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EXHIBIT 10.2
SIXTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
AGREEMENT made as of the 16th day of June, 2000, by and among Sitara
Networks, Inc., a Delaware corporation (the "Company"), Malik Z. Khan (the
"Founder") and each of the persons listed as Investors on Schedule RRA-1 hereto,
as amended (the "Investors").
WHEREAS, the Company, certain of the Investors and the Founder entered
into a Fifth Amended and Restated Registration Rights Agreement dated January
14, 2000, as amended (the "Existing Registration Rights Agreement"), in
conjunction with the issuance by the Company to certain Investors of shares of
the Company's Series F Convertible Preferred Stock, $.00001 par value (the
"Series F Preferred Stock"), all of which are convertible into shares of the
Company's Common Stock, $.00001 par value (the "Common Stock");
WHEREAS, the Company is this date issuing to certain of the Investors
up to 4,650,000 shares of the Company's Series G Convertible Preferred Stock,
$.00001 par value (the "Series G Preferred Stock"), all of which are convertible
into shares of Common Stock, pursuant to a Series G Convertible Preferred Stock
Purchase Agreement dated as of the date hereof (the "Series G Preferred Stock
Purchase Agreement"); and
WHEREAS, the parties hereto, who hold sufficient Shares of Registrable
Stock (as hereinafter defined) to amend the Existing Registration Rights
Agreement, desire to amend and restate the Existing Registration Rights
Agreement in order to add the purchasers of the Series G Preferred Stock as
parties thereto, to grant such purchasers registration rights with respect to
the Common Stock issuable upon conversion of the Series G Preferred Stock, as
hereinafter provided and to amend certain other provisions of the Existing
Registration Rights Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto hereby agree as follows:
1. Definitions. The following terms shall be used in this Agreement
with the following respective meanings:
"Affiliate" means (i) any Person directly or indirectly controlling,
controlled by or under common control with another Person; (ii) any Person
owning or controlling ten (10%) percent or more of the outstanding voting
securities of such other Person; (iii) any officer, director or partner of such
Person; and (iv) if such Person is an officer, director or partner, any such
company for which such Person acts in such capacity.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means and includes (a) the Company's Common Stock,
$.00001 par value per share, as authorized on the date of this Agreement and (b)
any other securities into which or for which the securities described in (a)
above may be converted or exchanged pursuant to a plan of recapitalization,
reorganization, merger, sale of assets or otherwise.
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"Exchange Act" means the Securities Exchange Act of 1934, or any
successor Federal statute, and the rules and regulations of the Commission (or
of any other Federal agency then administering the Exchange Act) thereunder, all
as the same shall be in effect at the time.
"Founder Registrable Stock" means (a) all Common Stock now or hereafter
owned by the Founder or any Affiliate of the Founder (other than the Company),
and (b) any other shares of Common Stock issued in respect of such shares by way
of a stock dividend, or stock split or in connection with a combination of
shares, recapitalization, merger or consolidation or reorganization; provided,
however, that shares of Common Stock shall only be treated as Founder
Registrable Stock if and so long as they have not been (i) sold to or through a
broker or dealer or underwriter in a public distribution or a public securities
transaction, or (ii) sold in a transaction exempt from the registration and
prospectus delivery requirements of the Securities Act under Section 4(l)
thereof so that all transfer restrictions and restrictive legends with respect
to such Common Stock are removed upon the consummation of such sale.
"Holder" means any holder of Registrable Stock or Founder Registrable
Stock.
"Initial Public Offering" means the effective date for the Company's
first registration statement covering a public offering of securities of the
Company under the Securities Act.
"Investors" means the persons listed as Investors on Schedule RRA-1
hereto, as amended from time to time.
"NASD" means the National Association of Securities Dealers, Inc.
"Person" means any natural person, partnership, corporation or other
legal entity.
"Registrable Stock" means (a) the Common Stock issued or issuable upon
conversion of the Series A Convertible Preferred Stock, $.00001 par value (the
"Series A Preferred Stock"), the Series B Convertible Preferred Stock, $.00001
par value (the "Series B Preferred Stock"), the Series C Convertible Preferred
Stock, $.00001 par value (the "Series C Preferred Stock"), the Series D
Convertible Preferred Stock, $.00001 par value (the "Series D Preferred Stock"),
the Series E Convertible Preferred Stock, $.00001 par value (the "Series E
Preferred Stock"), the Series F Preferred Stock, and the Series G Preferred
Stock, whether or not such Common Stock is owned by any Investors; (b) all
Common Stock now or hereafter owned by any Investor which is acquired otherwise
than upon conversion of the Series A Preferred Stock, the Series B Preferred
Stock, the Series C Preferred Stock, the Series D Preferred Stock, the Series E
Preferred Stock, the Series F Preferred Stock and the Series G Preferred Stock
so long as it is held by any Investor or an Affiliate of any Investor; (c) any
other shares of Common Stock issued in respect of such shares by way of a stock
dividend, or stock split or in connection with a combination of shares,
recapitalization, merger or consolidation or reorganization; provided, however,
that shares of Common Stock shall only be treated as Registrable Stock if and so
long as they have not been (i) sold to or through a broker or dealer or
underwriter in a public distribution or a public securities transaction, or (ii)
sold in a transaction exempt from the registration and prospectus delivery
requirements of the Securities Act under Section 4(l) thereof so that all
transfer restrictions and restrictive legends with respect to such Common Stock
are removed upon the consummation of such sale; (d) all shares of Common Stock
issued or issuable upon exercise of any warrant now or
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hereafter held by Lighthouse Capital Partners II, L.P. or Lighthouse Capital
Partners III, L.P.; and (e) all shares of Common Stock issued or issuable upon
exercise of any warrant now or hereafter held by Deutsche Banc Alex Brown
Incorporated.
"Registration Statement" means a registration statement filed by the
Company with the Commission for a public offering and sale of securities of the
Company (other than a registration statement on Form S-8, Form S-4, or successor
forms, or any registration statement covering only securities proposed to be
issued in exchange for securities or assets of another corporation).
"Securities Act" means the Securities Act of 1933, or any successor
Federal statute, and the rules and regulations of the Commission (or of any
other Federal agency then administering the Securities Act) thereunder, all as
the same shall be in effect at the time.
2. Required Registration.
(a) At any time after the earlier of (i) 180 days after any
Registration Statement covering a public offering of securities of the
Company under the Securities Act having become effective and (ii) June
30, 2002, the Holder or Holders of at least twenty-five (25%) percent
of all Registrable Stock then outstanding (the "Initiating Holders")
may by notice in writing to the Company request the Company to register
under the Securities Act all or any portion of shares of Registrable
Stock held by such Initiating Holder or Holders for sale in the manner
specified in such notice, provided, that, (i) at least fifteen (15%)
percent of the total amount of Registrable Stock shall be included in
the Public Offering or (ii) the reasonably anticipated aggregate price
to the public of such lesser number of shares of Registrable Stock and
Founder Registrable Stock to be included in such public offering shall
exceed $10,000,000. Notwithstanding anything to the contrary contained
herein, the Company shall not be required to seek to cause a
Registration Statement to become effective pursuant to this Section 2:
(A) within a period of 90 days after the effective date of a
Registration Statement 180 days if the Registration Statement is for
the Initial Public Offering) filed by the Company (other than a
Registration Statement on Forms S-4, S-8 or any successors thereto),
provided that the Company shall use its best efforts to cause a
registration requested hereunder to be declared effective promptly
following such period if such request is made during such period; (B)
if the Company shall furnish to the Holders a certificate signed by the
President of the Company stating that in the good faith judgment of the
Board of Directors it would be materially detrimental to the Company or
its shareholders for a Registration Statement to be filed at such time,
or that it would require disclosure of material non-public information
relating to the Company which, in the reasonable opinion of the Board
of Directors, should not be disclosed, then the Company's obligation to
use all reasonable efforts to register, qualify or comply under this
Section 2 shall be deferred for a period not to exceed ninety (90) days
from the date of receipt of written request from such Holders;
provided, however, that the Company may not utilize this deferral right
more than once in any twelve-month period.
