preferred Stock, if Maker proposes to register any of its securities under the
Securities Act following this offering, whether for its own account or
48
Description of Capital Stock
<PAGE>
otherwise, holders of approximately 4,554,433 million shares of common stock
are entitled to notice of such registration and are entitled to include their
shares therein, subject to certain conditions and limitations. The holders of
registrable shares also may require Maker to effect the registration of their
"registrable shares" for sale to the public, subject to conditions and
limitations affecting the ability to resell shares. See "Certain
Transactions--Registration Rights Agreement."
Transfer Agent and Registrar
The transfer agent and registrar for the common stock will be BankBoston,
N.A.
49
Description of Capital Stock
<PAGE>
SHARES ELIGIBLE FOR FUTURE SALE
Upon completion of the offering, Maker will have 17,531,983 outstanding
shares of common stock (assuming no exercise of options after April 22, 1999).
Of these shares, the 3,500,000 shares offered hereby (4,025,000 shares if the
underwriters' over-allotment option is exercised in full) will be freely
tradable without restriction or further registration under the Securities Act,
unless purchased by "affiliates" of Maker as that term is defined in Rule 144
described below. The remaining 14,031,983 shares of common stock outstanding
upon closing of the offering are "restricted securities" as that term is
defined in Rule 144. Of the remaining 14,031,983 shares, 13,780,782 shares are
subject to lock-up agreements (described below).
Beginning 90 days after commencement of the offering, approximately
12,660,000 shares will become eligible for sale pursuant to Rule 144 or Rule
701 under the Securities Act ("Rule 701"). Upon expiration of the restricted
periods set forth in the lock-up agreements, an aggregate of 13,804,711 shares
will become immediately eligible for sale subject to the timing, volume, and
manner of sale restrictions of Rule 144. Commencing on January, 2001, all
outstanding shares not owned by affiliates of Maker (currently 1,679,531
shares) will be freely eligible for sale pursuant to Rule 144(k). In addition,
148,627 additional shares of common stock subject to outstanding vested stock
options and 125,000 shares that will be issued upon conversion of a convertible
note could also be sold, subject in some cases to compliance with certain
volume and other limitations as described below.
In general, under Rule 144, as amended, a person (or persons whose shares
are aggregated) who has beneficially owned shares for at least one year
(including the holding period of any prior owner except an affiliate from whom
such shares were purchased) is entitled to sell in "brokers' transactions" or
to market makers, within any three-month period commencing 90 days after the
date of this prospectus, a number of shares that does not exceed the greater of
one percent of the number of shares of common stock then outstanding,
approximately 175,320 shares immediately after the completion of the offering
or generally, the average weekly trading volume in the common stock during the
four calendar weeks preceding the required filing of a Form 144 with respect to
such sale. Sales under Rule 144 are generally subject to the availability of
current public information about Maker. Under Rule 144(k), a person who is not
deemed to have been an affiliate of Maker at any time during the 90 days
preceding a sale, and who has beneficially owned the shares proposed to be sold
for at least two years (including the holding period of any prior owner other
than an affiliate from whom such shares were purchased), is entitled to sell
such shares without having to comply with the manner of sale, public
information, volume limitation or notice provisions of Rule 144. Under Rule
701, persons who purchase shares upon exercise of options granted prior to the
effective date of the offering are entitled to sell such shares 90 days after
the effective date of the offering in reliance on Rule 144, without having to
comply with the holding period requirements of Rule 144 and, in the case of
non-affiliates, without having to comply with the public information, volume
limitation or notice provisions of Rule 144.
Pursuant to the lock-up agreements, all of Maker's officers and directors
and certain stockholders owning upon completion of the offering, in the
aggregate, approximately 13,780,782 shares of common stock, have executed
agreements pursuant to which each has agreed that they will not, directly or
indirectly, offer, pledge, sell or otherwise transfer or dispose of any shares
of common stock or any securities convertible into, or exercisable or
exchangeable for, any shares of common stock or enter into any swap or other
arrangement that transfers all or a portion of the economic consequences
associated with the ownership of any common stock without the prior written
consent of Lehman Brothers Inc. for a period of 150 days subsequent to the date
of this prospectus. Two thirds of such shares shall remain subject to this
lock-up for a period of 180 days subsequent to the date of this prospectus and
one third of such shares shall be subject to this lock-up for a period of 210
days subsequent to the date of this prospectus. Further, holders of outstanding
vested stock options for, in the aggregate, an additional 101,630 shares of
common stock are subject to these lock-up agreements. Maker has agreed not to
sell or otherwise dispose of any shares of common stock, other than options to
purchase common stock under existing stock option or stock purchase plans and
except for the issuance of common stock by Maker as consideration for the
acquisition of businesses for a period of 180 days after the date of this
prospectus without the prior written consent of Lehman Brothers Inc.
50
Shares Eligible for Future Sale
<PAGE>
The holders of an aggregate of 4,554,433 shares of common stock or their
transferees are entitled to rights with respect to the registration of such
shares under the Securities Act. See "Description of Capital Stock-Registration
Rights of Holders of Preferred Stock" and "Certain Transactions--
Registration Rights Agreement."
Prior to this offering, there has not been any public market for the
common stock. Future sales of substantial amounts of common stock in the public
market could adversely affect the prevailing market prices and impair Maker's
ability to raise capital through the sale of equity securities.
51
Shares Eligible for Future Sale
<PAGE>
UNDERWRITING
Each underwriter named below has agreed to purchase from Maker the number
of shares of common stock set forth opposite its name.
<TABLE>
<CAPTION>
Underwriters Number of Shares
- ------------------------------------- -----------------
<S> <C>
Lehman Brothers Inc. ................
BT Alex. Brown Incorporated .........
Salomon Smith Barney Inc. ...........
---------
Total .............................. 3,500,000
=========
</TABLE>
The underwriters will purchase the shares pursuant to an underwriting
agreement with Maker. The underwriters will pay Maker the public offering price
less the underwriting discount specified on the cover page of this prospectus.
Maker estimates that its expenses for this offering will be $1,000,000. Certain
conditions contained in the underwriting agreement must be satisfied before the
underwriters are required to purchase the shares. The underwriters will
purchase either all of the shares or none of them.
The underwriters have advised Maker that they will offer the shares
directly to the public initially at the public offering price and to selected
dealers, who may include underwriters, at the public offering price less a
selling concession not to exceed $ per share. The underwriters may allow,
and these dealers may reallow, a concession not to exceed $ per share to
certain brokers and dealers. After the initial offering of the shares, the
underwriters may change the public offering price and other selling terms.
The underwriters will offer the shares subject to prior sale, withdrawal,
cancellation or modification of the offer of the shares without notice, and to
their receipt and acceptance of the shares. The underwriters may reject any
order to purchase shares.
Maker has granted the underwriters an option, exercisable not later than
30 days after the date of this prospectus, to purchase up to 525,000 additional
shares at the public offering price less the underwriting discount specified on
the cover page of this prospectus. To the extent that the underwriters exercise
this option, each of the underwriters will have a firm commitment, subject to
conditions, to purchase approximately the same percentage thereof that the
number of shares to be purchased by it shown in the above table bears to
3,500,000 shares, and Maker will be obligated to sell such shares to the
underwriters. The underwriters may exercise such option only to cover
over-allotments. If the underwriters exercise their option in full, the total
public offering price will be $ , the total underwriting discount will be
$ , and the total proceeds to Maker will be $ , before expenses.
Each of the officers and directors of Maker, and certain shareholders of
Maker, have agreed not to offer, sell or otherwise dispose of any shares of
common stock, directly or indirectly, or engage in hedging transactions with
respect to the common stock, for a period of 210 days with respect to one-third
of the shares, 180 days with respect to two-thirds of the shares, and 150 days
with respect to all shares, in each case after the date of this prospectus,
without the prior written consent of Lehman Brothers Inc. Stockholders who have
agreed to this lock-up arrangement hold an aggregate of 13,780,782 shares of
common stock and options to purchase an aggregate of 101,630 shares of common
stock. Maker has agreed not to sell or otherwise dispose of any shares of
common stock for a period of 180 days, subject to exceptions such as the
issuance of stock as consideration for the acquisition of businesses. Lehman
Brothers Inc. may, in its sole discretion and at any time without notice,
release all or any portion of the shares subject to such lock-up agreements.
See "Shares Eligible for Future Sale."
Prior to the offering, there has been no public market for the shares of
common stock. The initial public offering price will be negotiated by the
underwriters and Maker. The underwriters will consider, among other things and
in addition to prevailing market conditions, Maker's historical performance and
capital structure, estimates of business potential and earning prospects, an
overall assessment of Maker's management and the consideration of the above
factors in relation to market valuation of companies in related businesses.
52
Underwriting
<PAGE>
Application has been made to have the common stock approved for quotation
on the Nasdaq National Market under the symbol "MAKR."
Maker has agreed to indemnify the underwriters against certain
liabilities, including liabilities under the Securities Act, and to contribute,
under specified circumstances, to payments that the underwriters may be
required to make in respect thereof.
Until the distribution of the common stock is completed, rules of the
Securities and Exchange Commission may limit the ability of the underwriters
and certain selling group members to bid for and purchase shares of common
stock. As an exception to these rules, the underwriters are permitted to engage
in transactions that stabilize the price of the common stock. Such transactions
may consist of bids or purchases for the purposes of pegging, fixing or
maintaining the price of the common stock.
If the underwriters create a short position in the common stock in
connection with this offering (i.e., they sell more shares than are set forth
on the cover page of this prospectus), the underwriters may reduce that short
position by purchasing common stock in the open market. The underwriters also
may elect to reduce any short position by exercising all or part of their
over-allotment option.
The underwriters also may impose a penalty bid on certain underwriters and
selling group members. This means that if the underwriters purchase shares of
common stock in the open market to reduce the underwriters' short position or
to stabilize the price of the common stock, they may reclaim the amount of the
selling concession from the underwriters and selling group members who sold
those shares as part of this offering.
In general, purchases of a security for the purpose of stabilization or to
reduce a syndicate short position could cause the price of the security to be
higher than it might otherwise be in the absence of such purchases. The
imposition of a penalty bid might have an effect on the price of a security to
the extent that it were to discourage resales of the security by purchasers in
an offering.
Neither Maker nor any of the underwriters makes any representation or
prediction as to the direction or magnitude of any effect that the transactions
described above may have on the price of the common stock. In addition, neither
Maker nor any of the underwriters makes any representation that the
underwriters will engage in such transactions or that such transactions, once
commenced, will not be discontinued without notice.
Any offers in Canada will be made only pursuant to an exemption from the
requirements to file a prospectus in the relevant province of Canada in which
such sale is made.
Purchasers of the shares of common stock offered by this prospectus may be
required to pay stamp taxes and other charges under the laws and practices of
the country of purchase, in addition to the public offering price.
The underwriters have informed Maker that they do not intend to confirm
sales of shares of common stock to any accounts over which they exercise
discretionary authority in excess of 5% of the shares offered by them.
LEGAL MATTERS
The validity of the shares of common stock offered hereby will be passed
upon for Maker by Hutchins, Wheeler & Dittmar, A Professional Corporation,
Boston, Massachusetts. Richard M. Stein and Robert P. Sherman, each a
stockholder of Hutchins, Wheeler & Dittmar, own an aggregate of 15,132 shares
of common stock of Maker. Richard M. Stein is also the Assistant Secretary of
Maker. Certain legal matters in connection with the offering will be passed
upon for the underwriters by Testa, Hurwitz & Thibeault, LLP, Boston,
Massachusetts.
53
Underwriting/Legal Matters
<PAGE>
EXPERTS
The consolidated financial statements of Maker Communications, Inc. as of
December 31, 1997 and 1998 and for each of the three years in the period ending
December 31, 1998 included in this Prospectus and Registration Statement have
been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their report with respect thereto, and are included herein in
reliance upon the authority of said firm as experts in giving said reports.
WHERE YOU CAN FIND MORE INFORMATION
Maker has filed with the SEC a Registration Statement on Form S-1 under
the Securities Act with respect to the shares of common stock offered hereby.
This prospectus does not contain all of the information set forth in the
Registration Statement and the exhibits and schedules thereto. For further
information with respect to Maker and the common stock, reference is hereby
made to the Registration Statement and to the exhibits and schedules filed
therewith. Statements contained in this prospectus as to the contents of any
contract or any other document referred to are not necessarily complete, and in
each instance, reference is made to the copy of such contract or other document
filed as an exhibit to the Registration Statement, each such statement being
qualified in all respects by such reference. A copy of the Registration
Statement may be inspected by anyone without charge at the SEC's principal
office in Washington, D.C., and copies of all or any part of the Registration
Statement may be obtained from the Public Reference Section of the SEC, 450
Fifth Street, N.W., Washington, D.C. 20549, upon payment of certain fees
prescribed by the SEC. The SEC maintains a World Wide Web site that contains
reports, proxy and information statements and other information regarding
registrants that file electronically with the SEC. The address of the website
is http://www.sec.gov. The SEC's toll free investor information service can be
reached at 1-800-SEC-0330.
Upon completion of the offering, Maker will be subject to the information
reporting requirements of the Securities Exchange Act of 1934, as amended, and,
in accordance therewith, will file reports, proxy statements and other
information with the SEC.
Maker intends to furnish its stockholders with annual reports containing
financial statements audited by Maker's independent public accountants and
quarterly reports for the first three fiscal quarters of each fiscal year
containing unaudited interim financial information.
54
Experts/Where You Can Find More Information
<PAGE>
MAKER COMMUNICATIONS, INC. AND SUBSIDIARY
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
Page
-----
<S> <C>
Report of Independent Public Accountants ........................................... F-2
Consolidated Balance Sheets as of December 31, 1997 and 1998 and March 31, 1999
(unaudited) ....................................................................... F-3
Consolidated Statements of Operations for the Years Ended
December 31, 1996, 1997 and 1998 and the three months ended March 31, 1998 and 1999
(unaudited) ....................................................................... F-4
Consolidated Statements of Stockholders' Equity (Deficit) for the Years Ended
December 31, 1996, 1997 and 1998 and the three months ended March 31, 1999
(unaudited) ....................................................................... F-5
Consolidated Statements of Cash Flows for the Years Ended
December 31, 1996, 1997 and 1998 and the three months ended March 31, 1998 and 1999
(unaudited) ....................................................................... F-6
Notes to Consolidated Financial Statements ......................................... F-7
</TABLE>
F-1
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Stockholders and Board of Directors of
Maker Communications, Inc. and subsidiary:
We have audited the accompanying consolidated balance sheets of Maker
Communications, Inc. (a Delaware corporation) and subsidiary as of December 31,
1997 and 1998, and the related consolidated statements of operations,
stockholders' equity (deficit) and cash flows for each of the three years in
the period ended December 31, 1998. These financial statements are the
responsibility of Maker Communications Inc.'s management. Our responsibility is
to express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the financial position of Maker
Communications, Inc. and subsidiary as of December 31, 1997 and 1998, and the
results of their operations and their cash flows for each of the three years in
the period ended December 31, 1998, in conformity with generally accepted
accounting principles.
/s/ ARTHUR ANDERSEN LLP
Boston, Massachusetts
February 10, 1999
F-2
<PAGE>
Maker Communications, Inc. and Subsidiary
Consolidated Balance Sheets
(In thousands, except share and per share amounts)
<TABLE>
<CAPTION>
December 31, March 31, 1999
----------------------- -------------------------
Pro forma
1997 1998 Actual (Note 2(c))
---------- ------------ ------------ ------------
(unaudited)
<S> <C> <C> <C> <C>
Assets
Current assets:
Cash and cash equivalents ....................................... $ 10,865 $ 13,615 $ 14,275 $ 14,275
Accounts receivable, net of reserve of $90,000 at
December 31, 1998, March 31, 1999 and pro forma
March 31, 1999 ................................................ 330 932 923 923
Inventory ....................................................... 150 296 502 502
Prepaid expenses and other current assets ....................... 250 106 123 123
-------- --------- --------- ---------
Total current assets .......................................... 11,595 14,949 15,823 15,823
Property and equipment, less accumulated depreciation
and amortization ................................................ 703 952 1,121 1,121
Other assets ..................................................... 99 56 319 319
-------- --------- --------- ---------
Total assets .................................................. $ 12,397 $ 15,957 $ 17,263 $ 17,263
======== ========= ========= =========
Liabilities, Redeemable Preferred Stock and Stockholders' Equity (Deficit)
Current liabilities:
Current portion of note payable to a bank ....................... $ 145 $ 308 $ 525 $ 525
Accounts payable ................................................ 203 412 377 377
Accrued expenses ................................................ 544 1,820 2,224 2,224
Deferred revenue ................................................ 54 181 170 170
-------- --------- --------- ---------
Total current liabilities ...................................... 946 2,721 3,296 3,296
Note payable to a bank, less current portion ..................... 290 642 803 803
Convertible note payable (Note 6) ................................ -- 500 500 --
Commitments and contingencies (Note 9)
Redeemable preferred stock, at redemption value (Note 7) ......... 18,795 23,440 23,890 8,635
Stockholders' equity (deficit) (Note 8):
Junior convertible preferred stock, $.01 par value--
Authorized--3,154,000 shares at December 31, 1997 and
1998 and March 31, 1999; no shares pro forma
Issued and outstanding--3,154,000 shares at December 31,
1997 and 1998 and March 31, 1999; no shares pro forma 32 32 32 --
Common stock, $.01 par value--
Authorized--15,195,710, 17,174,670, 17,174,670 and
100,000,000 shares at December 31, 1997 and 1998,
March 31, 1999 and pro forma March 31, 1999,
respectively
Issued and outstanding--5,402,400, 5,882,490, 6,098,800 and
13,932,233 shares at December 31, 1997 and 1998,
March 31, 1999 and pro forma March 31, 1999,
respectively ................................................. 54 59 61 139
Additional paid-in capital ...................................... 1 68 198 15,907
Accumulated deficit ............................................. (7,721) (11,505) (11,517) (11,517)
-------- --------- --------- ---------
Total stockholders' equity (deficit) .......................... (7,634) (11,346) (11,226) 4,529
-------- --------- --------- ---------
Total liabilities, redeemable preferred stock and
stockholders' equity (deficit) ............................. $ 12,397 $ 15,957 $ 17,263 $ 17,263
======== ========= ========= =========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-3
<PAGE>
Maker Communications, Inc. and Subsidiary
Consolidated Statements of Operations
(In thousands, except share and per share amounts)
<TABLE>
<CAPTION>
Three Months Ended
Year Ended December 31, March 31,
----------------------------------------- ---------------------------
1996 1997 1998 1998 1999
------------- ------------- ------------- ------------- -------------
(unaudited)
<S> <C> <C> <C> <C> <C>
Revenues:
Product ............................ $ 101 $ 1,231 $ 6,309 $ 758 $ 2,723
Software and maintenance ........... 241 543 1,385 261 439
--------- --------- ---------- --------- ----------
Total revenues ................... 342 1,774 7,694 1,019 3,162
Cost of revenues .................... 329 1,031 3,238 486 1,043
--------- --------- ---------- --------- ----------
Gross profit ........................ 13 743 4,456 533 2,119
--------- --------- ---------- --------- ----------
Operating expenses:
Research and development ........... 1,198 2,727 4,171 894 1,341
Selling and marketing .............. 332 883 2,078 443 515
General and administrative ......... 373 751 1,299 341 394
Litigation ......................... -- 462 1,118 171 --
--------- --------- ---------- --------- ----------
Total operating expenses ......... 1,903 4,823 8,666 1,849 2,250
--------- --------- ---------- --------- ----------
Loss from operations ................ (1,890) (4,080) (4,210) (1,316) (131)
Interest income ..................... 51 212 538 133 160
Interest expense .................... (132) (33) (82) (10) (41)
--------- --------- ---------- --------- ----------
Net loss ......................... $ (1,971) $ (3,901) $ (3,754) $ (1,193) $ (12)
========= ========= ========== ========= ==========
Net loss per share (Note 2(e)):
Basic and diluted
net loss per share ............... $ (1.30) $ (0.72) $ (0.66) $ (0.22) $ (0.00)
Basic and diluted
weighted average common shares
outstanding ...................... 1,515,998 5,383,080 5,646,822 5,418,506 5,967,190
Pro forma net loss per share
(Note 2(e)):
Pro forma basic and diluted
net loss per share ......................................... $ (0.31) $ (0.00)
Pro forma basic and diluted
weighted average common shares outstanding ................. 12,229,795 13,651,760
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-4
<PAGE>
Maker Communications, Inc. and Subsidiary
Consolidated Statements of Stockholders' Equity (Deficit)
(In thousands, except share and per share amounts)
<TABLE>
<CAPTION>
Junior Convertible
Preferred Stock Common Stock
-------------------------- --------------------------
Number $.01 Par Number $.01 Par
of Shares Value of Shares Value
--------------- ---------- --------------- ----------
<S> <C> <C> <C> <C>
Balance, January 1, 1996 ................ -- $ -- -- $ --
Delaware reincorporation,
exchange of no par value
common stock for $.01 par value
common stock .......................... -- -- 4,019,654 40
Conversion of $.01 par value
common stock to junior
convertible preferred stock ........... 4,019,654 40 (4,019,654) (40)
Issuance of common stock ............... -- -- 5,359,134 54
Offering costs related to the
issuance of Class A redeemable
preferred stock ....................... -- -- -- --
Repurchase and retirement of
junior convertible preferred stock (865,654) (8) -- --
Exercise of employee stock option....... -- -- 19,040 --
Net loss ............................... -- -- -- --
--------- ------- ---------- -----
Balance, December 31, 1996 .............. 3,154,000 32 5,378,174 54
Offering costs related to the
issuance of Class B redeemable
convertible preferred stock ........... -- -- -- --
Conversion of note payable into
common stock .......................... -- -- 20,866 --
Exercise of employee stock options...... -- -- 3,360 --
Net loss ............................... -- -- -- --
--------- ------- ---------- -----
Balance, December 31, 1997 .............. 3,154,000 32 5,402,400 54
Offering costs related to the
issuance of Class C redeemable
convertible preferred stock ........... -- -- -- --
Exercise of employee stock options...... -- -- 480,090 5
Net loss ............................... -- -- -- --
--------- ------- ---------- -----
Balance, December 31, 1998 .............. 3,154,000 32 5,882,490 59
Exercise of employee stock options
(unaudited) ........................... -- -- 216,310 2
Net loss (unaudited) ................... -- -- -- --
--------- ------- ---------- -----
Balance, March 31, 1999 (unaudited) ..... 3,154,000 32 6,098,800 61
Conversion of Class B redeemable
convertible preferred stock into
common stock (unaudited) .............. -- -- 3,416,575 34
Conversion of Class C redeemable
convertible preferred stock into
common stock (unaudited) .............. -- -- 1,137,858 11
Conversion of junior convertible
preferred stock into common
stock (unaudited) ..................... (3,154,000) (32) 3,154,000 32
Conversion of convertible note
payable into common stock
(unaudited) ........................... -- -- 125,000 1
---------- ------- ---------- -----
Pro forma balance, March 31, 1999
(unaudited) (Note 2(c)) ................. -- $ -- 13,932,233 $ 139
========== ======= ========== =====
<CAPTION>
Common Stock Total
-------------------- Additional Stockholders'
Number No Par Paid-In Accumulated Equity
of Shares Value Capital Deficit (Deficit)
----------- -------- ------------ ------------- --------------
<S> <C> <C> <C> <C> <C>
Balance, January 1, 1996 ................ 1,000 $ 1 $ -- $ (1,017) $(1,016)
Delaware reincorporation,
exchange of no par value
common stock for $.01 par value
common stock .......................... (1,000) (1) -- (39) --
Conversion of $.01 par value
common stock to junior
convertible preferred stock ........... -- -- -- -- --
Issuance of common stock ............... -- -- -- -- 54
Offering costs related to the
issuance of Class A redeemable
preferred stock ....................... -- -- -- (64) (64)
Repurchase and retirement of
junior convertible preferred stock -- -- -- (667) (675)
Exercise of employee stock option....... -- -- 1 -- 1
Net loss ............................... -- -- -- (1,971) (1,971)
------ ----- ------- -------- -------
Balance, December 31, 1996 .............. -- -- 1 (3,758) (3,671)
Offering costs related to the
issuance of Class B redeemable
convertible preferred stock ........... -- -- -- (62) (62)
Conversion of note payable into
common stock .......................... -- -- -- -- --
Exercise of employee stock options...... -- -- -- -- --
Net loss ............................... -- -- -- (3,901) (3,901)
------ ----- ------- -------- -------
Balance, December 31, 1997 .............. -- -- 1 (7,721) (7,634)
Offering costs related to the
issuance of Class C redeemable
convertible preferred stock ........... -- -- -- (30) (30)
Exercise of employee stock options...... -- -- 67 -- 72
Net loss ............................... -- -- -- (3,754) (3,754)
------ ----- ------- -------- -------
Balance, December 31, 1998 .............. -- -- 68 (11,505) (11,346)
Exercise of employee stock options
(unaudited) ........................... -- -- 130 -- 132
Net loss (unaudited) ................... -- -- -- (12) (12)
------ ----- ------- -------- -------
Balance, March 31, 1999 (unaudited) ..... -- -- 198 (11,517) (11,226)
Conversion of Class B redeemable
convertible preferred stock into
common stock (unaudited) .............. -- -- 10,215 -- 10,249
Conversion of Class C redeemable
convertible preferred stock into
common stock (unaudited) .............. -- -- 4,995 -- 5,006
Conversion of junior convertible
preferred stock into common
stock (unaudited) ..................... -- -- -- -- --
Conversion of convertible note
payable into common stock
(unaudited) ........................... -- -- 499 -- 500
------ ----- ------- -------- -------
Pro forma balance, March 31, 1999
(unaudited) (Note 2(c)) ................. -- $-- $15,907 $(11,517) $ 4,529
====== ===== ======= ======== =======
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-5
<PAGE>
Maker Communications, Inc. and Subsidiary
Consolidated Statements of Cash Flows
(In thousands)
<TABLE>
<CAPTION>
Three Months
Year Ended December 31, Ended March 31,
---------------------------------------- ------------------------
1996 1997 1998 1998 1999
------------ -------------- ------------ ------------ -----------
(unaudited)
<S> <C> <C> <C> <C> <C>
Cash Flows from Operating Activities:
Net loss ...................................................... $ (1,971) $(3,901) $(3,754) $(1,193) $ (12)
Adjustments to reconcile net loss to net cash (used in)
provided by operating activities--
Depreciation and amortization ................................. 132 211 410 98 132
Issuance of convertible note payable in settlement of
litigation .................................................. -- -- 500 -- --
Changes in operating assets and liabilities--
Accounts receivable ......................................... (205) (125) (602) (10) 9
Inventory ................................................... (54) (96) (146) (82) (206)
Prepaid expenses and other current assets ................... (11) (229) 144 166 (17)
Accounts payable ............................................ 58 119 209 144 (35)
Accrued expenses ............................................ 5 445 1,276 145 404
Deferred revenue ............................................ 58 (4) 127 110 (11)
-------- ---------- ------- ------- -------
Net cash (used in) provided by operating activities ......... (1,988) (3,580) (1,836) (622) 264
-------- --------- ------- ------- -------
Cash Flows from Investing Activities:
Purchase of property and equipment ............................ (206) (587) (659) (246) (301)
(Increase) decrease in other assets ........................... -- (93) 43 46 (263)
-------- --------- ------- ------- -------
Net cash used in investing activities ....................... (206) (680) (616) (200) (564)
-------- --------- ------- ------- -------
Cash Flows from Financing Activities:
Borrowings under note payable to a bank ....................... -- 436 689 -- 450
Payments on note payable to a bank ............................ -- -- (174) (44) (72)
Proceeds from note payable to stockholders .................... 1,600 -- -- -- --
Payment of note payable to stockholders ....................... (2,825) -- -- -- --
Proceeds from issuance of common stock ........................ 54 -- -- -- --
Repurchase of junior convertible preferred stock .............. (675) -- -- -- --
Net proceeds from issuance of Class A redeemable
preferred stock ............................................. 8,537 -- -- -- --
Net proceeds from issuance of Class B redeemable
convertible preferred stock ................................. -- 10,098 89 -- --
Net proceeds from issuance of Class C redeemable
convertible preferred stock ................................. -- -- 4,526 -- 450
Proceeds from exercise of stock options ....................... 1 -- 72 2 132
-------- --------- ------- ------- -------
Net cash (used in) provided by financing activities ......... 6,692 10,534 5,202 (42) 960
-------- --------- ------- ------- -------
Net increase (decrease) in cash and cash equivalents ........... 4,498 6,274 2,750 (864) 660
Cash and cash equivalents, beginning of period ................. 93 4,591 10,865 10,865 13,615
-------- --------- ------- ------- -------
Cash and cash equivalents, end of period ....................... $ 4,591 $10,865 $13,615 $10,001 $14,275
======== ========= ======= ======= =======
Supplemental Disclosure of Cash Flow Information:
Cash paid during the year for interest ........................ $ 176 $ 129 $ 65 $ 10 $ 32
======== ========= ======= ======= =======
Supplemental Disclosure of Noncash Financing Activity:
Conversion of note payable into common stock and
Class A redeemable preferred stock .......................... $ -- $ 34 $ -- $ -- $ --
======== ========= ======= ======= =======
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-6
<PAGE>
Maker Communications, Inc. and Subsidiary
Notes to Consolidated Financial Statements
(including data applicable to unaudited periods)
(1) Nature of Operations
Maker Communications, Inc. (Maker), a Delaware corporation, was founded in
1994. Maker is a fabless semiconductor company that develops and markets
high-performance programmable communications processors, development tools and
application software for use in communications systems equipment. Maker sells
its products to telecommunications and data networking vendors based primarily
in North America.
