Investors' Rights Agreement - Handspring Inc., Kleiner Perkins Caufield & Byers, Benchmark Capital and QUALCOMM Inc.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
This Amended and Restated Investors' Rights Agreement (this
"AGREEMENT") is made and entered into as of July 7, 1999 by and among
Handspring, Inc., a California corporation (the "COMPANY"), and the persons and
entities listed on Exhibit A attached hereto (the "INVESTORS").
A. Certain of the Investors (the "PRIOR INVESTORS") are holders of
outstanding shares of the Company's Series A Preferred Stock ("SERIES A STOCK")
issued by the Company to such Prior Investors pursuant to a Series A Preferred
Stock Purchase Agreement by and among the Company and the Prior Investors dated
October 22, 1998, and have also been granted certain information and
registration rights and rights of first refusal under an Investors' Rights
Agreement by and among the Company and the Prior Investors dated October 22,
1998 (the "PRIOR RIGHTS AGREEMENT").
B. Certain Investors (the "SERIES B INVESTORS") have agreed to purchase
from the Company, and the Company has agreed to sell to the Series B Investors,
shares of the Company's Series B Preferred Stock ("SERIES B STOCK") on the terms
and conditions set forth in that certain Series B Preferred Stock Purchase
Agreement, dated of even date herewith by and among the Company and the Series B
Investors, as amended from time to time (the "SERIES B AGREEMENT").
C. The Company and the undersigned parties hereto desire to enter into
this Agreement in order to amend, restate and replace their rights and
obligations under the Prior Rights Agreement with the rights and obligations set
forth in this Agreement. Section 4.2 of the Prior Rights Agreement provides that
the Prior Rights Agreement may be amended by the written consent of the holders
of a majority of the "Investors' Shares" (as defined in Section 4.2 of the Prior
Rights Agreement) and the undersigned parties to this Agreement hold a majority
of the Investors' Shares, as defined in the Prior Rights Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises hereinafter set forth, the parties hereto agree as follows:
1. INFORMATION RIGHTS.
1.1 Financial Information. The Company covenants and agrees
that, commencing on the date of this Agreement, for so long as any Investor
holds at least 500,000 shares of Series A Stock issued under the Series A
Agreement or Series B Stock issued under the Series B Agreement and/or the
equivalent number (on an as-converted basis) of shares of Common Stock of the
Company ("COMMON STOCK") issued upon the conversion of such shares of Series A
Stock or Series B Stock ("CONVERSION STOCK"), subject to adjustment of such
fixed share amounts for any stock splits, stock dividends, combinations,
recapitalizations or the like, or some combination thereof, the Company will:
(a) Annual Reports. Furnish to such Investor, as soon
as practicable and in any event within 90 days after the end of each
fiscal year of the Company, a
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consolidated Balance Sheet as of the end of such fiscal year, a
consolidated Statement of Income and a consolidated Statement of Cash
Flows of the Company and its subsidiaries for such year, setting forth
in each case in comparative form the figures from the Company's
previous fiscal year (if any), all prepared in accordance with
generally accepted accounting principles and practices and audited by
nationally recognized independent certified public accountants; and
(b) Quarterly Reports. Furnish to such Investor as
soon as practicable, and in any case within forty-five (45) days after
the end of each fiscal quarter of the Company (except the last quarter
of the Company's fiscal year), quarterly unaudited financial
statements, including an unaudited Balance Sheet, Statement of Income
and Statement of Cash Flows.
(c) Certification. With respect to the financial
statements called for in subsections (a) and (b) of this Section 1.1,
an instrument executed by the Chief Financial Officer or President of
the Company certifying that such financials were prepared in accordance
with GAAP consistently applied with prior practice for earlier periods
(with the exception of footnotes that may be required by GAAP) and
fairly present the financial condition of the Company and its results
of operation for the period specified, subject to year-end audit
adjustment.
(d) Other Information. Such other information
relating to the financial condition, business, prospects or corporate
affairs of the Company as the Investor or any assignee of the Investor
may from time to time request; provided, however, that (i) such
requested information must be reasonably related to the Investor's
investment in the Company and (ii) the Company shall not be obligated
under this subsection (d) or any other subsection of Section 1.1 to
provide information that it deems in good faith to be a trade secret or
similar confidential information or subject to attorney-client
privilege.
Each Investor agrees to hold all information received pursuant to this Section
in confidence, and not to use or disclose any of such information to any third
party, except to the extent such information may be made publicly available by
the Company and subject to disclosure as required by applicable law or
regulation or as permitted in writing by the Company. Notwithstanding the
foregoing, Investors may provide such information to their tax, legal,
investment and other advisors, who shall hold such information in confidence.
1.2 Inspection. The Company shall permit each Investor that
holds at least 500,000 shares of Series A Preferred Stock or Series B Preferred
Stock (and/or Common Stock issued upon conversion thereof), subject to
adjustment of such fixed share amounts for any stock splits, stock dividends,
combinations, recapitalizations or the like, or some combination thereof, at
such Investor's expense, to visit and inspect the Company's properties, to
examine its books of account and records and to discuss the Company's affairs,
finances and accounts with its officers, all at such reasonable times as may be
requested by the Investor; provided, however, that (i) such inspection must be
reasonably related to the Investor's investment in the Company and (ii) the
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Company shall not be obligated under this Section 1.2 to provide information
that it in good faith considers to be a trade secret or similar confidential
information.