(b) Following receipt of any notice given under this Section 2
by the Initiating Holders, the Company shall immediately notify in
writing all Holders that such registration is to be effected and shall
use its best efforts to register under the Securities
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Act, for public sale in accordance with the method of disposition
specified in such notice from requesting Holders, the number of shares
of Registrable Stock and Founder Registrable Stock, specified in such
notice (and in all notices received by the Company pursuant hereto).
Holders, other than the Initiating Holders, shall notify the Company of
their desire to participate in the Registration within twenty (20) days
of the Company's notice to them. The Holders of a majority of the
shares of Registrable Stock to be sold in such offering may designate
the managing underwriter of such offering, subject to the approval of
the Company, which approval shall not be unreasonably withheld or
delayed. The Company shall be obligated to register Registrable Stock
and Founder Registrable Stock pursuant to this Section 2 on two
occasions only, provided, however, that such obligation shall be deemed
satisfied only when a Registration Statement covering all shares of
Registrable Stock, specified in notices received as aforesaid and which
have not been withdrawn by the Holder thereof, for sale in accordance
with the method of disposition specified by the Initiating Holders,
shall have become effective. A registration which does not become
effective after the Company has filed a Registration Statement with
respect thereto solely by reason of the refusal of the Initiating
Holders to proceed shall be deemed to have been effected by the Company
at the request of such Initiating Holders unless such requesting
Holders shall have elected to pay all the Company's reasonable expenses
in connection with such registration.
(c) If the Registration Statement is to cover an underwritten
distribution and in the good faith judgment of the managing underwriter
of such public offering the inclusion of all of the Registrable Stock
and Founder Registrable Stock, requested for inclusion pursuant to this
Section 2 would interfere with the successful marketing of a smaller
number of shares to be offered, then the number of shares of
Registrable Stock and Founder Registrable Stock to be included in the
Offering shall be reduced to the required level with the participation
in such offering to be reduced pro rata among the Holders requesting
such registration, based upon the number of shares of Registrable Stock
and Founder Registrable Stock owned by such Holders. The Company shall
be entitled to include in any Registration Statement referred to in
this Section 2, for sale in accordance with the method of disposition
specified by the Initiating Holders, shares of Common Stock for the
Company's own account, except as and to the extent that, in the opinion
of the managing underwriter, if any, such inclusion would adversely
affect the marketing of the Registrable Stock and Founder Registrable
Stock to be sold. Except for registration statements on Form S-4, S-8
or any successors thereto, the Company will not file with the
Commission any other registration statement with respect to its Common
Stock, whether for its own account or that of other stockholders, from
the date of receipt of a notice from the Initiating Holders pursuant to
this Section 2 until the completion of the period of distribution of
the registration contemplated thereby.
(d) So long as the Founder is the Chief Executive Officer or a
director of the Company, Holders of Founder Registrable Stock shall not
sell in the aggregate more than 675,000 shares of Common Stock (which
amount shall be appropriately adjusted for any stock splits, stock
dividends, recapitalizations or other changes affecting the Common
Stock after the date of this Agreement) in any registration under this
Section 2 or Section 4 hereof.
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3. Incidental Registration. Each time the Company shall determine to
file a Registration Statement in connection with the proposed offer and sale for
money of any of its securities by it or any of its security holders, the Company
will give written notice thereof to all Holders. Upon the written request of one
or more Holder(s) given within twenty (20) days after the giving of any such
notice by the Company, the Company will use its best efforts to cause all such
shares of Registrable Stock and Founder Registrable Stock, the Holders of which
have so requested registration thereof, to be included in such Registration
Statement, all to the extent requisite to permit the sale or other disposition
by the prospective seller or sellers of the Registrable Stock and Founder
Registrable Stock to be so registered. If the Registration Statement is to cover
an underwritten distribution, the Company shall use its best efforts to cause
the Registrable Stock and Founder Registrable Stock requested for inclusion
pursuant to this Section 3 to be included in the underwriting on the same terms
and conditions as the securities otherwise being sold through the underwriters.
If, in the good faith judgment of the managing underwriter of such public
offering, the inclusion of all of the Registrable Stock and Founder Registrable
Stock requested for inclusion pursuant to this Section 3 would interfere with
the successful marketing of a smaller number of shares to be offered, then the
number of shares of Registrable Stock, Founder Registrable Stock and other
securities to be included in the offering (except for shares to be issued (i) by
the Company in an offering initiated by the Company or (ii) by any other party
in an offering initiated by such party pursuant to registration rights granted
to such party) shall be reduced to the required level by reducing (down to zero
if so required) the participation of the Holders in such offering (such
reduction to be pro rata among the Holders requesting such registration, based
upon the number of shares of Registrable Stock owned by such Holders); provided,
however, that (i) except in the Company's Initial Public Offering, in no event
shall the participation of the Holders of Registrable Stock and Founder
Registrable Stock be less than thirty-five (35%) percent of such offering, (ii)
so long as the Founder is either the Chief Executive Officer or a director of
the Company, in no event shall the Holders of the Founder Registrable Stock sell
in the aggregate more than 675,000 shares of Common Stock (which amount shall be
appropriately adjusted for any stock splits, stock dividends, recapitalization
or other changes affecting the Common Stock after the date of this Agreement) in
any single distribution and (iii) all shares that are not Registrable Stock or
Founder Registrable Stock and are held by any other person, including, without
limitation, any person who is an employee, officer or director of the Company or
any subsidiary of the Company (other than the Founder) shall first be excluded
from such registration and underwriting before any Registrable Stock or Founder
Registrable Stock are so excluded.
4. Registration on Form S-3. If at any time after the date hereof (i) a
Holder or Holders request that the Company file a registration statement on Form
S-3 or any successor thereto for a public offering of all or any portion of the
shares of Registrable Stock held by such requesting Holder or Holders, the
reasonably anticipated aggregate proceeds of which would exceed $1,000,000, and
(ii) the Company is a registrant entitled to use Form S-3 or any successor
thereto to register such shares, then the Company shall use its best efforts to
register under the Securities Act on Form S-3 or any successor thereto, for
public sale in accordance with the method of disposition specified in such
notice, the number of shares of Registrable Stock and Founder Registrable Stock
specified in such notice. Whenever the Company is required by this Section 4 to
use its best efforts to effect the registration of Registrable Stock and Founder
Registrable Stock, each of the procedures, requirements and limitations of
Section 2 (including
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but not limited to the requirement that the Company notify all Holders from whom
notice has not been received and provide them with the opportunity to
participate in the offering and the requirement of subparagraph (b)) shall apply
to such registration; provided, however, that there shall be no limitation on
the number of registrations on Form S-3 which may be requested and obtained
under this Section 4; and provided, further, however, that the $10,000,000
minimum dollar amount set forth in the first sentence of Section 2(a) shall not
apply to any registration on Form S-3 which may be requested and obtained under
this Section 4.