In 1998, Maker established a wholly owned subsidiary, Maker Communications
Securities Corporation, which is a qualified Massachusetts securities
corporation.
(2) Significant Accounting Policies
The accompanying financial statements reflect the application of certain
significant accounting policies as described in this note and elsewhere in the
accompanying consolidated financial statements and notes.
(a) Principles of Consolidation
The accompanying consolidated financial statements include the accounts of
Maker and its wholly owned subsidiary. All significant intercompany balances
have been eliminated in consolidation.
(b) Interim Financial Statements
The accompanying consolidated balance sheet as of March 31, 1999, and the
statements of operations and cash flows for the three months ended March 31,
1998 and 1999, and the statement of stockholders' equity (deficit) for the
three months ended March 31, 1999 are unaudited, but in the opinion of
management, include all adjustments, consisting of normal recurring
adjustments, necessary for a fair presentation of results for these interim
periods. Certain information and footnote disclosures normally included in
financial statements prepared in accordance with generally accepted accounting
principles have been omitted, although Maker believes that the disclosures
included are adequate to make the information presented not misleading. The
results of operations for the three months ended March 31, 1999, are not
necessarily indicative of the results to be expected for the entire fiscal
year.
(c) Unaudited Pro Forma Presentation
The unaudited pro forma consolidated balance sheet as of March 31, 1999
and the pro forma net loss per share for the three months ended March 31, 1999
reflect the automatic conversion of all outstanding shares of Class B and Class
C redeemable convertible preferred stock and junior convertible preferred stock
into 7,708,433 shares of common stock, which will occur upon the closing of
Maker's proposed initial public offering and the conversion of the convertible
note payable into 125,000 shares of common stock to occur prior to or upon the
closing of the proposed initial public offering (see Note 6).
(d) Revenue Recognition
Revenue derived from the sale of processors is recognized upon shipment.
Provisions are made at that time for any applicable warranty costs expected to
be incurred. Revenue from software license agreements is recognized upon
execution of a license agreement and delivery of the software, provided that
the fee is fixed or determinable and deemed collectible by management. Revenue
from software maintenance agreements is recognized ratably over the term of the
maintenance period, which is typically one year. Amounts collected or billed
prior to satisfying the above revenue recognition criteria are reflected as
deferred revenue. Maker recognizes software revenue in accordance with the
provisions of Statement of Position (SOP) No. 97-2, Software Revenue
Recognition.
(e) Net Loss Per Share
Basic and diluted net loss per common share was determined by dividing net
loss by the weighted average common shares outstanding during the period. Basic
and diluted net loss per share are the same, as
F-7
<PAGE>
Maker Communications, Inc. and Subsidiary
Notes to Consolidated Financial Statements (Continued)
(including data applicable to unaudited periods)
outstanding common stock options, convertible preferred stock and the
convertible note payable are antidilutive as Maker has recorded a net loss for
all periods presented. Options to purchase a weighted total of 71,585, 491,772,
1,502,553, 1,045,690 and 1,930,358 common shares have been excluded from the
computation of diluted weighted average shares outstanding for the years ended
December 31, 1996, 1997 and 1998 and the three months ended March 31, 1998 and
1999, respectively. Shares of common stock issuable upon the conversion of
outstanding convertible preferred stock and the convertible note payable have
also been excluded for all periods presented. In accordance with the SEC Staff
Accounting Bulletin No. 98, Earnings Per Share in an Initial Public Offering,
the Company determined that there were no nominal issuances of the Company's
common stock prior to the Company's planned initial public offering.
The calculation of pro forma net loss per common share assumes that all
Class B and Class C redeemable convertible preferred stock and junior
convertible preferred stock had been converted to common stock as of the
issuance date.
(f) Cost of Revenues
Cost of revenues includes the cost of purchasing fully assembled, tested
and packaged communications processors from Maker's independent foundries,
production related expenses, warranty, and quality assurance for those
products, as well as costs of personnel associated with supporting Maker's
customers. Cost of revenues also includes software costs, consisting of the
cost of the media on which it is delivered, which amounts are not significant.
(g) Cash and Cash Equivalents
Cash equivalents consist of short-term, highly liquid investments with
original maturity dates of ninety days or less. Cash equivalents are carried at
cost, which approximates their fair market value.
(h) Inventory
Inventory, which consists of finished goods, is stated at the lower of
cost (first-in, first-out) or market.
(i) Property and Equipment
Property and equipment are stated at cost, net of accumulated depreciation
and amortization. Maker provides for depreciation and amortization using the
straight-line method to allocate the cost of property and equipment over their
estimated useful lives as follows:
<TABLE>
<CAPTION>
Estimated
Asset Classification Useful Life
- ----------------------------------- --------------
<S> <C>
Computer equipment ............. 3 years
Computer software .............. 3 years
Furniture and fixtures ......... 5 years
Leasehold improvements ......... Life of lease
</TABLE>
Property and equipment at December 31, 1997 and 1998 and March 31, 1999
consisted of the following (in thousands):
<TABLE>
<CAPTION>
December 31, March 31,
-------------------- ----------
1997 1998 1999
-------- --------- ----------
<S> <C> <C> <C>
Computer equipment ............... $ 634 $1,236 $1,420
Computer software ................ 372 422 455
Furniture and fixtures ........... 51 53 84
Leasehold improvements ........... 43 48 101
------ ------ ------
1,100 1,759 2,060
Less--accumulated depreciation and
amortization .................... (397) (807) (939)
------ ------ ------
$ 703 $ 952 $1,121
====== ====== ======
</TABLE>
F-8
<PAGE>
Maker Communications, Inc. and Subsidiary
Notes to Consolidated Financial Statements (Continued)
(including data applicable to unaudited periods)
(j) Software Development Costs
In accordance with Statement of Financial Accounting Standards (SFAS) No.
86, Accounting for the Costs of Computer Software To Be Sold, Leased or
Otherwise Marketed, Maker has evaluated the establishment of technological
feasibility of its various products during the development phase. Due to the
dynamic changes in the market, Maker has concluded that it cannot determine
technological feasibility until the development phase of the project is nearly
complete. The time period during which costs could be capitalized from the
point of reaching technological feasibility until the time of general product
release is very short and, consequently, the amounts that could be capitalized
are not material to Maker's financial position or results of operations.
Therefore, Maker charges all research and development expenses to operations in
the period incurred.
(k) Income Taxes
Maker accounts for income taxes in accordance with the provisions of SFAS
No. 109, Accounting For Income Taxes. This statement requires Maker to
recognize a current tax asset or liability for current taxes payable or
refundable and to record a deferred tax asset or liability for the estimated
future tax effects of temporary differences and carry forwards to the extent
they are realizable. A deferred tax provision or benefit results from the net
change in deferred tax assets and liabilities during the year. A deferred tax
valuation allowance is required if it is more likely than not that all or a
portion of the recorded deferred tax assets will not be realized.
(l) Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and use
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and reported amounts of revenues and expenses during the reporting
period. Actual results could differ from those estimates.
(m) Concentration of Credit Risk
Maker has no significant off-balance-sheet concentrations of credit risk
such as foreign exchange contracts, option contracts or other foreign hedging
arrangements. Financial instruments that potentially subject Maker to
concentrations of credit risk are principally cash equivalents, accounts
receivable, accounts payable, notes payable and redeemable preferred stock.
Concentration of credit risk with respect to accounts receivable is limited to
certain customers to whom Maker makes substantial sales. Maker performs
periodic credit evaluations of its customers and generally does not require
collateral. Maker has $90,000 in allowances for estimated losses at December
31, 1998 and March 31, 1999.
The following table summarizes the number of customers that individually
comprise greater than 10% of total accounts receivable and their aggregate
percentage of Maker's total accounts receivable.
<TABLE>
<CAPTION>
Percent of
Total
Number of Accounts
Customers Receivable
----------- -----------
<S> <C> <C>
December 31, 1997 ......... 5 77%
December 31, 1998 ......... 3 58%
March 31, 1999 ............ 2 44%
</TABLE>
F-9
<PAGE>
Maker Communications, Inc. and Subsidiary
Notes to Consolidated Financial Statements (Continued)
(including data applicable to unaudited periods)
(n) Fair Value of Financial Instruments
Financial instruments consist principally of cash and cash equivalents,
accounts receivable, accounts payable, notes payable and redeemable preferred
stock. The estimated fair value of these instruments approximates their
carrying value.
(o) Stock-Based Compensation
SFAS No. 123, Accounting for Stock-Based Compensation, requires the
measurement of the fair value of stock options or warrants to be included in
the consolidated statement of operations or disclosed in the notes to
consolidated financial statements. Maker has determined that it will account
for stock-based compensation for employees under the intrinsic value-based
method of the Accounting Principles Board Opinion (APB) No. 25, Accounting for
Stock Issued to Employees, and elect the disclosure-only alternative under SFAS
No. 123.
(p) Comprehensive Income
In June 1997, the Financial Accounting Standards Board (FASB) issued SFAS
No. 130, Reporting Comprehensive Income. Maker does not have any components of
comprehensive income except its reported net loss.
(3) Accrued Expenses
Accrued expenses at December 31, 1997 and 1998 and March 31, 1999
consisted of the following (in thousands):
<TABLE>
<CAPTION>
December 31,
------------------ March 31,
1997 1998 1999
------ --------- ----------
<S> <C> <C> <C>
Payroll and related costs ......... $204 $ 520 $ 658
Production costs .................. -- 231 234
Warranty .......................... 16 140 140
Other ............................. 324 929 1,192
---- ------ ------
$544 $1,820 $2,224
==== ====== ======
</TABLE>
(4) Income Taxes
No provision for federal or state income taxes has been recorded, as Maker
incurred net operating losses for all periods presented. As of December 31,
1998, Maker has net operating loss carryforwards of approximately $8,710,000
available to reduce future federal and state income taxes, if any. Maker also
has available federal tax credits of approximately $330,000 expiring through
2010. If not utilized, these carryforwards expire at various dates through
2018. If substantial changes in Maker's ownership should occur, as defined by
Section 382 of the Internal Revenue Code (the Code), there could be annual
limitations on the amount of carryforwards which can be realized in future
periods. Maker has completed several financings since its inception and has
incurred an ownership change as defined under the Code. The Company does not
believe that this change in ownership will have a material impact on its
ability to utilize its net operating loss and tax credit carryforwards.
F-10
<PAGE>
Maker Communications, Inc. and Subsidiary
Notes to Consolidated Financial Statements (Continued)
(including data applicable to unaudited periods)
Net deferred tax assets consist of the following:
<TABLE>
<CAPTION>
December 31,
-------------------------
1997 1998
----------- -----------
(In thousands)
<S> <C> <C>
Net operating loss carryforwards ............ $ 2,002 $ 3,507
Nondeductible expenses and reserves ......... 300 550
-------- --------
2,302 4,057
Valuation allowance ......................... (2,302) (4,057)
-------- --------
$ -- $ --
======== ========
</TABLE>
Due to the uncertainty surrounding Maker's ability to utilize its net
operating loss carryforwards, Maker has provided a full valuation allowance
against its otherwise recognizable deferred tax asset at December 31, 1997 and
1998.
(5) Notes Payable to a Bank
(a) Working Capital Line of Credit
On February 18, 1997, Maker entered into a working capital line of credit
of $1,000,000 with a bank. On May 12, 1998 and on February 3, 1999, Maker
entered into loan modification agreements with the bank whereby the working
capital line of credit was increased to $2,000,000 and $2,500,000,
respectively. Borrowings bear interest at the bank's prime rate (7.75% at
December 31, 1998) plus .25%. The line of credit is collateralized by
substantially all assets of Maker. The line of credit expires in February 2000.
Maker had no borrowings under the working capital line of credit as of December
31, 1998 and March 31, 1999.
(b) Capital Expenditure Line of Credit
Maker has borrowings under a modified equipment line of credit facility
with the same bank. Borrowings are payable over a 30 to 39 month period and
bear interest at the bank's prime rate (7.75% at December 31, 1998) plus .25%
to prime plus 1.0%. In 1999, Maker borrowed an additional $450,000 under its
existing equipment line of credit facility. On February 3, 1999, Maker entered
into a loan modification agreement with the bank that provided Maker with an
additional $1,000,000 of borrowing availability under its capital expenditure
line of credit. As of March 31, 1999, Maker had $1,000,000 available under the
modified equipment line of credit. All borrowings under the equipment line of
credit are collateralized by substantially all assets of Maker. Under these
agreements, Maker is required to comply with certain restrictive covenants. As
of December 31, 1998 and March 31, 1999, Maker was in compliance with all such
covenants.
The maturities under the capital expenditure lines of credit as of March
31, 1999 are as follows:
<TABLE>
<CAPTION>
(In thousands)
---------------
<S> <C>
1999 (nine months) .......... $ 393
2000 ........................ 438
2001 ........................ 351
2002 ........................ 146
------
$1,328
======
</TABLE>
(6) Convertible Note Payable
In July 1998, Maker issued a $500,000 convertible note payable to LSI
Logic Corporation (LSI) which accrues interest at an annual rate of 6.5%. All
principal and interest is due on June 30, 2001. Upon the occurrence of certain
events, LSI may convert the principal of the note into fully paid and
F-11
<PAGE>
Maker Communications, Inc. and Subsidiary
Notes to Consolidated Financial Statements (Continued)
(including data applicable to unaudited periods)
nonassessable shares of common stock of Maker at the lesser of $4.00 per share,
subject to certain dilutive events, as defined, or the subsequent sale price
per share of common stock issued by Maker in which the aggregate gross proceeds
received by Maker is at least $1,000,000. In April 1999, LSI notified Maker of
its intention to convert the note to 125,000 shares of Maker's common stock.
Such conversion will occur prior to or upon the closing of the proposed initial
public offering.
(7) Redeemable Preferred Stock
(a) Class A Redeemable Preferred Stock
In September 1996, Maker authorized the issuance of up to 5,380,000 shares
of Class A redeemable preferred stock, $.01 par value and issued 5,359,134
shares at $1.605 per share resulting in net proceeds of approximately
$8,537,000. In October 1997, Maker issued an additional 20,866 shares of Class
A redeemable preferred stock at $1.605 per share in exchange for the conversion
of a note payable to a stockholder in the amount of approximately $34,000.
These shares are nonvoting, nonconvertible and have dividend rights superior to
junior convertible preferred stock, Class B redeemable convertible preferred
stock, Class C redeemable convertible preferred stock and common stock. The
Class A redeemable preferred stock has a liquidation preference of $1.605 per
share plus all declared but unpaid dividends. As of December 31, 1998 and March
31, 1999, the preference in liquidation and redemption value was approximately
$8,635,000. Class A redeemable preferred stock is redeemable according to the
following terms in order of occurrence: (i) upon the change in control of
Maker, as defined, (ii) 90 days following the completion of a qualified initial
public offering, as defined, or (iii) in three annual installments commencing
on September 30, 2002.
(b) Class B Redeemable Convertible Preferred Stock
In October 1997, Maker authorized the issuance of up to 3,416,670 shares
of Class B redeemable convertible preferred stock, $.01 par value, and issued
3,386,675 shares at $3.00 per share resulting in net proceeds of approximately
$10,098,000. In July 1998, Maker issued an additional 29,900 shares resulting
in net proceeds of approximately $89,000. These shares are convertible into
common stock at the rate of one share of common stock for each share of
preferred stock, adjustable for certain dilutive events. Conversion is
automatic upon the closing of an initial public offering of common stock at a
per share price of at least $6.75 and resulting in aggregate proceeds to Maker
of at least $20,000,000. These shares have dividend rights superior to junior
convertible preferred stock and common stock and similar to the Class C
redeemable convertible preferred stock. The Class B redeemable convertible
preferred stock has a liquidation preference of $3.00 per share plus all
declared but unpaid dividends. As of December 31, 1998 and March 31, 1999, the
preference in liquidation and redemption value was approximately $10,249,000.
Class B redeemable convertible preferred stock is redeemable at the option of
the holder according to the following terms in order of occurrence: (i) upon
the change in control of Maker, as defined, or (ii) in three annual
installments commencing on September 30, 2002.
(c) Class C Redeemable Convertible Preferred Stock
In December 1998, Maker authorized the issuance of up to 1,138,000 shares
of Class C redeemable convertible preferred stock and issued 1,035,586 shares
at $4.40 per share resulting in net proceeds of approximately $4,526,000. In
January 1999, Maker sold an additional 102,272 shares of Class C redeemable
convertible preferred stock at $4.40 per share, resulting in net proceeds to
Maker of approximately $450,000. These shares are convertible into common stock
at the rate of one share of common stock for each share of preferred stock,
adjustable for certain dilutive events. Conversion is automatic upon the
closing of an initial public offering of common stock at a per share price of
at least $6.75 and resulting in aggregate proceeds to Maker of at least
$20,000,000. These shares have dividend rights superior to junior convertible
preferred
F-12
<PAGE>
Maker Communications, Inc. and Subsidiary
Notes to Consolidated Financial Statements (Continued)
(including data applicable to unaudited periods)
stock and common stock and similar to Class B redeemable convertible preferred
stock. The Class C redeemable convertible preferred stock has a liquidation
preference of $4.40 per share plus all declared but unpaid dividends. As of
December 31, 1998 and March 31, 1999, the preference in liquidation and
redemption value was approximately $4,556,000 and $5,006,000, respectively.
Class C convertible preferred stock is redeemable at the option of the holder
according to the following terms in order of occurrence: (i) upon the change in
control of Maker, as defined, or (ii) in three annual installments commencing
on September 30, 2002.