1.3 Termination of Certain Rights. The Company's obligations
under Sections 1.1 and 1.2 above will terminate upon the closing of (i) the
Company's firm commitment, underwritten initial public offering of Common Stock
pursuant to an effective registration statement filed under the U.S. Securities
Act of 1933, as amended (the "SECURITIES ACT") or (ii) a consolidation or merger
of the Company with or into any other entity that has a class of securities that
is traded on a national market or exchange in which the holders of the Company's
outstanding shares immediately before such consolidation or merger do not,
immediately after such consolidation or merger, retain stock representing a
majority of the voting power of the surviving corporation (or its parent
corporation if the surviving corporation is wholly owned by the parent
corporation) of such consolidation or merger.
2. REGISTRATION RIGHTS.
2.1 Definitions. For purposes of this Section 2:
(a) Registration. The terms "REGISTER,"
"REGISTRATION" and "REGISTERED" refer to a registration effected by preparing
and filing a registration statement in compliance with the Securities Act, and
the declaration or ordering of effectiveness of such registration statement.
(b) Registrable Securities. The term "REGISTRABLE
SECURITIES" means: (1) all the shares of Common Stock of the Company issued or
issuable upon the conversion of any shares of Series A Stock issued under the
Series A Agreement; (2) all the shares of Common Stock of the Company issued or
issuable upon the conversion of any shares of Series B Stock issued under the
Series B Agreement and (3) any 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, all such shares of Common Stock
described in clauses (1) and (2) of this subsection (b); excluding in all cases,
however, any Registrable Securities sold by a person in a transaction in which
rights under this Section 2 are not assigned in accordance with this Agreement
or any Registrable Securities sold to the public or sold pursuant to Rule 144
promulgated under the Securities Act.
(c) Registrable Securities Then Outstanding. The
number of shares of "REGISTRABLE SECURITIES THEN OUTSTANDING" shall mean the
number of shares of Common Stock which are Registrable Securities and (1) are
then issued and outstanding or (2) are then issuable pursuant to the exercise or
conversion of then outstanding and then exercisable options, warrants or
convertible securities.
(d) Holder. For purposes of this Section 2 and
Sections 3 and 4 hereof, the term "HOLDER" means any person owning of record
Registrable Securities that have not been sold to the public or pursuant to Rule
144 promulgated under the Securities Act or any assignee of record of such
Registrable Securities to whom rights under such Sections have been duly
assigned in accordance with this Agreement; provided, however, that for purposes
of this
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Agreement, a record holder of shares of Series A Stock or Series B Stock
convertible into such Registrable Securities shall be deemed to be the Holder of
such Registrable Securities; and provided, further, that the Company shall in no
event be obligated to register shares of Series A Stock or Series B Stock, and
that Holders of Registrable Securities will not be required to convert their
shares of Series A Stock or Series B Stock into Common Stock in order to
exercise the registration rights granted hereunder, until immediately before the
closing of the offering to which the registration relates.
(e) Form S-3. The term "FORM S-3" means such form
under the Securities Act as is in effect on the date hereof or any successor
registration form under the Securities Act subsequently adopted by the SEC which
permits inclusion or incorporation of substantial information by reference to
other documents filed by the Company with the SEC.
(f) SEC. The term "SEC" or "COMMISSION" means the
U.S. Securities and Exchange Commission.
2.2 Demand Registration.
(a) Request by Holders. If the Company shall receive
at any time after the earlier of September 30, 2002, or six (6) months after the
effective date of the Company's initial public offering of its securities
pursuant to a registration filed under the Securities Act, a written request
from the Holders of at least a majority of the Registrable Securities then
outstanding that the Company file a registration statement under the Securities
Act covering the registration of Registrable Securities pursuant to this Section
2.2, then the Company shall, within twenty (20) days after the receipt of such
written request, give written notice of such request ("REQUEST NOTICE") to all
Holders, and effect, as soon as practicable, the registration under the
Securities Act of all Registrable Securities which Holders request to be
registered and included in such registration by written notice given by such
Holders to the Company within twenty (20) days after receipt of the Request
Notice, subject only to the limitations of this Section 2; provided that the
Registrable Securities requested by all Holders to be registered pursuant to
such request must have an anticipated aggregate public offering price (before
any underwriting discounts and commissions) of not less than $20,000,000.
(b) Underwriting. If the Holders initiating the
registration request under this Section 2.2 ("INITIATING HOLDERS") intend to
distribute the Registrable Securities covered by their request by means of an
underwriting, then they shall so advise the Company as a part of their request
made pursuant to this Section 2.2 and the Company shall include such information
in the written notice referred to in subsection 2.2(a). 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 enter into an
underwriting agreement in customary form with the managing underwriter or
underwriters selected for such underwriting by the Company. Notwithstanding any
other provision of this Section 2.2, if the underwriter(s)
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advise(s) the Company in writing that marketing factors require a limitation of
the number of securities to be underwritten then the Company shall so advise all
Holders of Registrable Securities that would otherwise be registered and
underwritten pursuant hereto, and the number of Registrable Securities that may
be included in the underwriting shall be reduced as required by the
underwriter(s) and allocated among the Holders of Registrable Securities on a
pro rata basis according to the number of Registrable Securities then
outstanding held by each Holder requesting registration (including the
Initiating Holders); provided, however, that the number of shares of Registrable
Securities to be included in such underwriting and registration shall not be
reduced unless all other securities of the Company and all other selling
shareholders other than the Holders (if any) are first entirely excluded from
the underwriting and registration. Any Registrable Securities excluded and
withdrawn from such underwriting shall be withdrawn from the registration.
(c) Maximum Number of Demand Registrations. The
Company is obligated to effect only two (2) such registrations pursuant to this
Section 2.2.
