Exhibit 4.2
FORM OF
NETLOGIC MICROSYSTEMS,
INC.
SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
NETLOGIC MICROSYSTEMS,
INC.
SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
This Second Amended and Restated
Investor Rights Agreement (the “ Agreement
”) is made as of the 31 st day of August, 2001, by and among
NetLogic Microsystems, Inc., a Delaware corporation (the “
Company ”), the new investors executing this
Agreement as set forth on the Schedule of Investors attached as
Exhibit A (each of which is herein referred to individually
as a “ Series D Investor ” and
collectively the “ Series D Investors ”)
and all of the investors who are parties to and whose names are set
forth on Exhibit A (the “ Existing Investors
” and, together with the Series D Investors, the “
Investors ”) to the Amended and Restated
Investor Rights Agreement dated as of January 16, 2001 (the “
Prior Agreement ”), which is amended
hereby.
RECITALS
WHEREAS, the Company, the Series D
Investors and certain of the Existing Investors have entered into a
Series D Preferred Stock Purchase Agreement (the “
Purchase Agreement ”) of even date herewith
pursuant to which the Company desires to sell to the Series D
Investors and certain of the Existing Investors and the Series D
Investors and certain of the Existing Investors desire to purchase
from the Company shares of the Company’s Series D Preferred
Stock (the “ Series D Preferred
”);
WHEREAS, a condition to closing the
purchase and sale of the Series D Preferred under the Purchase
Agreement is the Company, the Series D Investors and certain of the
Existing Investors are required to enter into this Agreement in
order to amend the Prior Agreement as provided hereunder;
and
WHEREAS, the Prior Agreement may be
amended only with the written consent of the Company and the
holders of 60% of the shares of Series C Preferred Stock currently
outstanding.
AGREEMENT
NOW, THEREFORE, in consideration of
the mutual promises, covenants and conditions set forth in this
Agreement, the parties mutually agree that the Prior Agreement is
hereby amended and restated in its entirety as follows:
1. Registration Rights
. The Company and the Investors covenant and agree as
follows:
1.1 Definitions . For
purposes of this Agreement:
(a) The term “ Exchange
Act ” refers to the Securities and Exchange Act of
1934, as amended;
(b) The term “
FormS-3 ” means such form under the Securities
Act in effect on the date hereof or any successor form under the
Securities Act that permits significant incorporation by reference
of the Company’s subsequent public filings under the Exchange
Act;
(c) The term “
Holder ” means any person owning or having the
right to acquire Registrable Securities or any assignee thereof in
accordance with Section 1.12 of this Agreement;
(d) The term “ Preferred
Stock ” means shares of the Company’s issued
and outstanding Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock and Series D Preferred Stock.
(e) The term “ Qualified
IPO ” means a firm commitment underwritten public
offering by the Company of shares of its Common Stock pursuant to a
registration statement on Form S-1 under the Securities Act, the
public offering price of which is not less than $7.50 per share
(appropriately adjusted for any stock split, dividend, combination
or other recapitalization) and which results in aggregate gross
proceeds to the Company of $20,000,000;
(e) 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 Securities
Act, and the declaration or ordering of effectiveness of such
registration statement or document;
(f) The term “
Registrable Securities ” means (i) the shares
of Common Stock issuable or issued upon conversion of the Preferred
Stock, other than shares for which registration rights have
terminated pursuant to Section 1.14 hereof, and (ii) any other
shares of Common Stock of the Company issued as (or issuable upon
the conversion or exercise of any warrant, right or other security
which is issued as) a dividend or other distribution with respect
to, or in exchange for or in replacement of, the shares listed in
(i); provided , however , that the foregoing
definition shall exclude in all cases any Registrable Securities
sold by a person in a transaction in which his or her rights under
this Agreement are not assigned. Notwithstanding the foregoing,
Common Stock or other securities shall only be treated as
Registrable Securities if and so long as they have not been (A)
sold to or through a broker or dealer or underwriter in a public
distribution or a public securities transaction, or (B) sold in a
transaction exempt from the registration and prospectus delivery
requirements of the Securities Act under Section 4(1) thereof so
that all transfer restrictions, and restrictive legends with
respect thereto, if any, are removed upon the consummation of such
sale;
(g) The number of shares of “
Registrable Securities then outstanding ” shall
be determined by the number of shares of Common Stock outstanding
which are, and the number of shares of Common Stock issuable
pursuant to then exercisable or convertible securities which are,
Registrable Securities;
(h) The term “
Securities Act ” refers to the Securities Act
of 1933, as amended; and
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(i) The term “ SEC
” means the Securities and Exchange Commission.