The following table summarizes the activity for the Class A, Class B and
Class C redeemable preferred stock (in thousands, except share amounts):
<TABLE>
<CAPTION>
Class B Redeemable Class C Redeemable
Class A Redeemable Convertible Convertible
Preferred Stock Preferred Stock Preferred Stock
------------------------ ------------------------ ------------------------
Total
Number of Redemption Number of Redemption Number of Redemption Redemption
Shares Value Shares Value Shares Value Value
----------- ------------ ----------- ------------ ----------- ------------ -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance, January 1, 1996 ........... -- $ -- -- $ -- -- $ -- $ --
Issuance of Class A Redeemable
Preferred Stock .................. 5,359,134 8,601 -- -- -- -- 8,601
--------- ------ -- ------- -- ------ -------
Balance, December 31, 1996 ......... 5,359,134 8,601 -- -- -- -- 8,601
Issuance of Class B Convertible
Preferred Stock .................. -- -- 3,386,675 10,160 -- -- 10,160
Conversion of note payable into
Class A Redeemable Preferred
Stock ............................ 20,866 34 -- -- -- -- 34
--------- ------ --------- ------- -- ------ -------
Balance, December 31, 1997 ......... 5,380,000 8,635 3,386,675 10,160 -- -- 18,795
Issuance of Class B Convertible
Preferred Stock .................. -- -- 29,900 89 -- -- 89
Issuance of Class C Convertible
Preferred Stock .................. -- -- -- -- 1,035,586 4,556 4,556
--------- ------ --------- ------- --------- ------ -------
Balance, December 31, 1998 ......... 5,380,000 8,635 3,416,575 10,249 1,035,586 4,556 23,440
Issuance of Class C Convertible
Preferred Stock .................. -- -- -- -- 102,272 450 450
--------- ------ --------- ------- --------- ------ -------
Balance, March 31, 1999 ............ 5,380,000 $8,635 3,416,575 $10,249 1,137,858 $5,006 $23,890
========= ====== ========= ======= ========= ====== =======
</TABLE>
(8) Stockholders' Equity (Deficit)
(a) Common Stock
In 1998, Maker increased the authorized shares of common stock to
17,174,670. Upon completion of the proposed initial public offering, the
authorized capital stock will be 100,000,000 shares of common stock and
1,000,000 shares of preferred stock. As of March 31, 1999, Maker had reserved
3,416,575, 1,137,858 and 3,154,000 shares of common stock for the conversion of
Class B convertible preferred stock, Class C convertible preferred stock and
junior convertible preferred stock, respectively.
(b) Junior Convertible Preferred Stock
In 1996, Maker authorized 4,019,654 shares of junior convertible preferred
stock $0.01 par value. In September 1996, each outstanding share of $.01 par
value common stock, totaling 4,019,654 shares, was exchanged for one share of
junior convertible preferred stock. In October 1996, Maker repurchased and
retired 865,654 shares of junior convertible preferred stock.
The junior convertible preferred stock is subordinate to Class A
redeemable preferred stock and Class B convertible preferred stock and Class C
convertible preferred stock and superior to common
F-13
<PAGE>
Maker Communications, Inc. and Subsidiary
Notes to Consolidated Financial Statements (Continued)
(including data applicable to unaudited periods)
stock in regard to liquidation. Junior convertible preferred stock is
optionally redeemable by Maker at a price of $0.005 per share subsequent to the
redemption of the Class A redeemable preferred stock. Each share of junior
convertible preferred stock may, at the option of the holder, be converted to
one share of common stock, as adjusted for certain events.
Conversion will occur automatically upon the completion of an initial
public offering at a per share price of at least $6.75 and resulting in
aggregate proceeds to Maker of at least $20,000,000. Voting rights are provided
to junior convertible preferred stock in proportion to the number of shares of
common stock that would be received upon conversion.
(c) Stock Plans
1996 Option Plan
During 1996, the Board of Directors approved the 1996 Stock Option Plan
(the 1996 Plan). The Board of Directors has reserved 3,876,000 shares of common
stock for issuance under the 1996 Plan. Options issued under the 1996 Plan may
be either incentive stock options or nonqualified stock options at the
discretion of the Board of Directors. Options may be granted to key employees,
officers, consultants and advisers of Maker. Options expire up to 10 years from
the date of grant or as determined by the Board of Directors. Options vest over
a term to be established by the Board of Directors at the date of grant. Under
the 1996 Plan, at the option of the Board of Directors, certain option grants
may be immediately exercisable but subject to a right of repurchase at cost at
the option of the Board of Directors, pursuant to the vesting schedule of such
grant. In addition, upon a change in control of Maker, as defined, the
exercisability of options due to vest during the following twelve month period
are automatically accelerated. Upon the effectiveness of the Company's 1999
Incentive Stock Plan, no further options shall be granted under the 1996 Plan.
1999 Incentive Stock Plan
In April 1999, the Board of Directors approved the 1999 Incentive Stock
Plan (1999 Plan) permitting the grant of stock options, which may be either
incentive stock or nonqualified options and stock awards. This plan will be
effective upon the successful closing of Maker's proposed initial public
offering. The maximum number of shares of Maker's common stock available for
stock options and stock awards granted under the 1999 Plan is 2,600,000 plus
annual cumulative increases on each January 1, beginning in 2000 equal to (a)
5% of Maker's issued and outstanding common stock calculated on a fully diluted
basis or (b) a lesser amount as determined by the Board of Directors.
Options designated as incentive stock options may be granted only to
employees of Maker. Non-qualified options may be granted to any officer,
employee, consultant or director of Maker. No option designated as an incentive
stock option shall be granted to any employee of Maker or any subsidiary if
such employee owns, immediately prior to the grant of an option, stock
representing more than 10% of the combined voting power of all classes of stock
of Maker, unless the purchase price for the stock under such option is at least
110% of its fair market value at the time the option is granted and the option,
by its terms is not exercisable more than five years from the date it is
granted.
The maximum number of shares of Maker's common stock with respect to which
an option or options may be granted to any employee in any calendar year shall
not exceed 500,000 shares, taking into account shares subject to options
granted and terminated, or repriced, during such calendar year. Options granted
under the 1999 Incentive Plan will vest as determined by the Board of
Directors. Upon a change in control of Maker, the exercisability of options due
to vest during the twelve month period following the change in control are
automatically accelerated.
1999 Non-Employee Director Option Plan
In January 1999, the Board of Directors adopted a Director Option Plan
(Director Plan) pursuant to which 125,000 shares of common stock have been
reserved for future issuance, plus annual increases such
F-14
<PAGE>
Maker Communications, Inc. and Subsidiary
Notes to Consolidated Financial Statements (Continued)
(including data applicable to unaudited periods)
that the total number of shares subject to issuance shall be (i) 125,000 on
January 1 of each year, or (ii) a lesser amount determined by the Board of
Directors. The Director Plan provides that each non employee director will
automatically be granted an option to purchase 20,000 shares on the date which
such person first becomes a non employee director. In addition, each non
employee director will automatically be granted an option to purchase 15,000
shares on the date two days after Maker announces its fiscal year-end earnings
of each year, if on such date that director will have served on the Board of
Directors for at least the preceding six months. Each option will have a term
of up to 10 years and will vest over a term determined by the Board of
Directors at the time of grant. In addition, upon a change in control of Maker,
as defined in the Director Plan, all unvested options shall vest immediately.
Options granted to directors will be accounted for in accordance with SFAS No.
123 based upon the guidance provided in the exposure draft dated March 31, 1999
for the proposed interpretation, Accounting for Certain Transactions Involving
Stock Compensation, of APB No. 25. The fair value of directors' grants will be
measured and included in the consolidated statement of operations.
1999 Employee Stock Purchase Plan
In April 1999, the Board of Directors approved the Maker 1999 Employee
Stock Purchase Plan (the Stock Purchase Plan). This plan will be effective upon
the successful closing of Maker's proposed initial public offering. The Stock
Purchase Plan is intended to provide a means whereby eligible employees may
purchase, on a quarterly basis, common stock of Maker through payroll
deductions. Such payroll deductions cannot amount to less than 1% nor more than
10% of the participant's regular compensation and cannot exceed $25,000 or
3,000 shares per year. The purchase price of shares of Maker common stock under
the Stock Purchase Plan is the lower of 85% of the fair market value of a share
of common stock for the first business day of the relevant purchase period or
85% of such value for the relevant exercise date. 400,000 shares of Maker
common stock have been reserved for issuance under the Stock Purchase Plan.
Maker will account for the Stock Purchase Plan in accordance with APB No. 25
and accordingly, no compensation cost will be recognized under the Stock
Purchase Plan. Maker will elect the "disclosure only" alternative under SFAS
No. 123.
The following table summarizes option activity under the stock plans:
<TABLE>
<CAPTION>
Number of Weighted Average
Shares Exercise Price Exercise Price
------------- ---------------- -----------------
<S> <C> <C> <C>
Granted ................................ 831,990 $ .05-$.16 $ .08
Exercised .............................. (19,040) .05 .05
------- ----------- -------
Outstanding, December 31, 1996 ......... 812,950 $ .05-$.16 $ .08
Granted ................................ 1,163,100 .16- .30 .17
Exercised .............................. (3,360) .05 .05
Canceled ............................... (44,620) .05- .16 .09
--------- ----------- -------
Outstanding, December 31, 1997 ......... 1,928,070 $ .05-$.30 $ .13
Granted ................................ 1,782,250 .30-3.75 2.03
Exercised .............................. (480,090) .05-1.00 .15
Canceled ............................... (611,980) .05- .30 .16
--------- ----------- -------
Outstanding, December 31, 1998 ......... 2,618,250 $ .05-3.75 $ 1.42
Granted ................................ 249,000 4.40-8.50 6.61
Exercised .............................. (216,310) .05-4.40 .61
Canceled ............................... (15,000) .30 .30
--------- ----------- -------
Outstanding, March 31, 1999 ............ 2,635,940 $ .05-8.50 $ 1.98
========= =========== =======
Exercisable, March 31, 1999 ............ 294,578 $ .05-8.50 $ 1.32
========= =========== =======
</TABLE>
F-15
<PAGE>
Maker Communications, Inc. and Subsidiary
Notes to Consolidated Financial Statements (Continued)
(including data applicable to unaudited periods)
The following table summarizes information relating to currently
outstanding and exercisable options as of March 31, 1999.
<TABLE>
<CAPTION>
Outstanding Exercisable
--------------------------------------------- -----------------------
Weighted Average Weighted Weighted
Remaining Average Average
Range of Number of Contractual Exercise Number of Exercise
Exercise Prices Shares Life (Years) Price Shares Price
- ----------------- ----------- ------------------ ---------- ----------- ---------
<S> <C> <C> <C> <C> <C>
$ .05 333,290 7.54 $ .05 154,840 $ .05
.16 326,850 8.27 .16 43,538 .16
.30 383,050 8.95 .30 31,200 .30
.75 270,000 9.23 .75 -- --
2.00 - 2.75 818,000 9.46 2.74 -- --
3.75 - 4.40 370,750 9.61 3.92 45,000 4.33
8.50 134,000 6.58 8.50 20,000 8.50
------- -------
2,635,940 294,578
========= =======
</TABLE>
For purposes of the pro forma disclosures required by SFAS No. 123, the
fair value of each option grant was estimated on the date of grant using the
Black-Scholes option pricing model. The assumptions used and the weighted
average information for the years ended December 31, 1996, 1997 and 1998 and
three months ended March 31, 1998 and 1999 are as follows:
<TABLE>
<CAPTION>
December 31,
----------------------------------------------
1996 1997 1998
-------------- --------------- ---------------
<S> <C> <C> <C>
Risk-free interest rates ........................... 6.09% 5.89-6.46% 4.47-5.49%
Expected dividend yield ............................ -- -- --
Expected life ...................................... 4 years 4 years 4 years
Expected volatility ................................ 60% 60% 60%
Weighted average fair value of options granted ..... $ .04 $ .09 $ 1.02
Weighted-average remaining contractual life of
options outstanding .............................. 9.81 years 9.27 years 9.13 years
<CAPTION>
March 31,
----------------------------
1998 1999
-------------- -------------
<S> <C> <C>
Risk-free interest rates ........................... 5.59% 4.90%
Expected dividend yield ............................ -- --
Expected life ...................................... 4 years 4 years
Expected volatility ................................ 60% 60%
Weighted average fair value of options granted ..... $ .15 $ 2.87
Weighted-average remaining contractual life of
options outstanding .............................. 9.14 years 8.85 years
</TABLE>
Had compensation expense from Maker's stock option plan been determined
consistent with SFAS No. 123, net loss and net loss per share would have been
approximately as follows:
<TABLE>
<CAPTION>
Three Months Ended
Year Ended December 31, March 31,
-------------------------------------- ------------------------
1996 1997 1998 1998 1999
------------ ------------ ------------ ------------ -----------
(In thousands, except per share data)
<S> <C> <C> <C> <C> <C>
Net loss:
As reported ......................... $ (1,971) $ (3,901) $ (3,754) $ (1,193) $ (12)
Pro forma ........................... (1,974) (3,929) (3,967) (1,201) (308)
Basic and diluted net loss per share:
As reported ......................... $ (1.30) $ (0.72) $ (0.66) $ (0.22) $ (0.00)
Pro forma ........................... (1.30) (0.73) (0.70) (0.22) (0.05)
</TABLE>
(9) Commitments and Contingencies
(a) Litigation
In February 1997, LSI filed a lawsuit against Maker. During July 1998,
Maker and LSI reached a settlement agreement under which Maker paid LSI a
lump-sum of $200,000 and issued a $500,000 convertible note as discussed in
Note 6. Maker has included in a separate line item in its consolidated
statement of operations the legal and settlement costs associated with the LSI
litigation. Maker is not
F-16
<PAGE>
Maker Communications, Inc. and Subsidiary
Notes to Consolidated Financial Statements (Continued)
(including data applicable to unaudited periods)
currently involved in any litigation which, in management's opinion, would have
a material adverse effect on its business, operating results or financial
condition.
(b) Leases
Maker has operating leases for various facilities and equipment expiring
at various dates through August 2001. Future minimum lease payments at December
31, 1998 are as follows:
<TABLE>
<CAPTION>
(In thousands)
---------------
<S> <C>
1999 .......... $359
2000 .......... 166
2001 .......... 5
----
$530
====
</TABLE>
Rent expense under operating leases totaled approximately $92,000,
$200,000, $278,000, $67,000 and $95,000 for the years ended December 31, 1996,
1997 and 1998 and three months ended March 31, 1998 and 1999, respectively.
(10) Employee Benefit Plan
Effective January 1, 1996, Maker adopted a 401(k) savings and
profit-sharing plan (the Plan). All employees are immediately eligible to
participate upon the attainment of age 21. The Plan is intended to qualify as a
defined contribution plan in accordance with Section 401(k) of the Internal
Revenue Code. Participants may defer up to 15% of their compensation under the
Plan. Maker may make discretionary profit-sharing contributions to the Plan.
Participants vest in Maker's contributions ratably over five years. No
discretionary contributions were made in 1996, 1997 or 1998 or the three months
ended March 31, 1999.
(11) Segment, Significant Customer and Supplier Information
Maker operates in one industry segment, communications processors and
derives substantially all of its revenues from US customers. Maker had a total
of three customers whose revenue represented a significant percentage of total
revenue in certain or all years or periods as follows:
<TABLE>
<CAPTION>
For the year For the three
ended months
December 31, ended March 31,
--------------- ---------------
1997 1998 1998 1999
------ ------ ------ -----
<S> <C> <C> <C> <C>
Customer A ......... 32% 29% 17% 36%
Customer B ......... 23 16 17 15
Customer C ......... -- 13 -- 12
</TABLE>
Maker currently outsources substantially all manufacturing, assembly and
test of communications processors to one outside foundry.
F-17
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated expenses (other than the underwriting discount) payable in
connection with the sale of the common stock offered hereby are as follows, all
of which will be paid by Maker:
<TABLE>
<S> <C>
SEC registration fee ................................... $ 12,310
NASD filing fee ........................................ 4,928
Nasdaq National Market fee ............................. 95,000
Printing expenses ...................................... 200,000
Legal fees and expenses ................................ 200,000
Accounting fees and expenses ........................... 200,000
Transfer agent and registrar fees and expenses ......... 25,000
Miscellaneous .......................................... 262,762
----------
Total ............................................ $1,000,000
==========
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Delaware General Corporation Law, Maker's Amended and Restated
Certificate of Incorporation and Amended and Restated Bylaws and
indemnification agreements between Maker and its directors provide for
indemnification of its directors and officers for liabilities and expenses they
may incur in such capacities. In general, directors and officers are
indemnified with respect to actions taken in good faith in a manner reasonably
believed to be in, or not opposed to, Maker's best interests, and with respect
to any criminal action or proceeding, actions that the indemnitee had no
reasonable cause to believe were unlawful. Reference is made to Maker's Amended
and Restated Certificate of Incorporation and Amended and Restated Bylaws filed
as Exhibits 3.1 and 3.2 hereto, respectively.
The Underwriting Agreement provides that the underwriters are obligated,
under certain circumstances, to indemnify directors, officers and controlling
persons of Maker against certain liabilities, including liabilities under the
Securities Act. Reference is made to the form of underwriting agreement filed
as Exhibit 1.1 hereto.
Maker maintains directors and officers liability insurance for the benefit
of its directors and certain of its officers and has entered into
indemnification agreements with its directors and certain of its officers.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
For the three year period ending March 31, 1999, Maker has issued the
following securities, none of which has been registered under the Securities
Act:
1. In 1996, Maker authorized 4,019,654 shares of Junior Convertible
Preferred Stock, $0.01 par value. In September 1996, each outstanding share of
$0.01 par value common stock, totaling 4,019,654 shares, was exchanged for one
share of Junior Convertible Preferred Stock.
2. On September 27, 1996 Maker issued and sold an aggregate of 5,077,398
shares of its Class A Redeemable Preferred Stock and an equal number of shares
of common stock of Maker, for an aggregate purchase price of approximately
$8,149,000, or $1.605 per share, to a total of 28 accredited investors. On
November 6, 1996 Maker issued and sold an aggregate of 281,736 shares of its
Class A Redeemable Preferred Stock and an equal number of shares of common
stock of Maker, for an aggregate purchase price of approximately $452,000, or
$1.605 per share, to a total of 17 accredited investors. In October 1997, Maker
issued an additional 20,866 shares of Class A Redeemable Preferred Stock at
$1.605 per share and 20,866 shares of common stock at $0.01 per share to a
stockholder who was an accredited investor in exchange for the conversion of a
note payable in the amount of approximately $34,000.
3. On October 16, 1997 Maker issued and sold an aggregate of 3,000,002
shares of its Class B Convertible Preferred Stock, which is convertible into an
equal number of shares of common stock of
II-1
<PAGE>
Maker, for an aggregate purchase price of approximately $9,000,000, or $3.00
per share, to a total of six accredited investors. On November 24, 1997 Maker
issued and sold an aggregate of 386,673 shares of its Class B Convertible
Preferred Stock, which is convertible into an equal number of shares of common
stock of Maker, for an aggregate purchase price of approximately $1,160,000, or
$3.00 per share, to a total of 24 accredited and 17 non-accredited investors.
On July 15, 1998 Maker issued and sold an aggregate of 29,900 shares of its
Class B Convertible Preferred Stock, which is convertible into an equal number
of shares of common stock of Maker, for an aggregate purchase price of
approximately $89,000, or $3.00 per share, to a total of four purchasers.
4. On December 22, 1998 Maker issued and sold an aggregate of 1,035,586
shares of its Class C Convertible Preferred Stock, which is convertible into an
equal number of shares of common stock of Maker, for an aggregate purchase
price of approximately $4,556,000, or $4.40 per share, to a total of 12
accredited and 25 non-accredited investors. On January 15, 1999 Maker issued
and sold an aggregate of 102,272 shares of its Class C Convertible Preferred
Stock, which is convertible into an equal number of shares of common stock of
Maker, for an aggregate purchase price of approximately $450,000, or $4.40 per
share, to a total of 21 accredited investors.
5. Upon conversion of a convertible note, Maker will issue 125,000 shares
of common stock to LSI.
6. From October 15, 1996 to March 31, 1999, Maker issued to its employees,
officers, directors and consultants (Maker's public relations and executive
search firms) options to purchase an aggregate of 4,026,340 shares of its
common stock, at exercise prices ranging from $.05 per share to $8.50 per
share, pursuant to Maker's 1996 Stock Option Plan and 1999 Non-Employee
Director Plan.
7. From October 22, 1996 to March 31, 1999, Maker issued an aggregate of
718,800 shares of its common stock upon the exercise of options at exercise
prices ranging from $.05 per share to $4.40 per share.
The sales of securities set forth in paragraphs 1-7 above were deemed to
be exempt from the registration requirements of the Securities Act in reliance
on Section 4(2) thereof and Regulation D promulgated thereunder, as
transactions by an issuer not involving a public offering. The granting of
stock options described in paragraph 6 above did not require registration under
the Securities Act, or an exemption therefrom, insofar as such grants did not
involve a "sale" of securities as such term is used in Section 2(3) of the
Securities Act. The sale of securities set forth in paragraph 7 above was
deemed to be exempt from the registration requirements of the Securities Act in
reliance on Rule 701 promulgated under Section 3(b) of the Securities Act as
transactions by an issuer pursuant to compensatory benefit plans and contracts
relating to compensation as provided under such Rule 701.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
Exhibits
<TABLE>
<CAPTION>
No. Description of Documents
- --------- --------------------------------------------------------------------------------------
<S> <C>
+1.1 Form of Underwriting Agreement
+3.1 Form of Amended and Restated Certificate of Incorporation of Maker
+3.2 Form of Amended and Restated Bylaws of Maker
5.1 Form of Opinion of Hutchins, Wheeler & Dittmar, A Professional Corporation
+10.1 Lease by and among Maker and Marriott Plaza Associates L.P., dated as of December 10,
1997
+10.2 Lease by and among Maker and Perini Corporation, dated May 6, 1997, together with
amendments thereto
++10.3 Agreement for ASIC Design and Purchase of Products, dated as of September 2, 1998, by
and among Maker and International Business Machines Corporation.
10.4 Technology License Agreement by and among Maker and Phoenix Technologies Ltd., dated
as of February 12, 1998
</TABLE>
II-2
<PAGE>
Exhibits
<TABLE>
<CAPTION>
No. Description of Documents
- --------- ---------------------------------------------------------------------------------------------
<S> <C>
+10.5 Loan and Security Agreement by and among Maker and Silicon Valley Bank, dated as of
February 18, 1997
+10.6 Loan Modification Agreement by and among Maker and Silicon Valley Bank, dated as of
May 12, 1998
+10.7 Second Loan Modification Agreement by and among Maker and Silicon Valley Bank, dated
as of February 3, 1999
+10.8 1996 Stock Option Plan
10.9 Amended and Restated Registration Rights Agreement, dated as of December 22, 1998
+10.10 1999 Stock Incentive Plan
+10.11 1999 Employee Stock Purchase Plan
+10.12 1999 Non-Employee Director Stock Option Plan
+10.13 Form of Indemnification Agreement executed by the Directors and certain officers of Maker
10.14 Severance Agreement with Michael Rubino, dated January 30, 1998
+21.1 Subsidiary of the Registrant
23.1 Consent of Arthur Andersen LLP
+23.2 Consent of Hutchins, Wheeler & Dittmar, A Professional Corporation (included in Exhibit 5.1)
+24.1 Power of Attorney for Paul Low
+27.1 Financial Data Schedule
+27.2 Financial Data Schedule
</TABLE>
- ------------
+ Confidential treatment requested as to certain portions, which portions have
been omitted and filed separately with the Commission.
+ Previously filed
Certain Schedules and Exhibits have been omitted. Maker will furnish
supplementary to the SEC a copy of any omitted schedule or exhibit upon
request.
II-3
<PAGE>
All other schedules for which provision is made in the applicable
accounting regulations of the Securities and Exchange Commission are not
required under the related instructions or are inapplicable, and therefore have
been omitted.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes to provide to the
underwriters at the closing specified in the underwriting agreement,
certificates in such denomination and registered in such names as required by
the underwriters to permit proper delivery to each purchaser.
The undersigned registrant hereby undertakes that: (1) For purposes of
determining any liability under the Securities Act, the information omitted
from the form of prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act
shall be deemed to be part of this registration statement as of the time it was
declared effective; and (2) For the purpose of determining any liability under
the Securities Act, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereto.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to provisions described in Item 14 above, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this amendment to be signed on its behalf by the undersigned,
thereunto duly authorized, in Framingham, Massachusetts, on April 23, 1999.
MAKER COMMUNICATIONS, INC.