5. Registration Procedures. If and whenever the Company is required by
the provisions of Section 2, 3 or 4 hereof to effect the registration of shares
of Registrable Stock or Founder Registrable Stock under the Securities Act, the
Company will, at its expense, as expeditiously as possible:
(a) In accordance with the Securities Act and the rules and
regulations of the Commission, prepare and file with the Commission a
Registration Statement with respect to the Registrable Stock or Founder
Registrable Stock and use its best efforts to cause such Registration
Statement to become and remain effective until the Registrable Stock or
Founder Registrable Stock covered by such Registration Statement has
been sold, and prepare and file with the Commission such amendments to
such Registration Statement and supplements to the prospectus contained
therein as may be necessary to keep such Registration Statement
effective and such Registration Statement and prospectus accurate and
complete until the Registrable Stock or Founder Registrable Stock
covered by such Registration Statement has been sold;
(b) If the offering is to be underwritten in whole or in part,
enter into a written underwriting agreement in form and substance
reasonably satisfactory to the managing underwriter, if any, of the
public offering and the Holders participating in such offering;
(c) Furnish to the participating Holders and to the
underwriters such reasonable number of copies of the Registration
Statement, preliminary prospectus, final prospectus and such other
documents as such underwriters and participating Holders may reasonably
request in order to facilitate the public offering of such securities;
(d) Use its best efforts to register or qualify the
Registrable Stock and Founder Registrable Stock covered by such
Registration Statement under such state securities or blue sky laws of
such jurisdictions (i) as shall be reasonably appropriate for the
distribution of the Registrable Stock and Founder Registrable Stock
covered by such Registration Statement or (ii) as such participating
Holders and underwriters may reasonably request within twenty (20) days
following the original filing of such Registration Statement, except
that the Company shall not for any purpose be required to execute a
general consent to service of process, to subject itself to taxation,
or to qualify to do business as a foreign corporation in any
jurisdiction where it is not so qualified;
(e) Notify the Holders participating in such registration,
promptly after it shall receive notice thereof, of the date and time
when such Registration Statement and each post-effective amendment
thereto has become effective or a supplement to any prospectus forming
a part of such Registration Statement has been filed;
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(f) Notify the Holders participating in such registration
promptly of any request by the Commission or any state securities
commission or agency for the amending or supplementing of such
Registration Statement or prospectus or for additional information;
(g) Prepare and file with the Commission, promptly upon the
request of any such participating Holders, any amendments or
supplements to such Registration Statement or prospectus which, in the
opinion of counsel representing the Company in such Registration (and
which counsel is reasonably acceptable to such participating Holders),
is required under the Securities Act or the rules and regulations
thereunder in connection with the distribution of the Registrable Stock
and Founder Registrable Stock by such participating Holders;
(h) Prepare and promptly file with the Commission, and
promptly notify such participating Holders of the filing of, such
amendments or supplements to such Registration Statement or prospectus
as may be necessary to correct any statements or omissions if, at the
time when a prospectus relating to such Registrable Stock and Founder
Registrable Stock is required to be delivered under the Securities Act,
any event has occurred as the result of which any such prospectus or
any other prospectus as then in effect would include an untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading;
(i) In case any of such participating Holders or any
underwriter for any such Holders is required to deliver a prospectus at
a time when the prospectus then in circulation is not in compliance
with the Securities Act or the rules and regulations of the Commission,
prepare promptly upon request such amendments or supplements to such
Registration Statement and such prospectus as may be necessary in order
for such prospectus to comply with the requirements of the Securities
Act and such rules and regulations;
(j) Advise such participating Holders, promptly after it shall
receive notice or obtain knowledge of the issuance of any stop order by
the Commission or any state securities commission or agency suspending
the effectiveness of such Registration Statement or the initiation or
threatening of any proceeding for that purpose and promptly use its
best efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such stop order should be issued;
(k) At the request of any such participating Holder (i)
furnish to such Holder on the effective date of the Registration
Statement or, if such registration includes an underwritten public
offering, at the closing provided for in the underwriting agreement, an
opinion, dated such date, of the counsel representing the Company for
the purposes of such registration, addressed to the underwriters, if
any, and to the Holder or Holders making such request, covering such
matters with respect to the registration statement, the prospectus and
each amendment or supplement thereto, proceedings under state and
Federal securities laws, other matters relating to the Company, the
securities being registered and the offer and sale of such securities
as are customarily the subject of
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opinions of issuer's counsel provided to underwriters in underwritten
public offerings and (ii) use its best efforts to furnish to such
Holder letters dated each such effective date and such closing date,
from the independent certified public accountants of the Company,
addressed to the underwriters, if any, and to the Holder or Holders
making such request, stating that they are independent certified public
accountants within the meaning of the Securities Act and dealing with
such matters as the underwriters may request, or, if the offering is
not underwritten, that in the opinion of such accountants the financial
statements and other financial data of the Company included in the
Registration Statement or the prospectus or any amendment or supplement
thereto comply in all material respects with the applicable accounting
requirements of the Securities Act, and additionally covering such
other financial matters, including information as to the period ending
not more than five (5) business days prior to the date of such letter
with respect to the Registration Statement and prospectus, as such
requesting Holder or Holders may reasonably request; and
(l) Use its best efforts to ensure the obtaining of all
necessary approvals from the NASD.
6. Expenses.
(a) With respect to each registration effected pursuant to
Section 2, 3 or 4 hereof, all fees, costs and expenses of and
incidental to such registration and the public offering in connection
therewith shall be borne by the Company; provided, however, (i) that
Holders and other holders of the Company's stock participating in any
such registration shall bear their pro rata share of the underwriting
discounts and selling commissions, and (ii) any such fee, cost or
expense which does not constitute a fee, cost or expense customary in
such a registration and which is attributable solely to one (1) Holder
or other holder of the Company's stock participating in any such
registration shall be borne by that holder or Holder.
(b) The fees, costs and expenses of registration to be borne
as provided in paragraph (a) above, shall include, without limitation,
all registration, filing and NASD fees, printing expenses, fees and
disbursements of counsel and accountants for the Company, fees and
disbursements of counsel for the underwriter or underwriters of such
securities (if the Company and/or selling security holders are
otherwise required to bear such fees and disbursements), all legal fees
and disbursements and other expenses of complying with state securities
or blue sky laws of any jurisdictions in which the securities to be
offered are to be registered or qualified, reasonable fees and
disbursements of one counsel for the selling Holders and the other
holders of the Company's stock and the premiums and other costs of
policies of insurance insuring the Company against liability arising
out of such public offering.
7. Indemnification and Contribution.
(a) To the fullest extent permitted by law, the Company will
indemnify and hold harmless each Holder, whether or not such Holder's
shares of Registrable Stock are included in a Registration Statement
pursuant to the provisions of this Agreement, and
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any underwriter (as defined in the Securities Act) for such Holder, and
any Person who controls such Holder or such underwriter within the
meaning of the Securities Act, and each of their successors, from and
against, and will reimburse such Holder and each such underwriter and
controlling Person with respect to, any and all claims, actions,
demands, losses, damages, liabilities, costs and expenses to which such
Holder or any such underwriter or controlling Person may become subject
under the Securities Act or otherwise, insofar as such claims, actions,
demands, losses, damages, liabilities, costs or expenses arise out of
or are based upon any untrue statement or allegedly untrue statement of
any material fact contained in such Registration Statement, any
prospectus contained therein or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading or arise out of
any violation by the Company of any rule or regulation under the
Securities Act applicable to the Company and relating to action or
inaction required of the Company in connection with such registration;
provided, however, that the Company will not be liable in any such case
to the extent that any such claim, action, demand, loss, damage,
liability, cost or expense arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission
so made in reliance upon and in conformity with information furnished
by or on behalf of any such Holder, such underwriter or controlling
Person in writing specifically for use in the preparation thereof, and
provided, further, that this indemnity shall not be deemed to relieve
any underwriter of any of its due diligence obligations; and provided,
further, that if any claim, action, demand, loss, damage, liability,
cost or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission contained in
any preliminary prospectus which did not appear in the final prospectus
and if the Holder delivered a copy of the preliminary prospectus to the
person alleging damage and failed to deliver a copy of the final
prospectus to such persons, the Company shall not be liable with
respect to the claims of such person.
(b) Each Holder of shares of Registrable Stock which are
included in a Registration pursuant to the provisions of this Agreement
will, severally and not jointly, indemnify and hold harmless the
Company from and against, and will reimburse the Company with respect
to, any and all losses, damages, liabilities, costs or expenses to
which the Company may become subject under the Securities Act or
otherwise, to the extent that any such loss, damage, liability, cost or
expense arises out of or is based upon any untrue or alleged untrue
statement of any material fact contained therein or any amendment or
supplement thereto, or arises out of or is based upon any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent that such untrue
statement or alleged untrue statement or omission or alleged omission
was so made in reliance upon and in conformity with written information
furnished by or on behalf of such Holder for use in the preparation
thereof, provided, that, the liability of each Holder hereunder shall
not, in any event. exceed the proceeds received by such Holder from the
sale of shares of Registrable Stock covered by a Registration
Statement; and provided, further, that this indemnity shall not be
deemed to relieve any underwriter of any of its due diligence
obligations.
