AUDIENCE, INC. AMENDMENT TO THE AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT
Exhibit 4.3.1
AUDIENCE, INC.
AMENDMENT TO THE AMENDED AND RESTATED
INVESTORS’ RIGHTS AGREEMENT
This amendment (the “Amendment”) to the Amended and Restated Investors’ Rights Agreement is made as of June 24, 2011 (the “Existing Agreement”), by and among Audience, Inc., a California corporation (the “Company”), Lloyd Watts, Ph.D. (the “Founder”), and certain holders of the Company’s Preferred Stock, as set forth on Exhibit B to the Existing Agreement, including holders of the Series A-1 Preferred Stock (the “Series A-1 Holders”), Vulcan Ventures Inc. (the “Series A-2 Holder”), holders of the Company’s Series A-3 Preferred Stock (the “Series A-3 Holders”), holders of the Company’s Series AA Preferred Stock (the “Series AA Holders”), holders of the Company’s Series AA-1 Preferred Stock listed (the “Series AA-1 Holders”), holders of the Company’s Series B Preferred Stock (the “Series B Holders”), holders of the Company’s Series B-1 Preferred Stock (the “Series B-1 Holders”), holders of the Company’s Series C Preferred Stock (the “Series C Holders”), and holders of the Company’s Series D Preferred Stock (the “Series D Holders”), and holders of the Company’s Series E Preferred Stock (the “Series E Holders,” and collectively, the “Investors”).
RECITALS
WHEREAS, the Company and the Investors entered into that certain Amended and Restated Investors’ Rights Agreement, dated as of February 3, 2010 (the “Agreement”);
WHEREAS, the Company has adopted a new 2011 Equity Incentive Plan and issued additional options thereunder;
WHEREAS, the Investors wish to exclude all options and other securities issued or issuable under the 2011 Equity Incentive Plan from the right of first offer set forth in the Agreement;
WHEREAS, Section 3.4 of the Agreement provides that the Agreement may be amended or modified only upon written consent of the Company and the Investors holding at least 65% of the capital stock then held by the Investors as a group; and
WHEREAS, the Company and the undersigned Investors representing greater than 65% of the capital stock held by the Investors desire to amend the Agreement as follows:
AGREEMENT
1. Section 2.3(d)(ii) of the Agreement is amended to read as follows:
“up to 159,117,552 shares (subject to adjustment for stock splits, stock dividends, reclassification or the like) of Common Stock or Common Stock Derivatives to employees, consultants or directors of the Company pursuant to a stock option plan or restricted stock plan approved by the Board of Directors;”
2. Except as specified in this Amendment, all terms and conditions of the Agreement shall continue in full force and effect.
3. This Amendment may not be altered, amended or modified in any way other than pursuant to Section 3.4 of the Agreement.
4. This Amendment shall be governed in all respects by the internal laws of the State of California, as applied to agreements entered into among California residents to be performed entirely within California, without regard to principles of conflicts of law.
5. This amendment may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument.
(Remainder of page intentionally left blank)
The parties have executed this Amendment to the Amended and Restated Investors’ Rights Agreement as of the date first above written.
| COMPANY | ||
| AUDIENCE, INC, | ||
| By: | /s/ Peter Santos | |
| Peter Santos. President and CEO | ||
| Address: | 440 Clyde Avenue Mountain View, CA 94043 | |
| FOUNDER: | ||
|
Lloyd Watts, Ph.D. | ||
| Address: | 440 Clyde Avenue Mountain View, CA 94043 | |
SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS’ RIGHTS AGREEMENT
The parties have executed this Amendment to the Amended and Restated Investors’ Rights Agreement as of the date first above written.