By: /s/ William N. Giudice
---------------------------
William N. Giudice, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------------------------- ------------------------------------- ---------------
<S> <C> <C>
/s/ William N. Giudice President, Chief Executive
- ------------------------- Officer and Director
William N. Giudice (principal executive officer) April 23, 1999
/s/ Michael Rubino Vice President, Finance and
- ------------------------- Operations, Chief Financial Officer,
Michael Rubino Treasurer and Secretary (principal
financial and accounting officer) April 23, 1999
*
- -------------------------
Roger Evans Director April 23, 1999
*
- -------------------------
Rob Soni Director April 23, 1999
*
- -------------------------
Louis Tomasetta Director April 23, 1999
*
- -------------------------
Paul R. Low Director April 23, 1999
* /s/ William N. Giudice
-----------------------
William N. Giudice, as
attorney-in-fact
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
No. Description of Documents
- --------- ---------------------------------------------------------------------------------------------
<S> <C>
+1.1 Form of Underwriting Agreement
+3.1 Amended and Restated Certificate of Incorporation of the Registrant
+3.2 Amended and Restated Bylaws of the Registrant
5.1 Form of Opinion of Hutchins, Wheeler & Dittmar, A Professional Corporation
+10.1 Lease by and among Maker and Marriott Plaza Associates L.P., dated as of December 10,
1997
+10.2 Lease by and among Maker and Perini Corporation, dated May 6, 1997, together with
amendments thereto
++10.3 Agreement for ASIC Design and Purchase of Products, dated as of September 2, 1998, by
and among Maker and International Business Machines Corporation.
10.4 Technology License Agreement by and among Maker and Phoenix Technologies Ltd., dated
as of February 12, 1998
+10.5 Loan and Security Agreement by and among Maker and Silicon Valley Bank, dated as of
February 18, 1997
+10.6 Loan Modification Agreement by and among Maker and Silicon Valley Bank, dated as of
May 12, 1998
+10.7 Second Loan Modification Agreement by and among Maker and Silicon Valley Bank, dated
as of February 3, 1999
+10.8 1996 Stock Option Plan
10.9 Amended and Restated Registration Rights Agreement, dated as of December 22, 1998
+10.10 1999 Stock Incentive Plan
+10.11 1999 Employee Stock Purchase Plan
+10.12 1999 Non-Employee Director Stock Option Plan
+10.13 Form of Indemnification Agreement executed by the Directors and certain officers of Maker
10.14 Severance Agreement with Michael Rubino, dated January 30, 1998
+21.1 Subsidiary of the Registrant
23.1 Consent of Arthur Andersen LLP
+23.2 Consent of Hutchins, Wheeler & Dittmar, A Professional Corporation (included in Exhibit 5.1)
+24.1 Power of Attorney for Paul Low
+27.1 Financial Data Schedule
+27.2 Financial Data Schedule
</TABLE>
- ------------
+ Confidential treatment requested as to certain portions, which portions have
been omitted and filed separately with the Commission.
+ Previously filed
April 23, 1999
Maker Communications, Inc.
73 Mount Wayte Avenue
Framingham, MA 01702
Ladies and Gentlemen:
We have acted as counsel to Maker Communications, Inc., a Delaware
corporation (the "Company"), in connection with proceedings being taken to
register under the Securities Act of 1933, as amended, up to 4,025,000 shares of
the Company's Common Stock, $.01 par value per share (the "Common Stock")
pursuant to a Registration Statement on Form S-1 (File No. 333-74293) (the
"Registration Statement"), which includes 525,000 shares which may be sold upon
exercise of the underwriters' overallotment option described in the Registration
Statement.
As such counsel, we have examined (i) certain corporate records of
the Company, including its Amended and Restated Certificate of Incorporation,
its Amended and Restated Bylaws, stock records and Minutes of Meetings of its
Board of Directors; (ii) a Certificate of the Secretary of State of the State of
Delaware as to the legal existence of the Company; and (iii) such other
documents as we have deemed necessary as a basis for the opinions hereinafter
expressed.
Based upon the foregoing, and having regard for such legal
considerations as we deem relevant, we are of the opinion that:
1. The Company is a validly existing corporation under the
laws of the State of Delaware.
2. The Company, as of the effective date of the foregoing
Articles of Amendment, will be authorized to issue
100,000,000 shares of Common Stock, par value $.01 per
share, and 1,000,000 shares of Preferred Stock, par value
$.01 per share.
3. When issued and sold under the circumstances contemplated
in the Registration Statement, the shares of Common Stock
offered by the Company will be duly authorized, validly
issued, fully paid and nonassessable.
<PAGE>
Maker Communications, Inc.
April 23, 1999
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the references to us under the caption "Legal
Matters" in the Prospectus forming a part of the Registration Statement.
Very truly yours,
/s/ HUTCHINS, WHEELER & DITTMAR
A Professional Corporation
Signature Copy
Agreement for ASIC Design and Purchase of Products
between
IBM Microelectronics
1000 River Street
Essex Junction, Vermont
and
Maker Communications, Inc.
Agreement Number: X0458
Commencement Date:
IBM Customer Account
Representative: Dave Warner
Maker Communication, Inc.
73 Mount Wayte Avenue
Framingham, MA 01702
This agreement ("Agreement") is entered into by and between International
Business Machines Corporation, incorporated under the laws of the State of New
York ("IBM") and Maker Communications, Inc. ("Buyer"), incorporated under the
laws of the State of Delaware.
This Agreement and its attachments ("Attachments") sets forth the terms and
conditions pursuant to which semiconductor products will be designed,
manufactured, sold and purchased. The terms and conditions by which IBM licenses
to Buyer the IBM Design Kits specified in Attachment A are governed by the IBM
Design Kit License initially executed by the parties on December 13, 1996.
1.0 DEFINITIONS
1.1 "ASIC(s)" means application specific integrated circuits.
1.2 "ASIC Tool Kits" means any computer aided design software and data
provided by IBM and used by Buyer for the purpose of designing or
checking ASIC designs, as updated or enhanced from time to time by IBM.
1.3 "Buyer Deliverable Items" means any information and materials supplied
to IBM by Buyer, as set forth in Attachment B, including, without
limitation, software, schematics, netlists, microcode, designs or
techniques, as accepted by IBM and utilized in the design of or
otherwise incorporated into a Product.
1.4 "EngineerIng Change" means a mechanical or electrical change to the
Product which affects form, fit, function or maintainability.
1.5 "IBM Deliverable Items" means the information, materials and tools
supplied to Buyer by IBM, as set forth in Attachment B, including,
without limitation, IBM Design Kits, ASIC Tool Kits and Prototype
devices.
1.6 "IBM Design Kits" means any IBM computer aided design software and data
(including libraries) provided to Buyer for the purpose of designing or
testing ASIC designs, as updated and enhanced from time to time. The
term "IBM Design Kits" includes ASIC Tool Kits.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED AS TO CERTAIN PORTIONS OF THIS
EXHIBIT, WHICH PORTIONS HAVE BEEN OMITTED AND REPLACED WITH [**] AND FILED
SEPARATELY WITH THE COMMISSION.
IBM/Maker Page 1 of 17
<PAGE>
Signature Copy
1.7 "Initial ASIC Design Review Checklist" ("IDR") means a written report in
form and content as regularly used by IBM to make a preliminary
assessment of the feasibility of Buyer's proposed Product design.
1.8 "Mandatory Engineering Changes" means engineering changes required to
satisfy governmental standards, protect Product, system or data
integrity, or for environmental, health or safety reasons.
1.9 "Milestones" means completion of the (i) initial design review ("IDR
Milestone"), (ii) pre-layout and timing analysis ("RTL Milestone"), and
(iii) the release to manufacturing ("RTM Milestone") stages of work.
1.10 "Nonrecurring Engineering Charges" ("NRE charges") means the costs for
NRE Services.
1.11 "Nonrecurring Engineering Services" ("NRE Services") means engineering
services provided by IBM to develop Products to be manufactured under
this Agreement, which shall include delivery of Prototypes as specified
in Attachment C.
1.12 "Product(s)" means production units of the ASIC product(s) to be sold
and purchased under this Agreement as specified in Attachment A and as
may be amended by the parties to include additional Products. Products
shall not include Prototypes.
1.13 "Product Specifications" means the specifications for each Product
including, without limitation, the post-layout electronic data
interchange format ("EDIF") and timing requirements (including clock
skew requirements), a statement of post-layout test coverage and I/O
placement; as documented in the RTM, expressly or by specific
incorporation.
1.14 "Prototype Acceptance" means Buyer's written approval that Buyer's
Prototype evaluation demonstrates Prototype conformance to Product
Specifications.
1.15 "Prototype device(s)" or "Prototypes" means a preliminary version of a
Product which may or may not be functional and which is not suitable for
production in commercial quantities.
1.16 "Purchase Order Lead Time" means the required minimum amount of time
between IBM's receipt of the Purchase Order issued by Buyer and the
requested shipment date necessary to accommodate manufacturing cycle
time, as specified in Attachment C.
1.17 "Release to Layout Checklist" ("RTL") means a performance approval
written report in form and content as regularly used by IBM to document
completion of the pre-layout Level Sensitive Scan Design ("LSSD") and
timing analysis milestone of the SOW.
1.18 "Release to Manufacturing Checklist" ("RTM") means a performance
approval written report in form and content as regularly used by IBM to
document the design review milestone at the completion of the
post-layout timing analysis.
1.19 "Scheduled Shipment Date" means the date for shipment of Product
requested by Buyer in a Purchase Order and accepted by IBM in accordance
with Section 6.0 of this Agreement.
1.20 "Shipment Date" means the date for shipment of Product requested by
Buyer in a Purchase Order.
1.21 "Statement of Work" or "SOW" means a written statement of work as set
forth in Attachment A that identifies the respective design obligations
that the parties agree to complete for the development of particular
Products.
2.0 TERM OF AGREEMENT
This Agreement shall become effective on the date it is executed by
Buyer and IBM (the "Commencement Date"). The term of this Agreement will
begin on the Commencement Date and will be effective for a period of
three (3) years after the Commencement Date (the "Contract Period"),
subject, however, to earlier termination as permitted under Section
13.0.
3.0 WORK SCOPE
3.1 IBM will provide Buyer with engineering support and assistance and Buyer
will provide IBM with the Buyer Deliverable items and cooperate with IBM
in the use of IBM Deliverable Items to enable IBM to manufacture
Products, in accordance with the SOW. The Products are designed for
verification on IBM ASIC tools and to be manufactured by IBM under this
Agreement. The terms and conditions by which IBM licenses the IBM Design
Kits are exclusively governed by the IBM Design Kit License Agreement,
which is hereby incorporated by reference.
3.2 In the event that multiple Products are developed under this Agreement
or this Agreement is amended to include additional Products, each such
Product shall be developed under and subject to a separate SOW, separate
development checklist and separate Product pricing.
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4.0 ASIC PRODUCT DES1GN
4.1 IBM's ASIC development checklists shall document the development of each
of Buyer's Product design(s).
4.1.1 The IDR will be used to make a preliminary feasibility assessment
of each of Buyer's proposed Product design(s) and to advise Buyer of any
areas where Buyer's design(s) do not conform to IBM design requirements.
4.1.2 The RTL shall include, expressly or by specific incorporation, the
design specifications for each Product required by Buyer to successfully
place, route, time and conform to LSSD and provide static timing
analysis. The RTL shall also document the fact that such information is
available to Buyer and has been communicated to Buyer before each
Product netlist is released to layout. Buyer's signature on the RTL
shall record Buyer's acknowledgment of satisfactory completion of all
work on such Product through such Milestone.
4.1.3 Buyer's signature on the RTM shall record Buyer's acknowledgment
of (i) satisfactory completion of all work on such Product through the
RTM Milestone and (ii) the specifications to which IBM's warranty
obligations, set forth in Section 14.0, apply. To the extent that
specifications and test parameters contained in the RTM vary those set
forth in the RTL, the specifications contained in the RTM shall govern.
4.1.4 Buyer's signature on the RTL and RTM checklists shall not be
unreasonably withheld.
4.2 IBM shall use commercially reasonable efforts to meet all Milestone and
Prototype delivery schedules.
24.3 Any data relating to a Product design that Buyer is to furnish to IBM
must be compatible with IBM tools, with which IBM will verify all design
and engineering work for conformance to IBM's technology ground rules.
4.4 Buyer may request changes to any Product design during the course of the
SOW by submitting a written request to IBM. Upon receipt by IBM of any
such request, IBM shall promptly inform Buyer in writing of the effect
of the requested change on the SOW including estimated completion of the
design work to incorporate any requested changes and applicable price
increase(s), if any. IBM shall immediately halt work until the Buyer and
IBM agree, in writing, to changes in pricing, completion date and any
other terms of the SOW, which are affected by such request for change.
If Buyer fails to order a restart of work within fifteen calendar days,
then the cancellation charges in Section 9.0 of Attachment C will apply.
4.5 Buyer may, for the applicable unit price specified in Section 6.0 of
Attachment C, order Prototypes in addition to the quantity included in
the NRE Charges at any time before five (5) working days prior to RTM
signoff. Subject to the RTM signoff and adequate yield from the initial
wafer lot, IBM shall use reasonable efforts to deliver such additional
Prototypes within five (5) working days of the estimated delivery date
for Prototypes.
4.6 Subject to the terms and conditions of this Agreement, both parties will
exercise reasonable diligence in performing the design activities set
forth in the SOW for each Product.
4.7 IBM agrees to provide Products to Buyer as requested by Buyer and
accepted by IBM subject to the provisions of this Agreement.
4.8 All computer data provided to IBM by Buyer supplied pursuant to this
Agreement will be, to the best of supplier's knowledge, free from any
virus, worm or other routines that would permit unauthorized access or
otherwise harm software, hardware or data.
5.0 PRODUCT DEMAND FORECASTS
5.1 The Product demand forecasts agreed to by Buyer and IBM are set forth in
Attachment C. The forecasts cover yearly periods through 1999 broken out
by Product and month. During the term of this Agreement, Buyer will
provide IBM with updated Product demand forecasts on a monthly basis
covering a rolling twelve (12) month period (not to extend beyond the
Contract Period), which will be reviewed for approval by IBM within ten
(10) days of receipt by IBM. Updated forecasts shall be in substantially
the same format as the first forecast in Attachment C. Forecasts shall
be provided to IBM's Customer Account Representative as identified
above. Forecasts shall constitute good faith estimates of Buyer's
anticipated requirements for Products for the periods indicated based on
current market conditions, and IBM's acceptance shall constitute IBM's
good faith intention to quote and supply such requirements if requested
and ordered by Buyer in accordance with this Section 5.0.
Notwithstanding the foregoing, Product demand forecasts accepted by IBM
shall not contractually obligate IBM to supply, nor contractually
obligate Buyer to purchase, the quantities of units of Product set forth
in such forecasts.
5.2 Buyer may request Products that exceed Product demand forecasts
previously accepted by IBM. Such requests are subject to rejection by
IBM for any reason, including, without limitation, resource
availability. In the event IBM rejects such a request, IBM shall provide
buyer with written notice of such rejection within fourteen (14)
calendar days of Buyer's Request, specifying the reason for the
rejection.
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6.0 PURCHASE ORDERS
6.1 [**]
6.2 [**]
6.3 [**]
6.4 Purchase orders issued to IBM shall include the following:
6.4.1 NRE Services and/or Product(s) being ordered;
6.4.2 quantity of units of Product requested (in increments of the
minimum ship pack quantity ("SPQ") only);
6.4.3 NRE Charges and/or unit price per Attachment C;
6.4.4 billing address;
6.4.5 shipping instructions, including carrier, destination address and
requested shipment dates; and
6.4.6 reference to this Agreement and Agreement Number.
6.5 This Agreement shall take precedence over and govern in case of any
additional, different or conflicting terms and conditions in any
purchase order(s) or any other form of either party. Purchase orders and
other forms of either party may not vary the terms of this Agreement.
Additional, different or conflicting terms and conditions on a purchase
order or other form shall be of no effect, unless in writing and signed
by both parties.
6.6 Notwithstanding any other provision of this Agreement, in the event that
IBM's ability to supply the Product is constrained (except as caused by
Buyer) for reasons which include, but are not limited to, component
availability, and the Scheduled Shipment Date cannot be met, IBM will
reduce the quantities of Products to be supplied to Buyer in proportion
to the reduction in quantities of products of the same technology or
utilizing the same manufacturing process to be supplied to satisfy
others. Receipt of such allocated supply and later delivery of all
undelivered ordered quantities after the constraint ends shall
constitute Buyer's exclusive remedy in the event of such supply
constraint.
7.0 PRICING
7.1 Buyer shall pay IBM the NRE Charge applicable to such Product as set
forth in Attachment C, as well as other sums for special services as are
separately ordered by Buyer and listed or referenced in Attachment C, or
as otherwise agreed to in writing by the parties.
7.2 The unit price for each unit of Product ordered shall be determined at
the time the applicable purchase order is accepted using the Product's
Price Quantity Matrix set forth in Attachment C. The quantity used as an
input into such Price Quantity Matrix shall be the cumulative quantity
of units of a Products determined by the purchase orders accepted by IBM
after the Commencement Date, including the units of Product requested in
the purchase order that is the subject of such price determination.
8.0 TITLE AND SHIPMENT
8.1 Title and risk of loss for a Product pass to Buyer when IBM delivers the
Product to the carrier.
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
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8.2 Products shall be shipped from the manufacturing location FOB for
domestic U.S. destinations and ExWorks (as defined in the 1990 INCO
Terms) for international shipments.
8.3 In no event shall IBM be deemed to assume any liability in connection
with any shipment, nor shall the carrier be construed as an agent of
IBM.
9.0 INVOICING, PAYMENT TERMS, TAXES
9.1 NRE Charges shall accrue and be invoiced on the schedule set forth in
Section 2.0 of Attachment C. IBM shall invoice Buyer for all units of
Product upon shipment. All payments under this Agreement shall be due
within thirty (30) days of the date of invoice. If Buyer's account
becomes in arrears or if Buyer exceeds its credit limit with IBM, in
addition to any other right under this Agreement, IBM reserves the right
to cease development work or stop shipment to Buyer or ship to Buyer on
a cash-in-advance basis, or other mutually agreeable terms, until
Buyer's account is again current.
9.2 Buyer is responsible for all state and federal sales and use taxes
related to Products, except for IBM's own corporate income taxes.
9.3 Buyer shall provide IBM with a copy of a valid reseller's exemption
certificate for Products purchased for resale for each applicable taxing
jurisdiction. Based on such certificate, and where the law permits, IBM
will treat Buyer as exempt from applicable state and local sales tax for
Products purchased hereunder. Buyer shall notify IBM promptly in writing
of any modification or revocation of its exempt status. Buyer shall
reimburse IBM for any and all assessments resulting from a refusal by a
taxing jurisdiction to recognize any Buyer reseller's exemption
certificate, or from Buyer's failure to have a valid reseller's
exemption certificate. If Buyer purchases Product under this Agreement
for internal use, Buyer agrees to notify IBM and pay applicable sales
tax.
10.0 INTEREST ON OVERDUE PAYMENTS
Late payment of invoices will be assessed a charge equal to the lesser
of one and one-half (1.5%) per month or the statutorily maximum rate of
interest in accordance with the laws of the State of New York.
11.0 CANCELLATION CHARGES, RESCHEDULING, ORDER CHANGE PROVISIONS [**]
11.1 Buyer may cancel a purchase order or any portion thereof upon written
notice to IBM. If Buyer cancels a purchase order for NRE Services or
Prototypes, or if Buyer unreasonably withholds its signature from the
RTL or RTM, IBM will cease further work in connection with the Product
and invoice Buyer for (i) the total of all unpaid NRE Charges applicable
to the next development Milestone (Section 2.0 of Attachment C) and (ii)
an NRE cancellation charge pursuant to Section 3.0 of Attachment C and
the applicable unit price for any canceled Prototype devices that were
ordered pursuant to Section 4.5 of this Agreement. For purchase orders
for units of Product, if the written notice is less than the Purchase
Order Lead Time, then a cancellation charge, as specified in Section 9.0
of Attachment C, will immediately become due for each canceled unit.
11.2 For a purchase order for production units which is more than thirty (30)
days, but less than the Purchase Order Lead Time from its Scheduled
Shipment Date, Buyer may request in writing a one-time deferral of the
Scheduled Shipment Date for not more than ninety (90) days, with no
cancellation charge imposed. However, if this purchase order is
subsequently deferred or canceled, then the cancellation charge
specified in Section 9.0 of Attachment C will be due.
11.3 [**]
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
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12.0 ENGINEERING CHANGES
12.1 [**]
12.2 [**]
12.3 [**]
12.4 [**]
13.0 TERMINATION OF AGREEMENT
13.1 If either party is in material default of a provision of this Agreement
and such default is not corrected within thirty (30) days of receipt of
written notice, this Agreement may be terminated by the party not in
default.
13.1.1 If Buyer terminates due to IBM default, all previously accepted
purchase orders shall be automatically canceled without charge to Buyer,
except for any specific purchase order(s) that the parties mutually
agree in writing not to cancel.
13.1.2 If IBM terminates due to Buyer default, at IBM's discretion, all
previously accepted purchase orders shall be automatically canceled and
adjustment charges and cancellation charges will apply in addition to
any other amounts then due.
13.2 Notwithstanding the provisions of Section 13.1, either party shall have
the right to terminate this Agreement immediately if:
13.2.1 The other party files a petition in bankruptcy, undergoes a
reorganization pursuant to a petition in bankruptcy, is adjudicated a
bankrupt, becomes insolvent, becomes dissolved or liquidated, files a
petition for dissolution or liquidation, makes an assignment for benefit
of creditors, or has a receiver appointed for its business; or
3.2.2 The other party is subject to property attachment or court
injunction or court order which has a substantial negative effect
on its ability to fulfill its material obligations under this Agreement.
13.3 IBM may terminate this Agreement, or its obligations with respect to
specifically affected Products, immediately if:
13.3.1 Buyer unreasonably withholds its consent for IBM to make Elective
Engineering Changes under Section 12.0; or
13.3.2 Either party receives a claim or charge, or otherwise has a
reasonable basis to believe any time during the term of this Agreement,
that any of the other parties Deliverable Items infringe third party
intellectual property rights.
13.4 In the event this Agreement is terminated pursuant to Section 13.1.2,
13.2 or 13.3, all amounts due and payable to the non-terminating party
as of the date of such termination shall become immediately due and
payable.
13.5 Either party may terminate this Agreement without cause upon twelve (12)
months prior written notice to the other. If Buyer is the terminating
party, all previously accepted purchase orders will be filled, but IBM
shall not be obligated to accept further purchase orders after receiving
notice. If IBM is the terminating party, IBM will continue to accept new
purchase orders pursuant to Section 6.0 during the notice period.
13.6 All Products shipped against accepted purchase orders will be subject to
the terms and conditions of this Agreement notwithstanding any
termination or expiration of the term of this Agreement.
13.7 Within thirty (30) days after filling all outstanding purchase orders
after termination, IBM shall provide Buyer with a refund of any net
credit remaining after all amounts due have been applied.
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
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14.0 WARRANTIES
14.1 IBM warrants that each unit of Product after delivery will be free from
defects in material and workmanship and will conform to the Product
Specifications as set forth in the RTM for the applicable period set
forth in Attachment C. Delivery to Buyer of each unit of Product is
deemed to occur five (5) days after shipment from IBM. Buyer
acknowledges that the functionality of Products is contingent upon
Buyer's designs and, therefore, the warranty of this Section 14.1 does
not apply to the functionality of Products fabricated hereunder. This
warranty does not include repair of damage resulting from failure to
provide a suitable installation environment, or any use for other than
the intended purpose, accident, disaster, neglect, misuse,
transportation, alterations, or non-IBM repairs or activities.
14.2 Any unit of Product that fails to conform to the warranty of Section
14.1, while under warranty, may be returned, freight collect, to the
location IBM designates for repair, replacement or credit, at IBM's
discretion, provided, however, that IBM will provide a credit upon
Maker's reasonable request. IBM will within a reasonable time, but no
sooner than Purchase Order Lead Time repair or replace such units or
provide a credit to Buyer for the purchase price paid for such units by
Buyer. IBM will ship replacement units back to Buyer, transportation
prepaid by IBM, and such units of Product will be considered newly
delivered for warranty purposes.