(d) Deferral. Notwithstanding the foregoing, if the
Company shall furnish to Holders requesting the filing of a registration
statement pursuant to this Section 2.2, a certificate signed by the President or
Chief Executive Officer of the Company stating that in the good faith judgment
of the Board of Directors of the Company, it would be detrimental to the Company
and its shareholders for such registration statement to be filed and it
therefore wishes to defer the filing of such registration statement, then the
Company shall have the right to defer such filing for a period of not more than
180 days after receipt of the request of the Initiating Holders; provided,
however, that the Company may not utilize this right more than once in any
twelve (12) month period.
(e) Expenses. All expenses incurred in connection
with a registration pursuant to this Section 2.2, including without limitation
all registration and qualification fees, printers' and accounting fees, fees and
disbursements of counsel for the Company, (but excluding underwriters' discounts
and commissions and fees and disbursements of any counsel for the selling
Holders), shall be borne by the Company. Each Holder participating in a
registration pursuant to this Section 2.2 shall bear such Holder's proportionate
share (based on the total number of shares sold on behalf of the Holders in such
registration other than for the account of the Company) of all discounts,
commissions or other amounts payable to underwriters or brokers in connection
with such offering and the fees and disbursements of any counsel for the
participating Holders. Notwithstanding the foregoing, the Company shall not be
required to pay for any expenses of any registration proceeding begun pursuant
to this Section 2.2 if the registration request is subsequently withdrawn at the
request of the Holders of a majority of the Registrable Securities to be
registered, unless the Holders of a majority of the Registrable Securities then
outstanding agree to forfeit their right to one (1) demand registration pursuant
to this Section 2.2 (in which case such right shall be forfeited by all Holders
of Registrable Securities); 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 not known to the Holders at the
time of their request for such registration and have withdrawn their request for
registration with reasonable promptness after learning of such material adverse
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change, then the Holders shall not be required to pay any of such expenses and
shall retain their rights pursuant to this Section 2.2.
2.3 Piggyback Registrations. The Company shall notify all
Holders of Registrable Securities in writing at least twenty (20) days prior to
filing any registration statement under the Securities Act for purposes of
effecting a public offering of securities of the Company (including, but not
limited to, registration statements relating to secondary offerings of
securities of the Company, but excluding registration statements relating to any
registration under Section 2.2 or Section 2.4 of this Agreement or to any
employee benefit plan or a corporate reorganization or other transaction under
Rule 145 of the Securities Act) and will afford each such Holder an opportunity
to include in such registration statement all or any part of the Registrable
Securities then held by such Holder. Each Holder desiring to include in any such
registration statement all or any part of the Registrable Securities held by
such Holder shall, within twenty (20) days after receipt of the above-described
notice from the Company, so notify the Company in writing, and in such notice
shall inform the Company of the number of Registrable Securities such Holder
wishes to include in such registration statement. The Company shall, subject to
Section 2.3(a), use reasonable efforts to cause to be registered under the
Securities Act all of the Registrable Securities that each such Holder has
requested to be registered pursuant to this Section 2.3. If a Holder decides not
to include all of its Registrable Securities in any registration statement
thereafter filed by the Company, such Holder shall nevertheless continue to have
the right to include any Registrable Securities in any subsequent registration
statement or registration statements as may be filed by the Company with respect
to offerings of its securities, all upon the terms and conditions set forth
herein.
(a) Underwriting. If a registration statement under
which the Company gives notice under this Section 2.3 is for an underwritten
offering, then the Company shall so advise the Holders of Registrable
Securities. In such event, the right of any such Holder's Registrable Securities
to be included in a registration pursuant to this Section 2.3 shall be
conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Securities in the underwriting to the
extent provided herein. All Holders proposing to distribute their Registrable
Securities through such underwriting shall enter into an underwriting agreement
in customary form with the managing underwriter or underwriter(s) selected for
such underwriting. Notwithstanding any other provision of this Agreement, if the
managing underwriter determine(s) in good faith that marketing factors require a
limitation of the number of shares to be underwritten, then the managing
underwriter(s) may exclude shares (including Registrable Securities) from the
registration and the underwriting, and the number of shares that may be included
in the registration and the underwriting shall be allocated, first, to the
Company and second, to each of the Holders requesting inclusion of their
Registrable Securities in such registration statement on a pro rata basis based
on the total number of Registrable Securities then held by each such Holder;
provided however, that the right of the underwriters to exclude shares
(including Registrable Securities) from the registration and underwriting as
described above shall be restricted so that all shares that are not Registrable
Securities and are held by persons who are employees of the Company (or any
subsidiary of the Company) shall first be excluded from such registration and
underwriting before any Registrable Securities are so excluded and so that the
number of Registrable Securities included in any such registration is not
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reduced below 25% of the shares included in the registration, except for a
registration relating to the Company's initial public offering from which all
Registrable Securities may be excluded. If any Holder disapproves of the terms
of any such underwriting, such Holder may elect to withdraw therefrom by written
notice to the Company and the underwriter, delivered at least fifteen (15) days
prior to the effective date of the registration statement. Any Registrable
Securities excluded or withdrawn from such underwriting shall be excluded and
withdrawn from the registration. For any Holder that is a partnership or
corporation, the partners, retired partners and shareholders of such Holder, or
the estates and family members of any such partners and retired partners and any
trusts for the benefit of any of the foregoing persons shall be deemed to be a
single "Holder," and any pro rata reduction with respect to such "Holder" shall
be based upon the aggregate amount of shares carrying registration rights owned
by all entities and individuals included in such "Holder," as defined in this
sentence.
(b) Expenses. All expenses incurred in connection
with a registration pursuant to this Section 2.3 (excluding underwriters' and
brokers' discounts and commissions and fees and disbursements of any counsel for
the selling Holders), including, without limitation all federal and "blue sky"
registration and qualification fees, printers' and accounting fees, fees and
disbursements of counsel for the Company shall be borne by the Company.