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(c) Promptly after receipt by a party to be indemnified
pursuant to the provisions of paragraph (a) or (b) of this Section 7
(an "indemnified party") of actual knowledge or notice of the
commencement of any action involving the subject matter of the
foregoing indemnity provisions, such indemnified party will, if a claim
thereof is to be made against the indemnifying party pursuant to the
provisions of paragraph (a) or (b), notify the indemnifying party of
the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may
have to an indemnified party otherwise than under this Section 7 and
shall not relieve the indemnifying party from liability under this
Section 7 unless such indemnifying party is prejudiced by such
omission. In case such action is brought against any indemnified party
and it notifies the indemnifying party of the commencement thereof, the
indemnifying party shall have the right to participate in, and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its election
so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party pursuant to the provisions of such
paragraph (a) and (b) for any legal or other expense subsequently
incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying
party shall be liable to an indemnified party for any settlement of any
action or claim without the consent of the indemnifying party; no
indemnifying party may unreasonably withhold its consent to any such
settlement. No indemnifying party will consent to entry of any judgment
or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such
claim or litigation.
(d) In order to provide for just and equitable contribution to
joint liability under the Securities Act in any case in which either
(i) any Holder exercising rights under this Agreement, or any
controlling person of any such Holder, makes a claim for
indemnification pursuant to this Section 7 but it is judicially
determined (by the entry of a final judgment or decree by a court of
competent jurisdiction and the expiration of time to appeal or the
denial of the last right of appeal) that such indemnification may not
be enforced in such case notwithstanding the fact that this Section 7
provides for indemnification in such case, or (ii) contribution under
the Securities Act may be required on the part of any such selling
Holder or any such controlling person in circumstances for which
indemnification is provided under this Section 7; then, and in each
such case, the Company and such Holder will contribute to the aggregate
losses, claims, damages or liabilities to which they may be subject
(after contribution from others) in such proportion as is appropriate
to reflect the relative fault of the indemnifying party on the one hand
and of the indemnified party on the other in connection with the
violation(s) that resulted in such loss, claim, damage or liability, as
well as any other relevant equitable considerations. The relative fault
of the indemnifying party and of the indemnified party shall be
determined by a court of law by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or
the omission to state a material fact relates to information supplied
by the indemnifying party or by the indemnified party and the parties'
relative intent, knowledge, access to information and
-10-
<PAGE> 11
opportunity to correct or prevent such statement or omission; provided,
however, that, in any such case; (A) no such Holder will be required to
contribute any amount in excess of the public offering price, less
underwriting discounts and commissions, of all such Registrable Stock
offered and sold by such Holder pursuant to such registration
statement; and (B) no person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any person or
entity who was not guilty of such fraudulent misrepresentation.
(e) Survival. The obligations of the Company and Holders under
this Section 7 shall survive until the fifth anniversary of the
completion of any offering of Registrable Stock in a registration
statement, regardless of the expiration of any statutes of limitation
or extensions of such statutes.
8. Reporting Requirements Under Securities Exchange Act of 1934. When
it is first legally required to do so, the Company shall register its Common
Stock under Section 12 of the Exchange Act and shall keep effective such
registration and shall timely file such information, documents and reports as
the Commission may require or prescribe under Section 13 of the Exchange Act.
From and after the effective date of the first Registration Statement filed by
the Company, the Company shall use its best efforts to (whether or not it shall
then be required to do so) timely file such information, documents and reports
as the Commission may require or prescribe under Section 13 or 15(d) (whichever
is applicable) of the Exchange Act. Immediately upon becoming subject to the
reporting requirements of either Section 13 or 15(d) of the Exchange Act, the
Company shall forthwith upon request furnish any Holder (i) a written statement
by the Company that it has complied with such reporting requirements, (ii) a
copy of the most recent annual or quarterly report of the Company, and (iii)
such other reports and documents filed by the Company with the Commission as
such Holder may reasonably request in availing itself of an exemption for the
sale of Registrable Stock without registration under the Securities Act. The
Company acknowledges and agrees that the purposes of the requirements contained
in this Section 8 are (a) to enable any such Holder to comply with the current
public information requirement contained in Paragraph (c) of Rule 144 under the
Securities Act should such Holder ever wish to dispose of any of the securities
of the Company acquired by it without registration under the Securities Act in
reliance upon Rule 144 (or any other similar or successor exemptive provision),
and (b) to qualify the Company for the use of Registration Statements on Form
S-3. In addition, the Company shall take such other measures and file such other
information, documents and reports, as shall hereafter be required by the
Commission as a condition to the availability of Rule 144 under the Securities
Act (or any similar or successor exemptive provision hereafter in effect) and
the use of Form S-3. The Company also covenants to use its best efforts, to the
extent that it is reasonably within its power to do so, to qualify for the use
of Form S-3. From and after the effective date of the first Registration
Statement filed by the Company, the Company agrees to use its best efforts to
facilitate and expedite transfers of Registrable Stock pursuant to Rule 144
under the Securities Act (or any similar or successor exemptive provision
hereafter in effect), which efforts shall include timely notice to its transfer
agent to expedite such transfers of Registrable Stock.
9. Stockholder Information. The Company may require each Holder of
Registrable Stock as to which any registration is to be effected pursuant to
this Agreement to furnish the Company in a timely manner such information with
respect to such Holder and the distribution
-11-
<PAGE> 12
of such Registrable Stock as the Company may from time to time reasonably
request in writing and as shall be required by law or by the Commission in
connection therewith.
10. Lock-Up Agreements.
(a) Restrictions on Public Sale by the Company. The Company
agrees not to effect any public sale or other distribution of its
equity securities, or any securities convertible into or exchangeable
or exercisable for such equity securities, during the period, not to
exceed one hundred eighty (180) days (as requested by the managing
underwriter), following the effective date of the Initial Public
Offering, or ninety (90) days following the effective date of any other
underwritten public offering of securities of the Company, except in
connection with any such underwritten offering and except for equity
securities issued pursuant to employee stock option or employee stock
purchase plans or in conjunction with any merger or consolidation with,
or acquisition of the stock or assets of, any other entity.
(b) Restrictions on Public Sale by the Holders. Each Holder
agrees that it will not, to the extent requested by the Company and the
managing underwriter of such offering, sell or otherwise dispose of any
equity securities of the Company, including any sale pursuant to Rule
144, during a period specified by the Company and such underwriter (not
to exceed one hundred eighty (180) days after the effective date of the
Initial Public Offering or ninety (90) days after any other
underwritten offering), except in conjunction with such underwritten
offering; provided, that, each officer and director of the Company
shall enter into similar agreements.
11. Notices. Any notice required or permitted to be given hereunder
shall be in writing and shall be deemed to be properly given when sent by
registered or certified mail, return receipt requested, by Federal Express, DHL
or other guaranteed overnight delivery service or by facsimile transmission,
addressed as follows:
If to the Company: Sitara Networks, Inc.
60 Hickory Drive
Waltham, MA 02154
Attention: President
Telecopier: (781) 890-8042
with a copy to: McDermott, Will & Emery
28 State Street
Boston, MA 02109
Attention: Arthur I. Anderson, P.C.
Telecopier: (617) 535-3800
If to the Founder: Malik Z. Khan
240 Western Avenue
Sherborn, MA 01770
-12-
<PAGE> 13
If to any Investor: To the address of such Investor set
forth on Schedule RRA-1 hereto
and if to any other Holder at such Holder's address for notice as set forth in
the register maintained by the Company, or, as to any of the foregoing, to such
other address as any such party may give the others notice of pursuant to this
Section, provided that a change of address shall only be effective upon receipt.