14.3 Should any unit of Product returned to IBM hereunder be found by IBM to
be free from defects or non-conformities, IBM will return such unit of
Product to Buyer transportation prepaid by IBM. Payment for such unit of
Product will be due and payable by Buyer as set forth in Section 9.0
above.
14.4 Prototypes provided by IBM under this Agreement are provided on an "AS
IS" basis, without warranty of any kind.
14.5 No course of dealing, course of performance, usage of trade, Product or
Prototype description shall be deemed to establish a warranty, express
or implied.
14.6 THE FOREGOING WARRANTIES MADE BY IBM ARE EXCLUSIVE AND IN LIEU OF ANY
OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE, AND ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT.
15.0 CONFIDENTIAL INFORMATION
All information exchanged under this Agreement is subject to the terms
of the separate agreement for exchange of confidential information
(Agreement Number V1424) as executed between the parties on December
9,1996.
16.0 TRADEMARKS AND TRADE NAMES
16.1 Neither this Agreement, nor the sale of Products hereunder, shall be
deemed to give either party any right to use the other party's
trademarks or any of the other party's trade names without specific,
prior written consent.
17.0 INTELLECTUAL PROPERTY RIGHTS
17.1 Buyer represents, and IBM acknowledges Buyer's representation, that all
Buyer Deliverable Items for the Products are the property of Buyer.
Buyer represents and warrants it is the rightful owner, or authorized
licensee (with all requisite rights to sublicense) of the Buyer
Deliverable Items and all other designs, information, and materials
supplied to IBM hereunder, and that no part of such materials knowingly
incorporate or infringe the intellectual property of any third party.
Buyer and/or its suppliers shall have and retain all intellectual
property rights associated with any intellectual property furnished by
Buyer, but excluding any intellectual property furnished by or for IBM.
17.2 IBM or its licensors shall retain and have all intellectual property
rights (including, without limitation, mask work rights) associated with
any intellectual property furnished by IBM in connection with this
Agreement, including without limitation, (i) all base array layers, (ii)
all IBM-licensed library elements (including, without limitation, any
megafunctions or cores), and (iii) all design methodologies and tools,
(iv) all IBM-furnished modifications of any of the foregoing. To the
extent Buyer has access to such intellectual property, Buyer shall use
such intellectual property solely for the purpose of designing
Prototypes and Products for manufacture pursuant to this Agreement.
Buyer hereby conveys to IBM any intellectual property rights it may
acquire therein. IBM represents and warrants, and Buyer acknowledges
IBM's representation, that IBM is the rightful owner or authorized
licensee of all intellectual property furnished by IBM in connection
with this Agreement.
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17.3 IBM shall own any masks made by IBM using logic data provided by Buyer.
IBM will use any tangible netlist tape(s), and tangible GDS II tape(s)
received from Buyer or generated exclusively for Buyer hereunder, and
any masks made from such GDS II tape(s), only to manufacture Products
for sale solely and exclusively to Buyer.
17.4 Except as set forth in section 17.2, if in the course of performance
under this Agreement either party discovers or invents any process,
pattern, device or other invention, that party shall be deemed the sole
owner of such discovery or invention. In the event any such invention is
jointly discovered or invented by the parties, the parties shall be
deemed joint owners of such discovery or invention without any duty of
accounting.
17.5 The parties understand and agree that no license or other right is
granted herein to either party, directly or by implication, estoppel or
otherwise, with respect to any know-how, inventions, patents, trade
secrets, copyrights, mask works or other intellectual property rights,
except as expressly set forth in this Agreement. No additional license
or other right, express or implied, shall arise from the consummation of
this Agreement, or from any acts, statements or dealings leading to such
consummation.
18.0 INTELLECTUAL PROPERTY INDEMNIFICATION
18.1 IBM shall indemnify Buyer from and against any damages finally settled
or awarded by a court of competent jurisdiction resulting from any
direct infringement of any patents or copyrights of a third party in any
country in which IBM sells similar products that expose IBM to similar
liabilities as the Product, arising as a result of any of IBM's
manufacturing process, equipment or testing, that is not specifically
required by Buyer's designs, specifications or instructions. IBM shall
defend at its own expense, including attorney's fees, any suit brought
against Buyer alleging such infringement. In the event that Buyer
becomes enjoined from using Product in its inventory due to such
infringement, IBM at its option and expense, will secure for Buyer the
right to continue to use and market the Product, or modify or replace
the Product with a non-infringing product. If IBM determines that
neither of the foregoing alternatives is reasonably available, Buyer may
return the affected Product in Buyer's inventory to IBM for a credit
equal to the price paid for the units of Product affected. IBM shall
have no obligation regarding any claim based upon modification of the
Product by Buyer or its customers, use of the Product in other than its
intended operating environment or the combination, operation or use of
the Product with non-IBM products or equipment.
18.2 Buyer shall indemnify IBM from and against any damages finally settled
or awarded by a court of competent jurisdiction resulting from any
infringement of any patents or copyrights of a third party in any
country where Buyer uses or distributes the Product, arising as a result
of IBM's compliance with any of Buyer's design, specifications,
instructions or modifications of the Product by Buyer and shall defend
at its own expense, including attorney's fees, any suit brought against
IBM alleging any such infringement.
18.3 The rights provided in Sections 18.1 and 18.2 are contingent upon the
parties seeking to enforce indemnification by giving prompt written
notice to the indemnifying party regarding any claim, demand or action
for which the indemnified party seeks indemnification. The indemnified
party is required to fully cooperate with the indemnifying party at the
indemnifying party's expense and shall allow the indemnifying party to
control the defense or settlement of any such claim, demand or action,
including obtaining the written consent of the indemnifying party prior
to any settlement proposal or settlement. IBM shall have the right to
waive Buyer's obligations under Section 18.2 and provide for its own
defense, at IBM's sole discretion and expense.
18.4 The purchase, receipt or possession of the Product from or through IBM
carries no license or immunity, express or implied, under any patent of
IBM covering the combination of the Product with other products or the
use of any such combination, or under any patent or other intellectual
property right of any third party relating to the Product or its
combinations with any other products.
18.5 Except as expressly stated in this Agreement, this Section 18.0 states
the entire liability of the parties and their exclusive remedies with
respect to infringement and all other warranties against infringement of
any intellectual property rights, statutory, express or implied are
hereby disclaimed.
19.0 INDEPENDENT PARTIES
Each party hereto is an independent contractor and is not an agent of
the other party for any purpose whatsoever. Neither party shall make any
warranties or representations on the other party's behalf, nor shall it
assume or create any other obligations on the other party's behalf. IBM
and Buyer agree to indemnify from and against any damages finally
awarded by a court of competent jurisdiction resulting from any
violation of this Section 19.0.
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20.0 LIMITATION OF REMEDIES
20.1 IBM's entire liability and Buyer's exclusive remedy are set forth in
this Section:
20.1.1 In all situations involving non-conforming or defective Products
furnished under this Agreement as set forth in Section 14.1, Buyer's
exclusive remedy is the replacement of the Products or a credit to Buyer
of the purchase price paid for such units by Buyer, at IBM's discretion,
provided, however, that IBM will provide a credit upon Maker's
reasonable request.
20.1.2 IBM's liability for actual damages for any cause whatsoever
(other than as set forth in Section 20.1 .1), shall be limited to the
greater of fifty thousand dollars ($50,000) or the applicable unit price
for the specific units of Product that caused the damages or that are
the subject matter of, or are directly related to, the cause of action.
This limitation will apply, except as otherwise stated in this Section,
regardless of the form of action, whether in contract or in tort,
including negligence. This limitation will not apply to the payment of
costs, damages and attorney's fees referred to in Section 18.0. This
limitation will also not apply to claims by Buyer for bodily injury or
damage to real property or tangible personal property caused by IBM's
negligence.
20.1.3 In no event will either party be liable to the other party for
any lost profits, lost savings, incidental damages or other
consequential damages, even if advised of the possibility of such
damages, except as provided in Section 18.0. In addition IBM will not be
liable for any claim based on any third-party claim, except as provided
in Section 18.0. In no event will IBM be liable for any damages caused
by Buyer's failure to perform Buyer's responsibilities.
20.1.4 In addition, IBM shall have no liability when the Products are
used in conjunction with (a) any medical implantation or other direct
life support applications where malfunction may result in direct
physical harm or injury to persons or (b) commercial aviation, nuclear
materials, or other ultra-hazardous activities.
21.0 SUBCONTRACT AND ASSIGNMENT
21.1 IBM has the right to subcontract its responsibilities under this
Agreement, provided that any subcontractor retained by IBM is obligated
in writing to the same obligations as set forth herein with respect to
IBM. In the event that IBM does subcontract certain portions of its
responsibilities, the term "employee" as used herein shall be deemed to
include such subcontractor and/or its employees.
21.2 Neither party to this Agreement may assign its obligations or delegate
its duties in whole or in part without the prior written consent of the
other except that IBM may assign its rights to payment under this
Agreement and if the assets or stock of that portion of IBM to which
this Agreement pertains hereafter becomes owned or controlled, directly
or indirectly, by a third party, IBM may assign its entire right, title
and interest in this Agreement to such third party. Any other
assignments or delegations will be void.
22.0 COMPETITIVE PRODUCTS AND SERVICES
Neither this Agreement nor any activities hereunder will impair any
right of IBM or Buyer to design, develop, manufacture, market, service,
or otherwise deal in, directly or indirectly, other products or services
including those which are competitive with those offered by IBM or
Buyer.
23.0 PROMOTIONAL ACTIVITY
Press releases and other like publicity, advertising or promotional
material which mention the other party by name, this Agreement or any
term hereof shall be agreed upon by both parties in writing prior to any
release.
24.0 FORCE MAJEURE
Except for payments due IBM, neither party shall be in default or liable
for any delay or failure of compliance with this Agreement due to an act
of nature, public enemy, freight embargo, or other cause if such act of
nature, public enemy, freight embargo, or other cause is beyond the
control of the non-performing party. A non-performing party shall cure
as soon as practicable, and as soon as practicable after such force
majeure event, notify the other party in writing of such event.
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25.0 NOTICES
25.1 All notices shall be in writing and shall be deemed delivered when sent
by certified mail return receipt requested.
IBM Maker Communications, Inc.
Dept. LJGV-965-3J 73 Mount Wayte Avenue
1000 River Street Framingham, MA 01702
Essex Junction, VT 05452
Attn: Contract Administrator Attn: Chief Financial Officer
25.2 Day to day technical activities under this Agreement will be directed by
the Technical Coordinators identified in Attachment A, who will be
responsible for maintaining technical liaison between the parties.
Either party may change its respective representative designated for
receipt of notices, or its Technical Coordinator and their addresses
designated for notices by notifying the other party in the same manner
as any other notice.
25.3 IBM will provide Buyer with ninety (90) days written notice whenever IBM
changes the location or locations, where a substantial portion of the
Product is manufactured.
26.0 GENERAL PROVISIONS
26.1 This Agreement may be executed in any number of identical counterparts,
each of which shall be deemed to be an original, and all of which
together shall be deemed to be one and the same instrument when each
party has signed one such counterpart.
26.2 The activities of each party and its employees, agents or
representatives while on the other party's premises (including any
design center) shall comply with the host company's policies and
procedures for such facilities, including security procedures and
visitation guidelines.
26.3 Each party will comply with all applicable federal, state and local
laws, regulations and ordinances including, without limitation, the
regulations of the U.S. Government relating to the export of commodities
and technical data insofar as they relate to the activities under this
Agreement. Buyer agrees that machines, commodities, and technical data
provided under this Agreement are subject to restrictions under the
export control laws and regulations of the United States of America,
including, without limitation, the U.S. Export Administration Act and
the U.S. Export Administration Regulations. Buyer hereby gives its
written assurance that neither machines, commodities or technical data
provided by IBM under this Agreement, nor the direct product thereof,
will be exported, or re-exported, directly or indirectly, to prohibited
countries or nationals thereof without first obtaining applicable
government approval. Buyer agrees it is responsible for obtaining
required government documents and approvals prior to export of any
machine, commodity, or technical data.
26.4 This Agreement shall be construed, and the legal relations between the
parties hereto shall be determined, in accordance with the substantive
laws of the State of New York, without regard to the conflict of laws
principles thereof. Buyer shall bring any and all actions arising under
or relating to this Agreement only in courts of competent jurisdiction
in the State of New York. IBM shall bring any and all actions arising
under or relating to this Agreement only in courts of competent
jurisdiction in the Commonwealth of Massachusetts. The parties hereto
expressly waive any right they may have to a jury trial and agree that
any proceeding under this Agreement shall be tried by a judge without a
jury.
26.5 If any section or subsection of this Agreement is found by competent
judicial authority to be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of any such section
or subsection in every other respect and the remainder of this Agreement
shall continue in effect so long as the redacted Agreement still
expresses the intent of the parties. If the intent of the parties cannot
be preserved, this Agreement shall be either renegotiated or terminated.
26.6 No actions, regardless of form, arising out of this Agreement, may be
brought by either party more than two (2) years after the cause of
action has arisen, or, in the case of nonpayment, more than two (2)
years from the date the last payment was due.
26.7 This Agreement may be modified only by a written amendment signed by
persons authorized to so bind Buyer and IBM. This Agreement shall not be
supplemented or modified by any course of dealing, course of performance
or trade usage. The term "this Agreement" as used herein includes any
applicable Attachments or future written amendment(s) made in accordance
with this Section.
IBM/Maker Page 10 of 17
<PAGE>
Signature Copy
26.8 Failure by either party to insist in any instance on strict conformance
by the other to any term of this Agreement or failure by either party to
act in the event of a breach will not be construed as a consent to or
waiver of any subsequent breach of the same or of any other term
contained in this Agreement.
26.9 All obligations and duties which by their nature survive the expiration
or termination of this Agreement shall remain in effect beyond any
expiration or termination, including, without limitation, Sections 8.0,
9.0, 10.0, 13.6, 14.0, 15.0, 16.0, 17.0, 18.0,19.0 and 20.0.
26.10 The headings in this Agreement are for convenience only and are not
intended to affect the meaning or interpretation of this Agreement.
IBM/Maker Page 11 of 17
<PAGE>
Signature Copy
27.0 SOLE AGREEMENT
The parties acknowledge that each has read this Agreement and its
Attachments, understands them, and agrees to be bound by their terms and
conditions. Further, the parties agree that this Agreement and its
Attachments and the IBM Design Kit License Agreement, are the complete
and exclusive statement of the agreement between the parties, which
supersedes all proposals and all prior agreements, oral or written, and
all other communications between the parties relating to the subject
matter hereof.
Agreed to: Agreed to:
INTERNATIONAL BUSINESS MAKER COMMUNICATIONS, INC.
MACHINES CORPORATION
By: /s/ PETER HANSEN By: /s/ MICHAEL RUBINO
--------------------------------- --------------------------
Authorized Signature Authorized Signature
Name: Peter Hansen Name: Michael Rubino
Title: VP North American Sales, IBM MD Title: VP & CFO
Dated: 8/13/98 Dated: 9/2/98
- --------------------------------------------------------------------------------
This agreement shall not bind either party to any obligations unless and until
it is executed in writing by both parties.
- --------------------------------------------------------------------------------
IBM/Maker Page 12 of 17
<PAGE>
Signature Copy
Attachment A
1.0 Product Name and Description
[**]
2.0 Technical Coordinators
[**]
3.0 Design Schedule/Statement of Work
[**]
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
IBM/Maker Page 13 of 17
<PAGE>
Signature Copy
Attachment B
Deliverable Items
1.0 [**]
2.0 [**]
3.0 Deliverable Items associated with the RTM Milestone:
[**]
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
IBM/Maker Page 14 of 17
<PAGE>
Signature Copy
Attachment C
[**]
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
IBM/Maker Page 15 of 17
<PAGE>
Signature Copy
Attachment C (continued)
PRODUCT PURCHASE INFORMATION
[**]
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
IBM/Maker Page 16 of 17
<PAGE>
Signature Copy
Attachment C (continued)
PRODUCT PURCHASE INFORMATION
[**]
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
IBM/Maker Page 17 of 17
<PAGE>
Signature Copy Page 1 of 7
AMENDMENT 1 TO AGREEMENT X0458
This Amendment to the Agreement for ASIC Design and Purchase of Products
("Amendment 1") is made and entered into between International Business Machines
Corporation ("IBM") and Maker Communications, Inc. ("Buyer"). This Amendment 1
shall be effective as of February 15, 1999 (the "Effective Date").
WHEREAS IBM and Buyer are parties to the Agreement for ASIC Design and Purchase
of Products, Agreement Number X0458, having an effective date of September 2,
1998 (the "Agreement");
WHEREAS IBM and Buyer desire to amend the Agreement as set forth herein;
NOW THEREFORE the parties hereby agree as follows:
The parties agree that Attachments A, B and C to the Agreement for ASIC Design
and Purchase of Products, with Agreement Number X0458, shall be amended, and are
restated as follows:
Attachment A-1
1.0 Product Name and Description
[**]
2.0 Technical Coordinators
[**]
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
IBM Maker Communications
<PAGE>
Signature Copy Page 2 of 7
Attachment A-1 (continued)
3.0 Design Schedule/Statement of Work
[**]
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
IBM Maker Communications
<PAGE>
Signature Copy Page 3 of 7
Attachment B-1
Deliverable Items
[**]
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
IBM Maker Communications
<PAGE>
Signature Copy Page 4 of 7
Attachment C-1
PRODUCT PURCHASE INFORMATION
[**]
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
IBM Maker Communications
<PAGE>
Signature Copy Page 5 of 7
Attachment C-1 (continued)
PRODUCT PURCHASE INFORMATION
[**]
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
IBM Maker Communications
<PAGE>
Signature Copy Page 6 of 7
Attachment C-1 (continued)
PRODUCT PURCHASE INFORMATION
[**]
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
IBM Maker Communications
<PAGE>
Signature Copy Page 7 of 7
Attachment C-1 (continued)
PRODUCT PURCHASE INFORMATION
[**]
This Agreement, as amended herein, sets forth the entire agreement and
understanding between the parties, and supersedes and cancels all previous
negotiations, agreements, commitments and writings, in respect to the subject
matter hereof, and neither party hereto shall be bound by any term, clause,
provision or condition except as expressly provided in the Agreement as amended
herein or as duly set forth on or subsequent to the date hereof in writing,
signed by duly authorized representatives of the parties.
Agreed to: Agreed to:
INTERNATIONAL BUSINESS MAKER COMMUNICATIONS, INC.
MACHINES CORPORATION
By: /s/ Peter D. Hansen By: /s/ Michael Rubino
----------------------------- -------------------------------
Authorized Signature Authorized Signature
Name: Peter D. Hansen Name: Michael Rubino
Title: VP North American Sales Title: VP and CFO
Dated: Dated:
------------------------- ----------------------------
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
IBM Maker Communications
<PAGE>
Signature Copy
AMENDMENT 2
TO AGREEMENT FOR ASIC DESIGN AND PURCHASE OF PRODUCTS
This amendment ("Amendment 2") to Agreement Number X0458, entered into between
IBM and Maker Communications, Inc. on September 2, 1998, as amended by Amendment
1 ("the Agreement"), is made and entered into by and between Maker
Communications, Inc. ("Buyer") and International Business Machines Corporation
("IBM"). Amendment 2 shall be effective when signed by both parties.
WHEREAS IBM and Buyer desire to amend the agreement so as to add an additional
product to be developed, manufactured and sold under the terms and conditions of
the Agreement.
NOW THEREFORE, the parties hereby agree to amend the Agreement by adding a
second set of Attachments to the base terms and conditions of the Agreement.
This Attachment has three parts: A-2, B-2, and C-2 that are applicable only to
the Product identified in Attachment A-2.
Attachment A-2
[**]
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
IBM/Maker Page 1 of 7
<PAGE>
Signature Copy
[**]
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
IBM/Maker Page 2 of 7
<PAGE>
Signature Copy
Attachment B-2
Deliverable Items
[**]
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
IBM/Maker Page 3 of 7
<PAGE>
Signature Copy
Attachment C-2
PRODUCT PURCHASE INFORMATION
[**]
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
IBM/Maker Page 4 of 7
<PAGE>
Signature Copy
Attachment C-2 (continued)
PRODUCT PURCHASE INFORMATION
[**]
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
IBM/Maker Page 5 of 7
<PAGE>
Signature Copy
Attachment C-2 (continued)
PRODUCT PURCHASE INFORMATION
[**]
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
IBM/Maker Page 6 of 7
<PAGE>
Signature Copy
Agreed to: Agreed to:
INTERNATIONAL BUSINESS MAKER COMMUNICATIONS, INC.
MACHINES CORPORATION
By:/s/ Peter D. Hansen By: /s/ Michael Rubino
----------------------------- -------------------------------
Authorized Signature Authorized Signature
Name: Peter D. Hansen Name: Michael Rubino
Title: VP North American Sales Title: VP and CFO
Dated: Dated:
------------------------- ----------------------------
IBM/Maker Page 7 of 7
Phoenix Technologies Ltd./Confidential Phoenix Agreement Number 14820100
PHOENIX TECHNOLOGIES LTD.
TECHNOLOGY LICENSE AGREEMENT
This Technology License Agreement ("Agreement") is entered into and is
effective as of February 12, 1998 ("Effective Date") between Phoenix
Technologies Ltd., a Delaware corporation having its principal place of business
at 411 East Plumeria Drive, San Jose, California 95134 ("PTL"), and Maker
Communication, Inc., a corporation having its principal place of business at 73
Mount Watye Avenue, Framingham, Massachusetts 01702 ("Licensee"). In
consideration of the premises and covenants contained herein, the parties agree
as follows:
1.0 DEFINITIONS
1.1 "Competitor" means a company, corporation, or other entity that develops,
markets, and/or license software similar in function to PTL's Virtual Chips line
of commercially available products.
1.2 "Contractor(s)" means a company, corporation, or other entity that provides
services for Licensee's Design Group, as set forth in Section 3.1.5 below. No
Competitor will be a Contractor.
1.3 "Core" means PTL's Virtual Chips synthesizable core software product in
source code form and any associated design files, as licensed under this
Agreement.
1.4 "Defect(s)" wil1 mean any mistake, problem, or error which is capable of
reproduction by PTL and which causes (a) an incorrect functioning or
non-functioning of the Software, or (b) renders the Software inoperable, or (c)
causes the Software to fail to meet its specifications.
1.5 "Derivative Work" means a computer program and any subsequent design,
including any resultant integrated circuit, which is a Modification made by
Licensee based on or incorporating material from the Software so that the
Modification, as a whole, represents an original work of authorship.
1.6 "Design Group" means a group within Licensee which is a single design team
designated to design Licensee's IC and/or test Licensee's IC. Such Design Group
will be designated on the Purchase Order. Each such group may have no more than
three locations, anywhere in the world. Each such location will be identified by
Licensee to PTL, in writing. Additional locations must be agreed to, in writing,
by PTL.
1.7 "Licensee's IC" means (a) the device created from integrated circuit designs
by the Design Group, as identified in the Purchase Order accepted by PTL, and
which incorporates the Core; and/or (b) the device created from integrated
circuit designs by the Design Group which is tested using the Test Environment.
l.8 "Modification(s)" means a revision, augmentation, abridgment, upgrade,
addition, adaptation, or other modification to the Software.
1.9 "Purchase Order(s)" means the order form issued to PTL by Licensee stating
the Software, Reuse, New Design Group, training, and/or services Licensee
requests from PTL.
1.10 "Reuse" means use of the Core by the Design Group on a new and functionally
different integrated circuit design. A Reuse occurs at synthesis of Licensee's
IC. Changes to fix functional problems (bugs), timing problems or other errors
in Licensee's IC will not be considered a Reuse.
1.11 "SGN Format" means Core represented in a synthesized gate level net list
format and subsequent formats as part of the process of creating an integrated
circuit.
1.12 "Software" means Core and Test Environment, collectively, as licensed under
this Agreement.
1.13 "Test Environment" means PTL's Virtual Chips simulation and test software
in source code form and any associated design files, as licensed under this
Agreement.