2.4 Form S-3 Registration. In case the Company shall receive
from any Holder or Holders of Registrable Securities then outstanding a written
request or requests that the Company effect a registration on Form S-3 and any
related qualification or compliance with respect to all or a part of the
Registrable Securities owned by such Holder or Holders, then the Company will:
(a) Notice. Promptly give written notice of the
proposed registration and the Holder's or Holders' request therefor, and any
related qualification or compliance, to all other Holders of Registrable
Securities; and
(b) Registration. 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 twenty (20) 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 2.4:
(1) if Form S-3 is not available for such
offering;
(2) 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 of less
than $2,000,000;
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(3) if the Company shall furnish to the
Holders a certificate signed by the President or Chief Executive
Officer of the Company stating that in the good faith judgment of the
Board of Directors of the Company, it would be detrimental to the
Company and its shareholders 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 no more than
once during any twelve month period for a period of not more than 180
days after receipt of the request of the Holder or Holders under this
Section 2.4;
(4) if the Company has, within the twelve
(12) month period preceding the date of such request, already effected
one (1) registration on Form S-3 for the Holders pursuant to this
Section 2.4; or
(5) in any particular jurisdiction in which
the Company would be required to qualify to do business or to execute a
general consent to service of process in effecting such registration,
qualification or compliance.
(c) Expenses. Subject to the foregoing, the Company
shall file a Form S-3 registration statement covering the Registrable Securities
and other securities so requested to be registered pursuant to this Section 2.4
as soon as practicable after receipt of the request or requests of the Holders
for such registration. The Company shall pay all expenses incurred in connection
with the first registration requested pursuant to this Section 2.4, (excluding
underwriters' or brokers' discounts and commissions and fees of any counsel for
the selling Holders), including without limitation all filing, registration and
qualification, printers' and accounting fees and the reasonable fees and
disbursements of counsel for the Company. All expenses incurred in connection
with any subsequent registration requested pursuant to this Section 2.4 shall be
borne by the Holders who participate in such registration on a pro rata basis
according to the number of Registrable Securities owned by the Holders that are
included in such registration at the time it goes effective.
(d) Not Demand Registration. Form S-3 registrations
shall not be deemed to be demand registrations as described in Section 2.2
above.
2.5 Obligations of the Company. Whenever required to effect
the registration of any Registrable Securities under this Agreement, 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
reasonable, diligent 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
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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.
(c) Furnish to the Holders such number 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 the
Registrable Securities owned by them that are included in such
registration.
(d) Use reasonable, diligent 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(s) 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.
(g) Furnish, at the request of any Holder requesting
registration of Registrable Securities, on the date that such
Registrable Securities are delivered to the underwriters for sale, if
such securities are being sold through underwriters, or, if such
securities are not being sold through underwriters, on the date that
the registration statement with respect to such securities becomes
effective, (1) an opinion, dated as of 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 and reasonably satisfactory to a majority
in interest of the Holders requesting registration, addressed to the
underwriters, if any, and to the Holders requesting registration of
Registrable Securities and (2) a "comfort" letter dated as of 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
and reasonably satisfactory to a majority in interest of the Holders
requesting registration, addressed to the underwriters, if any, and to
the Holders requesting registration of Registrable Securities.
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2.6 Furnish Information. It shall be a condition precedent to
the obligations of the Company to take any action pursuant to Sections 2.2, 2.3
or 2.4 that the selling Holders shall furnish to the Company such information
regarding themselves, the Registrable Securities held by them, and the intended
method of disposition of such securities as shall be required to timely effect
the registration of their Registrable Securities.
2.7 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 2.
2.8 Indemnification. In the event any Registrable Securities
are included in a registration statement under Sections 2.2, 2.3 or 2.4:
(a) By the Company. To the extent permitted by law,
the Company will indemnify and hold harmless each Holder, the partners,
officers, directors and shareholders of each 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
Securities Exchange Act of 1934, as amended, (the "1934 ACT"), against any
losses, claims, damages, or liabilities (joint or several) to which they may
become subject under the Securities Act, the l934 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, "VIOLATIONS" and, individually, a
"VIOLATION"):
(1) 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;
(2) 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
(3) any violation or alleged violation by
the Company of the Securities Act, the 1934 Act, any federal or state
securities law or any rule or regulation promulgated under the
Securities Act, the 1934 Act or any federal or state securities law in
connection with the offering covered by such registration statement;
and the Company will reimburse each such Holder, partner, officer or director,
shareholder, underwriter or controlling person for any legal or other expenses
reasonably incurred by them, as incurred, in connection with investigating or
defending any such loss, claim, damage, liability or action; provided however,
that the indemnity agreement contained in this subsection 2.8(a) shall not apply
to amounts paid in settlement of any such loss, claim, damage, liability or
action if such settlement is effected without the consent of the Company (which
consent shall not be unreasonably withheld), nor shall the Company be liable in
any such case for any such loss, claim, damage, liability or action to the
extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished expressly for
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use in connection with such registration by such Holder, partner, officer,
director, shareholder, underwriter or controlling person of such Holder.