All notices, requests, consents and other communications hereunder
shall be deemed to have been received (i) if by hand, at the time of delivery
thereof to the receiving party at the address of such party set forth above or
as so designated, (ii) if made by telecopy or facsimile transmission, at the
time that receipt thereof has been acknowledged by electronic confirmation or
otherwise, (iii) if sent by overnight courier, on the day such notice is
delivered by the courier service, or (iv) if sent by registered or certified
mail, on the fifth business day following the day such mailing is made.
12. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the substantive laws of the Commonwealth of Massachusetts
(without regard to conflict of laws provisions).
13. Waivers; Amendments. No waiver of any right hereunder by any party
shall operate as a waiver of any other right, or of the same right with respect
to any subsequent occasion for its exercise, or of any right to damages. No
waiver by any party of any breach of this Agreement shall be held to constitute
a waiver of any other breach or a continuation of the same breach. All remedies
provided by this Agreement are in addition to all other remedies provided by
law. This Agreement may not be amended except by a writing executed by the
Company and (i) the Holders of at least sixty (60%) percent of the Registrable
Stock and the securities convertible into, exchangeable for or exercisable for
Registrable Stock (calculated on an as converted, exchanged or exercised basis),
and (ii) if the amendment affects adversely any of the rights of the Founder
hereunder, by the Founder as well.
14. Other Registration Rights. The Company shall not grant to any third
party any registration rights more favorable than any of those contained herein,
or which would interfere with or delay the exercise by the Holders of their
registrations rights hereunder, so long as any of the registration rights under
this Agreement remains in effect, unless approved by Holders of at least sixty
(60%) percent of the shares of Registrable Stock, which approval may require
that such rights be granted only pursuant to an amendment or restatement of this
Agreement.
15. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the respective legal representatives, successors
and assigns of the parties hereto; provided, however, that the registration
rights conferred herein shall only inure to the benefit of a transferee of
Registrable Stock if (i) there is transferred to such transferee at least ten
(10%) percent of the Registrable Stock originally issued by the Company to the
direct or indirect transferor of such transferee, (ii) such transferee is a
partner, shareholder, member or affiliate of a party hereto; and in each case
such transferee becomes a party to this Agreement by signing a counterpart
hereof, at which point such transferee shall become an "Investor" for the
purposes of this Agreement, or (iii) such transferee is a member of the family
(i.e., spouse, sibling, spouse's
-13-
<PAGE> 14
sibling, child (natural or adopted), stepchild, grandchild, parent, grandparent
or any other lineal ancestor or descendent) of a party or partner, shareholder,
member or affiliate of a party hereto; provided, however, that no expansion of
the definition of Holders set forth above shall be effected by this Section 15.
16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
17. Prior Understandings. This Agreement represents the complete
agreement of the parties with respect to the transactions contemplated hereby
and supersedes all prior agreements and understandings.
18. Headings. Headings in this Agreement are included for reference
only and shall have no effect upon the construction or interpretation of any
part of this Agreement.
19. Severability. If any provision of this Agreement shall be held to
be illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
[Remainder of Page Intentionally Left Blank]
-14-
<PAGE> 15
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by a duly authorized officer, and each Investor has duly executed this
Agreement (or has caused it to be executed by a duly authorized officer,
partner, trustee or agent, as the case may be), as of the date first above
recited.
ATTEST: COMPANY:
SITARA NETWORKS, INC.
/s/ Arthur Anderson By: /s/ Malik Z. Khan
------------------- --------------------------
Secretary Malik Z. Khan, President
FOUNDER:
/s/ Malik Z. Khan
------------------------------
Malik Z. Khan
INVESTORS:
ONELIBERTY FUND III, L.P.
By: One Liberty Partners III, L.P.,
its general partner
By: /s/ Edwin M. Kania
--------------------------
Edwin M. Kania, Jr.
One Liberty Square
Boston, MA 02109
<PAGE> 16
FW VENTURES IV L.P.
By: /s/ David Brown
--------------------------
Name: David Brown
Title:
201 Main Street, Suite 3100
Fort Worth, TX 76102
ESSEX PRIVATE PLACEMENT FUND III-A,
LIMITED PARTNERSHIP.
By: Essex Investment Management Company,
LLC, its general partner
By: /s/ Susan P. Stickells
--------------------------
Name: Susan P. Stickells
Title: Principal
125 High Street, 29th Floor
Boston, MA 02110
ESSEX PRIVATE PLACEMENT FUND III-B,
LIMITED PARTNERSHIP.
By: Essex Investment Management Company,
LLC,its general partner
By: /s/ Susan P. Stickells
--------------------------
Name: Susan P. Stickells
Title: Principal
125 High Street, 29th Floor
Boston, MA 02110
ESSEX HIGH TECHNOLOGY FUND L.P.
By: Essex Investment Management Company,
LLC, its general partner
By: /s/ Susan P. Stickells
--------------------------
Name: Susan P. Stickells
Title: Principal
125 High Street, 29th Floor
Boston, MA 02110
<PAGE> 17
TWP SITARA INVESTORS
By: /s/ David A. Baylor
--------------------------
Name: David A. Baylor
Title: Managing Partner
TAILWIND CAPITAL PARTNERS 2000, L.P.
By: Thomas Weisel Capital Partners LLC,
General Partner
By: /s/ David Baylor
--------------------------
Name: David Baylor
Title: General Counsel
/s/ Barry Davis
------------------------------
Barry Davis
NEW ENTERPRISE ASSOCIATES VII, LP
By: /s/ Arthur J. Marks
--------------------------
Name: Arthur J. Marks
NEA PRESIDENTS' FUND, L.P.
By: /s/ Arthur J. Marks
--------------------------
Name: Arthur J. Marks
PRISM VENTURE PARTNERS I, L.P.
By: Prism Investment Partners, L.L.C.,
its general partner
By: /s/ Robert Fleming
--------------------------
Name: Robert Fleming
100 Lowder Brook Drive
Suite 2500
Westwood, MA 02090
<PAGE> 18
MFS SERIES TRUST I on behalf of
MFS New Discovery Fund ("NDF")
($4,841,584.65; 743,715 shares)
Nominee: Clump & Co.
Nominee ID: 04-3208074
Tax ID: 04-3339400
By: /s/ Ellen Moynihan
--------------------------
Name: Ellen Moynihan
Title: Assistant Treasurer
MFS/SUN LIFE SERIES TRUST on behalf
of MFS New Discovery Series ("NWD")
($482,391; 74,100 shares)
Nominee: Inletbluff & Co.
Nominee ID: 04-3409455
Tax ID: 04-3417488
By: /s/ Ellen Moynihan
--------------------------
Name: Ellen Moynihan
Title: Assistant Treasurer
MFS VARIABLE INSURANCE TRUST on
behalf of MFS New Discovery Series ("VND")
($276,024; 42,400 shares)
Nominee: Newwind & Co.
Nominee ID: 04-3409369
Tax ID: 04-3417481
By: /s/ Ellen Moynihan
--------------------------
Name: Ellen Moynihan
Title: Assistant Treasurer
<PAGE> 19
MFS SERIES TRUST I on behalf of
MFS Technology Fund ("SCT")
($400,000.44; 61,444 shares)
Nominee: Distinguish & Co.
Nominee ID: 04-3208197
Tax ID: 04-3339406
By: /s/ Ellen Moynihan
--------------------------
Name: Ellen Moynihan
Title: Assistant Treasurer
VAN WAGONER CAPITAL MANAGEMENT
By: /s/ Audrey Lam
--------------------------
Name: Audrey Lam
Title: Managing Director
345 California Street, Suite 2450
San Francisco, CA 94104
BT INVESTMENT PARTNERS, INC.
By: /s/ Kristine Cicardo
--------------------------
Name: Kristine Cicardo
Title: Director
CHARLES RIVER PARTNERSHIP VII, L.P.
By: /s/ Michael Zak
--------------------------
Name: Michael Zak
Title: General Partner
1000 Winter Street, Suite 3300
Waltham, MA 02154
SIEMENS SERVICES, INC.