1.14 "Licensee Simulation Model" means a simulation program developed by
Licensee that contains the Core or derivatives thereof.
2.0 QUOTATIONS AND PURCHASE ORDERS
2.1 PTL will provide a written quotation for any Associated Fees, defined below,
for Software, Reuse, new Design Group, training, and/or other services requested
by Licensee ("Official Quotation").
2.2 Licensee will have no obligation to license any particular Software from
PTL, except as expressly set forth in Purchase Orders executed by authorized
representatives of Licensee, and accepted by PTL. The Purchase Order will
contain all of the information set forth on the Official Quotation.
Notwithstanding anything to the contrary on the Purchase Order, should Licensee
accept delivery of any Software or services from PTL, the information on the
Official Quotation will take precedence over the Purchase Order, and the
Official Quotation will be subject to the terms and conditions of this
Agreement.
2.3 Licensee will notify PTL, if Licensee desires to license additional Software
and/or an additional Design Group, and/or obtain other services, and PTL will
issue an Official Quotation to Licensee pursuant to this Section 2. Such other
services, including maintenance and support, and consulting will be subject to
execution of a separate addendum to this Agreement.
3.0 LICENSE
3.1 Subject to the terms and conditions of this Agreement and contingent upon
payment of all amounts due hereunder, PTL grants to Licensee the following non-
exclusive, nontransferable, worldwide licenses for use of the Software by the
Design Group:
3.1.1 A license to make Modifications to the Core, and use the derivative
implementation of the Core solely for incorporation into and distribution with
Licensee's IC, and for no other purpose.
3 1.2 A license to manufacture or have manufactured Licensee's IC, the
design of which is based in part on the Core, by a third party semiconductor
manufacturer, located anywhere in the world, and which may include Licensee
("Manufacturer(s)"). Provided, however, that during such manufacturing process,
any disclosure to Manufacturer is made
<PAGE>
Phoenix Technologies Ltd./Confidential Phoenix Agreement Number 14820100
in the SGN Format for the limited purpose of manufacturing Licensee's IC. Prior
to disclosure of the SGN Format, such Manufacturer(s) will sign an agreement
With Licensee which includes (a) a confidently provision at least as restrictive
as set form in Section 9 below, (b) a provision that Manufacturer may not use
the SGN Format for the production of any device except Licensee's IC, and (c) a
provision that Manufacturer may not sell or make available Licensee's IC to any
party other than Licensee.
3.1.3 A license to Reuse the Core for design and development of additional
Licensee's IC by the Design Group. Provided, however, that prior to synthesis of
Licensee's IC, Licensee agrees to notify PTL, in writing, of Licensee's intent
to Reuse the Core. Such Reuse will be subject to an Official Quotation as set
forth in Section 2 above. Licensee does not have the right to produce any
Licensee's IC, the design of which is based upon the Core, until there is a
Purchase Order for such Reuse accepted by PTL under this Agreement
3.1.4 A license to make Modifications to the Test Environment, and use the
Test Environment for the sole purpose of testing one or more Licensee's IC, and
for no other purpose.
3.15 A license to (a) provide tile Core to Contractors, for the purpose of
making Modifications or maintaining the Core for use in Licensee's IC, and for
no other purpose and (b) provide the Test Environment to Contractors, for the
purpose of making Modifications and/or testing one or more Licensee's IC, and
for no other purpose. Prior to disclosure of the Software, such Contractors will
sign an agreement with Licensee which includes (x) a confidentiality provision
at least as restrictive as set forth in Section 9 below, (y) a provision which
allows PTL the right to inspect during regular business hours, upon five (5)
days written notice, Contractors use of the Software, and (z) a provision
indicating that Contractor will not disclose, redistribute, or sublicense the
Software, in whole or in part or in any form to any third party. Such Contractor
shall only be allowed to use the Software at Licensee's Design Group location.
Licensee accepts responsibility and liability for the actions of such
Contractors. PTL will notify Licensee of the basis for initiating an Inspection,
pursuant to subsection A), and allow Licensee to provide an explanation or cure
to the satisfaction of PTL. If PTL is not satisfied with the explanation or cure
provided by Licensee, PTL may, upon five (5) days notice, initiate the
inspection. PTL agrees to conduct the inspection in accordance with Licensee's
confidentiality and security policies.
3.1.6 A license to provide Licensee's customers the Simulation Model, in an
encrypted SGN Format or object code format, provided: (i) Licensee's customers
have first entered into an agreement with Licensee having confidentiality
restrictions similar to those contained in this Agreement to prohibit said
customer from disclosing the Simulation Model, or portions thereof, to third
parties; and (ii) that said agreement further restricts said customers from
reverse engineering, decompiling or performing any other acts to discover the
Simulation Model's means of operation.
3.2 Under no circumstances may Licensee disclose, sublicense distribute,
transfer, use or allow access to the Software, except as permitted under this
Section 3, to a third-party without prior written consent signed by an
authorized representative of PTL.
3.3 Licensee has the sole responsibility for supporting Licensee's
Modifications. PTL will have no liability or responsibility for Software
modified by anyone other then PTL. Nothing in the foregoing sentence is intended
to limit PTL's liability or responsibility for the unmodified Software.
3.4 Licensee will not alter or remove, and will not permit or authorize any
third party to alter or remove the copyright notices from the Software.
3.5 Licensee will not be obligated to provide PTL with Licensee's Modifications.
If Licensee provides PTL with a copy of any Modification, unless otherwise
agreed in a separate writing signed by authorized representatives of the
parties, Licensee will be deemed to have granted PTL a non-exclusive, perpetual,
worldwide, royalty free license to use and sublicense any such Modification for
any purpose PTL deems fit.
3.6 PTL may include third party intellectual property in the Software. PTL will
inform Licensee of such third party property, and Licensee will have the option
to refine disclosure of such Software. If Licensee receives such Software, then
Licensee agrees to be bound by the additional obligations or restrictions
required by the third parties with respect to such intellectual property.
3.7 Licensee is prohibited from using PTL's intellectual property to develop,
market and/or license (a) a stand alone synthesizable core software product
which is similar in function to the Core, or (b) a stand alone test environment
product which is similar in function to the Test Environment. ("Competitive
Product"). Licensee is not prohibited from independently (without any use of any
of PTL's intellectual property) developing, marketing, and/or licensing a
Competitive Product.
4.0 DELIVERY
PTL will deliver the Software and any other deliverables within ten (10)
business days following the acceptance of the Purchase Order by PTL, unless the
parties agree, in writing, to a different delivery schedule.
5.0 ASSOCIATED FEES AND PAYMENT
5.1 Licensee will pay PTL the associated fees for the Software, any applicable
per unit royalties, Reuse, new Design Group, training, and/or other services
["Associated Fee(s)"], as set forth in the Official Quotation and invoiced by
PTL. Per unit royalties are applicable, Licensee will report and pay such
royalties as set forth in this Section 5. Licensee's commitment to pay the
Associated Fees to PTL will be non-cancelable and the payment due will be an
absolute commitment and no payment will be refundable under any circumstances,
except as set forth in Section 8.3 below. All payments are payable in United
States dollars and will be due within thirty (30) days after the date of PTL's
invoice to Licensee, except with regard to per unit royalties where payment will
be due and payable as set forth in this Section 5.
5.2 Licensee is required to pay per unit royalties, Licensee will submit royalty
reports to PTL, on a form approved by PTL before the end of the month following
each calendar quarter
Page 2 of 6
<PAGE>
Phoenix Technologies Ltd./Confidential Phoenix Agreement Number 14820100
after the Effective Date of this Agreement. Each report will accurately set
forth the number of units of each Licensee's IC (the design of which is based in
part on the Core) sold, or otherwise distributed or disposed of by Licensee
during such quarter. Each such report will be accompanied by payment of all
Associated Fees due to PTL pursuant to said report. Licensee's obligations to
furnish quarterly royalty reports and to make quarterly royalty payments to PTL
will continue as long as Licensee sells or distributes Licensee's IC, the design
of which is based in part on the Core. Royalty reports are required even if
Licensee reports no such sales or other distributions or disposals of Licensee's
IC, the design of which is based in part on the Core. If Licensee stops selling
Licensee's IC (the design of which is based in part on the Core), Licensee will
promptly submit to PTL a written notice, a find quarterly royal report, a final
royalty payment in the full amount of all Associated Fees due to PTL and a
written certification that it has stopped selling Licensee's IC (the design of
which is based in part on the Core).
5.3 Associated Fees and all other amounts payable by Licensee to PTL hereunder
do not include any taxes or charges imposed by any federal, state, local or
foreign jurisdiction. Licensee will pay any and all such tomes and charges
(other than tax based on PTL's net income) and will provide PTL with
satisfactory evidence of Such payment on request.
5.4 If a foreign government requires taxes to be withheld on payments to be made
by Licensee hereunder, then to the extent PTL is entitled to and can utilize a
U.S. Foreign Tax Credit for such taxes, Licensee may deduct such taxes from the
amount owed to PTL and pay them to the appropriate tax authority. Licensee will
obtain and deliver to PTL a receipt and a11 other documents necessary for PTL to
claim a Foreign Tax Credit.
5.5 If Licensee purchases licenses for Software other then the Test Environment
or uses the Test Environment in any manner not contemplated under this
Agreement, PTL may have a third party audit, no more than once per calendar
year, Licensee's records relating to the Software to determine whether Licensee
has correctly reported and calculated all of the Associated Fees due PTL. The
auditor shall be an accredited independent auditor from a recognized accounting
firm, and be mutually agreed upon by Licensee and PTL, with Licensee's
acceptance of the selected auditor not to be unreasonably withheld. If Licensee
will give the auditors reasonable access during normal business hours to
Licensee's premises where such records and documentation arc located. If an
audit discloses an underpayment of Associated Fees, Licensee will immediately
pay PTL the additional fees due with interest, from the original payment due
date, at the rate of one percent per month. PTL and Licensee will bear their own
expenses incurred in the audit; however, if an audit discloses an underpayment
of Associated Fees of five percent (5%) or more of the total Associated Fees
originally due for the period being audited, Licensee will reimburse PTL for all
reasonable expenses incurred by PTL the audit.
6.0 TRAINING
Subject to payment of fees by Licensee to PTL, PTL will provide to licensee
certain training of the Software. Such training will be provided at a regularly
scheduled PTL training class at PTL's San Jose, Ca1ifoniia facility. Licensee
will be solely responsible for all travel, accommodation, and miscellaneous
expenses for Licensee's attendance at such training. Training is subject to an
Official Quotation pursuant to Section 2 above.
7.0 OWNERSHIP
7.1 Title and full ownership in the Software, deliverables, related
documentation and all copies thereof will remain with PTL and/or its suppliers.
PTL retains the right to use, copy, modify, sublicense, and distribute the
Software and modifications thereto made by PTL. Licensee will not knowingly
infringe upon any rights of PTL or others in the Software, any other
deliverables or documentation.
7.2 Any and all Modifications, including Derivative Works, to the Software made
solely by Licensee will remain the sole property and responsibility of Licensee.
Licensee will have the right to register copyrights of its Derivative Works (as
a derivative work) and will have the responsibility of defending them. Any
Derivative Work will contain PTL and its suppliers' copyright polices embedded
in the code and displayed in the source code of the Derivative Work.
8.0 LIMITED WARRANT AND REMEDIES
8.1 PTL warrants that the Software, as delivered by PTL to Licensee hereunder
will, for a period of three (3) months after delivery of such Software to
Licensee, conform the respective industry standards set forth for said Software,
subject to mutually agreed upon exceptions.
8.2 During the warranty period, PTL will repair, at PTL's sole expense, any
Defect in the Software which causes the Software to fail to conform to such
specifications, provided that Licensee gives PTL written police of such Defect.
8.3 If the Software is found defective, PTL'S sole obligation under this
warranty, is, at PTL's option, to: (a) remedy such defect using commercially
reasonable efforts; or (b) refund to Licensee all amounts paid hereunder with
respect to the defective Software, and this Agreement with respect to the
defective Software will terminate.
8.4 THIS SECTION 8 SETS FORTH LICENSEE'S SOLE AND EXCLUSIVE REMEDIES FOR THE
PERFORMANCE OR NONPERFORMANCE OF THE SOFTWARE AND FOR ANY WARRANTY CLAIM WITH
RESPECT TO THE SOFTWARE. THE WARRANTY ABOVE WILL BECOME NULL AND VOID WITH
RESPECT TO ANY SOFTWARE THAT HAS BEEN MODIFIED IN AWAY WAY BY ANYONE OTHER THAN
PTL, WHETHER OR NOT SUCH MODIFICATIONS WERE PERMN1ITTED HEREUNDER.
8.5 PTL MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE
SOFTWARE OTHER THAN THE ONES EXPRESSLY SET FORTH IN THIS SECTION 8, AND PTL
EXPRESSLY DISCLAIMS ANY SUCH WARRANTIES, INCLUDING BUT NOT LIMITED TO THE
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NONINFRINGEMENT. NO AGENT OF PTL IS
Page 3 of 6
<PAGE>
Phoenix Technologies Ltd./Confidential Phoenix Agreement Number 14820100
AUTHORIZED TO ALTER OR EXPAND THE WARRANTY OBLIGATIONS OF PTL.
9.0 CONFIDENTIALITY
9.1 The parties agree that any and all Software, business, and technica1 data
and information supplied by one party to the other party hereunder are and will
remain the confidential and proprietary information of the party disclosing the
information and/or its third party suppliers. All such information disclosed and
received hereunder will be held in confidence. Said information will be used
only by those employees and Contractors, as authorized in Section 3.1.5 above,
of the receiving party who have a need to know such information for purposes
related to this Agreement. Unless otherwise provided for herein, the
information, not including the Software, will be safeguarded for a period of
five (5) years from the disclosure date using at least the same degree of care
the receiving party uses to protect its own most confidential information, but
in no event less than reasonable care. The confidentiality provisions regarding
disclosure of the Software will continue in effect until such time as PTL may
make the Software available to the public without restrictions on disclosure.
The confidentiality provisions of this Agreement will survive any termination of
this Agreement. No obligations of confidentiality extend to information that (a)
is or becomes publicly available; without breach of this Agreement by the
receiving party, (b) is independently developed by the receiving party without
reliance on the confidential information, (c) is rightfully received with no
restriction on confidentiality.
9.2 Neither party will disclose the terms of this Agreement other then to
business, financial and legal advisors, or as required by law or regulation, or
make any reference to the other party in any press release, brochure or other
communication to the public, without the express written consent of the other
party. Notwithstanding the foregoing, PTL may publicly indicate that Licensee is
a customer of PTL, without disclosing any particular terms of the Agreement. Any
additional information related to the licensing of the Software that either
party wishes to make public shall be mutually agreed upon in writing prior to
disclosure.
10.0 INTELLECTUAL PROPERTY INDEMNIFICATION
10.1 Except as otherwise provided below, PTL will, at its own expense, defend or
settle any claim made or threatened or any suit or proceeding brought against
Licensee so far as it is based on an allegation that any Software furnished
hereunder infringe a North America or a European Community patent or copyright
in existence on the date of this Agreement, if Licensee notifies PTL in writing
within twenty (20) days of such claim, suit or proceeding, and gives PTL all
information, assistance and authority to defend or settle the same at PTL's
expense. PTL will have no responsibility hereunder for any settlement of any
such claim or suit made by Licensee without PTL's prior written approval. PTL
will reimburse Licensee for the actual and reasonable expenses incurred by it in
providing PTL with such information, assistance and authority but PTL will not
reimburse Licensee for any cost of counsel retained by it in connection with
such claim suit or proceeding.
10.2 If any Software is held to infringe and the use of said Software is
enjoined, or if PTL believes that the Software is likely to become the subject
of a claim of infringement or to be enjoined, PTL will have the option, at its
expense, (a) to procure for Licensee the right to continue using the infringing
or potentially infringing Software; or (b) to replace the infringing or
potentially infringing Software with a non-infringing functionally equivalent
Software; or (c) to modify the infringing or potentially infringing Software so
it becomes non-infringing but functionally equivalent.
10.3 PTL's obligations stated under this Section 10 will not apply to any claim,
suit or proceeding (a) to the extent it is based upon any Modification of the
Software other than by PTL or the combination of the Software with non-PTL
hardware or software, if the claim, suit or proceeding would have been avoided
if the Software had not been so modified or combined, (b) based on Licensee's
use of other than the latest release of the Software, if the claim, suit or
proceeding would have been avoided by use of such latest release, (c) based on
the use of the Software in practicing any process that is not inherent in the
operation of the Software itself, and/or (d) based on a modified version of the
Software made by PTL in compliance with Licensee's instructions, designs or
specifications.
10.4 This Section 10 sets forth the entire obligation of PTL, and Licensee's
exclusive remedy, for the actual or alleged infringement of any patent,
copyright, trade secret or other intellectual property right, of any person or
entity by any Software or other item, material, or service provided by PTL
under, or in collection with, this Agreement.
11.0 LIMITATION OF LIABILITY
11.1 IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY REASON OTHER
THAN AS EXPRESSLY SET FORTH HEREIN. WITH THE EXCEPTION OF ANY BREACH OF THE
CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 9.0, THE PARTIES AGREE THAT
REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL
PURPOSE, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY, OR ANY
THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL OR SPECIAL DAMAGES, EVEN
IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT
SHALL EITHER PARTY'S TOTAL LIABILITY UNDER ANY OR ALL PROVISIONS OF THIS
AGREEMENT FOR ALL CAUSES OF ACTION ON A CUMULATIVE BASIS EXCEED FIVE HUNDRED
THOUSAND DOLLARS ("LIMITATION CAP"). THIS PARAGRAPH NOTWITHSTANDING, LICENSEE
UNDERSTANDS AND AGREES THAT THE LIMITATION CAP AND THE WAIVER OF CONSEQUENTIAL,
INDIRECT, INCIDENTAL AND SPECIAL DAMAGES SHALL NOT APPLY TO ANY INTENTIONAL, OR
WILLFUL ACTS, OR ACTS OF GROSS NEGLIGENCE, BY EITHER LICENSEE OR ITS CONTRACTORS
THAT RESULTS IN THE
Page 4 of 6
<PAGE>
Phoenix Technologies Ltd./Confidentia1 Phoenix Agreement Number 14820100
UNAUTHORIZED DISCLOSURE OR UNAUTHORIZED USE OF THE SOFTWARE. FOR THE PURPOSES OF
THIS SECTION CONSEQUENTIAL DAMAGES SHALL MEAN THOSE DAMAGES WHICH MAY BE AWARDED
BY A COMPETENT COURT OF LAW FOR RELATED TO THE LOST REVENUE AND/OR COST OF
CREATING OR RESTORING PROPERTY DAMAGED OR INJURED AS A RESULT OF LICENSEE'S
UNLAWFUL CONDUCT OR BREACH OF THIS AGREEMENT.
11.2 Licensee agrees that the limitations of liability and disclaimers of this
Agreement will apply regardless of whether Licensee has accepted any Software or
any other product or service delivered by PTL. The parties agree that PTL has
set its prices and entered into this Agreement reliance upon such limitations
and disclaimers, that the same reflect an allocation of risk between the parties
(including the risk that a contract remedy may fail of its essential purpose and
cause consequential loss), and that the same form an essential basis of the
bargain between the parties.
12.0 INDEMNITY OF PTL
Except for PTL's obligations as expressly set forth herein, Licensee will at its
expense defend, indemnify and hold PTL harmless PTL, from any and all actions,
claims, costs, liabilities, losses, and expenses including, but not limited to,
reasonable attorneys' fees and cost of suit, incurred by PTL as a result of or
arising from Licensee's: (l) use, misuse, or modification of the Software, as
well as its reliance thereon or interpretations thereof in creating any
resulting designs and/or products; or (2) its sublicensing, sale or other
disposition of said designs or products. The foregoing obligations upon Licensee
apply only if: (a) PTL gives Licensee written notice of any claims and/or
settlement claims within twenty (20) days of such claim and/or threatened claim;
(b) PTL allows Licensee to solely direct and control the defense and/or
settlement of the claim; and (c) PTL provides Licensee with the authority,
information and assistance (at Licensee's expense) that Licensee reasonably
requests to defend the claim, gives all relevant and available evidence PTL's
possession (subject to an acceptable confidentiality agreement and/or the
securing of a protective order if disclosure is required pursuant to a court
order), and gives reasonable assistance to Licensee in the defense of such claim
or threatened claim.
13.0 TERM AND TERMINATION
13.1 The term of this Agreement will begin upon the Effective Date and will
continue until terminated, as set forth herein.
13.2 If either party breaches a material provision and where capable of remedy
does not cure such breach within thirty (30) days after written notice from the
other party, such other party will have the right at its option to: (a) suspend
performance or payment until such breach is cured; (b) terminate this Agreement,
(c) seek a combination of (a) and (b) and those remedies available at law or
equity to the extent not limited by the terms of this Agreement. If the breach
involves a delay in or failure to pay money when due, the cure period will be
ten (10) days rather than thirty (30) days. The election of (a), (b) or (c)
above wil1 not excuse the breaching party from any obligation arising prior to
the date of such election.
13.3 Should either party: (a) become insolvent; (b) make an assignment for the
benefit of creditors; (c) file or have filed against it a petition in bankruptcy
or seeking reorganization; (d) have a receiver appointed; and/or (e) institute
any proceedings for 1iquidation or winding up; then the other party may, in
addition to other rights and remedies it may have, terminate this Agreement
immediately by written notice.
13.4 Upon termination of this Agreement, the licenses and rights granted
hereunder and the obligations imposed hereunder will cease except as otherwise
expressly set forth herein. Upon termination, Licensee will return the Software
including all copies and documentation pertaining thereto in Licensee's
possession and those copies furnished to any Manufacturer, and will notify
through one of Licensee's officers, in writing, of such return within thirty
(30) days of termination. The ownership, confidentiality, warranties, indemnity,
1imitation of liability, payment of fees, obligations upon termination, and
general provisions of this Agreement will survive the termination of this
Agreement indefinitely, unless otherwise specified in the respective section.
14.0 GENERAL
14.1 Licensee and PTL agree that this Agreement constitutes the complete
Agreement and understanding between the parties with respect to the subject
matter herein. This Agreement supersedes all prior agreements, understandings,
and negotiations, whether written or verbal, with respect to the subject matter
herein. No amendment or modification of this Agreement will be effective unless
it is set forth in a writing which refers to the particular provisions so
amended or modified and is executed by authorized representatives of both
parties.
14.2 Notices will be sent by first class mail or express mail, postage prepaid,
by courier or other personal delivery, or by facsimile (with telephonic
confirmation of receipt) to the parties at the addresses specified at the
beginning of this Agreement or to such other address as a party designates in
writing to the other party. Notices to PTL will be sent to the attention of the
Legal Department.
14.3 Licensee agrees that it will not export any Software or other materials
provided by PTL hereunder in violation of any law, statute or regulation,
including the United States Export Administration Act and regulations
thereunder.
14.4 This Agreement will be governed by and construed in accordance with the
internal laws of the State of California, without regard to or application of
choice of law rules. All disputes which arise in connection with this Agreement
will be resolved in the state and federal Courts in California and Licensee
hereby submits to the personal jurisdiction of such courts.
14.5 No third party will have any rights under this Agreement. The parties are
independent contractors, and neither party will have any right or power to
create any obligation or responsibility on behalf of the other party.
Page 5 of 6
<PAGE>
Phoenix Technologies Ltd./Confidential Phoenix Agreement Number 14820100
14.6 The disclosing party shall be entitled to seek temporary and/or permanent
equitable relief (including injunctive relief in the event of any actual or
threatened breach of this Agreement by the receiving party, it being agreed that
monetary damages may be insufficient to adequately compensate the disclosing
party.
14.7 Licensee may not assign its rights or delegate its duties under this
Agreement without the prior written consent of PTL, which consent will not be
unreasonably withheld. Any attempted assignment or delegation by Licensee
without PTL's prior written consent will be void and will give PTL the right to
terminate this Agreement on written notice to Licensee. Subject to the foregoing
this Agreement will inure to the benefit of and be binding on the respective
successors and assigns of the parties.