1.2 Request for
Registration .
(a) If the Company shall receive at
any time after the later of (i) six months following a Qualified
IPO or (ii) December 31, 2003, a written request from the Holders
of at least 30% of the Registrable Securities then outstanding (the
“ Initiating Holders ”) that the Company
file a registration statement under the Securities Act covering the
registration of the Registrable Securities then outstanding, then
the Company shall, within ten (10) days of the receipt thereof,
give written notice of such request to all Holders and shall,
subject to the limitations of subsection 1.2(b), use its best
efforts to effect as soon as practicable, and in any event within
sixty (60) days of the receipt of such request, the registration
under the Securities Act of all Registrable Securities which the
Holders request to be registered within twenty (20) days of the
mailing of such notice by the Company in accordance with Section
3.4.
(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 a
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 subsection 1.2(a). The underwriter shall be selected
by a majority in interest of the Initiating Holders and shall be
reasonably acceptable to the Company. In such event, the right of
any Holder to include his Registrable Securities in such
registration shall be conditioned upon such Holder’s
participation in such underwriting and the inclusion of such
Holder’s Registrable Securities in the underwriting (unless
otherwise mutually agreed by a majority in interest of the
Initiating Holders and such Holder) to the extent provided herein.
All Holders proposing to distribute their securities through such
underwriting shall (together with the Company as provided in
subsection 1.5(e)) enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for
such underwriting. Notwithstanding any other provision of this
Section 1.2, if the underwriter advises the Initiating Holders in
writing that marketing factors require a limitation of the number
of shares to be underwritten, then the Initiating Holders shall so
advise all Holders of Registrable Securities which would otherwise
be underwritten pursuant hereto, and the number of shares of
Registrable Securities that may be included in the underwriting
shall be allocated among all Holders thereof, including the
Initiating Holders, in proportion (as nearly as practicable) to the
amount of Registrable Securities of the Company owned by each
Holder; provided , however , that the number of
shares of Registrable Securities held by the Initiating Holders to
be included in such underwriting shall not be reduced unless all
other securities are first entirely excluded from the
underwriting.
(c) Notwithstanding the foregoing,
if the Company shall furnish to Holders requesting a registration
statement pursuant to this Section 1.2, a certificate signed by the
President of the Company stating that in the good faith judgment of
the Board of Directors of the Company, it would be seriously
detrimental to the Company and its stockholders for such
registration statement to be filed and it is therefore essential to
defer the filing of such registration statement, the Company shall
have the right to defer such filing for a period of not more than
120 days after receipt of the request of the Initiating Holders;
provided , however , that the Company may not utilize
this right more than once in any 12-month period.
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(d) In addition, the Company shall
not be obligated to effect, or to take any action to effect, any
registration pursuant to this Section 1.2:
(i) After the Company has effected
two registrations pursuant to this Section 1.2 and such
registrations have been declared or ordered effective;
(ii) During the period starting with
the date sixty (60) days prior to the Company’s good faith
estimate of the date of filing of, and ending on a date one hundred
eighty (180) days after the effective date of, a registration
subject to Section 1.3 hereof; provided that the Company is
actively employing in good faith all reasonable efforts to cause
such registration statement to become effective; or
(iii) If the Initiating Holders
propose to dispose of shares of Registrable Securities that may be
immediately registered on Form S-3 pursuant to a request made
pursuant to Section 1.4 below.
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 stock under the Securities Act in
connection with the public offering of such securities solely for
cash (other than a registration relating solely to the sale of
securities to participants in a Company stock plan or a transaction
covered by Rule 145 under the Securities Act, a registration in
which the only stock being registered is Common Stock issuable upon
conversion of debt securities which are also being registered, or
any registration on any form which does not include substantially
the same information as would be required to be included in a
registration statement covering the sale of the Registrable
Securities), the Company shall, at such time, promptly give each
Holder written notice of such registration. Upon the written
request of each Holder given within twenty (20) days after mailing
of such notice by the Company in accordance with Section 6.5, the
Company shall, subject to the provisions of Section 1.8, cause to
be registered, under the Securities Act, all of the Registrable
Securities that each such Holder has requested to be
registered.