By: /s/ Michael Rowan
--------------------------
Name: Michael Rowan
Title: Vice President
Chase Manhattan Center, Suite 1402
1201 Market Street
Wilmington, DE 19801
<PAGE> 20
SIEMENS SERVICES, INC.
By: /s/ Christine Krzyzarnski
--------------------------
Name: Christine Krzyzarnski
Title: Vice President
Chase Manhattan Center, Suite 1402
1201 Market Street
Wilmington, DE 19801
/s/ Dipak Rastogi
------------------------------
Dipak Rastogi
/s/ Audrey M. Rastogi
------------------------------
Audrey M. Rastogi
/s/ John Halligan
------------------------------
John Halligan
/s/ Andy Fox
------------------------------
Andy Fox
/s/ Michael Bassinger
------------------------------
Michael Bassinger
/s/ Rhys Williams
------------------------------
Rhys Williams
General Partner, SIVO G.P.
/s/ Manny Fernandez
------------------------------
Manny Fernandez
SI VENTURE FUND II, L.P.
By: /s/ Manny Fernandez
--------------------------
Name: Manny Fernandez
Title: Managing Director
<PAGE> 21
ANGLO AMERICAN SECURITY FUND, L.P.
By: /s/ John S. Grace
--------------------------
Name: John S. Grace
Title: General Partner
CABIN INTERIORS, LP
By: Cabin Interiors, Inc., its general
partner
By: /s/ John S. Grace
--------------------------
Name: John S. Grace
Title: President
DIVERSIFIED LONG TERM GROWTH FUND, L.P.
By: Associated Asset Management, Inc.
its general partner
By: /s/ John S. Grace
--------------------------
Name: John S. Grace
Title: Co-Chairman
DRAKE ASSOCIATES, L.P.
By: Associated Asset Management, Inc.
its general partner
By: /s/ John S. Grace
--------------------------
Name: John S. Grace
Title: Co-Chairman
STERLING GRACE CAPITAL MANAGEMENT, LP.
By: Sterling Grace Corporation,
its general partner
By: /s/ John S. Grace
--------------------------
Name: John S. Grace
Title: President
<PAGE> 22
GRACE-ARTEL INVESTORS, INC.
By: /s/ Oliver R. Grace
--------------------------
Name: Oliver R. Grace
Title: Chairman
THE SOG FUND LP
By: The Special Opportunities Group, LLC
its managing general partner
By: /s/ Christopher G. Miller
--------------------------
Name: Christopher G. Miller
Title: Chief Executive Officer
THE SOG FUND II LP
By: The Special Opportunities Group, LLC
its managing general partner
By: /s/ Christopher G. Miller
--------------------------
Name: Christopher G. Miller
Title: Chief Executive Officer
<PAGE> 23
SCHEDULE RRA-1
<TABLE>
<CAPTION>
INVESTOR & ADDRESS NUMBER OF NUMBER OF NUMBER OF NUMBER OF
------------------ SHARES OF SHARES SHARES SHARES
SERIES A OF SERIES B OF SERIES C OF SERIES D
PREFERRED STOCK PREFERRED STOCK PREFERRED STOCK PREFERRED STOCK
--------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C>
Charles River Partnership 2,352,941 785,714 359,090 --
VII, L.P.
1000 Winter Street
Suite 3300
Waltham, MA 02154
Attn: Michael Zak
Telecopier: (617) 487-7005
OneLiberty Fund III, L.P.
One Liberty Square 2,352,941 785,714 359,090 --
Boston, MA 02109
Attn: Edward Kania
Telecopier: (617) 338-4362
New Enterprise Associates
VII, LP 958,824 1,785,715 318,710 --
1119 St. Paul Street
Baltimore, MD 21202
Attn: Nancy Dorman
Telecopier:
Prism Venture Partners I, L.P.
100 Lowder Brook Drive -- 1,428,571 163,441 --
Suite 2500
Westwood, MA 02090
Attn: Robert Fleming
</TABLE>
<TABLE>
<CAPTION>
INVESTOR & ADDRESS NUMBER OF NUMBER OF NUMBER OF
------------------ SHARES SHARES SHARES
OF SERIES E OF SERIES F OF SERIES G
PREFERRED STOCK PREFERRED STOCK PREFERRED STOCK
--------------- --------------- ---------------
<S> <C> <C> <C>
Charles River Partnership 142,144 --
VII, L.P.
1000 Winter Street
Suite 3300
Waltham, MA 02154
Attn: Michael Zak
Telecopier: (617) 487-7005
OneLiberty Fund III, L.P.
One Liberty Square 142,144 --
Boston, MA 02109
Attn: Edward Kania
Telecopier: (617) 338-4362
New Enterprise Associates
VII, LP 122,263 --
1119 St. Paul Street
Baltimore, MD 21202
Attn: Nancy Dorman
Telecopier:
Prism Venture Partners I, L.P.
100 Lowder Brook Drive 64,697 --
Suite 2500
Westwood, MA 02090
Attn: Robert Fleming
</TABLE>
<PAGE> 24
SCHEDULE RRA-1 CONTINUED
<TABLE>
<CAPTION>
INVESTOR & ADDRESS NUMBER OF NUMBER OF NUMBER OF NUMBER OF
------------------ SHARES OF SHARES OF SHARES OF SHARES OF
SERIES A SERIES B SERIES C SERIES D
PREFERRED STOCK PREFERRED STOCK PREFERRED STOCK PREFERRED STOCK
--------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C>
NEA Presidents' Fund, L.P. 41,176 -- -- --
1119 St. Paul Street
Baltimore, MD 21202
Attn: Nancy Dorman
M/C Investors L.L.C 588,235 178,572 87,729 --
75 State Street
Boston, MA 02109
Attn: Jim Wade
Telecopier:
Sharon Sisskind 117,647 17,857 15,503 --
70 Barnstable Road
West Newton, MA 02165
K. Paul Singh 58,825 17,857 8,773 --
Primus Telecommunications
1700 Old Meadow Road
3rd Floor
McLean, VA 22102
Intel Corporation -- -- -- 787,402
2200 Mission College Blvd.
Santa Clara, CA 95052
FW Ventures IV L.P. -- -- -- --
201 Main Street, Suite 3100
Fort Worth, TX 76102
Essex High Technology Fund L.P. -- -- -- --
125 High Street, 29th Floor
Boston, MA 02110
Attn: Susan Stickells
</TABLE>
<TABLE>
<CAPTION>
INVESTOR & ADDRESS NUMBER OF NUMBER OF NUMBER OF
------------------ SHARES OF SHARES OF SHARES OF
SERIES E SERIES F SERIES G
PREFERRED STOCK PREFERRED STOCK PREFERRED STOCK
--------------- --------------- ---------------
<S> <C> <C> <C>
NEA Presidents' Fund, L.P. 3,896 --
1119 St. Paul Street
Baltimore, MD 21202
Attn: Nancy Dorman
M/C Investors L.L.C 34,727 --
75 State Street
Boston, MA 02109
Attn: Jim Wade
Telecopier:
Sharon Sisskind 6,137 --
70 Barnstable Road
West Newton, MA 02165
K. Paul Singh 3,473 --
Primus Telecommunications
1700 Old Meadow Road
3rd Floor
McLean, VA 22102
Intel Corporation -- --
2200 Mission College Blvd.
Santa Clara, CA 95052
FW Ventures IV L.P. 2,077,922 --
201 Main Street, Suite 3100
Fort Worth, TX 76102
Essex High Technology Fund L.P. 181,818 --
125 High Street, 29th Floor
Boston, MA 02110
Attn: Susan Stickells
</TABLE>
<PAGE> 25
<TABLE>
<CAPTION>
INVESTOR & ADDRESS NUMBER OF NUMBER OF NUMBER OF NUMBER OF
------------------ SHARES OF SHARES OF SHARES OF SHARES OF
SERIES A SERIES B SERIES C SERIES D
PREFERRED STOCK PREFERRED STOCK PREFERRED STOCK PREFERRED STOCK
--------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C>
Utility Competitive Advantage -- -- -- --
Fund L.P.