14.8 Waiver by either party of nonperformance or any breach of any provision of
this Agreement will not operate as a waiver of any subsequent nonperformance or
other breach of the same or any other provision. The failure by a party to
exercise any of its rights under this Agreement will not be deemed to constitute
a waiver of any of such rights, or other rights or remedies available to such
party.
14 9 Each party represents to the other that it has all authority to enter into
this Agreement and to perform the obligations hereunder. PTL further represents
it has all right, title, and interest and/or license rights in the Software
necessary to grant the licenses and has not taken any action or suffered any
action to be taken with respect to the Software which would restrict or affect
the license rights granted hereunder.
This Agreement is entered into on behalf of the parties by their duly authorized
representatives.
PTL: Phoenix Technologies, Ltd.
Signature /s/ Stuart J. Nichols
-----------------------------------
Print Name: Stuart J. Nichols
-----------------------------------
Title: V.P. General Counsel, and Secretary
-----------------------------------
Date: 3/5/98
-----------------------------------
Licensee: Maker Communications, Inc.
Signature: /s/ Mitchell Mackoff
-----------------------------------
Print Name: Mitchell Mackoff
-----------------------------------
Title: Vice President & CFO
-----------------------------------
Date: 2/27/98
-----------------------------------
Page 6 of 6
<PAGE>
Confidential Phoenix Agreement Number 14820200
PHOENIX TECHNOLOGIES LTD.
SUPPORT AND MAINTENANCE ADDENDUM
This Support and Maintenance Addendum ("Addendum") is entered into and is
effective as of February 12, 1998, ("Effective Date") between Phoenix
Technologies Ltd., a Delaware corporation having its principal place of business
at 411 East Plumeria Drive, San Jose, California 95134 U.S.A. ("Phoenix") and
Maker Communication, Inc., a Delaware corporation having its principal place of
business at 73 Mount Wayte Avenue, Framingham, Massachusetts 01702 ("Licensee").
Phoenix and Licensee have previously entered into a Technology License
Agreement, Phoenix Agreement Number 14820100, dated February 12, 1998
("Controlling Agreement"), where Licensee has licensed certain Phoenix Virtual
Chips software ("Software").
1.0 SUPPORT AND MAINTENANCE
1.1 Phoenix will provide response to questions Licensee has with regard to the
Software ("Support"). Such Support shall be between the hours of 8:00 am. and
5:00 p.m. Pacific Time, Monday through Friday (exclusive of Phoenix holidays),
and is limited to by (a) telephone at 1-888-482-4477, (b) Facsimile at
(408)570-1230, or (c) electronic mail at [email protected]. Licensee shall
advise Phoenix, in writing, of no more than four users of the Software who will
be the contact with Phoenix for such Support ("Contact Persons"). Any additional
Contact Persons must be agreed to, in writing, by Phoenix.
1.2 Phoenix will provide Maintenance Updates, herein defined, to the Software
and documentation.
1.2.1 Maintenance Updates shall mean all changes, corrections, additions,
and bug fixes to the Software made by Phoenix which are not Major Enhancements,
herein defined.
1.2.2 Major Enhancements shall mean upgrades or new versions of the
Software that provide substantial additional value, or substantial1y extend the
performance or improve the performance functionality of the Software. Major
Enhancements shall be considered new Software under the Controlling Agreement.
1.3 Phoenix will respond to requests with regard to a Software and/or
documentation problem(s) ["Maintenance"]. Such assistance will be prioritized
based upon Licensee's assessment, in good faith, of the severity of the problem
into one of the following categories:
1.3.1 Level I Priority: Defect which severely hampers Licensee
productivity. Phoenix will use commercially reasonable efforts to fix Defect
with a satisfactory work around solution within ten (10) business days and
provide a solution in the next scheduled Software or documentation release.
1.3.2 Level II Priority: Defect which minimally inconveniences Licensee.
Phoenix will use commercially reasonable efforts to resolve these Defects and to
correct them in the next scheduled Software or documentation release.
2.0 TERM AND FEES
2.1 Support, Maintenance Updates, and Maintenance ("Support Program"), is
available for twelve (12) month periods. Support fees for such Support Program
are due and payable as set forth in Section 6 of the Controlling Agreement. The
Support Program will begin on the date of acceptance of the Purchase Order by
Phoenix.
2.2 If Licensee desires to renew such Support Program, Licensee will notify
Phoenix, in writing, at least thirty (30) days prior to such Support Program
expiration. In the event that Licensee allows the Support Program to expire and
subsequently decides to obtain the Support Program then Licensee shall notify
Phoenix, in writing. In addition, Licensee shall pay Support Fees and any
applicable reinstatement fees to Phoenix.
2.3 Phoenix will issue an Official Quotation to Licensee for such Support
Program pursuant to Section 2 of the Controlling Agreement.
3.0 GENERAL
3.1 EXCEPT AS SET FORTH HEREIN, PHOENIX MAKES AND LICENSEE RECEIVES NO OTHER
WARRANTY EXPRESS OR IMPLIED WITH RESPECT TO SUPPORT PROGRAM PROVIDED UNDER THIS
ADDENDUM, INCLUDING ALL WARRANTS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. NEITHER PARTY SHALL HAVE ANY LIABILITY WITH RESPECT TO ITS OBLIGATIONS
UNDER OR PERFORMANCE OF THIS ADDENDUM FOR CONSEQUENTIAL, EXEMPLARY, OR
INCIDENTAL DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. THE STATED EXPRESS WARRANTY IS IN LIEU OF ALL LIABILITIES OR
OBLIGATIONS OF PHOENIX FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE
DELIVERY USE, OR PERFORMANCE OF TO SUPPORT PROGRAM OR SERVICES PROVED BY PHOENIX
UNDER THIS ADDENDUM.
3.2 Each party acknowledges that it has read this Addendum, understands it, and
agrees to be bound by its terms. This Addendum may only be modified by a written
instrument duly executed by both parties to this Addendum. The terms and
conditions not stated herein shall be as set forth in the Controlling Agreement.
3.3 Licensee may not assign this Addendum, except as set forth in the
Controlling Agreement and only in conjunction with the Controlling Agreement.
This Addendum is entered into on behalf of the parties by their duly
authorized representatives.
Phoenix: Phoenix Technologies Ltd.
Signature: /s/ Stuart J. Nichols
------------------------------------------------------
Print Name/Title: Stuart J. Nichols, V.P. General Counsel, and Secretary
------------------------------------------------------
Date: 3/5/98
------------------------------------------------------
Licensee: Maker Communications, Inc.
------------------------------------------------------
Signature: /s/ Mitchell Mackoff
------------------------------------------------------
Print Name/Title: Mitchell Mackoff/ V.P. & CFO
------------------------------------------------------
Date: 2/27/98
------------------------------------------------------
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This Agreement (this "Agreement") is made as of December 22, 1998 by
and among Maker Communications, Inc., a Delaware corporation (the "Company"),
the investors listed on Exhibit A hereto (the "Investors") and the other parties
which are signatories hereto.
WHEREAS, the Company, the several holders of the Company's Class A
Preferred Stock, $0.01 par value per share (the "Class A Shares") and the
several holders of the Company's Class B Preferred Stock, $0.01 par value per
share (the "Class B Shares"), are parties to an Amended and Restated
Registration Rights Agreement dated as of October 16, 1997 (the "Prior
Agreement"), which may be amended by those persons holding or having the right
to acquire a majority of the Registrable Shares then outstanding;
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, the Company and the Investors have entered into a Class C Preferred
Stock Purchase Agreement dated as of even date herewith (as in effect from time
to time, the "Purchase Agreement") in connection with the issuance and sale by
the Company to the Investors of certain shares of the Company's Class C
Preferred Stock, par value $0.01 per share (the "Class C Shares); and
WHEREAS, it is a condition to the obligations of the Investors
pursuant to the Purchase Agreement that this Agreement be executed by the
parties hereto in order to amend and restate the Prior Agreement, and the
parties are willing to execute this Agreement and be bound by the provisions
hereof;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, the parties hereto hereby amend and
restate the Prior Agreement in its entirety as follows:
1. Registration Rights.
1.1. Definitions.
(a) The terms "Form S-l," "Form S-3," "Form S-4" and "Form S-8"
mean such respective forms under the Securities Act of 1933, as amended (the
"1933 Act") as in effect on the date hereof or any successor registration forms
to Form S-1, Form S-3, Form S-4 and Form S-8, respectively, under the 1933 Act
subsequently adopted by the Securities and Exchange Commission (the "SEC").
(b) 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.
<PAGE>
(c) The terms "register", "registered", and "registration" refer
to a registration effected by preparing and filing a registration statement or
similar document in compliance with the 1933 Act, and the automatic
effectiveness or the declaration or ordering of effectiveness of such
registration statement or document.
(d) The term "Registrable Securities" means (i) all shares of
Common Stock issuable upon conversion of the Class B Shares or the Class C
Shares; (ii) the shares of the Company's Common Stock owned by an Investor;
(iii) any Common Stock issued as a dividend or other distribution with respect
to, in exchange for, or in replacement of any Investor's shares of Common Stock
(including the Common Stock referred to in (d)(i) above); (iv) any other shares
of Common Stock acquired after the date hereof by any Investor; provided,
however, that any shares previously sold to the public pursuant to a registered
public offering or pursuant to an exemption from the registration requirements
of the 1933 Act shall cease to be Registrable Securities.
1.2. Request for Registration.
(a) At any time after the earlier of (i) December 31, 1999 or
(ii) the date six (6) months after the closing date of the first registered
public offering of securities of the Company, if the Company shall receive a
written request from any Holder(s) of Registrable Securities then outstanding
and entitled to registration rights under this Section 1 (the "Initiating
Holders") that the Company effect the registration under the 1933 Act of
Registrable Securities, then the Company shall, within five (5) business days of
the receipt thereof, give written notice of such request to all Holders and
shall, subject to the limitations of this Section 1.2, use its best efforts to
effect such a registration as soon as practicable and in any event to file
within sixty (60) days of the receipt of such request a registration statement
under the 1933 Act covering all the Registrable Securities which the Holders
shall in writing request (within twenty (20) days of receipt of the notice given
by the Company pursuant to this Section 1.2(a)) to be included in such
registration and to use its best efforts to have such registration statement
become effective; provided, however, that the Company will not be required to
effect the registration of Registrable Securities unless either (i) at least an
aggregate of 1,000,000 shares of Registrable Securities (as adjusted to reflect
stock splits, stock combinations, stock dividends and recapitalizations) are
offered or (ii) Registrable Securities are offered at a proposed offering price
net of underwriting commissions of not less than $3,000,000.
(b) If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as part of their request made pursuant to this
Section 1.2 and the Company shall include such information in the written notice
referred to in Section 1.2. In such event, the right of any Holder to include
its 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
- 2 -
<PAGE>
securities through such underwriting shall (together with the Company as
provided in Section 1.4(d)) enter into an underwriting agreement in customary
form with the underwriter or underwriters selected for such underwriting by the
Company and reasonably acceptable to a majority in interest of the Initiating
Holders; provided, however, that if the underwriter is not reasonably acceptable
to a majority in interest of the Initiating Holders, such Initiating Holders may
select an underwriter or underwriters which shall be reasonably acceptable to
the Company. Notwithstanding any other provision of this Section 1.2, if, in the
case of a registration requested pursuant to Section 1.2(a), 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 the Company and all Holders of Registrable Securities
which would otherwise be underwritten pursuant hereto, and all the securities
other than Registrable Securities sought to be included in the underwriting
shall first be excluded. To the extent that further limitation is required, the
number of Registrable Securities that may be included in the underwriting shall,
subject to the last sentence of this paragraph, be allocated pro rata among all
Holders thereof desiring to participate in such underwriting (according to the
number of Registrable Securities then held by each such Holder). No Registrable
Securities requested by any Holder to be included in a registration pursuant to
Section 1.2(a) shall be excluded from the underwriting unless all securities
other than Registrable Securities are first excluded. If the registration
pursuant to this Section 1.2(a) requires exclusion of securities requested to be
registered and is subsequent to the Company's first registered public offering
of securities, then the Company shall include in such registration, in
preference to other Registrable Securities, the Registrable Securities which
represent shares of Common Stock issued upon conversion of Class C Shares, up to
an amount not to exceed each such requesting Holder's initial aggregate purchase
price for the Class C Shares as set forth on Exhibit B hereto (the "Preferential
Amount"); and any amounts so registered shall reduce the Preferential Amount and
when the Preferential Amount equals zero, this last sentence of Section 1.2(b)
shall be of no further force or effect.
(c) The Company is obligated to effect only three (3)
registrations pursuant to Section 1.2(a); provided, however, that no
registration pursuant to Section 1.2(a) shall be deemed to be a registration for
any purpose of this sentence if (i) the number of Registrable Securities
included in the underwriting does not equal or exceed fifty percent (50%) of the
number of Registrable Securities proposed by the Holders to be distributed
through such underwriting and (ii) the Holders pay the expenses of such
registration in accordance with Section 1.6; and provided, further, that no
registration of Registrable Securities which shall not have become and remained
effective in accordance with Section 1.4 shall be deemed to be a registration
for any purpose of this sentence.
(d) Notwithstanding the foregoing provisions of this Section
1.2, in the event that the Company is requested to file any registration
statement pursuant to this Section 1.2, (i) the Company shall not be obligated
to effect the filing of such registration statement:
- 3 -
<PAGE>
(A) during the one hundred eighty (180) days following
the effective date of any other registration statement
pertaining to an underwritten public offering of securities for
the account of the Company or any Holder;
(B) during the six (6) months following the effective
date of any other registration statement which the Company has
filed pursuant to the request under Section 1.2(a);
(C) if, in the case of the initial public offering of
the Company's securities, the Company and the Initiating Holders
are unable to obtain the commitment of the underwriter selected
pursuant to Section 1.2(b) to underwrite the offering on a firm
commitment basis;
(D) if the Holders propose to dispose of shares of
Registrable Securities all of which may be immediately
registered on Form S-3 pursuant to Section 1.11 below; or
(E) for a period of up to sixty (60) days after the date
of a request for registration pursuant to this Section 1.2 if at
the time of such request (1) the Company is engaged, or has
fixed plans to engage, within sixty (60) days of the time of
such request, in a firm commitment underwritten public offering
of Common Stock in which the holders of Registrable Securities
include Registrable Securities pursuant to Section 1.3; or (2)
the Company is currently engaged in a self-tender or exchange
offer and the filing of a registration statement would cause a
violation of the Securities and Exchange Act of 1934, as amended
(the "1934 Act");
or (ii) if the Company shall furnish to the Holders requesting such registration
statement a certificate signed by the Chief Executive Officer of the Company
stating that, in the good faith judgment of the Board of Directors, it would not
be in the best interests of the Company and its stockholders generally for such
registration statement to be filed, the Company shall have the right to defer
such filing for a period of not more than ninety (90) days after receipt of the
request of the relevant Initiating Holders; provided, however, that the Company
may not utilize the right set forth in this Section 1.2(d)(ii) more than once in
any twelve (12) month period.
(e) Each registration requested pursuant to Section 1.2(a) shall
be effected by the filing of a registration statement on Form S-1 (or if such
form is not available, any other form which includes substantially the same
information (other than information which is incorporated by reference) as would
be required to be included in a registration statement on such form as currently
constituted), unless the use of a different form is consented to by Initiating
Holders holding a majority of the Registrable Securities held by all Initiating
Holders or unless another form would be equally effective, as determined by the
Initiating Holders at their sole discretion.
- 4 -
<PAGE>
1.3. Company Registration. 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
capital stock or other securities under the 1933 Act in connection with the
public offering of such securities solely for cash (other than a registration on
Form S-8 relating solely to the sale of securities to participants in a Company
stock plan or a registration on Form S-4 or any successor form), the Company
shall, at such time, promptly give each Holder written notice of such
registration. Upon the written request of any Holder given within twenty (20)
days after mailing of such notice by the Company, the Company shall, subject to
the provisions of Section 1.8, use its best efforts to cause a registration
statement covering all of the Registrable Securities that each such Holder has
requested to be registered to become effective under the 1933 Act. The Company
shall be under no obligation to complete any offering of its securities it
proposes to make and shall incur no liability to any Holder for its failure to
do so.
1.4. Obligations of the Company. Whenever required under this Section
1 to use its best efforts to effect the registration of any Registrable
Securities, the Company shall, as expeditiously as reasonably possible, 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 up to one hundred eighty (180) days or until such Holders have
informed the Company in writing that the distribution of their securities has
been completed. In addition, the Company shall:
(a) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement, and use its best efforts to cause each such
amendment and supplement to become effective, as may be necessary to comply with
the provisions of the 1933 Act with respect to the disposition of all securities
covered by such registration statement.
(b) Furnish to the Holders such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the 1933 Act, and such other documents as they may reasonably
request in order to facilitate the disposition of Registrable Securities owned
by them.
(c) Use its best efforts to register or qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such states and jurisdictions as shall be reasonably requested by the
Holders, except that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business, subject itself to taxation
or file a general consent to service of process in any such state or
jurisdiction.
(d) 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
- 5 -
<PAGE>
and perform its obligations under such an underwriting agreement, including
furnishing any opinion of counsel or entering into a lock-up agreement
reasonably requested by the managing underwriter.
(e) Notify each Holder of Registrable Securities covered by such
registration statement, at any time when a prospectus relating thereto covered
by such registration statement is required to be delivered under the 1933 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 and promptly file such amendments and supplements
which may be required pursuant to Section 1.4(b) on account of such event and
use its best efforts to cause each such amendment and supplement to become
effective.
(f) Furnish, at the request of any Holder requesting
registration of Registrable Securities pursuant to this Section 1, on the date
that such Registrable Securities are delivered to the underwriters for sale in
connection with a registration pursuant to this Section 1, if such securities
are being sold through underwriters, or, if such securities are not being sold
through underwriters, on the date that the registration statement with respect
to such securities becomes effective, (i) an opinion or opinions, dated such
date, of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given by company counsel
to the underwriters in an underwritten public offering, addressed to the
underwriters, if any, and to the Holders requesting registration of Registrable
Securities and (ii) a letter dated such date, from the independent certified
public accountant of the Company, in form and substance as is customarily given
by independent certified public accountants to underwriters in an underwritten
public offering, addressed to the underwriters, if any, and to the Holders
requesting registration of Registrable Securities.
(g) Apply for listing and use its best efforts to list the
Registrable Securities being registered on any national securities exchange on
which a class of the Company's equity securities is listed or, if the Company
does not have a class of equity securities listed on a national securities
exchange, apply for qualification and use its best efforts to qualify the
Registrable Securities being registered for inclusion on the automated quotation
system of the National Association of Securities Dealers, Inc.
(h) Without in any way limiting the types of registrations to
which this Section 1 shall apply, in the event that the Company shall effect a
"shelf registration" under Rule 415 promulgated under the 1933 Act, the Company
shall take all necessary action, including, without limitation, the filing of
post-effective amendments, to permit the Investors to include their Registrable
Securities in such registration in accordance with the terms of this Section 1.
1.5. Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 1 in
respect of the Registrable Securities of
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any selling Holder that such selling 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 its Registrable Securities and such other information as the
Company may reasonably request or may be reasonably required in connection with
any registration, qualification or compliance referred to in this Section 1 or
otherwise required under applicable state and federal securities laws.
1.6. Expenses of Demand Registration. All expenses other than
underwriting discounts and commissions relating to Registrable Securities
incurred in connection with each registration, filing or qualification pursuant
to Section 1.2(a) and each registration, filing or qualification pursuant to
Section 1.11, including (without limitation) all registration, filing and
qualification fees, printing and accounting fees, fees and disbursements of
counsel for the Company, and the reasonable fees and disbursements of one
counsel 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(a) if the registration
request is subsequently withdrawn at any time 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 (1)
demand registration pursuant to Section 1.2(a); and provided, further, that if
at the time of any withdrawal described in the foregoing clause the Holders have
learned of a material adverse change in the condition, business, or prospects of
the Company from that known to the Holders of a majority of the Registrable
Securities then outstanding at the time of their request that makes the proposed
offering unreasonable in the good faith judgment of a majority in interest of
the Holders of the Registrable Securities, then the Holders shall not be
required to pay any of such expenses and the right to one (1) demand
registration pursuant to Section 1.2(a) shall not be forfeited. Subject to
Section 1.12, all underwriting discounts and commissions relating to Registrable
Securities included in any registration effected pursuant to Section 1.2(a) or
1.11 will be borne and paid ratably by the Holders of such Registrable
Securities, and, if participating, the Company and any other stockholders of the
Company.
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 any registration
pursuant to Section 1.3 for each Holder, including, without limitation, all
registration, filing and qualification fees, printing and accounting fees, fees
and disbursements of counsel for the Company and the reasonable fees and
disbursements of one counsel for the selling Holders. Underwriting discounts and
commissions relating to Registrable Securities included in any registration
effected pursuant to Section 1.3 will be borne and paid ratably by the Holders
of such Registrable Securities, the Company, and, if participating, any other
stockholders of the Company.
1.8. Underwriting Requirements. In connection with any offering
involving an underwriting of securities being issued by the Company, the Company
shall not be required under Section 1.3 to include any of the Holders'
securities in such underwriting unless such
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Holders accept the terms of the underwriting as agreed upon between the Company
and the underwriters selected by it, and then only in such quantity, if any, as
in the opinion of the underwriters, marketing factors allow. If the managing
underwriter for the offering shall advise the Company in writing that the total
amount of securities, including Registrable Securities, requested by
stockholders to be included in such offering exceeds the amount of securities to
be sold other than by the Company that marketing factors allow, then the Company
shall be required to include in the offering only that number of such
securities, including Registrable Securities, which the managing underwriter
believes marketing factors allow (the securities so included to be reduced as
follows: (a) all securities which stockholders other than the Company and the
Holders seek to include in the offering shall be excluded from the offering to
the extent limitation on the number of shares included in the underwriting is
required, (b) if further limitation on the number of shares to be included in
the underwriting is required, then the number of shares held by Holders that may
be included in the underwriting shall, subject to clause (c) below, be reduced
so that the number of shares included in the underwriting are pro rata in
accordance with the number of shares of Registrable Securities held by each such
Holder and (c) if the registration requires exclusion of securities requested to
be registered and is subsequent to the Company's first registered public
offering of securities, then the Company shall include in such registration, in
preference to other Registrable Securities, the Registrable Securities which
represent shares of Common Stock issued upon conversion of Class C Shares, up to
an amount not to exceed each such requesting Holder's Preferential Amount) but
in no event shall the amount of securities of the selling Holders included in
the offering be reduced below twenty-five percent (25%) 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 Holders may be
excluded if the managing underwriter makes the determination described above and
no securities other than those of the Company are included. For purposes of the
preceding parenthetical concerning apportionment, for any selling stockholder
which is a Holder of Registrable Securities and which is a partnership or a
corporation, the partners, retired partners and stockholders of such Holder, or
the estates and family members of such partners and retired partners and any
trusts for the benefit of any of the foregoing persons shall collectively be
deemed to be a "selling Holder," and any pro rata reduction with respect to such
"selling Holder" shall be based upon the aggregate amount of shares carrying
registration rights owned by all entities and individuals included in such
"selling Holder," as defined in this sentence.
1.9. Indemnification. In the event any Registrable Securities are
included in a registration statement under this Section 1:
(a) The Company will indemnify and hold harmless each Holder,
the officers, directors, partners, agents and employees of each Holder, any
underwriter (as defined in the 1933 Act) for such Holder and each person, if
any, who controls such Holder or underwriter within the meaning of the 1933 Act
or the 1934 Act, against any losses, claims, damages or liabilities (joint or
several) to which they may become subject under the 1933 Act, the 1934 Act or
any other federal or state 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
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<PAGE>
(each 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, in light of the circumstances in which they were made, not misleading,
or (iii) any violation or alleged violation by the Company of the 1933 Act, the
1934 Act, any state securities law or any rule or regulation promulgated under
the 1933 Act, the 1934 Act or any state securities law in connection with any
matter relating to such registration statement. The Company will reimburse each
such Holder, officer, director, partner, agent, employee, underwriter or
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability, or action. The indemnity agreement contained in this Section 1.9(a)
shall not apply to amounts paid in settlement of any 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 to a Holder in any such case for any such loss, claim, damage,
liability or action (1) to the extent that it arises out of or is based upon a
Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by
or on behalf of such Holder, underwriter or controlling person or (2) in the
case of a sale directly by a Holder of Registrable Securities (including a sale
of such Registrable Securities through any underwriter retained by such Holder
engaging in a distribution solely on behalf of such Holder), such untrue
statement or alleged untrue statement or omission or alleged omission was
contained in a preliminary prospectus and corrected in a final or amended
prospectus, and such Holder failed to deliver a copy of the final or amended
prospectus at or prior to the confirmation of the sale of the Registrable
Securities to the person asserting any such loss, claim, damage or liability in
any case in which such delivery is required by the 1933 Act.