(b) By Selling Holders. To the extent permitted by
law, each selling Holder will indemnify and hold harmless the Company, each of
its directors, each of its officers who have signed the registration statement,
each person, if any, who controls the Company within the meaning of the
Securities Act, any underwriter and any other Holder selling securities under
such registration statement or any of such other Holder's partners, directors or
officers or any person who controls such Holder within the meaning of the
Securities Act or the 1934 Act, against any losses, claims, damages or
liabilities (joint or several) to which the Company or any such director,
officer, controlling person, underwriter or other such Holder, partner or
director, officer or controlling person of such other Holder may become subject
under the Securities Act, the 1934 Act or other federal or state law, insofar as
such losses, claims, damages or liabilities (or actions in respect thereto)
arise out of or are based upon any Violation, in each case to the extent (and
only to the extent) that such Violation occurs in reliance upon and in
conformity with written information furnished by such Holder expressly for use
in connection with such registration; and each such Holder will reimburse any
legal or other expenses reasonably incurred by the Company or any such director,
officer, controlling person, underwriter or other Holder, partner, officer,
director or controlling person of such other Holder in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the indemnity agreement contained in this subsection
2.8(b) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of the Holder, which consent shall not be unreasonably withheld; and provided
further, that the total amounts payable in indemnity by a Holder under this
Section 2.8(b) in respect of any Violation shall not exceed the net proceeds
received by such Holder in the registered offering out of which such Violation
arises.
(c) Notice. Promptly after receipt by an indemnified
party under this Section 2.8 of notice of the commencement of any action
(including any governmental action), such indemnified party will, if a claim in
respect thereof is to be made against any indemnifying party under this Section
2.8, deliver to the indemnifying party a written notice of the commencement
thereof and the indemnifying party shall have the right to participate in, and,
to the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with counsel
mutually satisfactory to the parties; provided, however, that an indemnified
party shall have the right to retain its own counsel, with the fees and expenses
to be paid by the indemnifying party, if representation of such indemnified
party by the counsel retained by the indemnifying party would be inappropriate
due to actual or potential conflict of interests between such indemnified party
and any other party represented by such counsel in such proceeding. The failure
to deliver written notice to the indemnifying party within a reasonable time of
the commencement of any such action, if prejudicial to its ability to defend
such action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 2.8, but the omission so to deliver written
notice to the indemnifying party will not relieve it of any liability that it
may have to any indemnified party otherwise than under this Section 2.8.
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<PAGE> 12
(d) Defect Eliminated in Final Prospectus. The
foregoing indemnity agreements of the Company and Holders are subject to the
condition that, insofar as they relate to any Violation made in a preliminary
prospectus but eliminated or remedied in the amended prospectus on file with the
SEC at the time the registration statement in question becomes effective or the
amended prospectus filed with the SEC pursuant to SEC Rule 424(b) (the "FINAL
PROSPECTUS"), such indemnity agreement shall not inure to the benefit of any
person if a copy of the Final Prospectus was furnished to the indemnified party
and was not furnished by or on behalf of such indemnified person, if required by
law so to have been delivered, to the person asserting the loss, liability,
claim or damage at or prior to the time such action is required by the
Securities Act.
(e) Contribution. In order to provide for just and
equitable contribution to joint liability under the Securities Act in any case
in which either (1) any Holder exercising rights under this Agreement, or any
controlling person of any such Holder, makes a claim for indemnification
pursuant to this Section 2.8 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 2.8 provides for indemnification in such case, or (2) 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 2.8; 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 so that such Holder is responsible for the portion represented
by the percentage that the public offering price of its Registrable Securities
offered by and sold under the registration statement bears to the public
offering price of all securities offered by and sold under such registration
statement, and the Company and other selling Holders are responsible for the
remaining portion; 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
of all such Registrable Securities 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.
(f) Survival. The obligations of the Company and
Holders under this Section 2.8 shall survive the completion of any offering of
Registrable Securities in a registration statement, and otherwise.
2.9 "Market Stand-Off" Agreement. Each Holder hereby agrees
that it shall not, to the extent requested by the Company or an underwriter of
securities of the Company, sell or otherwise transfer or dispose of any
Registrable Securities or other shares of stock of the Company then owned by
such Holder (other than to donees or partners of the Holder who agree to be
similarly bound) for up to one hundred eighty (180) days following the effective
date of a registration statement of the Company filed under the Securities Act;
provided, however, that:
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<PAGE> 13
(a) such agreement shall be applicable only to the
first such registration statement of the Company which covers
securities to be sold on its behalf to the public in an underwritten
offering but not to Registrable Securities sold pursuant to such
registration statement; and
(b) all officers, directors and one percent (1%)
shareholders of the Company enter into similar agreements.
In order to enforce the foregoing covenant, the Company shall have the right to
place restrictive legends on the certificates representing the shares subject to
this Section and to impose stop transfer instructions with respect to the
Registrable Securities and such other shares of stock of each Holder (and the
shares or securities of every other person subject to the foregoing restriction)
until the end of such period.
2.10 Rule 144 Reporting. With a view to making available the
benefits of certain rules and regulations of the Commission which may at any
time permit the sale of the Registrable Securities to the public without
registration, after such time as a public market exists for the Common Stock of
the Company, the Company agrees to:
(a) Make and keep public information available, as
those terms are understood and defined in Rule 144 under the Securities
Act, at all times after the effective date of the first registration
under the Securities Act filed by the Company for an offering of its
securities to the general public;
(b) Use reasonable, diligent efforts to file with the
Commission in a timely manner all reports and other documents required
of the Company under the Securities Act and the 1934 Act (at any time
after it has become subject to such reporting requirements); and
(c) So long as a Holder owns any Registrable
Securities, to furnish to the Holder forthwith upon request a written
statement by the Company as to its compliance with the reporting
requirements of said Rule 144 (at any time after 90 days after the
effective date of the first registration statement filed by the Company
for an offering of its securities to the general public), and of the
Securities Act and the 1934 Act (at any time after it has become
subject to the reporting requirements of the 1934 Act), a copy of the
most recent annual or quarterly report of the Company, and such other
reports and documents of the Company as a Holder may reasonably request
in availing itself of any rule or regulation of the Commission allowing
a Holder to sell any such securities without registration (at any time
after the Company has become subject to the reporting requirements of
the 1934 Act).