2 Wisconsin Circle, Suite 620
Chevy Chase, MD 20815
ABS Employees Venture Fund L.P. -- -- -- --
1 South Street, 17th Floor
Baltimore, MD 21202
Van Wagoner Capital Management -- -- -- --
345 California Street,
Suite 2450
San Francisco, CA 94104
Michael Murray -- -- -- --
D. Alex Brown
101 Federal Street
15th Floor
Boston, MA 02110
Gunjan Sinha -- -- -- --
e-gain
624 East Evelyn Ave
Sunnyvale, CA 94086
Valhalla Capital, LP -- -- -- --
10863 Pleasant Hill
Potomac, MD 20854
America Online, Inc. -- -- -- --
22000 AOL Way
Dulles, VA 20166
</TABLE>
<TABLE>
<CAPTION>
INVESTOR & ADDRESS NUMBER OF NUMBER OF NUMBER OF
------------------ SHARES OF SHARES OF SHARES OF
SERIES E SERIES F SERIES G
PREFERRED STOCK PREFERRED STOCK PREFERRED STOCK
--------------- --------------- ---------------
<S> <C> <C> <C>
Utility Competitive Advantage 779,221 --
Fund L.P.
2 Wisconsin Circle, Suite 620
Chevy Chase, MD 20815
ABS Employees Venture Fund L.P. 148,874 --
1 South Street, 17th Floor
Baltimore, MD 21202
Van Wagoner Capital Management 779,221 --
345 California Street,
Suite 2450
San Francisco, CA 94104
Michael Murray 2,600 --
D. Alex Brown
101 Federal Street
15th Floor
Boston, MA 02110
Gunjan Sinha 129,870 --
e-gain
624 East Evelyn Ave
Sunnyvale, CA 94086
Valhalla Capital, LP 64,935 --
10863 Pleasant Hill
Potomac, MD 20854
America Online, Inc. 1,038,961 --
22000 AOL Way
Dulles, VA 20166
</TABLE>
<PAGE> 26
<TABLE>
<CAPTION>
INVESTOR & ADDRESS NUMBER OF NUMBER OF NUMBER OF NUMBER OF
------------------ SHARES OF SHARES OF SHARES OF SHARES OF
SERIES A SERIES B SERIES C SERIES D
PREFERRED STOCK PREFERRED STOCK PREFERRED STOCK PREFERRED STOCK
--------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C>
Primus Telecommunications Group -- -- -- --
Inc.
1700 Old Meadow Road
3rd Floor
McLean, VA 22102
Attn: K. Paul Singh
Presidio Venture Partners, LLC -- -- -- --
600 Third Avenue
New York, NY 10016-2001
Attn: Mr. Seiji Sato
Kenneth W. Slutsky -- -- -- --
Sepulveda Capital
920 Manhatten Beach Blvd.
Manhatten Beach, CA 90266
Checchi Family Trust -- -- -- --
c/o Kenneth W. Slutsky
Sepulveda Capital
920 Manhatten Beach Blvd.
Manhatten Beach, CA 90266
Robert Kutnick -- -- -- --
3043 Durham-B
Century Village East
Deerfield Beach, Florida 33442
Robert A. Morris -- -- -- --
1239 Hillsboro Mile, No. 409
Hillsboro Beach, Florida 33062
David Weiss -- -- -- --
20088 West Key Drive
Boca Raton, Florida 33498
Jeffrey Issac Krantz -- -- -- --
21503 Sweetwater Lane South
Boca Raton, Florida 33428
</TABLE>
<TABLE>
<CAPTION>
INVESTOR & ADDRESS NUMBER OF NUMBER OF NUMBER OF
------------------ SHARES OF SHARES OF SHARES OF
SERIES E SERIES F SERIES G
PREFERRED STOCK PREFERRED STOCK PREFERRED STOCK
--------------- --------------- ---------------
<S> <C> <C> <C>
Primus Telecommunications Group -- 600,000
Inc.
1700 Old Meadow Road
3rd Floor
McLean, VA 22102
Attn: K. Paul Singh
Presidio Venture Partners, LLC -- 200,000
600 Third Avenue
New York, NY 10016-2001
Attn: Mr. Seiji Sato
Kenneth W. Slutsky -- 100,000
Sepulveda Capital
920 Manhatten Beach Blvd.
Manhatten Beach, CA 90266
Checchi Family Trust -- 100,000
c/o Kenneth W. Slutsky
Sepulveda Capital
920 Manhatten Beach Blvd.
Manhatten Beach, CA 90266
Robert Kutnick -- 20,000
3043 Durham-B
Century Village East
Deerfield Beach, Florida 33442
Robert A. Morris -- 10,000
1239 Hillsboro Mile, No. 409
Hillsboro Beach, Florida 33062
David Weiss -- 10,000
20088 West Key Drive
Boca Raton, Florida 33498
Jeffrey Issac Krantz -- 10,000
21503 Sweetwater Lane South
Boca Raton, Florida 33428
</TABLE>
<PAGE> 27
<TABLE>
<CAPTION>
INVESTOR & ADDRESS NUMBER OF NUMBER OF NUMBER OF NUMBER OF
------------------ SHARES OF SHARES OF SHARES OF SHARES OF
SERIES A SERIES B SERIES C SERIES D
PREFERRED STOCK PREFERRED STOCK PREFERRED STOCK PREFERRED STOCK
--------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C>
Andy Stergiades -- -- -- --
4205 Intracoastal Drive
Highland Beach, Florida 33487
John P. Cunningham -- -- -- --
121 Stonebridge Square
Chappaqua, New York 10515
Scott Broder -- -- -- --
923 NE 24th Street
Boca Raton, Florida 33431]
Ed Iacobucci -- -- -- --
901 South Ocean Blvd.
Delray Beach, FL 33483
</TABLE>
<TABLE>
<CAPTION>
INVESTOR & ADDRESS NUMBER OF NUMBER OF NUMBER OF
------------------ SHARES OF SHARES OF SHARES OF
SERIES E SERIES F SERIES G
PREFERRED STOCK PREFERRED STOCK PREFERRED STOCK
--------------- --------------- ---------------
<S> <C> <C> <C>
Andy Stergiades -- 10,000
4205 Intracoastal Drive
Highland Beach, Florida 33487
John P. Cunningham -- 5,000
121 Stonebridge Square
Chappaqua, New York 10515
Scott Broder -- 5,000
923 NE 24th Street
Boca Raton, Florida 33431]
Ed Iacobucci -- 40,000
901 South Ocean Blvd.
Delray Beach, FL 33483
</TABLE>
<PAGE> 28
AMENDMENT NO. 1 TO
SITARA NETWORKS, INC.
SERIES G CONVERTIBLE PREFERRED STOCK
PURCHASE AGREEMENT,
SIXTH AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
AND
SIXTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
SEPTEMBER ____, 2000
WHEREAS, the undersigned, being (i) Sitara Networks, Inc., a Delaware
corporation (the "Company"), (ii) the holders (the "Required Holders") of at
least sixty (60%) percent of the issued and outstanding shares of Series A
Convertible Preferred Stock, $0.00001 par value per share, (the "Series A
Stock"), Series B Convertible Preferred Stock, $0.00001 par value per share (the
"Series B Stock"), Series C Convertible Preferred Stock, $0.00001 par value per
share (the "Series C Stock"), Series D Convertible Preferred Stock, $0.00001 par
value (the "Series D Stock"), Series E Convertible Preferred Stock, $0.00001 par
value per share (the "Series E Stock"), Series F Convertible Preferred Stock,
$0.00001 par value per share (the "Series F Stock"), and Series G Convertible
Preferred Stock, $0.00001 (the "Series G Stock" and together with the Series A
Stock, the Series B Stock, the Series C Stock, the Series D Stock, the Series E
Stock, and the Series F Stock the "Preferred Stock") of the Company, calculated
as a single class (treating all Preferred Stock for all purposes herein as if
converted to Common Stock, par value $.00001 per share ), and (iii) Malik Z.