(b) Each Holder which includes any Registrable Securities in any
registration statement will indemnify and hold harmless the Company, each of its
directors, each of its officers who have signed the registration statement, each
person, if any, who controls the Company within the meaning of the 1933 Act, any
underwriter for the Company, and any other Holder selling securities in such
registration statement or any person who controls such Holder or such
underwriter, against any losses, claims, damages, or liabilities (joint or
several) to which the Company or any of the foregoing persons may become
subject, under the 1933 Act, the 1934 Act or other federal or state 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 or on behalf of such Holder
expressly for use in connection with such registration, and each such Holder
will reimburse any legal or other expenses reasonably incurred by the Company or
any such person indemnified pursuant to this Section 1.9(b) in connection with
investigating or defending any such loss, claim, damage, liability, or action;
provided, however, that the liability of any Holder hereunder shall be limited
to the amount of net proceeds (after deduction of all underwriters' discounts
and commissions paid by such Holder in connection with the registration in
question) received by such Holder, in the offering giving rise
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<PAGE>
to the Violation; and provided, further, that the indemnity agreement contained
in this Section 1.9(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 nor,
in the case of a sale directly by the Company of its securities (including a
sale of such securities through any underwriter retained by the Company to
engage in a distribution solely on behalf of the Company), shall the Holder be
liable to the Company in any case in which such untrue statement or alleged
untrue statement or omission or alleged omission was contained in a preliminary
prospectus and corrected in a final or amended prospectus, and the Company
failed to deliver a copy of the final or amended prospectus at or prior to the
confirmation of the sale of the securities to the person asserting any such
loss, claim, damage or liability in any case in which such delivery is required
by the 1933 Act. The obligations of the Holders hereunder are several, not
joint.
(c) Promptly after receipt by an indemnified party under this
Section 1.9 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 1.9, deliver to
the indemnifying party a written notice 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 and control the defense thereof with counsel
mutually satisfactory to the parties; provided, however, that an indemnified
party shall have the right to retain its own 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, as reasonably determined by
either party, 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 prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
1.9 to the extent of such prejudice, 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 1.9.
(d) The obligations of the Company and the Holders under this
Section 1.9 shall survive the conversion, if any, of the Registrable Securities
and the completion of any offering of Registrable Securities in a registration
statement whether under this Section 1 or otherwise.
1.10. Reports Under the 1934 Act. With a view to making available to
the Holders the benefits of Rule 144 promulgated under the 1933 Act ("Rule 144")
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, and with a
view to making it possible for Holders to register the Registrable Securities
pursuant to a registration on Form S-3, the Company agrees to:
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<PAGE>
(a) use its best efforts to make and keep public information
available, as those terms are understood and defined in Rule 144, at all times
after ninety (90) days after the effective date of the first registration
statement filed by the Company for the offering of its securities to the general
public;
(b) as soon as practicable, take such action, including the
voluntary registration of its Common Stock under Section 12 of the 1934 Act or
compliance with the reporting requirements of Section 15(d) of the 1934 Act, as
is necessary to enable the Holders to utilize Form S-3 for the sale of their
Registrable Securities.
(c) use its best efforts, after the first registered public
offering, to file with the SEC in a timely manner all reports and other
documents required of the Company under the 1933 Act and the 1934 Act; and
(d) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (1) a written statement by the
Company as to its compliance with the reporting requirements of Rule 144 (at any
time after ninety (90) days after the effective date of the first registration
statement filed by the Company for the offering of the securities to the general
public), the 1933 Act and the 1934 Act (at any time after it has become subject
to such reporting requirements), or as to its qualification as a registrant
whose securities may be resold pursuant to Form S-3 (at any time after it so
qualifies), (2) 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 (3)
such other documents as may be reasonably requested in availing any Holder of
any rule or regulation of the SEC which permits the selling of any such
securities without registration or pursuant to such form.
1.11. Form S-3 Registration.
(a) 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 (or on any successor form to Form S-3 regardless of its designation)
and any related qualification or compliance with respect to all or a part of the
Registrable Securities owned by such Holder or Holders, the Company will:
(i) promptly give written notice of the proposed
registration, and any related qualification or compliance, to
all other Holders;
(ii) use all its best efforts to effect, as soon as
practicable, such registration, qualification or compliance 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 ten
(10)
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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 1.11 if: (1) Form S-3 (or any
successor form to Form S-3 regardless of its designation) is
not available for such offering by the Holders; (2) the
aggregate net offering price (after deduction of underwriting
discounts and commissions) of the Registrable Securities
specified in such request is not at least $500,000; (3) the
Company has already effected one (1) registration on Form S-3
or pursuant to Section 1.2 hereof within the previous six-month
period; or (4) 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, it
would not be in the best interests of 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 for a period of
not more than ninety (90) days after receipt of the request of
the Holder or Holders under this Section 1.11; provided,
however, that the Company shall not utilize this right more
than once in any twelve (12) month period; and
(iii) If the underwriter in connection with the
registration pursuant to this Section 1.11 advises the Company
or the Holders in writing that marketing factors require a
limitation of the number of shares to be underwritten, then the
securities other than Registrable Securities sought to be
included in the underwriting shall first be excluded. To the
extent that further limitation is required, the number of
Registrable Securities that may be included in the underwriting
shall, subject to the last sentence of this paragraph, be
allocated pro rata among all Holders thereof desiring to
participate in such underwriting (according to the number of
Registrable Securities then held by each such Holder). No
Registrable Securities requested by any Holder to be included
in a registration pursuant to this Section 1.11 shall be
excluded from the underwriting unless all securities other than
Registrable Securities are first excluded. If the registration
pursuant to this Section 1.11 requires exclusion of securities
requested to be registered and is subsequent to the Company's
first registered public offering of securities, then the
Company shall include in such registration, in preference to
other Registrable Securities, the Registrable Securities which
represent shares of Common Stock issued upon conversion of
Class C Shares, up to an amount not to exceed each such
requesting Holder's Preferential Amount; and any amounts so
registered, and registered pursuant to Section 1.2(b) hereof,
shall reduce the Preferential Amount and when the Preferential
Amount equals zero, this last sentence of Section 1.11(a)(iii)
shall be of no further force or effect.
(b) In the event that the Company consummates the initial
public offering of its securities, then as soon as reasonably possible following
a written request from a majority in interest of the Registrable Securities, and
in any event not before 366 days after the effective date
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of the registration statement filed in connection with such initial public
offering, the Company shall file a shelf registration statement on Form S-3 (or
on any successor form to Form S-3 regardless of its designation) which would
permit or facilitate the sale and distribution of the Holders' Registrable
Securities, and the Company shall use best efforts to keep such shelf
registration effective in accordance with applicable regulations.
1.12. Lock-up Agreements. If reasonably requested by the Company and
the managing underwriter, the Holders agree to enter into lock-up agreements
pursuant to which they will not, for a period of one hundred eighty (180) days
following the effective date of the first registration statement for a public
offering of the Company's securities, offer, sell or otherwise dispose of the
Registrable Securities, except the Registrable Securities sold pursuant to such
registration statement, without the prior consent of the Company and the
underwriter, provided that the officers, directors and all holders of more than
five percent (5%) of the shares of Common Stock (calculated for the purpose as
if all securities convertible into or exercisable for Common Stock, directly or
indirectly, are so converted or exercised) of the Company and all holders of
registration rights enter such lock-up agreements for the same period and on the
same terms. In order to enforce the Agreement, the Company may impose stop
transfer instruments with respect to the Registrable Securities of each Holder.
1.13. Assignment of Registration Rights. The rights to cause the
Company to register Registrable Securities pursuant to this Section 1 may be
assigned by any Holder to a permitted transferee, and by such transferee to a
subsequent permitted transferee, but only if such rights are transferred (a) to
an affiliate, subsidiary, partner or stockholder of such Holder or transferee or
an account managed or advised by the manager or adviser of such Holder or
transferee or (b) in connection with the sale or other transfer of not less than
an aggregate of 250,000 Registrable Securities (as adjusted for stock splits,
combinations, stock dividends and recapitalizations) or some lesser number, if
such lesser number represents all the Registrable Securities then held by such
Holder. Any transferee to whom rights under this Agreement are transferred shall
(i) as a condition to such transfer, deliver to the Company a written instrument
by which such transferee agrees to be bound by the obligations imposed upon
Holders under this Agreement to the same extent as if such transferee were a
Holder under this Agreement and (ii) be deemed to be a Holder hereunder.
1.14. Limitation 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 prospective holder of
any securities of the Company relating to registration rights unless such
agreement includes (a) to the extent such agreement would allow such holder or
prospective holder to include such securities in any registration filed under
Section 1.2, 1.3 or 1.11 hereof, a provision that such holder or prospective
holder may include such securities in any such registration only to the extent
that the inclusion of its securities will not reduce the amount of the
Registrable Securities of the Holders which would otherwise be included and (b)
no provision which would allow such holder or prospective holder to make a
demand registration which could
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result in such registration statement being declared effective prior to the
earlier of the dates set forth in Section 1.2(a) and (c) a provision which
permits the Holders to include in such registration and in any underwriting
involved therewith, Registrable Securities pro rata with the sellers of
securities in such registration based on the number of equivalent shares of
Common Stock held by each person (where an equivalent share is either a share of
Common Stock held directly or the number of shares of Common Stock receivable
upon conversion or exercise of securities held directly). No Holder shall be
entitled to exercise any right provided in Sections 1.1 through 1.10 and 1.12
through 1.13 hereof if at any time the aggregate number of outstanding
Registrable Securities held by such Holder is less than the maximum number of
securities that would be permitted to be sold under Rule 144 within three (3)
consecutive months (or any other applicable time period under any amendment to
Rule 144 or any successor thereto).
2. Miscellaneous.
2.1. Legend. Each certificate representing Registrable Securities
shall state therein:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
PROVISIONS OF AN AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
DATED AS OF _______________, 1998 BY AND AMONG THE CORPORATION AND
THE INVESTORS NAMED THEREIN, A COPY OF WHICH IS ON FILE AT THE
OFFICES OF THE CORPORATION.
2.2. Notices. All notices, requests, consents and demands shall be in
writing and shall be personally delivered, mailed, postage prepaid, or
transmitted by facsimile or delivered by any nationally recognized overnight
delivery service to the Company at:
Maker Communications, Inc.
73 Mount Wayte Avenue
Framingham, MA 01702
Attn: Chief Executive Officer
Fax No: (508) 628-0256
with a copy to: Hutchins, Wheeler & Dittmar
101 Federal Street
Boston, MA 02110-1800
Attn: Richard M. Stein, Esq.
Fax No: (617) 951-1295
to each Investor at its address set forth on Exhibit A hereto with a copy to
each of:
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Brobeck, Phleger & Harrison LLP
Two Embarcadero Place
2200 Geng Road
Palo Alto, CA 94303
Attn: Warren T. Lazarow, Esq.
Fax No: (650) 496-2885
and
Ropes & Gray
One International Place
Boston, MA 02110
Attn: Gregory E. Moore, Esq.
Fax No: (617) 951-7050
or such other address as may be furnished in writing to the other parties
hereto. All such notices, requests, demands and other communication shall, when
personally delivered or mailed (registered or certified mail, return receipt
requested, postage prepaid) and addressed properly or delivered by any
nationally recognized overnight delivery service and addressed properly be
effective upon actual receipt. All such notices, requests, demands and other
communication, when transmitted by facsimile, shall be effective when
transmitted and electronically confirmed.
2.3. Entire Agreement. This Agreement and the other Transaction
Documents (as defined in the Purchase Agreement) constitute the entire
understanding of the parties with respect to the subject matter hereof and
thereof and supersede any and all prior understandings and agreements, whether
written or oral, with respect to such subject matter, including the Prior
Agreement.
2.4. Amendments, Waivers and Consents. Any provision in this
Agreement to the contrary notwithstanding, modifications or amendments to this
Agreement may be made, and compliance with any covenant or provision herein set
forth may be omitted or waived, if the Company (a) shall obtain consent thereto
in writing from persons holding or having the right to acquire in the aggregate
a majority of the Registrable Securities then outstanding and (b) shall, in each
such case, deliver copies of such consent in writing to any Holders who did not
execute the same; provided, however, that no Holder shall, without its consent,
be adversely affected by any such modification, amendment or waiver in any
manner in which the other Holders are not likewise adversely affected; provided,
further, that no amendment may be made to the rights of the holders of the Class
B Shares or Class C Shares set forth in the last sentence of Section 1.2(b),
Section 1.8 or the last sentence of Section 1.11(a)(iii) hereof without consent
of the holders of a majority in interest of each of the then outstanding Class B
Shares and Class C Shares.
2.5. Binding Effect, Assignment. This Agreement shall be binding upon
and inure to the benefit of the personal representatives, successors and
permitted assigns of the respective parties hereto. The Company shall not have
the right to assign its obligations hereunder or any
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<PAGE>
interest herein without obtaining the prior written consent of the Holders
holding a majority of the Registrable Securities then outstanding, provided in
accordance with Section 2.4.
2.6. General. The headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement. In this Agreement the singular includes the
plural, the plural includes the singular, and the masculine gender includes the
neuter, masculine and feminine genders. This Agreement shall be governed by and
construed in accordance with the laws of The Commonwealth of Massachusetts.
2.7. Severability. If any provision of this Agreement shall be found
by any court of competent jurisdiction to be invalid or unenforceable, the
parties hereby waive such provision to the extent that it is found to be invalid
or unenforceable. Such provision shall, to the maximum extent allowable by law,
be modified by such court so that it becomes enforceable, and, as modified,
shall be enforced as any other provision hereof, all the other provisions hereof
continuing in full force and effect.
2.8. Counterparts. This Agreement may be executed in counterparts,
all of which together shall constitute one and the same instrument.
2.9. Specific Performance. The Company recognizes that the rights of
the Holders under this Agreement are unique, and, accordingly, the Holders
shall, in addition to such other remedies as may be available to them at law or
in equity, have the right to enforce their rights hereunder by actions for
injunctive relief and specific performance to the extent permitted by law. This
Agreement is not intended to limit or abridge any rights of the Holders which
may exist apart from this Agreement.
IN WITNESS WHEREOF, the Company and the Investors have executed this
Agreement as of the date and year first above written.
MAKER COMMUNICATIONS, INC.
By: /s/ William M. Giudice
------------------------------
Name: William M. Giudice
Title: Chief Executive Officer
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EXHIBIT A
---------
INVESTORS
Paul Bergantino
73 Mount Wayte Avenue
Framingham, MA 01701
Level One Communications
9750 Goethe Road
Sacramento, CA 95827
Attn: John Kehoe
WPG Enterprise Fund III, L.P.
Weiss, Peck & Greer Venture Associates IV, L.P.
Weiss, Peck & Greer, LLC
555 California Street, Suite 3130
San Francisco, CA 94104
Attn: Barry Eggers
WPG Information Sciences
Entrepreneur Fund, L.P.
555 California Street, Suite 3130
San Francisco, CA 94104
Attn: Barry Eggers
Weiss, Peck & Greer Venture Associates IV Cayman, L.P.
c/o Mr. Patrick Keeting
Bank America Trust & Banking Corporation Cayman/Limited
P.O. Box 1092
BankAmerica House, Fort Street
George Town, Grand Cayman
Cayman Islands, British West Indies
Norwest Venture Partners VI,
A Minnesota Limited Partnership
40 William Street, Suite 305
Wellesley, MA 02181
Attn: Ernest Parizeau
<PAGE>
Bessemer Venture Partners IV L.P.
BVP IV Special Situations L.P.
Bessec Ventures IV L.P.
1400 Old Country Road, Suite 407
Westbury, New York 11590
Attention: Robert H. Buescher
Greylock Equity Limited Partnership
1 Federal Street
Boston, MA 02110
Attn: Mary Murphy
Technologies For Information & Entertainment III, L.P.
One Cranberry Hill
Lexington, MA 02173
Attn: Frederick B. Bamber
<PAGE>
EXHIBIT B
---------
<TABLE>
<CAPTION>
Shares of
Investor Class C Preferred Stock Purchase Price
-------- ----------------------- --------------
<S> <C> <C>
Paul Bergantino 97,607 $429,470.80
73 Mount Wayte
Framingham, MA 01701
Level One Communications 105,127 $462,558.80
9750 Goethe Road
Sacramento, CA 95827
Attn: John Kehoe
WPG Enterprise Fund III, L.L.C. 59,091 $260,000.40
555 California Street, Suite 3130
San Francisco, CA 94104
Attn: Barry Eggers
Weiss, Peck & Greer Venture 67,566 $297,290.40
Associates IV, L.L.C.
555 California Street, Suite 3130
San Francisco, CA 94104
Attn: Barry Eggers
WPG Information Sciences 2,618 $11,519.20
Entrepreneur Fund, L.P.
555 California Street, Suite 3130
San Francisco, CA 94104
Attn: Barry Eggers
Weiss, Peck & Greer Venture 8,530 $37,532
Associates IV Cayman, L.P.
c/o Mr. Patrick Keating
Bank America Trust & Banking Corporation
Cayman/Limited
P.O. Box 1092
BankAmerica House, Fort Street
George Town, Grand Cayman
Cayman Islands, British West Indies
<PAGE>
Norwest Venture Partners VI, L.P. 137,805 $606,342
40 William Street, Suite 305
Wellesley, MA 02181
Attn: Ernest Parizeau
Greylock Equity Limited Partnership 247,610 $1,089,484
1 Federal Street
Boston, MA 02110
Attn: Mary Murphy
Technologies for Information &
Entertainment III, L.P. 62,022 $272,896.80
One Cranberry Hill
Lexington, MA 02173
Attn: Frederick Bamber
Bessemer [247,610] [$1,089,484]
- --------
William T. Burgin 2,244 $9,873.60
Brimstone Island Co. L.P. 2,243 9,869.20
Neill H. Brownstein 2,476 10,894.40
Robert H. Buescher 2,500 11,000.00
G. Felda Hardymon 4,487 19,742.80
Christopher Gabrieli 3,740 16,456.00
Gabrieli Family Foundation 747 3,286.80
David J. Cowan 4,487 19,742.80
Robert P. Goodman 3,366 14,810.40
Bruce K. Graham 2,500 11,000.00
Travis M. Drouin 500 2,200.00
Andrew S. Fine 1,121 4,932.40
Gautam A. Prakash 2,243 9,869.20
Robi L. Soni 3,366 14,810.40
Joanna A. Strober 1,121 4,932.40
Rodney A. Cohen 700 3,080.00
Richard R. Davis 2,700 11,880.00
Adam P. Godfrey 1,250 5,500.00
Belisarius Corporation 2,275 10,010.00
John G. MacDonald 900 3,960.00
Howard S. Markowitz 340 1,496.00
Edward Park 500 2,200.00
Robert J. S. Roriston 750 3,300.00
Steven L. Williamson 700 3,080.00
Quentin Corporation 2,500 11,000.00
<PAGE>
BVP IV Special Situations L.P. 9,003 $ 39,613.20
Bessec Ventures IV L.P. 94,426 415,474.40
Bessemer Venture Partners IV L.P. 94,425 415,470.00
1025 Old Country Road, Suite 205
Westbury, New York 11590
Attn: Robert Buescher
--------- -------------
TOTALS 1,035,586 $4,556,578.40
</TABLE>
[Maker Communications letterhead]
January 28, 1998
Mr. Michael Rubino
27 Wachusett Drive
Sutton, MA 01590
Dear Mike:
Maker Communications, Inc. is pleased to extend to you an offer of employment.
The position offered is Vice President of Finance & Operations and Chief
Financial Officer, reporting to me. The position pays $5,625 per semi-monthly
pay period and an annual bonus of $25,000. The bonus is based on achieving a set
of MBO goals. The goals are: Achieve the financial plan for 1998; Institute
quarterly planning meetings, reviewing performance to plan, examining and
restating goals for the next four quarters, including key metric comparisons to
cohorts; Establish an investment bank selection process and manage relationships
with potential investment banks; Establish key management metrics for
operations, meet the targets established. If after a change of control in Maker,
your employment is terminated for any reason (other than cause), you will
receive 6 months of notice or salary in lieu of notice or a reasonable
combination of the two.
In this position you will be responsible for leading and building Maker's
finance and operations teams; actively participating on the executive staff to
address business issues facing the company; and representing the finance and
operations capabilities of Maker to customers, analysts and investors.
Maker is also pleased to recommend you for participation in the 1996 Maker Stock
Option Plan. Maker is recommending a grant of options to purchase 180,000 shares
of Maker Common Stock. The formal offer of the stock grant is made by Maker's
Board of Directors, who also sets the price of the shares. The most recent grant
of options was priced at $.30 per share. A recommendation will be made to
Maker's Board of Directors after you join the company.
The 1996 Maker Stock Option Plan has a five year vesting schedule. As part of
this offer, Maker is extending to you an enhancement to the normal vesting
schedule. If after a change of control in Maker, your employment is terminated
for any reason (other than cause) all of your unvested stock options will
immediately vest. In addition, Maker has amended the 1996 plan to allow for
certain individuals to exercise any or all of the options granted prior to
vesting, subject to a right of re-purchase in the event your employment
terminates prior to the normal vesting schedule. We are extending this provision
to you.
Maker has a Health and Dental Plan for our employees. Maker pays more than 90%
of the cost of the coverage for the employee, with small portion of the premium
for coverage paid by the employee. Family coverage is available, with both the
employee and Maker contributing to the cost for the additional coverage. We will
review with you the other components of our benefits plan at your convenience.
<PAGE>
Mr. Michael Rubino Page 2 January 28, 1998
As a condition of your employment, you will be required to execute an employment
agreement, covering confidentiality requirements and rights to inventions. A
copy is enclosed. Your employment with Maker is entirely voluntary for both
parties and either you or Maker may conclude the employment relationship at any
time for any reason. Both you and Maker agree to arbitrate any controversy
arising out of or in connection with your compensation, employment or
termination of employment. This at-will employment relationship can only be
modified in writing by the President of Maker.
On your first day of employment, you will be asked to provide evidence of your
right to work in the United States. Please be sure to bring with you documents
that will attest to your right to work in the US. Such documents include: US
passport, certificate of US citizenship or naturalization, unexpired foreign
passport with I-551 stamp or INS form I-94, driver's license, voter's
registration card, US military card, US social security card, etc.
Please sign this letter and return it to us, so that we will have formal
acknowledgement of your acceptance. By signing, you acknowledge that you have
received no inducements or representations other than those set forth in this
letter which caused you to accept this offer of employment. A copy of this
letter is enclosed for your files.
Mike, Maker is a young, dynamic start-up in the fabless semiconductor industry.
What we offer is the ability to work up to your maximum potential and to make a
meaningful contribution to the growth of our company. We are excited about the
prospect of your joining our team and we look forward to receiving your positive
response by Friday, January 30, 1998.
Sincerely,
Maker Communications, Inc.
/s/ William N. Giudice
William N. Giudice
President and CEO
enclosures: 3
Acceptance:
/s/ Michael Rubino
- -------------------------------
Signature
1/30/98
- -------------------------------
Date
2/23/98
- -------------------------------
Start Date
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our report
(and to all references to our Firm) included in or made a part of this
registration statement.
/s/ ARTHUR ANDERSEN LLP
Boston, Massachusetts
April 23, 1999