2.11 Termination of the Company's Obligations. The Company
shall have no obligations pursuant to Sections 2.2 through 2.4 with respect to:
(a) any request or requests for registration made by any Holder on a date more
than five (5) years after the closing date of the Company's initial public
offering in which the aggregate public offering price (before deduction of
underwriters' discounts and commissions) equals or exceeds $20,000,000 and the
public
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<PAGE> 14
offering price per share of which equals or exceeds $10.77 per share before
deduction of underwriters' discounts and commissions (such price per share of
Common Stock to be appropriately adjusted to reflect subdivisions, combinations,
stock dividends and similar transactions affecting the number of outstanding
shares of Common Stock); or (b) any Registrable Securities proposed to be sold
by a Holder in a registration pursuant to Section 2.2, 2.3 or 2.4 if, in the
opinion of counsel to the Company, all such Registrable Securities proposed to
be sold by a Holder may be sold in a three-month period without registration
under the Securities Act pursuant to Rule 144 under the Securities Act.
3. RIGHT OF FIRST REFUSAL.
3.1 General. Each Holder (as defined in Section 2.1(d)) (each
such Holder or assignee being hereinafter referred to as a "RIGHTS HOLDER") has
the right of first refusal to purchase such Rights Holder's Pro Rata Share (as
defined below), of all (or any part) of any "New Securities" (as defined in
Section 3.2) that the Company may from time to time issue after the date of this
Agreement. A Rights Holder's "PRO RATA SHARE" for purposes of this right of
first refusal is the ratio of (a) the number of Registrable Securities as to
which such Rights Holder is the Holder (and/or is deemed to be the Holder under
Section 2.1(d)), to (b) a number of shares of Common Stock of the Company equal
to the sum of (1) the total number of shares of Common Stock of the Company then
outstanding plus (2) the total number of shares of Common Stock of the Company
into which all then outstanding shares of Preferred Stock of the Company are
then convertible plus (3) the number of shares of Common Stock of the Company
reserved for issuance under stock purchase and stock option plans of the Company
and outstanding warrants.
3.2 New Securities. "NEW SECURITIES" shall mean any Common
Stock or Preferred Stock of the Company, whether now authorized or not, and
rights, options or warrants to purchase such Common Stock or Preferred Stock,
and securities of any type whatsoever that are, or may become, convertible or
exchangeable into such Common Stock or Preferred Stock; provided, however, that
the term "New Securities" does not include:
(a) any shares of the Company's Common Stock (and/or
options or warrants therefor) issued (if in transactions that are
primarily for non-financing purposes) to employees, officers,
directors, contractors, advisors or consultants of the Company pursuant
to incentive agreements or plans approved by the Board of Directors of
the Company;
(b) any shares of Series A Preferred Stock issued
under the Series A Agreement, as of the date hereof;
(c) any shares of Series A Preferred Stock issued or
issuable to Comdisco, Inc. pursuant to a Subordinated Loan and Security
Agreement;
(d) any shares of Series B Preferred Stock issued
under the Series B Agreement, as such agreement may be amended;
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<PAGE> 15
(e) any securities issuable upon conversion of or
with respect to any then outstanding shares of Series A Stock or Series
B Stock of the Company or Common Stock or other securities issuable
upon conversion thereof;
(f) any securities issuable upon exercise of any
options, warrants or rights to purchase any securities of the Company
outstanding on the date of this Agreement ("WARRANT SECURITIES") and
any securities issuable upon the conversion of any Warrant Securities
or upon the exercise or conversion of any securities, if such
securities were first offered to the Rights Holders hereunder;
(g) shares of the Company's Common Stock or Preferred
Stock issued in connection with any stock split or stock dividend;
(h) securities offered by the Company to the public
pursuant to a registration statement filed under the Securities Act;
(i) any shares of the Company's Common Stock or
Preferred Stock (and/or options or warrants therefor) issued or
issuable to parties providing the Company with equipment leases, real
property leases, loans, credit lines, guaranties of indebtedness, cash
price reductions or similar transactions, provided such issuances are
pursuant to transactions with primarily non-equity financing purposes;
or
(j) securities issued pursuant to the bona fide
acquisition of another corporation or entity by the Company by
consolidation, merger, purchase of all or substantially all of the
assets, or other reorganization in which the Company acquires, in a
single transaction or series of related transactions, all or
substantially all of the assets of such other corporation or entity or
fifty percent (50%) or more of the voting power of such other
corporation or entity or fifty percent (50%) or more of the equity
ownership of such other entity.
3.3 Procedures. In the event that the Company proposes to
undertake an issuance of New Securities, it shall give to each Rights Holder
written notice of its intention to issue New Securities (the "NOTICE"),
describing the type of New Securities and the price and the general terms upon
which the Company proposes to issue such New Securities. Each Rights Holder
shall have ten (10) days from the date of mailing of any such Notice to agree in
writing to purchase up to such Rights Holder's Pro Rata Share of such New
Securities for the price and upon the general terms specified in the Notice by
giving written notice to the Company and stating therein the quantity of New
Securities to be purchased (not to exceed such Rights Holder's Pro Rata Share).
If any Rights Holder fails to so agree in writing within such ten (10) day
period to purchase such Rights Holder's full Pro Rata Share of an offering of
New Securities (a "NONPURCHASING HOLDER"), then such Nonpurchasing Holder shall
forfeit the right hereunder to purchase that part of his Pro Rata Share of such
New Securities that he did not so agree to purchase and the Company shall
promptly give each Rights Holder who has timely agreed to purchase his full Pro
Rata Share of such offering of New Securities (a "PURCHASING HOLDER") written
notice of the failure of any Nonpurchasing Holder to purchase such Nonpurchasing
Holder's full Pro Rata Share of such offering of New Securities (the
"OVERALLOTMENT NOTICE").