1.4 Registration for
Resale . In case the Company is a reporting company under
the Exchange Act and shall receive from any Holder or Holders of
not less than fifteen percent (15%) of the Registrable Securities
then outstanding a written request or requests that the Company
effect a registration on Form S-3 or any other form and any related
qualification or compliance with respect to all or a part of the
Registrable Securities owned by such Holder or Holders, the Company
will:
(a) promptly give written notice of
the proposed registration, and any related qualification or
compliance, to all other Holders; and
(b) as soon as practicable, effect
such registration and all such qualifications and compliances as
may be so requested and as would permit or facilitate the sale and
distribution of all or such portion of such Holder’s or
Holders’ Registrable Securities as are specified in such
request, together with all or such portion of the Registrable
Securities of any other Holder or Holders joining in such request
as are specified in a written request given within
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15 days after receipt of such
written notice from the Company; provided , however ,
that the Company shall not be obligated to effect any such
registration, qualification or compliance, pursuant to this Section
1.4: (i) if Form S-3 is not available for such offering by the
Holders; (ii) if the Holders, together with the holders of any
other securities of the Company entitled to inclusion in such
registration, propose to sell Registrable Securities and such other
securities (if any) at an aggregate price to the public (net of any
underwriters’ discounts or commissions) of less than
$500,000; (iii) if the Company shall furnish to the Holders a
certificate signed by the President of the Company stating that in
the good faith judgment of the Board of Directors of the Company,
it would be seriously detrimental to the Company and its
stockholders for such Form S-3 Registration to be effected at such
time, in which event the Company shall have the right to defer the
filing of the Form S-3 registration statement for a period of not
more than 120 days after receipt of the request of the Holder or
Holders under this Section 1.4; provided , however ,
that the Company shall not utilize this right more than once in any
twelve month period; (iv) if the Company has, within the six (6)
month period preceding the date of such request, already effected
one registration on Form S-3 for the Holders pursuant to this
Section 1.4; (v) in any particular jurisdiction in which the
Company would be required to qualify to do business or to execute a
general consent to service of process in effecting such
registration, qualification or compliance; or (vi) during the
period ending one hundred eighty (180) days after the effective
date of a registration statement subject to Section 1.3.
(c) Subject to the foregoing, the
Company shall file a registration statement covering the
Registrable Securities and other securities so requested to be
registered as soon as practicable after receipt of the request or
requests of the Holders. Registrations effected pursuant to this
Section 1.4 shall not be counted as registrations effected pursuant
to Section 1.2.
1.5 Obligations of the
Company . Whenever required under this Section 1 to effect
the registration of any Registrable Securities, the Company shall,
as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a
registration statement with respect to such Registrable Securities
and use its best efforts to cause such registration statement to
become effective, and, upon the request of the Holders of a
majority of the Registrable Securities registered thereunder, keep
such registration statement effective for up to one hundred twenty
(120) days.
(b) Prepare and file with the SEC
such amendments and supplements to such registration statement and
the prospectus used in connection with such registration statement
as may be necessary to comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by
such registration statement for up to one hundred twenty (120)
days.
(c) Furnish to the Holders such
numbers of copies of a prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities
Act, and such other documents as they may reasonably request in
order to facilitate the disposition of Registrable Securities owned
by them.
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(d) Use its best efforts to register
and qualify the securities covered by such registration statement
under such other securities or Blue Sky laws of such jurisdictions
as shall be reasonably requested by the Holders, provided
that the Company shall not be required in connection therewith or
as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or
jurisdictions.
(e) In the event of any underwritten
public offering, enter into and perform its obligations under an
underwriting agreement, in usual and customary form, with the
managing underwriter of such offering. Each Holder participating in
such underwriting shall also enter into and perform its obligations
under such an agreement.
(f) Notify each Holder of
Registrable Securities covered by such registration statement at
any time when a prospectus relating thereto is required to be
delivered under the Securities 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, such
obligation to continue for one hundred twenty (120)
days.
(g) Cause all such Registrable
Securities registered pursuant hereto to be listed on each
securities exchange on which similar securities issued by the
Company are then listed.
(h) Provide a transfer agent and
registrar for all Registrable Securities registered pursuant hereto
and a CUSIP number for all such Registrable Securities, in each
case not later than the effective date of such
registration.
(i) Use its best efforts to 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, (i) an
opinion, dated such date, of the counsel representing the Company
for the purposes of such registration, in form and substance as is
customarily given to underwriters in an underwritten public
offering, addressed to the underwriters and to the Holders
requesting registration of Registrable Securities and (ii) a letter
dated such date, from the independent certified public accountants
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.