Khan, in his capacity as the founder of the Company (the "Founder"), desire to
amend (1) that certain Series G Convertible Preferred Stock Purchase Agreement,
dated as of June 16, 2000, by and among the Company and the other parties
thereto (the "Series G Purchase Agreement"), (2) that certain Sixth Amended and
Restated Stockholders Agreement, dated as of June 16, 2000, by and among the
Company and the other parties thereto (the "Stockholders Agreement") and (3)
that certain Sixth Amended and Restated Registration Rights Agreement, dated as
of June 16, 2000 by and among the Company and the other parties thereto (the
"Registration Rights Agreement");
WHEREAS, Section 6.02 of the Series G Purchase Agreement permits
amendments to such agreement upon the written consent of the Company and the
Required Holders;
WHEREAS, Section 14 of the Stockholders Agreement permits amendments to
such agreement upon the written consent of the Company, the Required Holders and
the Founder; and
WHEREAS, Section 13 of the Registration Rights Agreement permits
amendments to such agreement upon the written consent of the Company, the
Required Holders and the Founder;
<PAGE> 29
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, the parties hereto agree as follows:
A. That, the Series G Purchase Agreement be amended to the extent
set forth below:
1. The second sentence of Section 2.03(b) of the Agreement is
hereby amended and restated in its entirety to read as follows:
"Such purchase and sale shall take place at a closing or
series of closings (the "Subsequent Closings" and together
with the Initial Closing, the "Closing") to be held at the
office of Counsel to the Company, 28 State Street, Boston,
Massachusetts 02109, at any time or from time to time, through
and including October 15, 2000, as may be mutually agreed upon
by the Company and such Purchasers."
2. The Company is hereby empowered to amend and restate
Exhibit 2.01A of the Series G Purchase Agreement to reflect any
additional sales of Series G Stock in any Subsequent Closings.
B. That the Stockholders Agreement be amended (i) to the extent
necessary to add any persons who purchase any shares of Series G Stock at any
Subsequent Closing to the Stockholders Agreement as "Investors" thereunder and
(ii) to the extent set forth below:
1. The number of shares current issuable under the Company's
Stock Incentive Program that are excluded from the pre-emptive rights
set forth in Section 12 of the Stockholders Agreement shall be
increased by replacing the number "7,200,000" in clause (E) of the
first sentence of Section 12 of the Stockholders Agreement with the
number "9,200,000".
C. That the Registration Rights Agreement be amended to the
extent necessary to add any persons who purchase any shares of Series G Stock at
any Subsequent Closing to the Registration Rights Agreement as "Investors"
thereunder and to accordingly amend and restate Schedule RRA-1 of the
Registration Rights Agreement.
[SIGNATURE PAGES FOLLOW]
2
<PAGE> 30
IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 1
to the Sitara Networks, Inc. Series G Convertible Preferred Stock Purchase
Agreement, the Sixth Amended and Restated Stockholders Agreement and the Sixth
Amended and Restated Registration Rights Agreement as of the date first written
above.
COMPANY:
SITARA NETWORKS, INC.
By: /s/ Malik Khan
-----------------------------
Name: Malik Khan
Title: President
FOUNDER:
/s/ Malik Khan
Malik Z. Khan
PREFERRED STOCKHOLDERS:
CHARLES RIVER PARTNERSHIP VII, L.P.
By: /s/ Michael Zak
-----------------------------
Michael Zak, General Partner
ONE LIBERTY FUND III, L.P.
By: OneLiberty Partners III, L.P.,
its general partner
By: /s/ Edwin M. Kania, Jr.
-----------------------------
Name: Edwin M. Kania, Jr.
Title: General Partner
<PAGE> 31
NEW ENTERPRISE ASSOCIATES VII, LP
By: /s/ Arthur Marks
-----------------------------
Name: Arthur Marks
Title: General Partner
NEA PRESIDENTS' FUND, L.P.
By: /s/ Arthur Marks
-----------------------------
Name: Arthur Marks
Title: General Partner
FW VENTURES IV, L.P.
By: /s/ David G. Brown
------------------------
Name: David G. Brown
Title: Vice President
PRISM VENTURE PARTNERS I, L.P.
By: Prism Investment Partners,
L.P., its general partner
By: Prism Venture Partners,
L.L.C., its general
partner
By: /s/ Robert Fleming
-------------------------
Managing Director
<PAGE> 32
AMENDMENT NO. 2 TO
SITARA NETWORKS, INC.
SIXTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
NOVEMBER 16, 2000
WHEREAS, the undersigned, being (i) Sitara Networks, Inc., a Delaware
corporation (the "Company"), (ii) the holders (the "Required Holders") of at
least sixty (60%) percent of the issued and outstanding shares of Series A
Convertible Preferred Stock, $0.00001 par value per share, (the "Series A
Stock"), Series B Convertible Preferred Stock, $0.00001 par value per share (the
"Series B Stock"), Series C Convertible Preferred Stock, $0.00001 par value per
share (the "Series C Stock"), Series D Convertible Preferred Stock, $0.00001 par
value (the "Series D Stock"), Series E Convertible Preferred Stock, $0.00001 par
value per share (the "Series E Stock"), Series F Convertible Preferred Stock,
$0.00001 par value per share (the "Series F Stock"), and Series G Convertible
Preferred tock, $0.00001 (the "Series G Stock" and together with the Series A
Stock, the Series B Stock, the Series C Stock, the Series D Stock, the Series E
Stock, and the Series F Stock the "Preferred Stock") of the Company, calculated
as a single class (treating all Preferred Stock for all purposes herein as if
converted to Common Stock, par value $.00001 per share ), and (iii) Malik Z.
Khan, in his capacity as the founder of the Company (the "Founder"), desire to
amend that certain Sixth Amended and Restated Registration Rights Agreement,
dated as of June 16, 2000 by and among the Company and the other parties thereto
(the "Registration Rights Agreement");
WHEREAS, Section 13 of the Registration Rights Agreement permits amendments
to such agreement upon the written consent of the Company, the Required Holders
and the Founder; and
WHEREAS, the capitalized terms not defined herein shall have the meanings
ascribed to them in the Registration Rights Agreement;
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
the parties hereto agree as follows:
That the Registration Rights Agreement be amended to the extent necessary
to irrevocably waive (i) the right of each Holder to have any shares of
Registrable Securities or Founder Registrable Securities included on any
Registration Statement filed with respect to the Company's Initial Public
Offering (provided that the Company's Initial Public Offering is consummated on
or prior to June 30, 2001) and (ii) the right to receive notice of the filing of
any such Registration Statement.
[SIGNATURE PAGES FOLLOW]
<PAGE> 33
IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 2 to
the Sitara Networks, Inc. Sixth Amended and Restated Registration Rights
Agreement as of the date first written above.
COMPANY:
SITARA NETWORKS, INC.
By: /s/ Malik Khan
------------------------
Name: Malik Khan
Title:President
FOUNDER:
Malik Z. Khan
PREFERRED STOCKHOLDERS:
CHARLES RIVER PARTNERSHIP VII, L.P.
By: /s/ Michael J. Zak
---------------------------
Name: Michael J. Zak
Title:
ONE LIBERTY FUND III, L.P.
By: OneLiberty Partners III, L.P.,
its general partner
By: /s/ Edwin M. Kania, Jr.
---------------------------
Name: Edwin M. Kania, Jr.
Title: General Partner
<PAGE> 34
NEW ENTERPRISE ASSOCIATES VII, LP
By: /s/ Arthur Marks
--------------------------
Name: Arthur Marks
Title: General Partner
NEA PRESIDENTS' FUND, L.P.
By: /s/ Arthur Marks
--------------------------
Name: Arthur Marks
Title: General Partner
FW VENTURES IV, L.P.
By: /s/ John H. Fant
--------------------------
Name: John H. Fant
Title: Vice President
PRISM VENTURE PARTNERS I, L.P.
By: Prism Investment Partners, L.P., its
general partner
By: Prism Venture Partners, L.L.C., its
general partner
By: /s/ Robert Fleming
-----------------------------------
Managing Director