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<PAGE> 16
Each Purchasing Holder shall have a right of overallotment
such that such Purchasing Holder may agree to purchase a portion of the
Nonpurchasing Holders' unpurchased Pro Rata Shares of such offering on a pro
rata basis according to the relative Pro Rata Shares of the Purchasing Rights
Holders, at any time within five (5) days after receiving the Overallotment
Notice.
3.4 Failure to Exercise. In the event that the Rights Holders
fail to exercise in full the right of first refusal within such ten (10) plus
five (5) day period, then the Company shall have 120 days thereafter to sell the
New Securities with respect to which the Rights Holders' rights of first refusal
hereunder were not exercised, at a price and upon general terms no more
favorable to the purchasers thereof than specified in the Company's Notice to
the Rights Holders. In the event that the Company has not issued and sold the
New Securities within such 120 day period, then the Company shall not thereafter
issue or sell any New Securities without again first offering such New
Securities to the Rights Holders pursuant to this Section 3.
3.5 Termination. This right of first refusal shall terminate
(a) immediately before the closing of the first underwritten sale of Common
Stock of the Company to the public pursuant to a registration statement filed
with, and declared effective by, the SEC under the Securities Act, covering the
offer and sale of Common Stock to the public in which the aggregate public
offering price (before deduction of underwriters' discounts and commissions)
equals or exceeds $20,000,000 and the public offering price per share of which
equals or exceeds $10.77 per share before deduction of underwriters' discounts
and commissions (such price per share of Common Stock to be appropriately
adjusted to reflect subdivisions, combinations, stock dividends and similar
transactions affecting the number of outstanding shares of Common Stock) or (b)
upon (1) the acquisition of all or substantially all the assets of the Company
or (2) an acquisition of the Company by another corporation or entity by
consolidation, merger or other reorganization in which the holders of the
Company's outstanding voting stock immediately prior to such transaction own,
immediately after such transaction, securities representing less than fifty
percent (50%) or more of the voting power of the corporation or other entity
(including parent corporation) surviving such transaction.
4. ASSIGNMENT AND AMENDMENT.
4.1 Assignment. Notwithstanding anything herein to the
contrary:
(a) Information Rights. The rights of an Investor
under Section 1.1 hereof may be assigned only to a party who acquires from an
Investor (or an Investor's permitted assigns) at least that number of shares of
Series A Stock or Series B Stock and/or an equivalent number (on an as-converted
basis) of shares of Conversion Stock described in Section 1.1 hereof.
(b) Registration Rights. The registration rights of a
Holder under Section 2 hereof may be assigned only to a party who (i) acquires
at least 500,000 shares of Series A Stock issued under the Series A Agreement or
at least 500,000 shares of Series B Stock issued under the Series B Agreement
and/or an equivalent number (on an as-converted basis) of Registrable Securities
issued upon conversion thereof, (ii) is a subsidiary, parent, partner, limited
partner, retired partner or shareholder of a Holder or (iii) is a Holder's
family member or trust for the benefit of an individual Holder; provided,
however that no party may be assigned any of the
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<PAGE> 17
foregoing rights unless the Company is given written notice by the assigning
party at the time of such assignment stating the name and address of the
assignee and identifying the securities of the Company as to which the rights in
question are being assigned; and provided further that any such assignee shall
receive such assigned rights subject to all the terms and conditions of this
Agreement, including without limitation the provisions of this Section 4.
4.2 Amendment of Rights. Any provision of this Agreement may
be amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and Investors (and/or any of their permitted
successors or assigns) holding shares of Series A Stock, Series B Stock and/or
Conversion Stock representing and/or convertible into a majority of all the
Investors' Shares (as defined below); provided, that any amendment or waiver
that treats any Investor in a materially adverse manner that is different than
any other Investor will require the separate approval of such Investor. As used
herein, the term "INVESTORS' SHARES" shall mean the shares of Common Stock then
issuable upon conversion of (i) all then outstanding shares of Series A Stock
issued under the Series A Agreement and (ii) all then outstanding shares of
Series B Stock issued under the Series B Agreement, plus all then outstanding
shares of Conversion Stock. Any amendment or waiver effected in accordance with
this Section 4.2 shall be binding upon each Investor, each Holder, each
permitted successor or assignee of such Investor or Holder and the Company.
4.3 Limitations on Subsequent Registration Rights. From and
after the date of this Agreement, the Company shall not, without the prior
written consent of the Holders holding shares of Series A Stock, Series B Stock
and/or Conversion Stock representing and/or convertible into a majority of all
the Investors' Shares, enter into any agreement with any holder or prospective
holder of any securities of the Company that would allow such holder or
prospective holder (a) to include such securities in any registration statement
filed under Section 2.3 hereof, unless under the terms of such agreement, such
holder or prospective holder may include such securities in any such
registration only to the extent that the inclusion of such securities will not
reduce the amount of the Registrable Securities of the Holders that are included
or (b) to demand registration of their securities.
5. GENERAL PROVISIONS.
5.1 Notices. Any notice, request or other communication
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given if (1) sent via facsimile and (2) personally delivered or if
deposited in the U.S. mail by registered or certified mail, return receipt
requested, postage prepaid, as follows:
(a) if to an Investor, at such Investor's respective
address and facsimile number as set forth on Exhibit A hereto.
(b) if to the Company, at 299 California Avenue,
Suite 300, Palo Alto, California 94306 and facsimile (650) 566-2222.