| COMPANY | ||
| AUDIENCE, INC. | ||
| By: |
Peter Santos. President and CEO | |
| Address: | 1330 Villa Street Mountain View, CA 94041 | |
| FOUNDER: | ||
| /s/ Lloyd Watts Lloyd Watts, Ph. D. | ||
| Address: | 1330 Villa Street Mountain View, CA 94041 | |
[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]
| INVESTORS | ||
| Tallwood I, L.P. | ||
| By Tallwood Management Co., LLC | ||
| Its general partner | ||
| By: | /s/ George Pavlov George Pavlov | |
| General Partner | ||
| Tallwood III, L.P. | ||
| Tallwood III Partners, L.P. | ||
| Tallwood III Associates, L.P. | ||
| By Tallwood III Management, LLC | ||
| Its general partner | ||
| By: | /s/ George Pavlov George Pavlov | |
| General Partner | ||
[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]
| INVESTORS | ||
| Tallwood II, L.P. | ||
| Tallwood II Partners, L.P. | ||
| Tallwood II Associates, L.P. | ||
| By Tallwood II Management, LLC | ||
| Its general partner | ||
| By: | /s/ George Pavlov | |
| George Pavlov General Partner | ||
[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]
| INVESTORS | ||
| New Enterprise Associates 11, Limited Partnership | ||
| By its general partner, NEA Partners 11, Limited Partnership | ||
| By its general partner, NEA 11 GP, LLC | ||
| By: | /s/ Louis S. Citron | |
| Name: Louis S. Citron | ||
| Title: Chief Legal Officer | ||
| NEA Ventures 2006, Limited Partnership | ||
| By: | /s/ Louis S. Citron | |
| Name: Louis S. Citron | ||
| Title: Vice President | ||
| Address: | [address] | |
[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]
| Vulcan Ventures Incorporated | ||
| By: | /s/ William L. McGrath | |
| William L. McGrath, Vice President | ||
| Vice President | ||
| Vulcan Capital Venture Capital I LLC | ||
| By: Vulcan Capital Venture Capital Management I LLC, | ||
| its Manager | ||
| By: | Vulcan Ventures Incorporated, | |
| its Managing Member | ||
| By: | /s/ William L. McGrath | |
| William L. McGrath, Vice President | ||
[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]
| INVESTOR |
| /s/ Richard Stern |
| Signature |
| Richard Stern |
| Print Name |
| 6/24/11 |
| Date Signed |
[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]
| INVESTOR |
| /s/ Carlos Avendano |
| Signature |
| Carlos Avendano |
| Print Name |
| 6/23/2011 |
| Date Signed |
[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]
| INVESTOR |
| /s/ William W. Hoppin |
| Signature |
| William W. Hoppin |
| Print Name |
| 6/23/11 |
| Date Signed |
[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]
| INVESTOR |
| /s/ Pamela H. Johnson |
| Signature |
| Pamela H. Johnson, Trustee of Pamela H. Johnson Revocable Trust |
| Print Name |
| 6/23/11 |
| Date Signed |
[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]
| INVESTOR |
| /s/ George Apostol, Jr. |
| Signature |
| George Apostol, Jr. |
| Print Name |
| June 22, 2011 |
| Date Signed |
[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]
| INVESTOR |
| /s/ Carver A. Mead |
| Signature |
| Carver A. Mead |
| Print Name |
| 6/22/11 |
| Date Signed |
[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]
| INVESTOR |
| /s/ Donald G. Watt |
| Signature |
| Donald G. Watt |
| Print Name |
| June 13, 2011 |
| Date Signed |
[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]
| INVESTOR |
| /s/ James Huey |
| Signature |
| James Huey |
| Print Name |
| 06/20/2011 |
| Date Signed |
[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]
| INVESTOR |
| /s/ Carlos Murgia |
| Signature |
| Carlos Murgia |
| Print Name |
| 06/20/2011 |
| Date Signed |
[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]
| INVESTOR |
| /s/ Joanne Pontis |
| Signature |
| Joanne Pontis |
| Print Name |
| 6-16-11 |
| Date Signed |
[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]
| INVESTOR |
| Barry Cox |
| /s/ Barry Cox |
[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]
| INVESTOR |
| /s/ Matthew M. Cowan |
| Signature |
| Matthew M. Cowan |
| Print Name |
| 6/17/2011 |
| Date Signed |
[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]
| INVESTOR |
| /s/ William F. Kurtz |
| Signature |
| William F. Kurtz |
| Print Name |
| 6/15/2011 |
| Date Signed |
[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]
| INVESTOR |
| /s/ Robert G. Hiller |
| Signature |
| Robert G. Hiller |
| Print Name |
| 13 June 2011 |
| Date Signed |
[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]
| INVESTOR |
| /s/ Donata Oertel Sugden |
| Signature |
| Donata Oertel Sugden |
| Print Name |
| June 9, 2011 |
| Date Signed |
[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]
| INVESTOR |
| /s/ Patricia Birks |
| Signature |
| Patricia Birks |
| Print Name |
| June 13, 2011 |
| Date Signed |
[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]
| INVESTOR |
| /s/ David M. Moore |
| Signature |
| David M. Moore |
| Print Name |
| 6/14/11 |
| Date Signed |
[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]
| INVESTOR |
| /s/ Valery Watts |
| Signature |
| Valery Watts |
| Print Name |
| June 14, 2011 |
| Date Signed |
[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]
| INVESTOR |
| /s/ Eric Knudsen |
| Signature |
| Eric Knudsen |
| Print Name |
| 6/14/11 |
| Date Signed |
[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]
| INVESTOR |
| /s/ Dennis G. Sabo |
| Signature |
| Dennis G. Sabo |
| Print Name |
| 6/20/2011 |
| Date Signed |
[Signature Page to the Amendment to the Amended and Restated Investors’ Rights Agreement]