1.6 Furnish
Information . It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this
Section 1 with respect to the Registrable Securities of any selling
Holder that such Holder shall furnish to the Company such
information regarding itself, the Registrable Securities held by
it, and the intended method of disposition of such securities as
shall be required to effect the registration of such Holder’s
Registrable Securities. The Company shall have no obligation with
respect to any registration requested pursuant to Section 1.2 or
Section 1.4 of this Agreement if, as a result of the application of
the
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preceding sentence, the number of
shares or the anticipated aggregate offering price of the
Registrable Securities to be included in the registration does not
equal or exceed the number of shares or the anticipated aggregate
offering price required to originally trigger the Company’s
obligation to initiate such registration as specified in subsection
1.2(a) or subsection 1.4(b)(ii), whichever is
applicable.
1.7 Expenses of
Registration . All expenses incurred by the registration of
Registrable Securities pursuant to Section 1.2, 1.3, or 1.4, (other
than underwriting discounts and commissions incurred in connection
with registrations or stock transfers, taxes, and fees of one
counsel to the registering holders which shall not in any event
exceed $30,000), will be borne by the Company; provided ,
however , that the Company shall not be required to pay for
any expenses of any registration proceeding begun pursuant to
Section 1.2 if the registration request is subsequently withdrawn
at the request of the Holders of a majority of the Registrable
Securities to be registered (in which case all participating
Holders shall bear such expenses), unless the Holders of a majority
of the Registrable Securities agree to forfeit their right to one
demand registration pursuant to Section 1.2; provided
further , however , that if at the time of such
withdrawal, the Holders have learned of a material adverse change
in the condition, business, or prospects of the Company from that
information known to the Holders at the time of their request and
have withdrawn the request with reasonable promptness following
disclosure by the Company of such material adverse change, then the
Holders shall not be required to pay any of such expenses and shall
retain their rights pursuant to Section 1.2.
1.8 Underwriting
Requirements . In connection with any offering involving an
underwriting of shares of the Company’s capital stock, the
Company shall not be required under Section 1.3 to include any of
the Holders’ securities in such underwriting unless they
accept the terms of the underwriting as agreed upon between the
Company and the underwriters selected by it (or by other persons
entitled to select the underwriters), and then only in such
quantity as the underwriters determine in their sole discretion
will not jeopardize the success of the offering by the Company. If
the total amount of securities, including Registrable Securities,
requested by stockholders to be included in such offering exceeds
the amount of securities sold other than by the Company that the
underwriters determine in their sole discretion is compatible with
the success of the offering, then the Company shall be required to
include in the offering only that number of such securities,
including Registrable Securities, which the underwriters determine
in their sole discretion will not jeopardize the success of the
offering (the securities so included to be apportioned pro rata
among the selling stockholders according to the total amount of
securities entitled to be included therein owned by each selling
stockholder or in such other proportions as shall mutually be
agreed to by such selling stockholders) but in no event shall (i)
the amount of securities of the selling Holders included in the
offering be reduced below twenty percent (20%) of the total amount
of securities included in such offering, unless such offering is
the initial public offering of the Company’s securities, in
which case, the selling stockholders may be excluded or (ii)
notwithstanding (i) above, any shares being sold by a stockholder
exercising a demand registration right similar to that granted in
Section 1.2 be excluded from such offering. For purposes of the
preceding parenthetical concerning apportionment, for any selling
stockholder which is a holder of Registrable Securities and which
is a partnership or corporation, the partners, retired partners and
stockholders of such holder, or the estates and family members of
any such partners and retired partners and any trusts for the
benefit of any of
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the foregoing persons shall be
deemed to be a single “selling stockholder”, and any
pro-rata reduction with respect to such “selling
stockholder” shall be based upon the aggregate amount of
shares carrying registration rights owned by all entities and
individuals included in such “selling stockholder,” as
defined in this sentence.
1.9 Delay of Registration
. No Holder shall have any right to obtain or seek an
injunction restraining or otherwise delaying any such registration
as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 1.
1.10 Indemnification .
In the event any Registrable Securities are included in a
registration statement under this Section 1:
(a) To the extent permitted by law,
the Company will indemnify and hold harmless each Holder, the
partners or officers, directors or shareholders of each Holder,
legal counsel and accountants for each such Holder, any underwriter
(as defined in the Securities Act) for such Holder and each person,
if any, who controls such Holder or underwriter within the meaning
of the Securities Act or the Exchange Act, against any losses,
claims, damages, or liabilities (joint or several) to which they
may become subject under the Securities Act, the Exchange Act or
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 (collectively a “ Violation
”): (i) any untrue statement or alleged untrue statement of a
material fact contained in such registration statement, including
any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, (ii) the omission or alleged
omission to state therein a material fact required to be stated
therein, or necessary to make the statements therein not
misleading, or (iii) any violation or alleged violation by the
Company of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation pr