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<PAGE> 18
Any party hereto (and such party's permitted assigns) may by notice so given
change its address for future notices hereunder. Notice shall conclusively be
deemed to have been given when personally delivered or when deposited in the
mail in the manner set forth above.
5.2 Entire Agreement. This Agreement, together with all the
Exhibits hereto, constitutes and contains the entire agreement and understanding
of the parties with respect to the subject matter hereof and supersedes any and
all prior negotiations, correspondence, agreements, understandings, duties or
obligations between the parties respecting the subject matter hereof.
5.3 Governing Law. This Agreement shall be governed by and
construed exclusively in accordance with the internal laws of the State of
California as applied to agreements among California residents entered into and
to be performed entirely within California, excluding that body of law relating
to conflict of laws and choice of law.
5.4 Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, then such provision(s) shall
be excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision(s) were so excluded and shall be enforceable in
accordance with its terms.
5.5 Third Parties. Nothing in this Agreement, express or
implied, is intended to confer upon any person, other than the parties hereto
and their successors and assigns, any rights or remedies under or by reason of
this Agreement.
5.6 Successors And Assigns. Subject to the provisions of
Section 4.1, the provisions of this Agreement shall inure to the benefit of, and
shall be binding upon, the successors and permitted assigns of the parties
hereto.
5.7 Captions. The captions to sections of this Agreement have
been inserted for identification and reference purposes only and shall not be
used to construe or interpret this Agreement.
5.8 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5.9 Costs And Attorneys' Fees. In the event that any action,
suit or other proceeding is instituted concerning or arising out of this
Agreement or any transaction contemplated hereunder, the prevailing party shall
recover all of such party's costs and reasonable attorneys' fees incurred in
each such action, suit or other proceeding, including any and all appeals or
petitions therefrom.
5.10 Adjustments for Stock Splits, Etc. Wherever in this
Agreement there is a reference to a specific number of shares of Common Stock or
Preferred Stock of the Company of any class or series, then, upon the occurrence
of any subdivision, combination or stock dividend of such class or series of
stock, the specific number of shares so referenced in this Agreement
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<PAGE> 19
shall automatically be proportionally adjusted to reflect the affect on the
outstanding shares of such class or series of stock by such subdivision,
combination or stock dividend.
5.11 Aggregation of Stock. All shares held or acquired by
affiliated entities or persons shall be aggregated together for the purpose of
determining the availability of any rights under this Agreement.
5.12 Prior Agreement Superseded. Pursuant to Section 4.2 of
the Prior Rights Agreement, the undersigned parties who are parties to such
Prior Rights Agreement hereby restate the Prior Rights Agreement to read in its
entirety as set forth in this Agreement, such that the Prior Rights Agreement is
hereby terminated and entirely replaced and superseded by this Agreement.
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<PAGE> 20
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first written above.
HANDSPRING, INC:
Name: /s/ DONNA L. DUBINSKY
--------------------------------------
Donna L. Dubinsky
President
SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
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<PAGE> 21
THE INVESTORS:
KLEINER PERKINS CAUFIELD & BYERS VIII, L.P.
By: KPCB VIII Associates, L.P., its
General Partner
By: /s/ L. JOHN DOERR
-------------------------------------------
a General Partner
KPCB VIII FOUNDERS FUND, L.P.
By: KPCB VIII Associates, L.P., its
General Partner
By: /s/ L. JOHN DOERR
-------------------------------------------
a General Partner
KPCB INFORMATION SCIENCES
ZAIBATSU FUND II, L.P.
By: KPCB VII Associates, L.P., its
General Partner
By: /s/ L. JOHN DOERR
-------------------------------------------
a General Partner
BENCHMARK CAPITAL PARTNERS II, L.P.
as nominee for
Benchmark Capital Partners, II, L.P.
Benchmark Founders' Fund II, L.P.
Benchmark Founders' Fund II-A, L.P. and
Benchmark Members' Fund II, L.P.
By: Benchmark Capital Management
Co. II, L.L.C., General Partner
By: /s/ BRUCE DUNLEVIE
-------------------------------------------
Managing Member
SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
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<PAGE> 22
QUALCOMM INCORPORATED
By: /s/ ANTHONY S. THORNLEY
-------------------------------------------
Name: Anthony S. Thornley
-----------------------------------------
Title: Executive VP, CFO
----------------------------------------
SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
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<PAGE> 23
EXHIBIT A
LIST OF INVESTORS
<TABLE>
<CAPTION>
SHARES OF SERIES A SHARES OF SERIES B
INVESTOR STOCK PURCHASED STOCK PURCHASED
-------- ----------------- ------------------
<S> <C> <C>
KLEINER PERKINS CAUFIELD & BYERS VIII, L.P. 3,721,847 128,357
2750 Sand Hill Road
Menlo Park, CA 94025
Fax: (650) 233-0300
KPCB VIII FOUNDERS FUND, L.P. 215,654 7,437
2750 Sand Hill Road
Menlo Park, CA 94025
Fax: (650) 233-0300
KPCB INFORMATION SCIENCES 100,961 3,482
ZAIBATSU FUND II, L.P.
2750 Sand Hill Road
Menlo Park, CA 94025
Fax: (650) 233-0300
BENCHMARK CAPITAL PARTNERS II, L.P. 4,038,462 139,276
as nominee for
Benchmark Capital Partners, II, L.P.
Benchmark Founders' Fund II, L.P.
Benchmark Founders' Fund II-A, L.P. and
Benchmark Members' Fund II, L.P.
2480 Sand Hill Road
Menlo Park, CA 94025
Fax: (650) 854-8183
QUALCOMM INCORPORATED 0 649,954
Attn: Chief Financial Officer
5775 Morehouse Avenue
San Diego, CA 92121-1714
Fax: (858) 658-2501
</TABLE>