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Exhibit 4.5
AMENDMENT AND WAIVER OF RIGHT
This amendment and waiver of right, dated as of September 6, 2000,
("Amendment and Waiver"), pursuant to the following agreements, all dated as of
March 10, 2000, by and between NETGEAR, Inc., a Delaware corporation (the
"Company"), Nortel Networks NA Inc., a Delaware corporation ("Nortel Networks"),
and Pequot Private Equity Fund II, L.P. ("Pequot"): the Series B Convertible
Participating Preferred Stock Purchase Agreement (the "Stock Purchase
Agreement"), Investors Agreement (the "Rights Agreement"), and Voting Agreement
(the "Voting Agreement"; the Stock Purchase Agreement, the Rights Agreement and
Voting Agreement collectively referred to as the "Related Agreements").
Capitalized terms used herein, unless specifically defined herein, have the
meanings assigned them in the Stock Purchase Agreement, the Rights Agreement and
the Voting Agreement.
RECITALS
A. WHEREAS, pursuant to the Stock Transfer Agreement, dated as of
September 6, 2000 (the "Stock Transfer Agreement"), by and between Nortel
Networks, the Company, and the transferees listed in Exhibit A attached thereto
and set forth below (the "Transferees"), Nortel Networks desires to transfer and
sell to Transferees, and Transferees desire to purchase from Nortel Networks,
3,414,914 shares of Series A Convertible Participating Preferred Stock of the
Company ("Series A Preferred Stock"), with the number of shares to be purchased
and the aggregate purchase price to be paid for the Series A Preferred Stock set
forth opposite the name of each Transferee in Exhibit A, all according to the
terms and conditions set forth in the Stock Transfer Agreement and the Related
Agreements.
B. WHEREAS, pursuant to Section 4.3 of the Stock Purchase Agreement,
Section 5 of the Rights Agreement, and Section 10 of the Voting Agreement,
Nortel Networks desires to provide written notice to the Company and Pequot of
its desire to sell and transfer to the Transferees such shares of Series A
Preferred Stock.
C. WHEREAS, pursuant to Section 4.4 of the Stock Purchase Agreement, the
Company and Pequot desire to waive their respective Mutual Rights of First
Refusal held by them pursuant to the Stock Purchase Agreement.
D. WHEREAS, in order for the Company to expand its shareholder base and
demonstrate to potential investors a broad range of existing shareholders, the
Company, Pequot and Nortel Networks hereby agree to amend Section 4.2 and
Section 9.2(b) of the Stock Purchase Agreement and Section 4 of the Rights
Agreement to provide for permissible transfers by the Transferees to affiliates
of such Transferees and to amend the terms "Purchasers" and "Stockholders," as
they are defined in Rights Agreement, to include the Transferees within the
definition of "Purchaser" and Delta International Holding Limit within the
definition of "Stockholder."
NOW, THEREFORE, in consideration of the forgoing, the parties agree as
follows:
1. The undersigned parties, acting in their capacity as duly authorized
officers of the Company and Pequot, respectively, hereby acknowledge and waive
each of their Mutual Right of
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First Refusal held by them pursuant to Section 4 of the Stock Purchase Agreement
with respect to the above-referenced transaction.
2. Section 4.2 of the Stock Purchase Agreement is amended to read in its
entirety as follows:
"4.2 Transfers Not Subject to Restrictions. Any Investor, including
such successors and assigns of Investor, may Transfer Shares without
compliance with the provisions of this Agreement as follows: by an Investor
which is (i) a partnership, to an affiliate of such partnership, or a
corporation, to a wholly owned subsidiary of such corporation or in a
distribution to its stockholders; (ii) a partnership or affiliated
partnership, to a partner of such partnership or a retired partner of such
partnership who retires after the date hereof, or to the estate of any such
partner or retired partner; (iii) a limited liability company, to a member
of such limited liability company or a retired member who resigns after the
date hereof or to the estate of any such member or retired member; or (iv)
in any event to a partner, shareholder, member, parent, wholly-owned
subsidiary or Affiliate of an Investor (Affiliate is defined as any person
or entity directly or indirectly controlling, controlled by or under direct
or indirect common control with such Investor) (collectively "Permitted
Transferees"), and in the case of Shamrock Holdings of California, Inc.
("Shamrock"), Permitted Transferees shall also include (x) Shamrock
Holdings, Inc. ("Holdings") and Private Equity Holdings, A.G ("PEH"); (y)
any entity 50% or more of whose voting or equity securities are owned,
directly or indirectly by, Holdings, PEH, a Permitted Transferee of
Holdings or PEH any executive officers of Shamrock and/or any member of the
Roy E. Disney family (or any trust for his/her benefit) and (z) any entity
in which Holdings or a Permitted Transferee of Holdings or any of the
foregoing referenced in clause (y) serves as a general partner or manager;
provided that the transferee in each case agrees in writing to be subject
to the terms of this Agreement to the same extent as if it were an original
Investor hereunder."
3. Section 9.2(b) of the Stock Purchase Agreement is amended to read in
its entirety as follows:
"(b) Notwithstanding the foregoing, no registration or opinion of
counsel shall be required for (i) a transfer by a Purchaser which is a
corporation to a wholly owned subsidiary of such corporation or to its
stockholders as a dividend, a transfer by a Purchaser which is a
partnership to a partner of such partnership or a retired partner of such
partnership who retires after the date hereof, to an affiliate of such
partnership or to the estate of any such partner or retired partner, a
transfer by a Purchaser which is a limited liability company to a member of
such limited liability company or a retired member who resigns after the
date hereof or to the estate of any such member or retired member, a
transfer by a Purchaser, which shall include such successors and assigns of
Purchaser, to a partner, shareholder, member, parent, wholly-owned
subsidiary or Affiliate or Permitted Transferee of a Purchaser; provided
that the transferee in each case agrees in writing to be subject to the
terms of this Section 9 to the same extent as if it were the original
Purchaser hereunder, or (ii) a transfer made in accordance with Rule 144
under the Securities Act."
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4. As the term "Purchaser" is defined in the Rights Agreement, Shamrock
Holdings of California, Inc. shall be deemed a "Purchaser" and BMO Nesbitt Burns
Capital (U.S.), Inc. shall be deemed a "Purchaser." As the term "Purchaser" is
defined in the Rights Agreement, Blue Ridge Private Equity Fund, LLC and Blue
Ridge Limited Partnership shall be deemed as acting jointly and severally to be
one (1) "Purchaser." As the term "Purchaser" is defined in the Rights Agreement,
The Abernathy Group HSN Fund, L.P. and The Abernathy Group Institutional HSN
Fund, L.P. shall be deemed as acting jointly and severally to be one (1)
"Purchaser."
5. Section 4 of the Rights Agreement is amended to read in its entirety
as follows:
"4. Transfers of Rights. This Agreement, and the rights and
obligations of each Stockholder hereunder, may be assigned, in whole or in
part, by such Stockholder to (i) any person or entity to which at least
500,000 Shares are transferred by such Stockholder, (ii) any partner or
stockholder of such Stockholder, (iii) any venture capital fund, investment
entity or investment account for which Pequot Capital Management, Inc. or
its successors or assigns is the investment manager or investment advisor
or (iv) if such Stockholder is a corporation, a wholly owned subsidiary of
such corporation or in a distribution to its stockholders, and (iv) to a
partner, shareholder, member, parent, wholly-owned subsidiary or Affiliate
of each Stockholder (Affiliate is defined as any person or entity directly
or indirectly controlling, controlled by or under direct or indirect common
control with such Stockholder) (collectively "Permitted Transferees"), and
in the case of Shamrock Holdings of California, Inc. ("Shamrock"),
Permitted Transferees shall also include (x) Shamrock Holdings, Inc.
("Holdings") and Private Equity Holdings, A.G ("PEH"); (y) any entity 50%
or more of whose voting or equity securities are owned, directly or
indirectly by, Holdings, PEH, a Permitted Transferee of Holdings or PEH any
executive officers of Shamrock and/or any member of the Roy E. Disney
family (or any trust for his/her benefit) and (z) any entity in which
Holdings or a Permitted Transferee of Holdings or any of the foregoing
referenced in clause (y) serves as a general partner or manager, and in
each case such transferee shall be deemed a "Stockholder" and, if
applicable, a "Purchaser" for purposes of this Agreement; provided that the
transferee provides written notice of such assignment to the Company and
agrees in writing to be bound hereby."
6. Section 1 of the Rights Agreement is amended to read in its entirety
as follows:
"Stockholders" means Nortel Networks, the Purchasers, Delta
International Holding Limit ("Delta") and any persons or entities to whom
the rights granted under this Agreement are transferred by Nortel Networks,
the Purchasers, Delta, their successors or assigns pursuant to Section 4
hereof."
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this Waiver as of the
day and year first above written. This Amendment and Waiver may be executed in
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
NETGEAR, INC.
Name:
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By:
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Its:
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NORTEL NETWORKS NA, INC.
Name:
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By:
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Its:
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PEQUOT PRIVATE EQUITY FUND II, L.P.
Name:
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By:
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Its:
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